Lietuviškai
Case No. 14/04
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
CONCLUSION
ON THE COMPLIANCE OF ACTIONS OF PRESIDENT ROLANDAS
PAKSAS OF THE REPUBLIC OF LITHUANIA AGAINST WHOM
AN IMPEACHMENT CASE HAS BEEN INSTITUTED WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA
31 March 2004
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas
Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representatives of the petitioner, the Seimas of the
Republic of Lithuania, who were Julius Sabatauskas and
Raimondas Šukys, members of the Seimas, and Mindaugas
Girdauskas and Antanas Jatkevičius, senior consultants of the
Legal Department of the Office of the Seimas,
the representatives of the President of the Republic of
Lithuania, the party concerned, who were the advocates
Gediminas Baublys, Evaldas Rapolas, and Kęstutis Švirinas,
pursuant to Paragraph 3 of 105 of the Constitution of the
Republic of Lithuania and Paragraph 2 of Article 1 of the Law
on the Constitutional Court of the Republic of Lithuania, on
16-26 March 2004, in its public hearing heard Case No. 14/04
which originated in the inquiry set forth in the 19 February
2004 Resolution "On the Application to the Constitutional Court
of the Republic of Lithuania" of the Seimas of the Republic of
Lithuania, the petitioner, whether concrete actions of the
President of the Republic Rolandas Paksas, which were indicated
in the charges formulated in the conclusion of the Special
Investigation Commission, are in conflict with the Constitution
of the Republic of Lithuania.
The Constitutional Court
has established:
I
The Seimas of the Republic of Lithuania, the petitioner,
requests the Constitutional Court to present a conclusion
whether concrete actions of the President of the Republic
Rolandas Paksas, which are indicated in the following charges
formulated in the conclusion of the Special Investigation
Commission for investigation in the reasonableness and
seriousness of the charges brought against the President of the
Republic Rolandas Paksas and for preparation of a conclusion
concerning a proposal to institute impeachment proceedings
(hereinafter-the Special Investigation Commission), are in
conflict with the Constitution:
Charge 1. Rolandas Paksas, while in office of the
President of the Republic, having no right to take and have any
commitments to private persons, which are incompatible with the
interests of the Nation and the State of Lithuania, undertook
such commitments to Jurij Borisov, was, while in office of the
President of the Republic of Lithuania, influenced by the
latter and acted not in the interests of the Nation and the
State of Lithuania, but in the interests of the private person,
namely: Rolandas Paksas committed to perform, after he becomes
the President of the Republic, actions incompatible with the
interests of the Nation and the State of Lithuania for the
benefit of Jurij Borisov for financial and other notably solid
support rendered by the latter, due to which, first, by
rewarding him for the said support, he unlawfully granted
citizenship of the Republic of Lithuania to this person by
President of the Republic Decree No. 40 of 11 April 2003, also,
on 17 March 2003, meeting Jurij Borisov, knowingly dropped a
hint to him that in his regard institutions of law and order
were conducting investigation and tapping his telephone
conversations, second, the President of the Republic was and is
bound and affected by other commitments taken in regard of
Jurij Borisov;
Charge 2. Rolandas Paksas, while in office of the
President of the Republic, did not ensure the protection of the
state secret, namely: on 17 March 2003, meeting Jurij Borisov,
the President of the Republic knowingly dropped a hint to him
that in his regard institutions of law and order were
conducting investigation and tapping his telephone
conversations;
Charge 3. Rolandas Paksas, while in office of the
President of the Republic, making use of his status, by giving
unlawful orders to his advisors and by other actions exerted
unlawful influence on decisions of private persons and private
entities of economy in the area of property relations, namely:
in 2003, seeking to implement property interests of private
persons close to him, by making use of his status, while in
office of the President of the Republic, Rolandas Paksas gave
orders to his advisor Visvaldas Račkauskas, to seek to
influence, by making use of his official position, through
institutions of law and order, decisions of heads and
shareholders of the company "Žemaitijos keliai" UAB concerning
transfer of shares to persons close to Rolandas Paksas, and he
was aware that the unlawful influence was being exerted by
making use of his name as the President of the Republic, and
took no measures to prevent this;
Charge 4. Rolandas Paksas, while in office of the
President of the Republic, did not co-ordinate public and
private interests in his activities, namely: as compensation
for financial and other notably solid support, guided by
personal interests but not those of the Nation and the State of
Lithuania, he unlawfully granted citizenship of the Republic of
Lithuania to Jurij Borisov by President of the Republic Decree
No. 40 of 11 April 2003; on 17 March 2003, meeting Jurij
Borisov, knowingly dropped a hint to him that in his regard
institutions of law and order were conducting investigation and
tapping his telephone conversations, also, in 2003, seeking to
implement property interests of private persons close to him,
by making use of his status, exerted influence on decisions of
heads and shareholders of the company "Žemaitijos keliai" UAB
concerning transfer of shares to persons close to Rolandas
Paksas;
Charge 5. Rolandas Paksas, while in office of the
President of the Republic, discredited public authority,
namely: guided by personal interests but not those of the
Nation and the State of Lithuania, he unlawfully granted
citizenship of the Republic of Lithuania to Jurij Borisov by
President of the Republic Decree No. 40 of 11 April 2003 for
financial and other notably solid support rendered by the
latter, therefore, for unlawful purposes made use of the
exclusive right, granted by the Constitution to the President
of the Republic, to grant citizenship of the Republic of
Lithuania to persons by way of exception and thus discredited
the authority of the institution of the President of the
Republic, also, by public statements about conclusions of the
Provisional Commission of the Seimas of the Republic of
Lithuania for Investigation into Possible Threats to Lithuanian
National Security and the Constitutional Court ruling of 30
December 2003 discredited the authority of the Seimas and the
Constitutional Court;
Charge 6. Rolandas Paksas, while in office of the
President of the Republic, gave unlawful orders to his advisors
and did not take actions to prevent abuses by his particular
advisors in the course of discharge of their duties, namely: in
2003, Rolandas Paksas, while in office of the President of the
Republic, by not following the procedure and grounds
established in laws, gave an unlawful order to his advisor
Remigijus Ačas to collect information about the private life of
persons, due to this, Remigijus Ačas and Evaldas Vaitkus,
advisors to the President of the Republic, gave unlawful
instructions to the Special Investigation Service to collect
information about the private lives of 44 persons, also, in
2003, Rolandas Paksas, while in office of the President of the
Republic, gave orders to his advisor Visvaldas Račkauskas to
influence, by making use of his official position, through law
and order institutions, decisions of heads and shareholders of
the company "Žemaitijos keliai" UAB concerning transfer of
shares to persons close to Rolandas Paksas.
II
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from President Rolandas Paksas of the Republic of
Lithuania, the party concerned (the 12 March 2004 explanations
of the President of the Republic concerning case (1 D-499/06) 2
D-1278, received at the Constitutional Court on 15 March 2004,
reg. No. 13 B-86).
It is noted in the explanations of the President of the
Republic Rolandas Paksas that the Constitutional Court, in
presenting a conclusion concerning a Seimas inquiry, considers
only legal issues and presents a conclusion by which it answers
to the request formulated in the inquiry, i.e. whether concrete
actions of a concrete state official are in conflict with the
Constitution. In the absence of concrete actions of the state
official, or in case they are not pointed out, due to the
constitutionality of which a conclusion is requested, there are
grounds to dismiss the instituted legal proceedings (Article 80
of the Constitutional Court).
The President of the Republic Rolandas Paksas believes
that in his inquiry the petitioner has formulated charges, i.e.
its conclusions, by which the President of the Republic is
charged with violating the Constitution, and the statements on
the grounds of which respective assessment is made, however, in
the said inquiry concrete actions of the President of the
Republic are not enumerated, concerning whose constitutionality
the law grants the right to apply to the Constitutional Court
for a conclusion. In the opinion of the President of the
Republic, the petitioner seeks to ensure that the
Constitutional Court perform the investigation activity and
establish the facts of the presence of respective actions of
the President of the Republic, i.e. it is sought to achieve
that the Constitutional Court establish and assess factual
circumstances, thus by delegating, in this way, part of its
functions in the impeachment proceedings.
The President of the Republic Rolandas Paksas notes that,
in the impeachment proceedings laws of the Republic of
Lithuania do not provide for delegation of interrogation
actions to another branch of state power, the court. In its
ruling of 11 May 1999 on the compliance of Article 259 of the
Statute of the Seimas of the Republic of Lithuania with the
Constitution of the Republic of Lithuania, the Constitutional
Court held that it is impossible to abstract the application of
the constitutional sanction from the establishment of the fact
of violation. Thus, in the opinion of the President of the
Republic, it is not permitted to assess lawfulness of his
actions before the fact of the presence of respective actions
is established. The Statute of the Seimas of the Republic of
Lithuania provides that the Seimas shall conduct the
investigation activity in the establishment of factual
circumstances, by forming, prior to this, the Special
Investigation Commission (Chapter 38 of the Statute of the
Seimas), later interrogation actions are carried out in the
Seimas (Chapter 39 of the Statute of the Seimas). In the said
ruling the Constitutional Court held that impeachment
proceedings are always characteristic of judicial procedures
permitting to base the decision concerning the application of
the constitutional sanction on a thorough, objective and public
investigation of the circumstances of the case. In addition, in
the same ruling the Court stated that the Seimas, from the
beginning to the end of impeachment proceedings, becomes an
impeachment institution, while impeachment proceedings at the
Seimas consist of five constituent phases indicated in Article
247 of the Statute: preparation, interrogation, pleadings, the
final word of the impeached person, and the vote on the
presented charges. Thus, the Seimas is the only institution of
the Republic of Lithuania, which is legislatively commissioned
to conduct impeachment proceedings and be responsible for it,
i.e. the Seimas is obligated by laws to carry out all necessary
phases of impeachment (preparation, interrogation, pleadings,
the final word of the impeached person, and the vote on the
presented charges). The Statute of the Seimas provides for
discretion of the Seimas-the institution conducting
impeachment-to apply to the Constitutional Court as the supreme
judicial institution of constitutional legal proceedings for a
legal conclusion whether concrete actions of the impeached
person violate the Constitution. Laws do not provide for an
opportunity to move the constituent part of impeachment
proceedings, i.e. preparation, interrogation, and pleadings to
the Constitutional Court and repeat them in it. The President
of the Republic Rolandas Paksas believes that a conclusion of
the Constitutional Court is possible as legal assessment, from
the constitutional standpoint, of part of the conclusions of
the preparation phase of the impeachment proceedings, i.e. as
the constitutional assessment of the established concrete
actions. Otherwise, in case the Constitutional Court undertook
the investigation into the aspect of the presence or absence of
the actions of the President of the Republic, the impeachment
proceedings would be legally disordered, since it is not
permitted to perform the interrogation actions in the
Constitutional Court-the interrogation phase of the impeachment
proceedings (Article 249 of the Statute of the Seimas) has not
started yet, as, on 8 March 2004, the Seimas decided to suspend
the impeachment proceedings. The President of the Republic
Rolandas Paksas maintains that it is not permitted to move the
actions of interrogation, i.e. the investigation of the fact of
the presence or absence of the actions, to the Constitutional
Court legal proceedings dealing with a conclusion on the
constitutionality concerning the actions indicated in the
inquiry.
It is pointed out in the explanations of the President of
the Republic Rolandas Paksas that the Law on the Constitutional
Court stipulates that the Seimas inquiry to the Constitutional
Court be particularised, i.e. a necessary condition for such an
inquiry is the revelation of the concrete actions of the
impeached person and indication thereof to the institution,
which will perform a legal analysis of these actions from the
constitutionality aspect and will present a conclusion to the
petitioner. According to the President of the Republic Rolandas
Paksas, the 19 February 2004 Seimas Resolution "On the
Application to the Constitutional Court of the Republic of
Lithuania" does not indicate any concrete actions of the
President of the Republic, nor the circumstances (time, place,
manner) of the performance of these actions. The content of the
inquiry of the petitioner does not meet the requirement
established in Item 4 of Paragraph 1 of Article 76 of the Law
on the Constitutional Court, i.e. the inquiry does point out
any concrete actions, which constitute episodes of the charges,
nor does it indicate the circumstances (time, place, manner) of
the performance of these actions.
In the opinion of the President of the Republic Rolandas
Paksas, the statement "Rolandas Paksas committed to perform,
after he becomes the President of the Republic, actions
incompatible with the interests of the Nation and the State of
Lithuania for the benefit of Jurij Borisov for financial and
other notably solid support rendered by the latter" is an
evaluative conclusion, but not a concrete action of the person.
One does not point out by means of which actions the commitment
was realised, nor does it indicate any circumstances (time,
place, manner) of the undertaking of this commitment. The
President of the Republic Rolandas Paksas notes that there were
not, nor could have been any such actions of the President of
the Republic, on the grounds of which, either directly or
indirectly, it would be possible to make the assessment that
has been formulated in the inquiry of the petitioner.
It is also noted in the explanations that after the
episode was indicated in the inquiry (in charges 1, 2 and 4)
that "on 17 March 2003, meeting Jurij Borisov, the President of
the Republic knowingly dropped a hint to him that in his regard
institutions of law and order were conducting investigation and
tapping his telephone conversations" one did not reveal by what
actions (failure to act) the President of the Republic
accomplished "dropping a hint knowingly". According to the
President of the Republic Rolandas Paksas, he does not
understand what action he made by which it would be possible to
ground this accusing provision. The President of the Republic
Rolandas Paksas notes that, while executing the powers of the
President of the Republic, he did not perform any such action
(failure to act).
Concerning the episode indicated in the Seimas inquiry
that "in 2003, seeking to implement property interests of
private persons close to him, by making use of his status,
while in office of the President of the Republic, Rolandas
Paksas gave orders to his advisor Visvaldas Račkauskas, to seek
to influence, by making use of his official position, through
institutions of law and order, decisions of heads and
shareholders of the company 'Žemaitijos keliai' UAB concerning
transfer of shares to persons close to Rolandas Paksas, and he
was aware that the unlawful influence was being exerted by
making use of his name as the President of the Republic, and
took no measures to prevent this", the President of the
Republic Rolandas Paksas notes that, while executing the powers
of the President of the Republic, he did not give any orders of
such nature, nor any other orders whereby he might have pursued
personal interests. Besides, the inquiry of the petitioner does
not indicate the private persons whose property interests were
sought to be protected by the President of the Republic
Rolandas Paksas, nor when and under what circumstances he gave
the order mentioned in the charge to his advisor, what is the
true (verbatim) content of this order, nor when and under what
circumstances the President of the Republic Rolandas Paksas
might learn that unlawful influence was exerted to private
persons by making use of his name as the President of the
Republic. Nor does this episode indicate as to when precisely
in 2003 the episodes pointed out in the inquiry of the Seimas
took place.
It is also noted in the explanations of the President of
the Republic Rolandas Paksas that the Seimas, by indicating in
the inquiry (Charge 5) that "Rolandas Paksas <...> by public
statements about conclusions of the Provisional Commission of
the Seimas of the Republic of Lithuania for Investigation into
Possible Threats to Lithuanian National Security and the
Constitutional Court ruling of 30 December 2003 discredited the
authority of the Seimas and the Constitutional Court", did not
present the content of the public statements, nor when and in
what manner the said statements were made in public. The
President of the Republic Rolandas Paksas asserts that he
cannot give an exhaustive explanation concerning this episode,
since it is not clear to him as to what concrete statements by
the President of the Republic Rolandas Paksas are assessed as
discrediting the authority of the Seimas and the Constitutional
Court. The President of the Republic Rolandas Paksas notes that
he never had a purpose to degrade or otherwise discredit the
authority of the Constitutional Court, also, that the
statements of the President of the Republic in which he
mentioned the Constitutional Court are not and never have been
directed against the obligation of the rulings passed by the
Constitutional Court, and that he never called for, nor
publicly incited non-compliance with the rulings passed by the
Constitutional Court. However, the President of the Republic,
as any citizen of the Republic of Lithuania, has a
constitutional right to have his own convictions and freely
express them.
According to the assessment by the President of the
Republic Rolandas Paksas, his criticism that was made in public
in regard of the Seimas Provisional Commission and the
Constitutional Court ruling cannot be held to be in
contradiction with the Constitution, since this criticism is
not directed against the constitutional order of the state, and
it is guaranteed by the right of the person to have his own
convictions and freely express them. The Constitution (Article
25) guarantees the right of the person, as well as of a state
official, to freely express his opinion and convictions: each
human being has the right to have his convictions and freely
express them. The rights of the President of the Republic are
not restricted in this case. Paragraph 3 of Article 25 of the
Constitution establishes a prohibition when a public expression
of an opinion of persons may be regarded as violation of law:
freedom to express convictions may not be restricted other than
by law, if it is necessary to protect the health, honour and
dignity, private life, and morals of a human being, or to
defend constitutional order. In a state under the rule of law,
a public statement of an opinion concerning decisions of a
court or other institution is a constituent part of the
constitutional right of citizens, thus also of officials, to
expression and no one can be persecuted for it.
In a democratic society, public assessment of court
decisions is a civil control of courts' activity, which is one
of the means for consolidation of the principle of a state
under the rule of law (rule of law) in a democratic society.
A publicly expressed opinion by the President of the
Republic cannot be legally assessed as discrediting of branches
of state power: on the contrary, the absence of public
criticism or its groundless restriction may be assessed as
contradiction to the principles of the order of a democratic
state. Article 84 of the Constitution provides for a duty of
the President of the Republic to make annual reports about the
situation in Lithuania, the internal and foreign policy of the
Republic of Lithuania. The President of the Republic Rolandas
Paksas raises a question whether it is possible to hold the
criticism stated in the annual reports of Presidents of the
Republic, whose term of office has expired, in regard of the
activities of the Seimas and the Government as discrediting
these branches of power.
It is also maintained in the explanations by the President
of the Republic Rolandas Paksas that the petitioner, having
indicated in his inquiry (Charge 6) that "Rolandas Paksas <...>
gave an unlawful order to his advisor Remigijus Ačas to collect
information about the private life of persons, due to this,
Remigijus Ačas and Evaldas Vaitkus, advisors to the President
of the Republic, gave unlawful orders to the Special
Investigation Service to collect information about the private
lives of 44 persons", did not indicate when, in what form and
concerning the private lives of what persons the President of
the Republic gave his order to collect information, nor what
was the content of such an order. It is not clear upon what
arguments the unlawfulness of such alleged order is made.
The President of the Republic Rolandas Paksas notes that,
when one takes account of the fact that the Seimas inquiry does
not indicate any concrete actions nor any circumstances of
their performance, the legal proceedings in the Constitutional
Court concerning the requested conclusion is not permitted
(Item 4 of Paragraph 1 of Article 80 of the Law on the
Constitutional Court). In case the requirements established in
the Law on the Constitutional Court were not followed, the
right of the President of the Republic, as an impeached person,
to due and fair proceedings would be infringed, since he, as an
impeached person, would not be able to exercise due defence and
submit his explanations to the Constitutional Court.
III
1. At the Constitutional Court hearing, the member of the
Seimas J. Sabatauskas, the member of the Seimas R. Šukys, as
well as M. Girdauskas and A. Jatkevičius, grounded their
explanations upon the conclusion of the Special Investigation
Commission and upheld the charges formulated in the Seimas 19
February 2004 Resolution "On the Application to the
Constitutional Court".
2. At the Constitutional Court hearing, the
representatives of the President of the Republic Rolandas
Paksas, who were G. Baublys, E. Rapolas, and K. Švirinas,
upheld the explanations of the President of the Republic
Rolandas Paksas concerning the case, which were submitted to
the Constitutional Court on 12 March 2004, and additionally
gave their arguments as to the explanations.
3. The witnesses were questioned at the Constitutional
Court hearing: Remigijus Ačas, a former advisor to the
President of the Republic on national security issues, the
advocate Juozas Gaudutis, and Ona Buišienė, a former advisor to
the President of the Republic on legal issues.
The Constitutional Court
holds that:
I
1. On 5 January 2003, R. Paksas was elected President of
the Republic of Lithuania.
On 26 February 2003, the elected President of the Republic
of Lithuania Rolandas Paksas took an oath to the Nation to be
faithful to the Republic of Lithuania and the Constitution, to
conscientiously fulfil the duties of his office, and to be
equally just to all.
2. On 18 December 2003, 86 members of the Seimas submitted
a proposal to the Seimas to institute impeachment proceedings
against the President of the Republic Rolandas Paksas.
3. By its 23 December 2003 Resolution "On the Formation of
the Special Investigation Commission", the Seimas formed the
Special Investigation Commission in order to investigate the
reasonableness and seriousness of the charges brought against
the President of the Republic Rolandas Paksas and to draw up a
conclusion regarding the proposal to institute the impeachment
proceedings.
4. On 19 February 2004, the Special Investigation
Commission drew a conclusion that the charges brought against
the President of the Republic Rolandas Paksas in the proposal
by a group of members of the Seimas are grounded and serious
(only in part of the volume of the charges they are not
sufficiently grounded and serious) to institute impeachment
proceedings, therefore there are grounds to institute the
impeachment proceedings in the Seimas. On 19 February 2004, the
Conclusion "On the Proposal to Institute Impeachment
Proceedings against the President of the Republic Rolandas
Paksas" was submitted to the Seimas.
5. On 19 February 2004, the Seimas adopted Resolution "On
the Beginning of the Impeachment Proceedings Against the
President of the Republic Rolandas Paksas" whereby it decided
to institute impeachment proceedings against the President of
the Republic Rolandas Paksas.
6. On 19 February 2004, the Seimas adopted the Resolution
"On the Application to the Constitutional Court of the Republic
of Lithuania" whereby it applied to the Constitutional Court
for a conclusion whether concrete actions of the President of
the Republic Rolandas Paksas, which were indicated in the
charges formulated in the conclusion of the Special
Investigation Commission, are in conflict with the
Constitution.
7. In the 19 February 2004 Seimas Resolution "On the
Application to the Constitutional Court of the Republic of
Lithuania" the following charges against the President of the
Republic Rolandas Paksas were formulated:
Charge 1. Rolandas Paksas, while in office of the
President of the Republic, having no right to take and have any
commitments to private persons, which are incompatible with the
interests of the Nation and the State of Lithuania, undertook
such commitments to Jurij Borisov, was, while in office of the
President of the Republic of Lithuania, influenced by the
latter and acted not in the interests of the Nation and the
State of Lithuania, but in the interests of the private person,
namely: Rolandas Paksas committed to perform, after he becomes
the President of the Republic, actions incompatible with the
interests of the Nation and the State of Lithuania for the
benefit of Jurij Borisov for financial and other notably solid
support rendered by the latter, due to which, first, by
rewarding him for the said support, he unlawfully granted
citizenship of the Republic of Lithuania to this person by
President of the Republic Decree No. 40 of 11 April 2003, also,
on 17 March 2003, meeting Jurij Borisov, knowingly dropped a
hint to him that in his regard institutions of law and order
were conducting investigation and tapping his telephone
conversations, second, the President of the Republic was and is
bound and affected by other commitments taken in regard to
Jurij Borisov;
Charge 2. Rolandas Paksas, while in office of the
President of the Republic, did not ensure the protection of the
state secret, namely: on 17 March 2003, meeting Jurij Borisov,
the President of the Republic knowingly dropped a hint to him
that in his regard institutions of law and order were
conducting investigation and tapping his telephone
conversations;
Charge 3. Rolandas Paksas, while in office of the
President of the Republic, making use of his status, by giving
unlawful orders to his advisors and by other actions exerted
unlawful influence on decisions of private persons and private
entities of economy in the area of property relations, namely:
in 2003, seeking to implement property interests of private
persons close to him, by making use of his status, while in
office of the President of the Republic, Rolandas Paksas gave
orders to his advisor Visvaldas Račkauskas, to seek to
influence, by making use of his official position, through
institutions of law and order, decisions of heads and
shareholders of the company "Žemaitijos keliai" UAB concerning
transfer of shares to persons close to Rolandas Paksas, and he
was aware that the unlawful influence was being exerted by
making use of his name as the President of the Republic, and
took no measures to prevent this;
Charge 4. Rolandas Paksas, while in office of the
President of the Republic, did not co-ordinate public and
private interests in his activities, namely: as compensation
for financial and other notably solid support, guided by
personal interests but not those of the Nation and the State of
Lithuania, he unlawfully granted citizenship of the Republic of
Lithuania to Jurij Borisov by President of the Republic Decree
No. 40 of 11 April 2003; on 17 March 2003, meeting Jurij
Borisov, knowingly dropped a hint to him that in his regard
institutions of law and order were conducting investigation and
tapping his telephone conversations, also, in 2003, seeking to
implement property interests of private persons close to him,
by making use of his status, exerted influence on decisions of
heads and shareholders of the company "Žemaitijos keliai" UAB
concerning transfer of shares to persons close to Rolandas
Paksas;
Charge 5. Rolandas Paksas, while in office of the
President of the Republic, discredited public authority,
namely: guided by personal interests but not those of the
Nation and the State of Lithuania, he unlawfully granted
citizenship of the Republic of Lithuania to Jurij Borisov by
President of the Republic Decree No. 40 of 11 April 2003 for
financial and other notably solid support rendered by the
latter, therefore, for unlawful purposes made use of the
exclusive right, granted by the Constitution to the President
of the Republic, to grant citizenship of the Republic of
Lithuania to persons by way of exception and thus discredited
the authority of the institution of the President of the
Republic, also, by public statements about conclusions of the
Provisional Commission of the Seimas of the Republic of
Lithuania for Investigation into Possible Threats to Lithuanian
National Security and the Constitutional Court ruling of 30
December 2003 discredited the authority of the Seimas and the
Constitutional Court;
Charge 6. Rolandas Paksas, while in office of the
President of the Republic, gave unlawful orders to his advisors
and did not take actions to prevent abuses by his particular
advisors in the course of discharge of their duties, namely: in
2003, Rolandas Paksas, while in office of the President of the
Republic, by not following the procedure and grounds
established in laws, gave an unlawful order to his advisor
Remigijus Ačas to collect information about the private life of
persons, due to this, Remigijus Ačas and Evaldas Vaitkus,
advisors to the President of the Republic, gave unlawful
instructions to the Special Investigation Service to collect
information about the private lives of 44 persons, also, in
2003, Rolandas Paksas, while in office of the President of the
Republic, gave orders to his advisor Visvaldas Račkauskas to
influence, by making use of his official position, through law
and order institutions, decisions of heads and shareholders of
the company "Žemaitijos keliai" UAB concerning transfer of
shares to persons close to Rolandas Paksas.
8. It is clear from the content of the 19 February 2004
Seimas Resolution "On the Application to the Constitutional
Court of the Republic of Lithuania", in which the inquiry to
the Constitutional Court is set forth, that the Seimas requests
for a conclusion whether the following actions of the President
of the Republic Rolandas Paksas are in conflict with the
Constitution:
1) by President of the Republic Decree No. 40 "On Granting
Citizenship of the Republic Lithuania by Way of Exception" of
11 April 2003, the President of the Republic Rolandas Paksas
unlawfully granted citizenship of the Republic of Lithuania to
Jurij Borisov for financial and other notably solid support
rendered by the latter and thus discredited the authority of
the institution of the President of the Republic;
2) the President of the Republic Rolandas Paksas knowingly
dropped a hint to Jurij Borisov that in his regard institutions
of law and order were conducting investigation and tapping his
telephone conversations;
3) the President of the Republic Rolandas Paksas, seeking
to implement property interests of private persons close to
him, by making use of his status, while in office of the
President of the Republic, gave orders to his advisor Visvaldas
Račkauskas, to seek to influence, by making use of his official
position, through institutions of law and order, decisions of
heads and shareholders of the company "Žemaitijos keliai" UAB
concerning transfer of shares to persons close to Rolandas
Paksas;
4) the President of the Republic Rolandas Paksas, seeking
to implement property interests of private persons close to
him, and making use of his status, exerted influence on
decisions of heads and shareholders of the company "Žemaitijos
keliai" UAB concerning transfer of shares to persons close to
Rolandas Paksas;
5) the President of the Republic Rolandas Paksas, knowing
that unlawful influence was being exerted on heads and
shareholders of the company "Žemaitijos keliai" UAB by making
use of his name as the President of the Republic, took no
measures to prevent this;
6) the President of the Republic Rolandas Paksas made
public statements about conclusions of the Seimas Provisional
Commission for Investigation into Possible Threats to
Lithuanian National Security and the Constitutional Court
ruling of 30 December 2003, and by these statements he
discredited the authority of the Seimas and the Constitutional
Court;
7) the President of the Republic Rolandas Paksas, by not
following the procedure and grounds established in laws, gave
an unlawful order to his advisor Remigijus Ačas to collect
information about the private life of persons, and due to this,
Remigijus Ačas and Evaldas Vaitkus, advisors to the President
of the Republic, gave unlawful instructions to the Special
Investigation Service to collect information about the private
lives of 44 persons.
9. The Constitutional Court will investigate the
compliance of only the aforesaid actions with the Constitution,
and will present a conclusion to the Seimas only in regard of
these actions.
Since, under Article 235 of the Statute of the Seimas, the
Special Investigation Commission is formed in order to
investigate the reasonableness and seriousness of the charges
presented by the initiators of the proposal to institute the
impeachment, in this case the Constitutional Court will
investigate only whether the aforesaid actions of the President
of the Republic Rolandas Paksas which were performed prior to
the date when the initiators of the impeachment, a group of
Seimas members, submitted a proposal to the Seimas to institute
impeachment proceedings against the President of the Republic
Rolandas Paksas, i.e. prior to 18 December 2003, are in
conflict with the Constitution.
II
1. Article 74 of the Constitution provides:
"For gross violation of the Constitution, breach of oath,
or upon disclosure of the commission of a crime, the Seimas
may, by a 3/5 majority vote of all the members of the Seimas,
remove from office the President of the Republic, the President
and justices of the Constitutional Court, the President and
justices of the Supreme Court, the President and judges of the
Court of Appeal, as well as members of the Seimas, or may
revoke the mandate of a member of the Seimas. This shall be
performed in accordance with the procedure for impeachment
proceedings which shall be established by the Statute of the
Seimas."
Some other articles of the Constitution are also related
with the impeachment institute: Item 5 of Article 63, Paragraph
2 of Article 86, Item 5 of Article 88, Paragraph 1 of Article
89, Item 4 of Paragraph 3 of Article 105, Item 5 of Article
108, and Article 116.
2. The Constitution shall be an integral act (Paragraph 1
of Article 6 of the Constitution). The provisions of the
Constitution are interrelated not only formally, according to
the structure of arrangement of the norms of the Constitution,
but also according to their content; the norms and principles
of the Constitution constitute a harmonious system, it is not
permitted to construe any norm of the Constitution by
disregarding other provisions of the Constitution, it is not
permitted to construe them so that the content of some other
constitutional provision would be distorted or denied, since
thus the essence of the entire constitutional regulation would
be distorted, and the balance of constitutional values would be
disturbed.
It is not permitted to dissociate the striving for an
open, just harmonious civil society and a state under the rule
of law from the provision of Article 1 of the Constitution that
the State of Lithuania shall be an independent democratic
republic, from the provision of Article 4 of the Constitution
that the Nation shall execute its supreme sovereign power
either directly or through its democratically elected
representatives, from the provisions of Article 5 of the
Constitution that the scope of power shall be limited by the
Constitution and that state institutions shall serve the
people. The constitutional principle of a state under the rule
of law requires that all state institutions and officials act
only following the Constitution and law, and in compliance with
the Constitution and law.
3. In a democratic state under the rule of law all state
institutions and officials must follow the Constitution and
law. The responsibility of state power for the public is
inseparable from the constitutional principle of a state under
the rule of law; the responsibility is constitutionally
consolidated by establishing that state institutions serve the
people, that the scope of power is limited by the Constitution,
that state officials who violate the Constitution and laws, who
raise personal or group interests above the interests of
society, by their actions discredit state power, may be removed
from office under procedure established in laws.
Impeachment is a special procedure provided for in the
Constitution, when the issue of constitutional responsibility
of the officials indicated in Article 74 of the Constitution is
decided, i.e. their removal from office for these actions
provided for in the Constitution: gross violation of the
Constitution, breach of oath, and commission of a crime.
Under the Constitution, one of state officials who may be
removed from office according to the procedure of impeachment
proceedings is the President of the Republic.
4. Under Article 77 of the Constitution, the President of
the Republic is Head of State, he represents the State of
Lithuania and performs everything that he is charged with by
the Constitution and laws. While construing Article 77 of the
Constitution, in its rulings of 8 May 2000 and 19 June 2002,
the Constitutional Court held that only one person acquires the
status of the Head of State for the period determined in the
Constitution, i.e. the President of the Republic who is elected
by citizens of the Republic of Lithuania, that the legal status
of the President of the Republic as the Head of State is an
individual one, different from that of the rest of state
officials and the rest of the citizens.
The exceptional legal status of the President of the
Republic, as the Head of the State, is revealed by various
provisions of the Constitution, which establish the
inviolability of the person of the President of the Republic,
prohibition to hold the President of the Republic criminally
and administratively liable, the oath of the President of the
Republic, his powers, the beginning and end of these powers,
etc.
5. Under Paragraph 2 of Article 78 of the Constitution,
the President of the Republic is elected for a five-year term.
The powers of the President of the Republic may expire before
the established time only upon the grounds established in the
Constitution. One of them is when the Seimas removes the
President of the Republic from office in accordance with the
procedure for impeachment proceedings (Item 5 of Article 88 of
the Constitution).
6. It needs to be noted that the President of the
Republic, beginning his office, takes an oath to the Nation to
be faithful to the Republic of Lithuania and the Constitution,
to conscientiously fulfil the duties of his office, and to be
equally just to all (Paragraph 1 of Article 82 of the
Constitution). The oath of the elected President of the
Republic reflects the main values entrenched in the
Constitution, which are linked by the Nation with the office of
the President of the Republic; these values are inseparable
from one another, the President of the Republic, while in
office, cannot deviate from universal constitutional values
entrenched in the oath of the President of the Republic, which
are the most important to the Nation. In its ruling of 30
December 2003, the Constitutional Court held that from the
moment of taking the oath a duty arises to the President of the
Republic to act only so as the oath taken to the Nation
obligates, and that breach of the oath is one of the grounds
under which the President of the Republic may be removed from
office according to the procedure for impeachment proceedings.
In the said ruling the Constitutional Court also held that
breach of the oath is, alongside, a gross violation of the
Constitution, while a gross violation of the Constitution is,
alongside, breach of the oath.
7. Under Paragraph 2 of Article 77 of the Constitution,
the President of the Republic shall represent the State of
Lithuania and shall perform everything that he is charged with
by the Constitution and laws. The provision of Paragraph 2 of
Article 77 of the Constitution that the President of the
Republic shall perform everything that he is charged with by
the Constitution and laws, when one takes account of the
content of the oath of the President of the Republic
established in Paragraph 1 of Article 82 of the Constitution,
means that the President of the Republic, when implementing the
powers established for him in the Constitution and laws, must
follow only the Constitution and laws, he cannot violate them,
that the President of the Republic must act only in the
interests of the Nation and the state, that the President of
the Republic may not act with the purposes or in the interests
that are incompatible with the Constitution and laws, with the
interests of the Nation and the state, with public interests,
that the President of the Republic may not raise personal or
group interests above those of the society and the state, that
he may not act so that state power would be discredited.
It needs to be noted that the opportunity consolidated in
the Constitution to remove the President of the Republic from
office in accordance with the procedure for impeachment
proceedings is a form of public, democratic control over the
activities of the President of the Republic, a manner of the
constitutional responsibility of the President of the Republic
before the Nation, one of the means of self-defence of the
democratic civil society against abuses by the President of the
Republic within the sphere of powers established for him. Under
Article 74 of the Constitution, it is permitted to institute
impeachment proceedings against the President of the Republic
only for gross violation of the Constitution, breach of oath,
or upon disclosure of the commission of a crime; only the
Seimas may remove the President of the Republic from office,
when this is done in accordance with the procedure established
in the Statute of the Seimas; the President of the Republic is
removed from office only in case not less than 3/5 of all
members of the Seimas vote for this.
III
1. Under Item 4 of Paragraph 3 of Article 105 of the
Constitution, the Constitutional Court shall present
conclusions whether concrete actions of members of the Seimas
and State officials against whom an impeachment case has been
instituted are in conflict with the Constitution. As mentioned,
under Article 74 of the Constitution, one of the state
officials who may be removed from office in accordance with
impeachment proceedings is the President of the Republic.
Paragraph 3 of Article 107 of the Constitution provides
that on the basis of the conclusions of the Constitutional
Court, the Seimas shall take a final decision on the issues set
forth in Paragraph 3 of Article 105 of the Constitution.
2. While revealing the content of the legal regulation
established in Item 4 of Paragraph 3 of Article 105 and
Paragraph 3 of Article 107 of the Constitution, one must take
account of the provisions of Article 74 of the Constitution,
the provisions of Paragraph 2 of Article 5 of the Constitution,
and the constitutional principles of separation of powers and
of a state under the rule of law.
3. It has been mentioned that the Constitution is an
integral act, that all provisions of the Constitution are
interrelated and constitute a harmonious whole, and that it is
not permitted to construe any norm of the Constitution by
disregarding other provisions of the Constitution. While
construing the Constitution, the linguistic method of
construction alone may not be applied: it is necessary to make
use of the systemic, logical, teleological, as well as other
methods of construction of law.
4. It has also been mentioned that under Item 4 of
Paragraph 3 of Article 105 of the Constitution, the
Constitutional Court presents a conclusion whether concrete
actions of the President of the Republic against whom an
impeachment case has been instituted are in conflict with the
Constitution; Paragraph 3 of Article 107 of the Constitution
provides that on the basis of the conclusions of the
Constitutional Court, the Seimas shall take a final decision on
the issues set forth in Paragraph 3 of Article 105 of the
Constitution.
When construing the said provisions of the Constitution
only linguistically, in separation from other provisions of the
Constitution that consolidate the institute of impeachment, the
powers of the Seimas and the Constitutional Court in
impeachment proceedings, it might appear that it is possible to
assert that, purportedly, the Constitution provides for the
legal regulation whereby the Constitutional Court presents a
conclusion whether concrete actions of the President of the
Republic against whom an impeachment case has been instituted
are in conflict with the Constitution, while the Seimas takes a
final decision whether the actions of the President of the
Republic are in conflict with the Constitution.
However, such construction of the aforesaid provisions of
the Constitution would be constitutionally groundless.
It needs to be noted that the principle of separation of
powers that is entrenched in the Constitution inter alia means
that after the Constitution has directly established the powers
of a concrete state institution, one state institution may not
take over such powers from the other, nor transfer or waive
them, and that such powers may not be changed or restricted by
means of a law.
Under Item 4 of Paragraph 3 of Article 105 of the
Constitution, the Constitutional Court presents a conclusion
whether concrete actions of the President of the Republic
against whom an impeachment case has been instituted are in
conflict with the Constitution. Paragraph 2 of Article 107 of
the Constitution provides that the decisions of the
Constitutional Court on issues ascribed to its competence by
the Constitution shall be final and not subject to appeal. The
presentation of the conclusion specified in Item 4 of Paragraph
3 of Article 105 of the Constitution is one of the issues that
are attributed only to the competence of the Constitutional
Court by the Constitution. Thus, under the Constitution, a
conclusion whether concrete actions of the President of the
Republic against whom an impeachment case has been instituted
are in conflict with the Constitution is final and not subject
to appeal.
5. It has been mentioned that, under Paragraph 3 of
Article 107 of the Constitution, on the basis of the
conclusions of the Constitutional Court, the Seimas shall take
a final decision on the issues set forth in Paragraph 3 of
Article 105 of the Constitution. While assessing the
interrelation of the provisions of Item 4 of Paragraph 3 of
Article 105 and Paragraph 3 of Article 107 of the Constitution,
it is impossible to disregard the provisions of Article 74 of
the Constitution, under which, for gross violation of the
Constitution, breach of oath, or upon disclosure of the
commission of a crime, the Seimas may, by a 3/5 majority vote
of all the members of the Seimas, remove the President of the
Republic from office.
6. The provision of Paragraph 3 of Article 107 of the
Constitution that, on the basis of the conclusions of the
Constitutional Court, the Seimas shall take a final decision on
the issues set forth in Paragraph 3 of Article 105 of the
Constitution, means that in cases when impeachment proceedings
are instituted against the President of the Republic for gross
violation of the Constitution, the Seimas has a duty to apply
to the Constitutional Court, requesting for a conclusion
whether the actions of the President of the Republic are in
conflict with the Constitution. It has been mentioned that
breach of the oath is, alongside, a gross violation of the
Constitution, while a gross violation of the Constitution is,
alongside, breach of the oath.
The provision of Paragraph 2 of Article 107 of the
Constitution that the decisions of the Constitutional Court on
issues ascribed to its competence by the Constitution shall be
final and not subject to appeal also means that the Seimas,
when deciding whether to remove the President of the Republic,
may not deny, change, nor question the conclusion of the
Constitutional Court that concrete actions of the President of
the Republic are in conflict (or are not in conflict) with the
Constitution. Such powers of the Seimas are not provided for in
the Constitution. The conclusion of the Constitutional Court
that concrete actions of the President of the Republic are in
conflict (or are not in conflict) with the Constitution are
binding to the Seimas in the aspect that, under the
Constitution, the Seimas does not enjoy powers to decide
whether the conclusion of the Constitutional Court is grounded
and lawful-the legal fact that the actions of the President of
the Republic are in conflict (or are not in conflict) with the
Constitution is established only by the Constitutional Court.
Under Article 74 of the Constitution, only the Seimas may
remove the President of the Republic form office for gross
violation of the Constitution.
Thus, the Constitution provides for different functions of
the Seimas and the Constitutional Court in impeachment
proceedings, and establishes respective powers necessary to
implement these functions: the Constitutional Court decides
whether concrete actions of the President of the Republic are
in conflict with the Constitution and presents a conclusion to
the Seimas (Item 4 of Paragraph 3 of Article 105 of the
Constitution), while the Seimas, if the President of the
Republic grossly violated the Constitution, decides whether to
remove the President of the Republic from office (Article 74 of
the Constitution). Thus, the provision of Paragraph 3 of
Article 107 of the Constitution that the Seimas shall take a
final decision on the issues set forth in the Paragraph 3 of
Article 105 of the Constitution, by relating it with the
provision of Article 74 of the Constitution that only the
Seimas decides the issue of removal of the President of the
Republic in accordance with the procedure for impeachment
proceedings, and with the provision of Paragraph 2 of Article
107 of the Constitution that the conclusion of the
Constitutional Court is final and not subject of appeal, means
that, under Paragraph 3 of Article 107 of the Constitution, the
Seimas enjoys powers to decide whether to remove the President
of the Republic from office, but not whether concrete actions
of the President of the Republic are in conflict with the
Constitution.
It needs to be noted that by the constitutional provision
that only the Constitutional Court enjoys powers to decide
(present a conclusion) whether concrete actions of the
President of the Republic are in conflict with the
Constitution, a guarantee is consolidated in the Constitution
for the President of the Republic that against him
constitutional responsibility will not be applied unreasonably.
Thus, if the Constitutional Court draws a conclusion that the
actions of the President of the Republic are not in conflict
with the Constitution, the Seimas may not remove the President
of the Republic from office for gross violation of the
Constitution.
7. As mentioned, under the Constitution the Constitutional
Court presents a conclusion whether concrete actions of the
President of the Republic are in conflict with the
Constitution. The statement that the actions of the President
of the Republic are in conflict with the Constitution also
means that the President of the Republic violated the
Constitution. However, not every violation of the Constitution
is, in itself, gross violation of the Constitution.
It needs to be emphasised that while deciding whether the
actions of the President of the Republic grossly violated the
Constitution, one must assess in each case the content of
concrete actions of the President of the Republic as well as
the circumstances of their performance.
8. In its ruling of 30 December 2003, the Constitutional
Court held that the Constitution is grossly violated in all
cases when the President of the Republic breaches the oath.
By the actions of the President of the Republic the
Constitution would be violated grossly in cases when the
President of the Republic held its office in bad faith, acted
not in the interests of the Nation and the state but his
personal interests, those of individual persons or their
groups, acted with purposes and in the interests that are
incompatible with the Constitution and laws, with public
interests, knowingly failed to discharge the duties established
for the President of the Republic in the Constitution and laws.
9. As mentioned, under the Constitution only the
Constitutional Court enjoys the powers to decide whether
concrete actions of the President of the Republic are in
conflict with the Constitution, thus whether the President of
the Republic violated the Constitution; the Constitution does
not provide for such powers for the Seimas. The Seimas, having
no powers to adopt a decision whether the President of the
Republic violated the Constitution, does not have
constitutional powers to decide whether the President of the
Republic grossly violated the Constitution. The establishment
of a violation of the Constitution is a matter of legal but not
political assessment, therefore legal issues, the fact of
violation of the Constitution, thus also that of gross
violation of the Constitution, can only be established by an
institution of judicial power, the Constitutional Court. The
interpretation that, purportedly, the Seimas might establish
the fact of gross violation of the Constitution, would
constitutionally be groundless, since this would mean that the
legal issue whether the President of the Republic violated the
Constitution, whether the Constitution has been violated
grossly, might be decided not by an institution of judicial
power, the Constitutional Court, which, as all other courts, is
formed on professional basis, but by the Seimas, an institution
of state power, which in its nature and essence is an
institution of political character, in whose decisions the
political will of the majority of Seimas members is reflected,
whose decisions are based on political agreements, various
political compromises etc. It is evident that the Seimas, an
institution of political character, may not decide whether the
President of the Republic violated the Constitution, whether
the violation of the Constitution is a gross one, i.e. it may
not decide an issue of law. Otherwise, the statement of the
fact of violation of the Constitution as well as that of gross
violation of the Constitution might be grounded upon political
arguments, while the constitutional responsibility of the
President of the Republic might arise from the statement that
the Constitution has grossly been violated, which would be
based upon political arguments. The Constitution contains only
the legal regulation whereby it is only the Constitutional
Court that has the powers to decide whether the President of
the Republic violated the Constitution, whether the violation
of the Constitution is a gross one. The Constitution provides
for such powers for neither the Seimas, nor any other state
institution, nor any state official.
It needs to be noted that the constitutional regulation
under which only the Constitutional Court enjoys the powers to
decide whether the President of the Republic grossly violated
the Constitution is a constitutional guarantee for the
President of the Republic that the constitutional
responsibility, removal from office for gross violation of the
Constitution, will not be applied against him unreasonably.
10. As mentioned, under Article 74 of the Constitution, it
is only the Seimas that decides whether to remove the President
of the Republic from office for gross violation of the
Constitution, breach of oath or upon disclosure of the
commission of a crime. If the grounds for impeachment are gross
violation of the Constitution, the Seimas may decide the issue
of removal of the President of the Republic from office only
upon receiving a conclusion from the Constitutional Court that
the President of the Republic grossly violated the
Constitution. This is a constitutional guarantee to the
President of the Republic that the constitutional
responsibility will not be applied against him unreasonably.
It needs to be noted that, under the Constitution, in the
impeachment proceedings at the Seimas one does not decide the
fact whether actions of the President of the Republic are in
conflict with the Constitution, nor the fact whether the
President of the Republic grossly violated the Constitution.
Under the Constitution, this is decided by the Constitutional
Court. In the impeachment proceedings at the Seimas one decides
only the question of the constitutional responsibility of the
President of the Republic. i.e. one decides only whether to
remove the President of the Republic from office for gross
violation of the Constitution. The removal of the President of
the Republic from office is a constitutional sanction for gross
violation of the Constitution. It has been mentioned that,
under Article 74 of the Constitution, it is only the Seimas
that may adopt a decision on the application of the
constitutional sanction, i.e. on the removal of the President
of the Republic from office.
IV
1. Under Article 74 of the Constitution, the procedure for
impeachment proceedings is established by the Statute of the
Seimas. Article 76 of the Constitution provides that the
Statute of the Seimas shall have the power of law.
2. It needs to be noted that the Seimas enjoys discretion
in implementing the procedure for impeachment proceedings,
however, it is bound by the constitutional concept of
impeachment (Constitutional Court ruling of 11 May 1999).
Therefore, the procedure of impeachment proceedings established
in the Statute of the Seimas must be such so that fair legal
proceedings would be ensured, that one could properly
investigate the circumstances of the impeachment case and adopt
a just decision on the constitutional responsibility of the
person. The norms regulating impeachment must not only create
an opportunity to remove the person from office, but also to
ensure the rights of the impeached person.
3. The Statute of the Seimas was adopted on 17 February
1994.
On 19 February 2004, when the Seimas was adopting the
Resolution "On the Application to the Constitutional Court of
the Republic of Lithuania", the Statute of the Seimas of the 22
December 1998 wording (with subsequent amendments and
supplements) was in force.
4. The impeachment proceedings are regulated by Part VIII
of the Statute of the Seimas, covering Articles 227-260 of the
Statute of the Seimas.
It needs to be noted that the norms of the Statute of the
Seimas set forth in the Part "Impeachment Proceedings" regulate
the relations that appear in the course of deciding whether to
remove from office not only the President of the Republic, but
also the other persons specified in Article 74 of the
Constitution, as well as the relations that appear in the
course of the application of constitutional responsibility not
only for gross violation of the Constitution, breach of oath,
but also upon disclosure of commission of a crime. Therefore
the Statute of the Seimas contains the provision that
"impeachment proceedings in the Seimas shall be comprised of
the following major parts: preparation, interrogation,
pleadings, the final word of the impeached person, and the vote
on the presented charges" (Article 247 of the Statute of the
Seimas). Due to the fact that the Statute of the Seimas
establishes the said main parts of impeachment proceedings, one
cannot interpret that, purportedly, the Statute of the Seimas
establishes the legal regulation whereby any impeachment
proceedings must contain all the aforementioned parts, without
taking into consideration the grounds for impeachment.
It has been mentioned that, under the Constitution, it is
only the Constitutional Court that decides whether the
President of the Republic violated the Constitution, whether
the violation of the Constitution is a gross one. The
Constitution does not provide for Seimas' powers to deny,
change or question the conclusion of the Constitutional Court
that concrete actions of the President of the Republic are in
conflict (or are not in conflict) with the Constitution, that
by actions of the President of the Republic the Constitution
was grossly (or not grossly) violated. Under Paragraph 2 of
Article 107 of the Constitution, a conclusion of the
Constitutional Court is final and not subject to appeal,
therefore, it is evident that the part of impeachment
proceedings indicated in Article 247 of the Statute of the
Seimas, i.e. interrogation, as well as the legal norms set
forth in Article 249 regulating interrogation, may be applied
only when the grounds for impeachment are not gross violation
of the Constitution or breach of oath, but when the grounds for
impeachment are "upon disclosure of the commission of a crime",
and if in regard of the impeached person there is no effective
court judgement of conviction. Taking account of the fact that,
under Paragraph 1 of Article 86 of the Constitution, the
President of the Republic, while in office, may neither be
arrested nor be held criminally or administratively liable, one
is to draw a conclusion that interrogation as a part of
impeachment proceedings is possible only when the President of
the Republic is held constitutionally responsible upon the
basis established in Article 74 of the Constitution, i.e. upon
disclosure of the commission of a crime, also, when, upon the
same basis, i.e. upon disclosure of the commission of a crime,
other subjects specified in Article 74 of the Constitution are
held constitutionally responsible, in case in their regard
there is no effective court judgement of conviction. A
different construction of Articles 247 and 249 of the Statute
of the Seimas would not be in line with the constitutional
concept of impeachment proceedings, would not conform to the
constitutionally established powers of the Constitutional Court
and the Seimas in impeachment proceedings, nor the
interrelation of the said powers.
In its ruling of 11 May 1999, the Constitutional Court
held that the constitutional concept of impeachment concept
presupposes fair judicial proceedings in which priority is
given to the protection of the rights of individuals.
Guaranteeing the protection of the rights of individuals, one
has to pay heed to the fundamental principles of the state
under the rule of law which require that jurisdictional and
other law applying institutions be unbiased and independent,
that they attempt to establish the objective truth and that
they pass their decisions on the basis of law only. This is
only possible when the proceedings are public, the parties to
the proceedings enjoy equal rights, while the pleadings in
court, especially those regarding the rights of individuals,
are decided by insuring that the said person should have the
right and opportunity to defend his rights. In the state under
the rule of law the right of an individual to defend his rights
is unquestionable. As the Seimas, deciding the question of
removal of the person from office or that of revocation of his
mandate, acts as a jurisdictional institution, the same
requirements are applied to impeachment proceedings. In the
same ruling the Constitutional Court noted that when the
question of constitutional or any other responsibility is
decided, the aforesaid principles of the state under the rule
of law are implemented through the procedural rights of the
person against whom this sanction is applied as well as the
guarantees of these rights. Recognition of the rights of an
individual is a necessary element of the rule of law. In the
course of impeachment at the Seimas the right of the person the
question of whose constitutional responsibility is decided to
take part in the proceedings and defend himself must be
ensured. Prior to adoption of its decision, the Seimas must
also hear the other party (audi alteram partem).
Taking account of the fact that in the course of
impeachment proceedings in the Seimas one does not decide
whether concrete actions of the President of the Republic are
in conflict with the Constitution, nor whether the President of
the Republic violated the Constitution grossly-under the
Constitution it can be decided only by the Constitutional
Court-but only whether to remove the President of the Republic
from office for gross violation of the Constitution, one is to
draw a conclusion that in the course of impeachment proceedings
in the Seimas one does not investigate the evidence which
either confirms or denies the fact that the President of the
Republic performed the actions by which he grossly violated the
Constitution, but only the evidence which either confirms or
denies the necessity to remove the President of the Republic
from office for gross violation of the Constitution. The
pleadings provided for in Article 250 of the Statute of the
Seimas also take place as regards not whether the President of
the Republic performed the actions by which he grossly violated
the Constitution, but only whether to remove (not to remove)
the President of the Republic from office for gross violation
of the Constitution, which has been stated by the
Constitutional Court.
5. The Constitutional Court underlines that the right of
the President of the Republic, the issue of whose
constitutional responsibility is decided in accordance of
impeachment proceedings in the Seimas, to participate in the
proceedings, to give explanations and defend himself may not be
restricted. This right must be guaranteed.
V
1. Under the Constitution, it is only the Constitutional
Court that has the powers to decide whether concrete actions of
the President of the Republic, against whom an impeachment case
has been instituted, violated the Constitution, whether the
President of the Republic grossly violated the Constitution.
Thus, a constitutional duty is established for the
Constitutional Court to investigate whether the President of
the Republic performed concrete actions pointed out in the
charge brought against him, and assess whether these actions
are in conflict with the Constitution, whether the Constitution
was grossly violated. In the course of the investigation
whether concrete actions of the President of the Republic are
in conflict with the Constitution, whether the Constitution was
grossly violated, the Constitutional Court investigates and
assesses both the evidence presented together with the inquiry
to the Constitutional Court, but all the evidence received in
the course of the investigation of the case in the
Constitutional Court, either confirming or denying that the
President of the Republic performed the concrete actions
indicated in the inquiry, either confirming or denying that
these actions are in conflict with the Constitution, that the
Constitution was grossly violated.
2. Together with its inquiry to the Constitutional Court,
the Seimas submitted protocols and audio recordings acquired by
using technical equipment in the course of operational actions
by the State Security Department, in which conversations of
persons, whose telephone conversations were being tapped,
including their conversations with the President of the
Republic Rolandas Paksas, were traced.
At the Constitutional Court hearing, the representatives
of the President of the Republic Rolandas Paksas doubted a
possibility to base oneself upon the protocols and audio
recordings acquired by using technical equipment in the course
of operational actions by the State Security Department, in
which telephone conversations of other persons with the
President of the Republic Rolandas Paksas were traced.
The Constitutional Court notes that if operational actions
were being conducted in regard of the persons who spoke to the
President of the Republic over the telephone, the tapping of
such telephone conversations is not operative actions conducted
against the President of the Republic. The recordings of such
lawfully recorded telephone conversations and protocols of the
use of technical equipment in the course of operational actions
may be used as evidence in deciding whether concrete actions of
the President of the Republic are in conflict with the
Constitution.
In this case the evidence was presented to the
Constitutional Court-protocols and audio recordings acquired by
using technical equipment in the course of operational actions
by the State Security Department, in which conversations of
persons, whose telephone conversations were being lawfully
tapped, were traced, including their conversations with the
President of the Republic Rolandas Paksas; in this case this
evidence will be investigated and assessed.
VI
On the presentation of the conclusion, requested in the
inquiry set forth in the 19 February 2004 Seimas Resolution "On
the Application to the Constitutional Court of the Republic of
Lithuania", whether the actions of the President of the
Republic Rolandas Paksas, when he, by Decree No. 40 of 11 April
2003, unlawfully granted citizenship of the Republic of
Lithuania to Jurij Borisov for financial and other notably
solid support rendered by the latter are in conflict with the
Constitution.
1. In its 19 February 2004 Resolution "On the Application
to the Constitutional Court of the Republic of Lithuania", in
the inquiry set forth the Seimas requests for a conclusion
whether the actions of the President of the Republic Rolandas
Paksas, when he, by Decree No. 40 of 11 April 2003, unlawfully
granted citizenship of the Republic of Lithuania to Jurij
Borisov for financial and other notably solid support rendered
by the latter are in conflict with the Constitution.
2. In the 19 February 2004 Conclusion "On the Proposal to
Institute Impeachment Proceedings against the President of the
Republic Rolandas Paksas" of the Special Investigation
Commission, which was received together with the inquiry of the
petitioner, the 19 February 2004 Seimas Resolution "On the
Application to the Constitutional Court of the Republic of
Lithuania", one bases himself on the factual circumstances
indicated in the 30 December 2003 Constitutional Court Ruling
"On the compliance of President of the Republic of Lithuania
Decree No. 40 'On Granting Citizenship of the Republic
Lithuania by Way of Exception' of 11 April 2003 to the extent
that it provides that citizenship of the Republic Lithuania is
granted to Jurij Borisov by way of exception with the
Constitution of the Republic of Lithuania and Paragraph 1 of
Article 16 of the Republic of Lithuania Law on Citizenship"
(Special Investigation Commission material, c. 8.39/11-202, the
19 February 2004 Conclusion "On the Proposal to Institute
Impeachment Proceedings against the President of the Republic
Rolandas Paksas" of the Special Investigation Commission, Items
1.6-1.7, pp. 54-58).
3. In the 10 February 2004 explanations of the President
of the Republic Rolandas Paksas to the Special Investigation
Commission it is maintained that the decision to grant
citizenship of the Republic of Lithuania to Jurij Borisov by
way of exception was adopted by following the Constitution and
laws, by taking account of the recommendations unanimously
adopted by the Citizenship Commission and the practice of
granting citizenship that had been established in the course of
the decade by previous Presidents of the Republic. The
President of the Republic Rolandas Paksas also explained that
he, making use of the right of discretion, sought to preserve
the balance between the interests of the individual and the
state. The President of the Republic Rolandas Paksas emphasised
that the composition of the Citizenship Commission, its
long-term experience, competence and the unanimously adopted
proposal to grant citizenship of the Republic of Lithuania to
Jurij Borisov reasonably permitted to consider that the legal
acts contained no circumstances due to which citizenship might
not be granted to Jurij Borisov (Special Investigation
Commission material, c. 16.77/23-202, the 10 February 2004
written explanations of the President of the Republic R.
Paksas, p. 40).
In the 12 March 2004 explanations of the President of the
Republic Rolandas Paksas to the Constitutional Court no
explanations are given as for granting of citizenship of the
Republic of Lithuania to Jurij Borisov.
At the Constitutional Court hearing, the representatives
of the President of the Republic Rolandas Paksas maintained
that the Special Investigation Commission had not investigated
the circumstances at all, whether the concrete actions of the
President of the Republic in granting of citizenship of the
Republic of Lithuania to Jurij Borisov are in conflict with the
Constitution, but had based itself on the circumstances stated
by the Constitutional Court in the course of the investigation
of Case No. 40/03 on the compliance of President of the
Republic of Lithuania Decree No. 40 "On Granting Citizenship of
the Republic Lithuania by Way of Exception" of 11 April 2003 to
the extent that it provides that citizenship of the Republic
Lithuania is granted to Jurij Borisov by way of exception with
the Constitution and the Law on Citizenship. Meanwhile,
according to the representatives of the President of the
Republic Rolandas Paksas, in Case No. 40/03 the Constitutional
Court did not investigate whether the actions of the President
of the Republic in granting citizenship of the Republic of
Lithuania to Jurij Borisov were in conflict with the
Constitution. They made such a conclusion on the grounds of the
1 March 2004 reference of justices of the Constitutional Court,
in which it was stated that the issue raised in the Seimas
inquiry was not investigated in the Constitutional Court. In
the opinion of the representatives of the President of the
Republic Rolandas Paksas, in this part of the case the legal
proceedings must be dismissed.
4. On 30 December 2003, the Constitutional Court adopted
the Ruling "On the compliance of President of the Republic of
Lithuania Decree No. 40 'On Granting Citizenship of the
Republic Lithuania by Way of Exception' of 11 April 2003 to the
extent that it provides that citizenship of the Republic
Lithuania is granted to Jurij Borisov by way of exception with
the Constitution of the Republic of Lithuania and Paragraph 1
of Article 16 of the Republic of Lithuania Law on Citizenship".
The said ruling recognised that President of the Republic of
Lithuania Decree No. 40 "On Granting Citizenship of the
Republic Lithuania by Way of Exception" of 11 April 2003 to the
extent that it provides that citizenship of the Republic
Lithuania is granted to Jurij Borisov, born on 17 May 1956 in
Russia, residing in Lithuania, by way of exception is in
conflict with Paragraph 1 of Article 29, the provision "the
elected President of the Republic <...> shall take an oath
<...> to be equally just to all" of Paragraph 1 of Article 82,
Item 21 of Article 84 of the Constitution of the Republic of
Lithuania, the constitutional principle of a state under the
rule of law, and Paragraph 1 of Article 16 the Republic of
Lithuania Law on Citizenship.
It was held in the same Constitutional Court ruling that
"it follows neither from the Constitution, nor the Law on
Citizenship, nor other laws that citizenship of the Republic of
Lithuania can be acquired for financial, material or any other
support, i.e. bought", that "the decision of the President of
the Republic R. Paksas to grant citizenship of the Republic of
Lithuania to J. Borisov by way of exception was determined not
by certain merits of J. Borisov to the State of Lithuania, but
his notable financial and other support rendered to R. Paksas
in the 2002 elections of the President of the Republic. Thus,
the granting of citizenship to J. Borisov by way of exception
was but a reward by the President of the Republic R. Paksas to
J. Borisov for the aforesaid support", that "the President of
the Republic R. Paksas, when issuing Decree No. 40 'On Granting
Citizenship of the Republic Lithuania by Way of Exception' of
11 April 2003 whereby citizenship of the Republic Lithuania was
granted to J. Borisov by way of exception, was following
neither the Constitution of the Republic of Lithuania, nor the
laws, nor the interests of the Nation and the State of
Lithuania, but his personal interests", that "in granting
citizenship of the Republic Lithuania to J. Borisov by way of
exception by Decree No. 40 'On Granting Citizenship of the
Republic Lithuania by Way of Exception' of 11 April 2003, the
President of the Republic R. Paksas treated this person, as a
person who sought to acquire citizenship of the Republic of
Lithuania, in an exceptional manner and knowingly disregarded
the requirement consolidated in Paragraph 1 of Article 29 of
the Constitution that all persons shall be equal before state
institutions and officials, and the requirement consolidated in
Paragraph 1 of Article 82 of the Constitution that the
President of the Republic must be equally just to all".
5. It needs to be noted that the assessment of the 1 March
2004 reference of justices of the Constitutional Court, in
which inter alia it was held that the issue raised in the
inquiry of the Seimas of the Republic of Lithuania, the
petitioner, had not been investigated in the Constitutional
Court, that, allegedly, it shows that the Constitutional Court
had not investigated the actions of the President of the
Republic related with granting of citizenship of the Republic
of Lithuania by the President of the Republic Rolandas Paksas,
is legally absolutely groundless, as the said reference is a
procedural document of the Constitutional Court, merely giving
information about the conducted investigation and other
preparatory actions, and is necessary in deciding whether to
accept the inquiry set forth in the 19 February 2004 Seimas
Resolution "On the Application to the Constitutional Court of
the Republic of Lithuania"; the aforesaid reference merely
means that it was stated that there exist no grounds in Article
80 of the Law on the Constitutional Court to refuse to
investigate the inquiry for a conclusion whether the concrete
actions of the President of the Republic against whom an
impeachment case has been instituted, also that there are no
legal grounds established in Article 81 of the Law on the
Constitutional Court for referring the inquiry back to the
petitioner.
6. One should also note the fact that in Case No. 40/03 of
the Constitutional Court, pursuant to Paragraph 1 of Article
102 and Item 1 of Paragraph 2 of Article 105 of the
Constitution, one decided the issue of the compliance of
President of the Republic Decree No. 40 "On Granting
Citizenship of the Republic Lithuania by Way of Exception" of
11 April 2003 to the extent that it provided that citizenship
of the Republic Lithuania was to be granted to Jurij Borisov by
way of exception with the Constitution and the Law on
Citizenship, but not presented a conclusion provided for in
Item 4 of Paragraph 3 of Article 105 of the Constitution
whether concrete actions of a state official against whom an
impeachment case has been instituted are in conflict with the
Constitution. According to their nature, a Constitutional Court
ruling by which a legal act (part thereof) is recognised to be
in conflict or not in conflict with the Constitution, and a
Constitutional Court conclusion are different legal acts.
In its ruling of 30 December 2003, the Constitutional
Court held that "in case the Constitution or laws provide for
respective requirements that must be followed (that must be
fulfilled) in the course of issuance of an act of the President
of the Republic, the Constitutional Court, when deciding
whether the act of the President of the Republic is not in
conflict with the Constitution and laws, must also investigate
whether one has followed (fulfilled) these requirements, since
in case these factual circumstances were not established, it
would not be possible to investigate also into the compliance
of the act of the President of the Republic with the
Constitution and laws".
In Case No. 40/03 of the Constitutional Court one
established and in the Constitutional Court ruling of 30
December 2003 indicated the factual circumstances due to which
President of the Republic of Lithuania Decree No. 40 "On
Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003 to the extent that it provided that
citizenship of the Republic Lithuania was to be granted to
Jurij Borisov, born on 17 May 1956 in Russia, residing in
Lithuania, by way of exception was recognised to be in conflict
with Paragraph 1 of Article 29, the provision "the elected
President of the Republic <...> shall take an oath <...> to be
equally just to all" of Paragraph 1 of Article 82, Item 21 of
Article 84 of the Constitution, the constitutional principle of
a state under the rule of law, and Paragraph 1 of Article 16
the Law on Citizenship.
7. Under the Constitution, Constitutional Court rulings
are final and not subject to appeal, they are obligatory to
everyone, while under Paragraph 7 of Article 34 of the Law on
the Constitutional Court, facts which were established by a
ruling of the Constitutional Court in one case shall not be
proved again in the consideration of other cases.
The factual circumstances established in Case No. 40/03 of
the Constitutional Court are res iudicata. These factual
circumstances are not established and proven anew in new cases.
The 30 December 2003 Constitutional Court Ruling "On the
compliance of President of the Republic of Lithuania Decree No.
40 'On Granting Citizenship of the Republic Lithuania by Way of
Exception' of 11 April 2003 to the extent that it provides that
citizenship of the Republic Lithuania is granted to Jurij
Borisov by way of exception with the Constitution of the
Republic of Lithuania and Paragraph 1 of Article 16 of the
Republic of Lithuania Law on Citizenship" has pre-judicial
power.
8. It has been mentioned that in its ruling of 30 December
2003 the Constitutional Court held that the President of the
Republic, by issuing Decree No. 40 'On Granting Citizenship of
the Republic Lithuania by Way of Exception' of 11 April 2003,
knowingly disregarded the requirement consolidated in Paragraph
1 of Article 29 of the Constitution that all persons shall be
equal before state institutions and officials, and the
requirement consolidated in Paragraph 1 of Article 82 of the
Constitution that the President of the Republic must be equally
just to all. Having held this, one is also to hold that the
President of the Republic Rolandas Paksas, in granting
citizenship of the Republic Lithuania to J. Borisov by way of
exception by Decree No. 40 of 11 April 2003 for financial and
other notably solid support rendered by the latter, breached
the oath given to the Nation and grossly violated the
Constitution.
9. Taking account of the aforementioned arguments, one is
to conclude that the actions of President Rolandas Paksas of
the Republic of Lithuania, when he, by Decree No. 40 "On
Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003, unlawfully granted citizenship of
the Republic of Lithuania to Jurij Borisov for financial and
other notably solid support rendered by the latter are in
conflict with the Constitution of the Republic of Lithuania. By
the said actions President Rolandas Paksas of the Republic of
Lithuania grossly violated the Constitution.
VII
On the presentation of the conclusion, requested in the
inquiry set forth in the 19 February 2004 Seimas Resolution "On
the Application to the Constitutional Court of the Republic of
Lithuania", whether the actions of the President of the
Republic Rolandas Paksas by which he knowingly dropped a hint
to Jurij Borisov that in his regard institutions of law and
order were conducting investigation and tapping his telephone
conversations are in conflict with the Constitution.
1. In the inquiry set forth in its 19 February 2004
Resolution "On the Application to the Constitutional Court of
the Republic of Lithuania", the Seimas requests for a
conclusion whether the actions of the President of the Republic
Rolandas Paksas by which he knowingly dropped a hint to Jurij
Borisov that in his regard institutions of law and order were
conducting investigation and tapping his telephone
conversations are in conflict with the Constitution.
2. In the 19 February 2004 Conclusion "On the Proposal to
Institute Impeachment Proceedings against the President of the
Republic Rolandas Paksas" of the Special Investigation
Commission, which was received together with the inquiry of the
petitioner, the 19 February 2004 Seimas Resolution "On the
Application to the Constitutional Court of the Republic of
Lithuania", it is pointed out that, on 16 March 2003, M.
Laurinkus, Director General of the State Security Department,
submitted to the President of the Republic Rolandas Paksas
transcripts and audio recordings of telephone conversations
between Jurij Borisov and A. Zatonskaya as well as A. Potnin,
employees of the Russian Federation company Almax. The
transcripts were marked by marking "Secret". M. Laurinkus
informed the President of the Republic Rolandas Paksas that the
State Security Department was conducting investigation in
regard of the company "Avia Baltika" which was headed by Jurij
Borisov. From the transcripts of telephone conversations
submitted by M. Laurinkus to the President of the Republic
Rolandas Paksas it was clear that Jurij Borisov's telephone
conversations were being tapped. On 17 March 2003, N. Laurinkus
again met the President of the Republic Rolandas Paksas, and
familiarised him with a transcript of a telephone conversation
between Jurij Borisov and A. Drakšas, Director of the company
"Restako" UAB, which had taken place on 16 March 2003. In the
opinion of the Seimas, on 17 March 2003, the President of the
Republic Rolandas Paksas, meeting Jurij Borisov, knowingly
dropped a hint to him that institutions of law and order were
tapping his telephone conversations and in his regard were
conducting investigation; by such actions the President of the
Republic Rolandas Paksas violated the principle of protection
of state secrets established in the Republic of Lithuania Law
on State and Official Secrets, breached his oath and violated
Paragraph 2 of Article 77 and Paragraph 1 of Article 82 of the
Constitution (Special Investigation Commission material, c.
8.39/11-202, the 19 February 2004 Conclusion "On the Proposal
to Institute Impeachment Proceedings against the President of
the Republic Rolandas Paksas" of Special Investigation
Commission, Items 2.3, 2.4, pp. 59-61).
3. In the 10 February 2004 explanations of the President
of the Republic Rolandas Paksas to the Special Investigation
Commission it is maintained that he, in the capacity of the
President of the Republic, had not revealed any information
comprising a state secret, nor had he created any preconditions
to make use of the state secret for the third party. The
President of the Republic Rolandas Paksas also indicated that
since 1998 Jurij Borisov had been aware of the fact that
operational actions were being conducted against him.
In the 12 March 2004 explanations of the President of the
Republic Rolandas Paksas to the Constitutional Court it is
maintained that the President of the Republic Rolandas Paksas,
while discharging his powers, did not perform any action or
failure to act, by which "dropping a hint knowingly" could have
been accomplished.
At the Constitutional Court hearing, the advocate G.
Baublys, a representative of the President of the Republic
Rolandas Paksas, explained that the President of the Republic
Rolandas Paksas did not give grounds, by any actions, for Jurij
Borisov to understand that his telephone conversations were
being tapped.
4. The following has been established in the case:
4.1. On 16 March 2003, at 15.12 o'clock, A. Drakšas,
Director of the company "Restako" UAB and a close friend of the
President of the Republic Rolandas Paksas, made a telephone
call to Jurij Borisov and told him that the President of the
Republic Rolandas Paksas mentioned to him that he (the
President of the Republic) had to meet Jurij Borisov. Jurij
Borisov confirmed to A. Drakšas that he together with the
President of the Republic Rolandas Paksas were planning to meet
on the same day, i.e. on 16 March 2003. A. Drakšas proposed
that they postpone the said meeting for a day or two (Special
Investigation Commission material, c. 16.77/18/ITT-202, 12
November 2003 State Security Department Protocol No.
03-19-1029/03 concerning use of technical equipment in
operational actions, p. 167; telephone conversation No. 1 (in
Russian), pp. 167-172; translation into Lithuanian, pp. 56-60).
4.2. On 16 March 2003, at around 16 o'clock, the President
of the Republic Rolandas Paksas made a telephone call to Jurij
Borisov and told him that he had found a missed call from Jurij
Borisov. The President of the Republic Rolandas Paksas said
that he was by the sea and asked to postpone their meeting till
the next day. Jurij Borisov said to the President of the
Republic Rolandas Paksas, "Rolandas, you are making a mistake
again." The President of the Republic Rolandas Paksas replied
that he would solve everything the next day, that on the next
day there would be a serious talk between them. Jurij Borisov
said, "Rolandas, you will have to take the decision all the
same." After that, the President of the Republic Rolandas
Paksas discontinued the conversation. Jurij Borisov tried to
make a telephone call to the President of the Republic Rolandas
Paksas again, however, the latter did not answer the call
(protocol of questioning of the witness M. Pabedinskas at the
Office of the Prosecutor General on 6 February 2004, received
at the Constitutional Court on 12 March 2004, reg. No. 13B-84).
4.3. On 16 March 2003, at 17.55 o'clock, J. Borisov made a
telephone call to A. Drakšas and informed him that the
President of the Republic Rolandas Paksas had postponed the
meeting with Jurij Borisov until 17 March 2003, 19 o'clock, and
that their meeting would take place at the place of the
President of the Republic Rolandas Paksas. Jurij Borisov also
told A. Drakšas that he had "plunked down" millions to the
President of the Republic Rolandas Paksas, and the latter had
promised, sworn to Jurij Borisov that on 17 March 2003 he would
appoint him advisor to the President of the Republic,
therefore, in case the President of the Republic Rolandas
Paksas failed to do so on 17 March 2003, Jurij Borisov would
have to act on 17 March 2003, or on 18 March 2003 at the
latest, so that he might retrieve his money back. Jurij Borisov
stated to A. Drakšas that if the President of the Republic
Rolandas Paksas uttered a single word that, purportedly, he did
not know Jurij Borisov, that, purportedly, Jurij Borisov had
merely given money to him, then this would be the "end" to the
career of the President of the Republic Rolandas Paksas, and
that if, on the next day, i.e. on 17 March 2003, the President
of the Republic Rolandas Paksas made "some stupidity", then it
would be the "end", "death" to him as the President of the
Republic. Jurij Borisov arranged to meet A. Drakšas on 17 March
2003, at 9 o'clock (Special Investigation Commission material,
c. 16.77/18/ITT-202, 12 November 2003 State Security Department
Protocol No. 03-19-1029/03 concerning use of technical
equipment in operational actions, p. 167; telephone
conversation No. 2 (in Russian), pp. 172-180; translation into
Lithuanian, pp. 60-67).
4.4. On 16 March 2003, at 18.12 o'clock, Jurij Borisov
made a telephone call to V. Sirvydis, a lawyer that was giving
him advice. V. Sirvydis informed Jurij Borisov that the
President of the Republic Rolandas Paksas had recently
announced, while giving a TV interview, that in the list of
advisors to the President of the Republic Jurij Borisov was
absent, and that Jurij Borisov is not an advisor to the
President of the Republic Rolandas Paksas. Jurij Borisov said
that it meant that the President of the Republic Rolandas
Paksas had betrayed him and stated to V. Sirvydis that if, on
17 March 2003, the President of the Republic Rolandas Paksas
did not fulfil at least one of his promises, Jurij Borisov
would start to retrieve his money back. Jurij Borisov also
stated that he could reveal everything, since he had all his
recordings in a cassette. Jurij Borisov said that he simply
must, on the next day, make the information about the President
of the Republic Rolandas Paksas public, that the President of
the Republic Rolandas Paksas was no longer the President of the
Republic, but a "cadaver", and that one had to take measures to
remove from office Dalia Kutraitė-Giedraitienė. Jurij Borisov
also said that on the next day, i.e. on 17 March 2003, he would
meet the President of the Republic Rolandas Paksas (Special
Investigation Commission material, c. 16.77/20/ITT-202, 14
February 2004 State Security Department Protocol No.
03-19-46/04 concerning use of technical equipment in
operational actions, p. 337; telephone conversation No. 2 (in
Russian), pp. 340-349; translation-Special Investigation
Commission material, c. 16.77/18/ITT-202, pp. 107-115).
4.5. On 16 March 2003, at 18.55 o'clock, Jurij Borisov
made a telephone call to A. Drakšas and retold him the
information received from V. Sirvydis that the President of the
Republic Rolandas Paksas, while giving a TV interview, had
stated the Jurij Borisov was not, nor would ever be his
advisor. Jurij Borisov also said to A. Drakšas that the
President of the Republic Rolandas Paksas had betrayed him, and
also that he (Jurij Borisov) had told the President of the
Republic Rolandas Paksas that in case of failure to fulfil at
least one promise on Monday, then Jurij Borisov might reveal
everything on the next day, that he would start to retrieve his
money back, that there was an agreement between Jurij Borisov
and the President of the Republic Rolandas Paksas with the
signature of Rolandas Paksas, and that Jurij Borisov could show
this agreement to A. Drakšas. Jurij Borisov stated to A.
Drakšas that the President of the Republic Rolandas Paksas was
no longer the President of the Republic, but a "cadaver"
(Special Investigation Commission material, c.
16.77/18/ITT-202, 2 November 2003 State Security Department
Protocol No. 03-19-999/03 concerning use of technical equipment
in operational actions, p. 126; telephone conversation No. 1
(in Russian), pp. 126-128; translation into Lithuanian, pp.
18-20).
4.6. On 16 March 2003, at 19.01 o'clock, Jurij Borisov
made a telephone call to V. Sirvydis and told him that he was
disturbed by a statement made by the President of the Republic
Rolandas Paksas in a TV interview that Jurij Borisov would not
be appointed advisor to the President of the Republic (Special
Investigation Commission material, c. 16.77/20/ITT-202, 14
January 2004 State Security Department Protocol No. 03-19-46/04
concerning use of technical equipment in operational actions,
p. 337; telephone conversation No. 3 (in Russian), pp. 349-352;
translation into Lithuanian, ibid., c. 16.77/18/ITT-202, pp.
115-118).
4.7. On 16 March 2003, at 19.09 o'clock, Jurij Borisov
made a telephone call to A. Zatonskaya. He informed her about
the TV interview of the President of the Republic Rolandas
Paksas and told her that the President of the Republic Rolandas
Paksas had promised him to appoint Jurij Borisov advisor to the
President of the Republic on 17 March 2003, but he (President
of the Republic) had betrayed him. Jurij Borisov also said to
A. Zatonskaya that he had spoken to A. Drakšas and that he
would take all the notes that he had given to the President of
the Republic Rolandas Paksas from the computer and would show
them to A. Drakšas on 17 March 2003, in the morning (Special
Investigation Commission material, c. 16.77/18/ITT-202, 12
November 2003 State Security Department Protocol No.
03-19-1029/03 concerning use of technical equipment in
operational actions, p. 131; telephone conversation No. 8 (in
Russian), pp. 156-165; translation into Lithuanian, pp. 46-55).
4.8. On 16 March 2003, in the evening, M. Laurinkus
visited the President of the Republic Rolandas Paksas at home.
M. Laurinkus brought along transcripts of five telephone
conversations between Jurij Borisov and A. Zatonskaya, as well
as A. Potnin, together with the audio recordings of these
conversations and technical equipment enabling to listen to
them. All transcripts of the conversations were marked "Secret"
(Special Investigation Commission material, c.
16.77/19/ITT-202, protocol of questioning of the witness M.
Laurinkus at the Office of the Prosecutor General on 16
December 2003, pp. 112-114; protocol of questioning of the
witness M. Pabedinskas at the Office of the Prosecutor General
on 6 February 2004, received at the Constitutional Court on 12
March 2004, reg. No. 13B-84).
M. Laurinkus submitted the transcripts and audio
recordings of the following telephone conversations to the
President of the Republic Rolandas Paksas (Special
Investigation Commission material, c. 16.77/19/ITT-202, State
Security Department Note No. (03)-18-414-766 of 3 December 2003
to A. Kliunka, Chief Prosecutor of the Office of the Prosecutor
General of the Republic of Lithuania, p. 115):
1) the conversation of Jurij Borisov with A. Zatonskaya,
which took place on 1 March 2003 at 8.17 o'clock. During this
conversation, Jurij Borisov made arrangements with A.
Zatonskaya concerning the prospective visit of Jurij Borisov to
Moscow at A. Zatonskaya's place on 3 March 2003 (Special
Investigation Commission material, c. 16.77/18/ITT-202, 12
November 2003 State Security Department Protocol No.
03-19-1029/03 concerning use of technical equipment in
operational actions, p. 131; telephone conversation No. 3 (in
Russian), pp. 139-141; translation into Lithuanian, pp. 30-31);
2) the conversation of Jurij Borisov with A. Zatonskaya,
which took place on 4 March 2003 at 10.43 o'clock. During this
conversation Jurij Borisov informed A. Zatonskaya that half an
hour before the President of the Republic Rolandas Paksas, very
agitated, had made him a telephone call and proposed that they
not "stall it" till Saturday, and decide it earlier, on
Wednesday. The President of the Republic Rolandas Paksas had
said to Borisov, "Everything's OK, calm down, we will settle
everything." (Special Investigation Commission material, c.
16.77/18/ITT-202, 12 November 2003 State Security Department
Protocol No. 03-19-1029/03 concerning use of technical
equipment in operational actions, p. 131; telephone
conversation No. 4 (in Russian), pp. 141-142; translation into
Lithuanian, p. 32);
3) the conversation of Jurij Borisov with A. Zatonskaya,
which took place on 5 March 2003 at 10.17 o'clock. During this
conversation Jurij Borisov advised A. Zatonskaya on how she
must answer to questions of Lithuanian journalists. Jurij
Borisov also informed A. Zatonskaya that the day before, i.e.
on 4 March 2003 he had visited the Office of the President,
while on the day of the conversation, i.e. on 5 March 2003, he
would meet the President of the Republic Rolandas Paksas, "but
not there, but at his place now. Since now he is visibly afraid
to come to my place." (Special Investigation Commission
material, c. 16.77/18/ITT-202, 12 November 2003 State Security
Department Protocol No. 03-19-1029/03 concerning use of
technical equipment in operational actions, p. 131; telephone
conversation No. 5 (in Russian), pp. 142-149; translation into
Lithuanian, pp. 33-39);
4) the conversation of Jurij Borisov with A. Potnin and A.
Zatonskaya, which took place on 5 March 2003 at 10.51 o'clock.
During this conversation they spoke on how it would be possible
to discredit Dalia Kutraitė-Giedraitienė, to diminish her
influence on the President of the Republic Rolandas Paksas,
also, on how it would be possible to maintain and strengthen
the influence of Jurij Borisov on the President of the Republic
Rolandas Paksas. Jurij Borisov also said that the President of
the Republic Rolandas Paksas "got scared again: we arranged to
meet at my place, and now he's calling <...> and says, at my
place <...>; it means, we're meeting at seven, and at eight
thirty we're playing tennis. I tell him, you think we're going
to settle all the questions in an hour and a half?" (Special
Investigation Commission material, c. 16.77/18/ITT-202, 12
November 2003 State Security Department Protocol No.
03-19-1028/03 concerning use of technical equipment in
operational actions, p. 131; telephone conversation No. 6 (in
Russian), pp. 149-152; translation into Lithuanian, pp. 39-42);
5) the conversation of Jurij Borisov with A. Zatonskaya,
which took place on 8 March 2003 at 10.44 o'clock. During this
conversation Jurij Borisov arranged with A. Zatonskaya to meet
at her place on 11 March 2003. They also spoke on how it would
be possible to discredit Dalia Kutraitė-Giedraitienė and
increase the influence of Jurij Borisov on the President of the
Republic Rolandas Paksas. Jurij Borisov said, "If now he tells,
Jurij, you know <...>, wait a bit, a month perhaps <...>, I'll
tell him, go to hell." Jurij Borisov also told A. Zatonskaya
that the President of the Republic Rolandas Paksas "asked to
postpone it for a week. OK, I gave him a week" (Special
Investigation Commission material, c. 16.77/18/ITT-202, 12
November 2003 State Security Department Protocol No.
03-19-1029/03 concerning use of technical equipment in
operational actions, p. 131; telephone conversation No. 7 (in
Russian), pp. 152-156; translation into Lithuanian, pp. 42-46).
On 16 March 2003, during the meeting between the President
of the Republic Rolandas Paksas and M. Laurinkus, the President
of the Republic Rolandas Paksas read the transcripts of
telephone conversations submitted to him (Special Investigation
Commission material, c. 16.77/19/ITT-202, protocol of
questioning of the witness the President of the Republic
Rolandas Paksas carried out by a judge of pre-trial
investigation on 17 November 2003, pp. 71-93). The President of
the Republic Rolandas Paksas did not comment on the content of
the transcripts to M. Laurinkus, while he did not listen to the
audio recordings. M. Laurinkus informed the President of the
Republic Rolandas Paksas orally that the State Security
Department was conducting operational investigation in regard
of the aviation company "Avia Baltika" UAB, which was headed by
Jurij Borisov. At the request of the President of the Republic
Rolandas Paksas, M. Laurinkus left him the transcripts of
telephone conversations between Jurij Borisov with A.
Zatonskaya as well as A. Potnin, from which it was clear that
Jurij Borisov's telephone conversations were being tapped. The
President of the Republic Rolandas Paksas proposed that he and
M. Laurinkus meet on 17 March 2003 (Special Investigation
Commission material, c. 16.77/19/ITT-202, protocol of
questioning of the witness M. Laurinkus at the Office of the
Prosecutor General on 16 December 2003, pp. 112-114).
According to the President of the Republic Rolandas
Paksas, in the spring of 2003 M. Laurinkus visited him at his
home and submitted to him recordings and transcripts of several
telephone conversations between Jurij Borisov and A. Zatonskaya
and A. Drakšas; the President of the Republic Rolandas Paksas
read them (Special Investigation Commission material, c.
16.77/19/ITT-202, protocol of questioning of the witness R.
Paksas performed by a judge of pre-trial investigation on 17
November 2003, pp. 71-93).
4.9. On 17 March 2003, at 8.08 o'clock A. Zatonskaya
phoned Jurij Borisov. She said that "several right words" had
come to her mind, and that she wished to call the President of
the Republic Rolandas Paksas directly. Jurij Borisov told the
mobile telephone number of the President of the Republic
Rolandas Paksas to A. Zatonskaya. A. Zatonskaya said, "I'm
going to try, well, but if something goes wrong, then I'll ask
your favour, so that it might be easier to get through." Jurij
Borisov replied, "<...> if you're willing to talk to him, so
I'll be at his place at seven o'clock, I'll be able to give you
a ring." (Special Investigation Commission material, c.
16.77/18/ITT-202, 17 November 2003 State Security Department
Protocol No. 03-19-1050/03 concerning use of technical
equipment in operational actions, p. 181; telephone
conversation No. 1 (in Russian), pp. 181-183; translation into
Lithuanian, pp. 68-69.)
4.10. On 17 March 2003, at 11.50 o'clock Jurij Borisov
made a telephone call to Remigijus Ačas, the then advisor to
the President of the Republic on national security issues. The
interlocutors agreed to meet on the same day at 14.30 o'clock
in the flat of Remigijus Ačas in Vilnius; Remigijus Ačas
promised Jurij Borisov to explain everything (Special
Investigation Commission material, c. 16.77/18/ITT-202, 2
November 2003 State Security Department Protocol No.
03-19-999/03 concerning use of technical equipment in
operational actions, p. 126; telephone conversation No. 2 (in
Russian), pp. 128-129; translation into Lithuanian, pp. 20-21).
4.11. On 17 March 2003, at 11.55 o'clock A. Zatonskaya
made a telephone call to Jurij Borisov. Jurij Borisov informed
her that he had spoken to A. Drakšas, gave him to read the
documents and told him about the "Almax" chart, and also that
there were 20 sheets in addition, and that Jurij Borisov would
not show the agreement to A. Drakšas. A. Zatonskaya asked were
Jurij Borisov had shown the last chart (agreement) to A.
Drakšas, which had been drawn up by Jurij Borisov. Jurij
Borisov replied that he had not shown the chart to A. Drakšas,
however, he had told him that there existed an agreement
between Jurij Borisov and the President of the Republic
Rolandas Paksas; according to Jurij Borisov, he had spoken very
little about the content of the agreement to A. Drakšas-he had
pointed out only the general sum of money, which was huge
("they don't have nor will ever have such a sum"). Jurij
Borisov also said to A. Zatonskaya that A. Drakšas understood
that the agreement must be observed, it must be followed. Jurij
Borisov also stated that everyone thought that that evening the
President of the Republic Rolandas Paksas would ask Jurij
Borisov for pardon and that the latter be patient, that he
wait. In addition, Jurij Borisov told A. Zatonskaya that on
that day A. Drakšas would meet the President of the Republic
Rolandas Paksas. Jurij Borisov said, "I've told Algis <...> I
will give all this material to an intelligent service <...>,
the hostile one." Jurij Borisov also told A. Zatonskaya that on
that day he would meet Remigijus Ačas, who had invited him for
a talk (Special Investigation Commission material, c.
16.77/18/ITT-202, 2 November 2003 State Security Department
Protocol No. 03-19-998/03 concerning use of technical equipment
in operational actions, p. 121; telephone conversation No. 1
(in Russian), pp. 121-125; translation into Lithuanian, pp.
12-17).
4.12. On 17 March 2003, at around 12 o'clock M. Laurinkus
met the President of the Republic Rolandas Paksas at the Office
of the President of the Republic. During this meeting, the
President of the Republic Rolandas Paksas returned the
transcripts of telephone conversations that had been left to
him the day before to M. Laurinkus, however, they did not speak
on this topic. M. Laurinkus informed the President of the
Republic Rolandas Paksas about two additional telephone
conversations-one of them was between Jurij Borisov and A.
Drakšas, which took place on 16 March 2003 at 18.15 o'clock,
during which Jurij Borisov told A. Drakšas that on the next day
Jurij Borisov would make the material compromising the
President of the Republic Rolandas Paksas public, and also
referred to the President of the Republic Rolandas Paksas as
"political cadaver", "traitor" (Special Investigation
Commission material, c. 16.77/19/ITT-202, protocol of
questioning of the witness M. Laurinkus at the Office of the
Prosecutor General on 16 December 2003, pp. 112-114; ibid. c.
8.39/05-202, testimony of the witness M. Laurinkus on 23
January 2004, pp. 39-40).
4.13. On 17 March 2003, at 13.12 o'clock Jurij Borisov
made a telephone call to A. Drakšas and told him that the
President of the Republic Rolandas Paksas had sent a man to
talk to him, and he had threatened Jurij Borisov and said to
him, "You be quiet, then you'll have protection <...>, if not,
then <...>" (Special Investigation Commission material, c.
16.77/18/ITT-202, 2 November 2003 State Security Department
Protocol No. 03-19-999/03 concerning use of technical equipment
in operational actions, p. 126; telephone conversation No. 3
(in Russian), pp. 129-130; translation into Lithuanian, pp.
21-22).
4.14. On 17 March 2003, at 17.02 o'clock, V. Sirvydis made
a telephone call to Jurij Borisov. Jurij Borisov told V.
Sirvydis that on that day he would meet the President of the
Republic Rolandas Paksas, and that on that day he would learn
whether all his telephone conversations were being tapped
(Special Investigation Commission material, c.
16.77/18/ITT-202, 2 December 2003 State Security Department
Protocol No. 03-19-1111/03 concerning use of technical
equipment in operational actions, p. 209; telephone
conversation No. 1 (in Russian), pp. 209-210; translation into
Lithuanian, pp. 54-55).
4.15. On 17 March 2003, the President of the Republic
Rolandas Paksas finished his work at the Office of the
President and left the Office of the President at 19.30 o'clock
(Note No. (20/1.15)-7S-356 of the Front Office Security
Department, received at the Constitutional Court on 23 March
2004, reg. No. 13B-97).
4.16. On 17 March 2003, in the evening Jurij Borisov met
the President of the Republic Rolandas Paksas (Special
Investigation Commission material, c. 16.77/19/ITT-202,
protocol of questioning of the suspect J. Borisov at the Office
of the Prosecutor General on 1 December 2003, pp. 41-47; ibid.
c. 8.39/04-202, testimony of the witness J. Borisov on 14
January 2004, pp. 154-155, 165).
On 3 November 2003, when being questioned at the Office of
the Prosecutor General, Jurij Borisov testified that during the
meeting with the President of the Republic Rolandas Paksas he
understood that the President of the Republic Rolandas Paksas
had received the recordings of Jurij Borisov's conversations
from the State Security Department. Jurij Borisov testified:
"After several days had passed from may conversation with A.
Drakšas, R. Paksas summoned me and we talked with him about
this. I understood that he had received the recordings of my
conversations from the State Security Department. We chattered
in a friendly manner with R. Paksas, I told him that I had been
wrong, had gone off the deep end, and so all problems were
settled, there were no more misunderstandings." (Special
Investigation Commission material, c. 16.77/18/ITT-202,
protocol of questioning of the suspect J. Borisov at the Office
of the Prosecutor General on 3 November 2003, pp. 237-240.)
The President of the Republic Rolandas Paksas does not
deny that on 17 March 2003 he met Jurij Borisov (explanations
of the advocate G. Baublys, a representative of the President
of the Republic Rolandas Paksas, at the Constitutional Court
hearing on 24 March 2004). On 17 November 2003, the President
of the Republic Rolandas Paksas answered to the question of the
judge of pre-trial investigation whether the President of the
Republic Rolandas Paksas read the transcripts of telephone
conversations submitted to him by M. Laurinkus as follows:
"Without doubt. I negatively assess transcripts, I reacted in a
simple manner, and pushed the emotions aside. I talked to J.
Borisov and we pushed emotions aside." The President of the
Republic Rolandas Paksas answered to the question of the judge
of pre-trial investigation whether he had spoken to A. Drakšas
about the content of the transcripts of telephone conversations
submitted to him by M. Laurinkus as follows: "I don't remember.
We talked about many things." To the question of the judge of
pre-trial investigation whether Jurij Borisov had commented
upon his conversation with A. Zatonskaya, the President of the
Republic Rolandas Paksas replied that he thought that it had
been emotional excitement, and that neither he nor Jurij
Borisov regarded that as significant (Special Investigation
Commission material, c. 16.77/19/ITT-202, protocol of
questioning of the witness, the President of the Republic R.
Paksas by a judge of pre-trial investigation on 17 November
2003, pp. 71-93).
4.17. On 18 March 2003, at 11.50 o'clock Jurij Borisov
made a telephone call to A. Zatonskaya. Jurij Borisov said,
"All our conversations are being recorded, including this one,
do you understand? Now, all of them are being interpreted,
that's to say, put upside down. <...> Everything, so to speak,
right? That you and I are the main enemies, so, like, only
excerpts are put on his table, so to speak. You know, those
that are expedient, so to speak, you know who benefits from
it." "All our conversations, all these my emotions, all this
afflux of feelings, about which I had no one to talk to but
you, only you, are, so to speak, recorded, taken out, like, a
phrase, well, everything." "<...> and now, so to speak, that
conversation is being interpreted, when we spoke to each other,
it means, let Dalia has it out there... a pot-shot at Dalia."
Jurij Borisov also said that he understood that the President
of the Republic Rolandas Paksas might turn away from him, that
he had gone to the embassy and managed "to get Russian
citizenship", also, that the President of the Republic Rolandas
Paksas had promised to retain citizenship of the Republic of
Lithuania to him "sort of for my merits for Lithuania, not only
for my help to him during the elections" (Special Investigation
Commission material, c. 16.77/18/ITT-202, 2 December 2003 State
Security Department Protocol No. 03-19-1113/03 concerning use
of technical equipment in operational actions, p. 211;
telephone conversation No. 1 (in Russian), pp. 211-219;
translation into Lithuanian, pp. 92-99).
4.18. On 1 December 2003, Jurij Borisov, when questioned
at the Office of the Prosecutor General, responded to the
question whether the President of the Republic Rolandas Paksas
had told him that his telephone conversations were being tapped
as follows: "This question is incorrect, it concerns the
President of the Republic and I will not answer to it. It think
that you have already understood from my two previous answers
that I have known that my conversations are tapped for a very
long time <...>." (Special Investigation Commission material,
c. 16.77/19/ITT-202, protocol of questioning of the suspect J.
Borisov at the Office of the Prosecutor General on 1 December
2003, pp. 41-47.)
4.19. On 4 December 2003, V. Sirvydis, when questioned at
the Office of the Prosecutor General, replied to the question
"Did J. Borisov tell you that his telephone conversations were
being tapped?" as follows: "J. Borisov told me this several
times, also on the phone. We spoke about it also in February
and March. Perhaps, the telephone conversation took place in
the middle of March, this year after he had learned that his
telephone conversations were being tapped. He mentioned that he
had seen transcribed transcripts of the conversations. He also
mentioned the name of R. Ačas, but I don't remember in what
connection it was, maybe, R. Ačas had asked him to come to the
Office of the President, or invited him to his home, and there
Borisov learned about the tapping of his conversations."
(Special Investigation Commission material, c.
16.77/19/ITT-202, protocol of questioning of the witness V.
Sirvydis at the Office of the Prosecutor General on 4 December
2003, pp. 105-111.)
On 18 March 2004, at the Constitutional Court hearing
Remigijus Ačas replied to the question presented by R. Šukys, a
representative of the petitioner, whether he informed Jurij
Borisov or other persons that telephone conversations of Jurij
Borisov were being tapped, as follows: "I did not inform Mr.
Borisov about this."
When replying to the question, presented at the 22 January
2004 closed sitting of the Special Investigation Commission,
whether he knew that M. Laurinkus had submitted information to
the President of the Republic Rolandas Paksas about tapping of
telephone conversations of Jurij Borisov and the transcripts of
these conversations, Remigijus Ačas said, "No, I have never
spoken with the President on this topic." (Special
Investigation Commission material, c. 8.39/10-202, testimony of
the witness R. Ačas on 22 January 2004, pp. 136-137.)
5. On the basis of what has been established in the case,
one is to hold:
1) the testimony by Jurij Borisov, given on 3 November
2003 during the questioning at the Office of the Prosecutor
General, in which he stated, "after several days had passed
from may conversation with A. Drakšas, R. Paksas summoned me
and we talked with him about this. I understood that he had
received the recordings of my conversations from the State
Security Department", as well as the content of his
conversations with A. Zatonskaya, confirms that during his
meeting with the President of the Republic Rolandas Paksas on
17 March 2003, Jurij Borisov learned from the President of the
Republic Rolandas Paksas that his telephone conversations were
being tapped.
2) the statements "all our conversations are being
recorded", "only excerpts are put on his table", "all our
conversations, all these my emotions, all this afflux of
feelings, about which I had no one to talk to but you, only
you, is, so to speak, recorded, taken out, like, a phrase,
well, everything", "<...> and now <...> that conversation is
being interpreted, when we spoke to each other, it means, let
Dalia has it out there... a pot-shot at Dalia" made by Jurij
Borisov during his telephone conversation with A. Zatonskaya on
18 March 2003 indicate that during the aforesaid meeting with
the President of the Republic Rolandas Paksas on 17 March 2003,
Jurij Borisov learned form the President of the Republic
Rolandas Paksas not only that his telephone conversations were
being tapped, but also the content of its separate telephone
conversations, which had been recorded, as well as the details
of these conversations.
3) the fact that during the meeting with the President of
the Republic Rolandas Paksas on 17 March 2003 Jurij Borisov
learned the content of his telephone conversations, which had
been recorded, as well as the details of these conversations,
proves that the President of the Republic Rolandas Paksas
during the meeting with Jurij Borisov on 17 March 2003
knowingly dropped a hint to Jurij Borisov that institutions of
law and order were tapping Jurij Borisov's telephone
conversations.
4) the President of the Republic Rolandas Paksas, during
the meeting with Jurij Borisov on 17 March 2003, having
knowingly dropped a hint to him that Jurij Borisov's telephone
conversations were being tapped, alongside, knowingly dropped a
hint to Jurij Borisov that in regard of Jurij Borisov
institutions of law and order were conducting operational
investigation.
6. The 10 February 2004 explanations of the President of
the Republic Rolandas Paksas to the Special Investigation
Commission that he, in the capacity of the President of the
Republic, had not revealed any information comprising a state
secret, nor had he created any preconditions to make use of the
state secret for a third party, the 12 March 2004 explanations
of the President of the Republic Rolandas Paksas to the
Constitutional Court that he, while discharging his powers, did
not perform any action or failure to act, by which "dropping a
hint to one knowingly" could have been accomplished, also the
explanations of the advocate G. Baublys, a representative of
the President of the Republic Rolandas Paksas, at the
Constitutional Court hearing that the President of the Republic
Rolandas Paksas did not give grounds, by any actions, for Jurij
Borisov to understand that his telephone conversations were
being tapped, are to be assessed critically. These explanations
are denied by the content of the 17 March 2003 telephone
conversation between Jurij Borisov and V. Sirvydis, the
testimony of Jurij Borisov during his questioning at the Office
of the Prosecutor General on 3 November 2003, the content of
the telephone conversation between Jurij Borisov and A.
Zatonskaya on 18 March 2003.
7. During his questioning at the Office of the Prosecutor
General on 1 December 2003, Jurij Borisov testified that he had
known for approximately two years that his telephone
conversations were being tapped (Special Investigation
Commission material, c. 16.77/19/ITT-202, protocol of
questioning of the suspect J. Borisov at the Office of the
Prosecutor General on 1 December 2003, p. 46). During his
questioning at the Special Investigation Commission on 14
January 2004, Jurij Borisov asserted that he had known since
1998 that the State Security Department was conducting
operational activities against him and the company headed by
him, thus he saw no sense to apply to the President of the
Republic with the question whether he was being tapped or not
(Special Investigation Commission material, c. 8.39/04-202,
testimony of the witness J. Borisov on 14 January 2004, p.
156). In his 10 February 2004 explanations to the Special
Investigation Commission, the President of the Republic
Rolandas Paksas also maintained that Jurij Borisov had known
since 1998 that his conversations were being tapped and that in
his regard operational actions were performed (Special
Investigation Commission material, c. 16.77/23-202, the 10
February 2004 written explanations by the President of the
republic R. Paksas, p. 40). During his questioning at the
Office of the Prosecutor General on 4 December 2003, V.
Sirvydis testified that Jurij Borisov had told him for several
times, as well as in February 2003, that his conversations were
being tapped (Special Investigation Commission material, c.
16.77/19/ITT-202, protocol of questioning of the witness V.
Sirvydis at the Office of the Prosecutor General on 4 December
2003, pp. 105-111). At the 18 March 2004 Constitutional Court
hearing, Remigijus Ačas testified that Jurij Borisov was taking
precautions in order to avoid tapping of his conversations as
far back as December 2002.
It should be emphasised that the aforesaid explanations of
the President of the Republic Rolandas Paksas, as well as the
testimonies of Jurij Borisov, V. Sirvydis, and Remigijus Ačas,
do not deny the fact that the President of the Republic
Rolandas Paksas, during his meeting with Jurij Borisov on 17
March 2003 knowingly dropped a hint to Jurij Borisov that
institutions of law and order were tapping Jurij Borisov's
telephone conversations and that in regard of Jurij Borisov
institutions of law and order were conducting operational
investigation.
It needs to be noted that even if Jurij Borisov knew,
prior to his meeting with the President of the Republic
Rolandas Paksas on 17 March 2003, that his telephone
conversations were being tapped, also, even if the President of
the Republic Rolandas Paksas knew, prior to the said meeting
with Jurij Borisov when he knowingly dropped a hint to Jurij
Borisov that Jurij Borisov's telephone conversations were being
tapped, that Jurij Borisov knew about it, all the same the
President of the Republic Rolandas Paksas had a duty to
safeguard the information, that Jurij Borisov's telephone
conversations were being tapped, which comprised a state
secret, and not to reveal this information to Jurij Borisov.
8. The classification, keeping, use, declassification,
co-ordination of protection and control of information
comprising a state and official secret are regulated by the
Republic of Lithuania Law on State Secrets and Official
Secrets, adopted by the Seimas on 25 November 1999 (with
subsequent amendments and supplements).
Under Paragraph 7 of Article 3 of the Law on State Secrets
and Official Secrets, information marked by security
classifications "Top Secret" or "Secret," shall not be passed
to third parties or disseminated in any other way without the
written consent of the owner of such information.
Under Item 20 of Paragraph 1 of Article 5 (wording of 26
March 2002) of the same law, information on operative
performance of the subject of operative activities, usage of
means and methods, as well as information obtained in the
course of operative activities can comprise a state secret.
Paragraph 1 of Article 9 of the Law on State Secrets and
Official Secrets inter alia provides that the right ex officio
to become familiarised with and use information considered a
state secret is granted to the President of the Republic;
Paragraph 2 of the same article provides that only persons
having special permits may become familiarised with information
comprising a state secret.
Under Paragraph 1 of Article 14 of the Law on State
Secrets and Official Secrets, a person shall be obliged to keep
the classified information entrusted to him or learnt by him in
the course of his service throughout the entire term that the
information is deemed classified.
9. As mentioned, the transcripts of telephone
conversations between Jurij Borisov and A. Zatonskaya as well
as A. Potnin which were submitted to the President of the
Republic Rolandas Paksas by M. Laurinkus on 16 March 2003
contained classification marking "Secret".
10. Under Paragraph 1 of Article 14 of the Law on State
Secrets and Official Secrets, the President of the Republic
Rolandas Paksas was obliged to keep the classified information
entrusted to him throughout the entire term that the
information was deemed classified, thus also the information
about the fact that institutions of law and order were tapping
Jurij Borisov's telephone conversations, and that in regard of
Jurij Borisov institutions of law and order were performing
operational investigation.
11. Under Paragraph 7 of Article 3 of the Law on State
Secrets and Official Secrets, the information about the fact
that institutions of law and order were tapping Jurij Borisov's
telephone conversations, that in regard of Jurij Borisov
institutions of law and order were performing operational
investigation could not be passed to third parties or
disseminated in any other way without the written consent of
the owner of such information. Without the State Security
Department's consent, the President of the Republic Rolandas
Paksas was not permitted pass this information to Jurij
Borisov.
12. It was held in this Conclusion of the Constitutional
Court that the President of the Republic Rolandas Paksas during
the meeting with Jurij Borisov on 17 March 2003 knowingly
dropped a hint to Jurij Borisov that institutions of law and
order were tapping Jurij Borisov's telephone conversations and
that in regard of Jurij Borisov institutions of law and order
were conducting operational investigation.
Thus, the President of the Republic Rolandas Paksas during
the meeting with Jurij Borisov on 17 March 2003 revealed
information to him, which comprised a state secret, and did not
guarantee protection of the state secret.
Such actions of the President of the Republic Rolandas
Paksas are in conflict with the provisions of Paragraph 7 of
Article 3, Paragraph 2 of Article 9, Paragraph 1 of Article 14
of the Law on State Secrets and Official Secrets.
13. Under Paragraph 1 of Article 82 of the Constitution,
the elected President of the Republic will take an oath to the
Nation to be faithful to the Republic of Lithuania and the
Constitution, to conscientiously fulfil the duties of his
office, and to be equally just to all.
Under Paragraph 2 of Article 77 of the Constitution, the
President of the Republic shall represent the State of
Lithuania and shall perform everything that he is charged with
by the Constitution and laws.
14. Having held that actions of President Rolandas Paksas
of the Republic of Lithuania by which the President of the
Republic Rolandas Paksas during the meeting with Jurij Borisov
on 17 March 2003 revealed information to him, which comprised a
state secret, and did not guarantee protection of the state
secret are in conflict with the provisions of Paragraph 7 of
Article 3, Paragraph 2 of Article 9, Paragraph 1 of Article 14
of the Law on State Secrets and Official Secrets, one is to
hold, alongside, that the actions of President Rolandas Paksas
of the Republic of Lithuania by which he knowingly dropped a
hint to Jurij Borisov that in his regard institutions of law
and order were conducting operational investigation and tapping
his telephone conversations are in conflict with the provision
of Paragraph 2 of Article 77 of the Constitution that the
President of the Republic shall represent the State of
Lithuania and shall perform everything that he is charged with
by the Constitution and laws, and the provision of Paragraph 1
of Article 82 of the Constitution, that the elected President
of the Republic will take an oath to the Nation to be faithful
to the Republic of Lithuania and the Constitution, to
conscientiously fulfil the duties of his office, and to be
equally just to all. By the said actions President Rolandas
Paksas of the Republic of Lithuania grossly violated the
Constitution of the Republic of Lithuania and breached his
oath.
VIII
On the presentation of the conclusion, requested in the
inquiry set forth in the 19 February 2004 Seimas Resolution "On
the Application to the Constitutional Court of the Republic of
Lithuania", whether the actions of the President of the
Republic Rolandas Paksas by which he, seeking to implement
property interests of private persons close to him, by making
use of his status, gave orders to his advisor Visvaldas
Račkauskas to seek to influence, and by making use of his
official position, through institutions of law and order,
decisions of heads and shareholders of the company "Žemaitijos
keliai" UAB concerning transfer of shares to persons close to
Rolandas Paksas, as well as his actions by which he, in 2003,
seeking to implement property interests of private persons
close to him, by making use of his status, exerted influence on
decisions of heads and shareholders of the company "Žemaitijos
keliai" UAB concerning transfer of shares to persons close to
Rolandas Paksas, as well as his actions by which he, knowing
that the unlawful influence was being exerted on heads and
shareholders of the company "Žemaitijos keliai" UAB by making
use of his name as the President of the Republic, took no
measures to prevent this, are in conflict with the
Constitution.
1. In the inquiry set forth in its 19 February 2004
Resolution "On the Application to the Constitutional Court of
the Republic of Lithuania", the Seimas requests for a
conclusion whether the following actions of the President of
the Republic Rolandas Paksas are in conflict with the
Constitution:
1) the President of the Republic Rolandas Paksas, seeking
to implement property interests of private persons close to
him, by making use of his status, gave orders to his advisor
Visvaldas Račkauskas to seek to influence, by making use of his
official position, through institutions of law and order,
decisions of heads and shareholders of the company "Žemaitijos
keliai" UAB concerning transfer of shares to persons close to
Rolandas Paksas;
2) in 2003, the President of the Republic Rolandas Paksas,
seeking to implement property interests of private persons
close to him and by making use of his status exerted influence
on decisions of heads and shareholders of the company
"Žemaitijos keliai" UAB concerning transfer of shares to
persons close to Rolandas Paksas;
3) the President of the Republic Rolandas Paksas, knowing
that the unlawful influence was being exerted on heads and
shareholders of the company "Žemaitijos keliai" UAB by making
use of his name as the President of the Republic, took no
measures to prevent this.
2. It is clear from the content of the inquiry that the
said three actions of the President of the Republic Rolandas
Paksas are linked, in the opinion of the petitioner, with the
influence exerted on heads and shareholders of the company
"Žemaitijos keliai" UAB concerning transfer of shares to
persons close to Rolandas Paksas.
3. In the 19 February 2004 Conclusion "On the Proposal to
Institute Impeachment Proceedings against the President of the
Republic Rolandas Paksas" of the Special Investigation
Commission, which was received together with the inquiry of the
petitioner-the 19 February 2004 Seimas Resolution "On the
Application to the Constitutional Court of the Republic of
Lithuania", as well as in the explanations of the
representatives of the Seimas at the Constitutional Court
hearing it is maintained that the President of the Republic
Rolandas Paksas, by making use of his status, sought to
influence decisions of the heads and shareholders of the
company "Žemaitijos keliai" UAB concerning transfer of shares
to persons close to Rolandas Paksas. According to the
petitioner and its representatives, the President of the
Republic Rolandas Paksas commissioned the member of the Seimas
D. A. Barakauskas to elucidate the situation in the company
"Šiaulių plentas" AB and seek to ensure that one settled on
transfer of shares of the company "Žemaitijos keliai" UAB to
persons close to him; in the summer of 2003, the President of
the Republic Rolandas Paksas made a telephone call to A. M.
Steponavičienė, a shareholder of the company "Žemaitijos
keliai" UAB and asked her not to sell the shares of the company
"Žemaitijos keliai" UAB held by her to the company "Šiaulių
plentas" AB; A. Drakšas, Director of the company "Restako" UAB
and a close friend of the President of the Republic Rolandas
Paksas, requested that the President of the Republic Rolandas
Paksas help to exert influence, through his advisor Visvaldas
Račkauskas, on the heads of the company "Šiaulių plentas" AB,
which is the holder of controlling block of shares of the
company "Žemaitijos keliai" UAB, and the heads and shareholders
of the company "Žemaitijos keliai" UAB; the President of the
Republic Rolandas Paksas gave instructions to his advisor
Visvaldas Račkauskas to exert pressure on heads of the company
"Šiaulių plentas" AB-to initiate, via the Office of the
Commissioner General of the Town of Šiauliai, the check-up of
the activities of the company "Šiaulių plentas" AB; in view of
prolonged disputes concerning the acquisition of the shares of
the company "Žemaitijos keliai" UAB, the President of the
Republic Rolandas Paksas together with A. Drakšas were making
plans as to what actions to take so that the shares of the
company "Žemaitijos keliai" UAB be transferred, proposed to
resort to "unconventional measures", to "press to the end" the
heads of the company "Šiaulių plentas" AB, so that they
transfer the shares to other persons. The petitioner and its
representatives believe that the President of the Republic
Rolandas Paksas was also aware of the fact that the unlawful
influence on the heads and shareholders of the company
"Žemaitijos keliai" UAB was being made while making use of his
name as the President of the Republic and took no measures to
prevent this.
4. In the 12 March 2004 explanations of the President of
the Republic Rolandas Paksas to the Constitutional Court
concerning the charge indicated in the Seimas resolution, that
he, allegedly, in 2003, seeking to implement property interests
of private persons close to him, by making use of his status,
while in office of the President of the Republic, gave orders
to his advisor Visvaldas Račkauskas to seek to influence, by
making use of his official position, through institutions of
law and order, decisions of heads and shareholders of the
company "Žemaitijos keliai" UAB concerning transfer of shares
to persons close to him, and that, allegedly, he knew that the
unlawful influence was being exerted by making use of his name
as the President of the Republic and took no measures to
prevent this, it is maintained that he has never given
instructions of the kind by which he would have sought to
attain personal interests while discharging the powers of the
President of the Republic.
In the 10 February 2004 explanations of the President of
the Republic Rolandas Paksas to the Special Investigation
Commission, it is maintained that the President of the Republic
Rolandas Paksas has never exerted any unlawful influence on
shareholders of the company "Šiaulių plentas" AB, nor has he
given such an instruction to his advisors.
5. The following has been established in the case:
5.1. Since 1999, the controlling block of shares of the
company "Žemaitijos keliai" UAB has belonged to the company
"Šiaulių plentas" AB (Special Investigation Commission
material, c. 8.39/05-202, testimony of the witness A. Mikšys on
29 January 2004, p. 85; ibid., c. 8.39/10-202, testimony of the
witness G. Striaukas on 22 January 2004, p. 95; ibid., c.
8.39/05-202, testimony of the witness V. Vičkačka on 29 January
2004, p. 110; ibid., c. 16.39/22-202, protocol of questioning
of the witness A. Armalas at the Office of the Prosecutor
General on 22 December 2003, p. 138; ibid., c. 16.77/22-202,
protocol of the questioning of the witness A. Mikšys at the
Office of the Prosecutor General on 6 January 2004, p. 142;
ibid., c. 16.77-202, State Security Department Note No.
(03)-18-440-809 of 16 December 2003, p. 117).
5.2. G. Striaukas, former Minister of Transport in the
Government headed by the Prime Minister Rolandas Paksas
(2000-2001), at the end of 2002 or at the beginning of 2003
(exact date has not been established) introduced A. Armalas,
Director General of the company "Šiaulių plentas " AB, to A.
Gumbys, Director of the company "Moteris" UAB (the controlling
block of shares of this company belongs to E. Striaukienė, the
wife of G. Striaukas). A. Gumbys began negotiations with A.
Armalas on the acquisition of shares of the company "Žemaitijos
keliai" UAB from the company "Šiaulių plentas" AB and other
shareholders of the company "Žemaitijos keliai" UAB (Special
Investigation Commission material, c. 8.39/06-202, testimony of
the witness G. Striaukas on 22 January 2004, p. 114; ibid., c.
8.39/05-202, testimony of the witness A. Gumbys on 29 January
2004, p. 116; ibid., c. 16.77/22-202, protocol of questioning
of the witness A. Armalas at the Office of the Prosecutor
General on 22 December 2003, p. 138; ibid., c. 16.77/22-202,
State Security Department Note No. (03)-18-440-809 of 16
December 2003, p. 118).
5.3. The member of the Seimas D. A. Barakauskas, former
Minister of Transport in the Government headed by the Prime
Minister Rolandas Paksas (2001), in the spring of 2003 (exact
date has not been established) went to Šiauliai and met A.
Armalas. The member of the Seimas D. A. Barakauskas told A.
Armalas that A. Drakšas, Director of the company "Restako" UAB,
was interested in shares of the company "Žemaitijos keliai"
UAB. The member of the Seimas D. A. Barakauskas also explained
to A. Armalas that he had come to elucidate the situation upon
the instruction by the President of the Republic Rolandas
Paksas. The member of the Seimas D. A. Barakauskas also stated
that he met A. Armalas upon the instruction by the President of
the Republic Rolandas Paksas in the programme "Spaudos klubas"
of the Lithuanian Television on 2 December 2003: the member of
the Seimas D. A. Barakauskas said that two economic entities,
the companies "Žemaitijos keliai" UAB and "Restako" UAB, had
argued with each other, while the President of the Republic
Rolandas Paksas asked him to ask A. Armalas and A. Drakšas to
sit at the table and discuss the affairs of both companies
(Special Investigation Commission material, c. 8.39/05-202,
testimony of the witness A. Armalas on 23 January 2004, p. 12;
ibid., c. 16.77/22-202, report of the BNS agency of 3 December
2003, p. 170, a digital data retention item attached to the
case).
5.4. On 4 May 2003, A. Karkauskas, a shareholder of the
company "Žemaitijos keliai" UAB, gave A. Gumbys 10 shares of
the company "Žemaitijos keliai" UAB, the nominal value of which
was LTL 50, as a present. On 19 May 2003, A. Karkauskas and I.
Karkauskienė, shareholders of the company "Žemaitijos keliai"
UAB, sold 116,737 shares of the company "Žemaitijos keliai"
UAB, the nominal value of which was LTL 583,685, to A. Gumbys
for LTL 10,000. On the same day, A. Karkauskas, I. Karkauskienė
and A. Gumbys agreed to recognise the agreements of giving as a
present and of purchase and sale of the shares of the company
"Žemaitijos keliai" UAB as invalid. On 4 June 2003, V.
Zambacevičius and A. Zambacevičienė, shareholders of the
company "Žemaitijos keliai" UAB, gave A. Gumbys 10 shares of
the company "Žemaitijos keliai" UAB, the nominal value of which
was LTL 50, as a present. On 11 June 2003, shareholders of the
company "Žemaitijos keliai" UAB, sold 116,737 shares of the
company "Žemaitijos keliai" UAB, the nominal value of which was
LTL 583,685, to A. Gumbys for LTL 10,000. On 11 June 2003, V.
Zambacevičius and A. Zambacevičienė, shareholders of the
company "Žemaitijos keliai" UAB, repeatedly sold 116,737 shares
of the company "Žemaitijos keliai" UAB, the nominal value of
which was LTL 583,685, to A. Gumbys for LTL 10,000 (Special
Investigation Commission material, c. 16.77/24-202, the 4 May
2003 present giving agreement, p. 81; ibid., c. 16.77/24-202,
the 19 May 2003 agreement, pp. 82-84; ibid. c. 16.77/24-202,
the 19 May 2003 recognition of the agreements as invalid, p.
80; ibid., c. 16.77/24-202, the 7 June 2003 present giving
agreement, p. 74; ibid., c. 16.77/24-202, the 11 June 2003
agreement of purchase and sale of shares, p. 75; ibid., c.
16.77/24-202, the 11 June 2003 agreement of purchase and sale
of shares, p. 77).
5.5. On 13 June 2003, A. Gumbys together with his lawyer
J. Gaudutis met A. Armalas and R. Matiukas, Deputy Director of
the financial broker company "Finasta", in Šiauliai. During the
meeting they discussed the sale of the shares of the company
"Žemaitijos keliai" UAB held by A. Armalas to A. Gumbys, also
that the company "Šiaulių plentas" AB commission to issue a
letter of attorney to A. Gumbys empowering him to represent 3
percent of votes in the general meeting of shareholders of the
company "Žemaitijos keliai" UAB. On the same day, A. Armalas
and I. Armalienė, shareholders of the company "Žemaitijos
keliai" UAB, sold 116,727 shares of the company "Žemaitijos
keliai" UAB, the nominal value of which was LTL 583,635, to A.
Gumbys for LTL 10,000. Thus A. Gumbys acquired 17.52 percent of
shares of the company "Žemaitijos keliai" UAB, the nominal
value of which was LTL 1,750,905, for LTL 30,000. Subsequently,
part of the transactions whereby A. Gumbys had acquired the
shares of the company "Žemaitijos keliai" UAB were challenged
in court. The judicial investigation concerning the acquisition
of these shares has not been completed yet (Special
Investigation Commission material, c. 16.77/24-202, the 11 June
2003 agreement of purchase and sale of shares, p. 75; ibid., c.
16.77/24-202, the 13 June 2003 agreement of purchase and sale
of shares, p. 76; ibid., c. 16.77/24-202, the 11 June 2003
agreement of purchase and sale of shares, p. 77; ibid., c.
16.77/24-202, the 21 July 2003 bill of particulars, pp.
174-176; ibid., c. 8.39/05-202, testimony of the witness A.
Gumbys on 29 January 2004, pp. 115-116; ibid., c. 8.39/05-202,
testimony of the witness A. Armalas on 23 January 2004, p. 9).
5.6. In the summer of 2003 (exact date has not been
established) in Telšiai, A. Drakšas. G. Striaukas and A. Gumbys
met S. Paukštė, Director General of the company "Žemaitijos
keliai" UAB, and V. Vičkačka, Technical Director of the same
company. In the office of V. Vičkačka, A. Drakšas said that
"top persons" desire that the shares of the company "Žemaitijos
keliai" UAB be transferred. After that A. Drakšas, G.
Striaukas, A. Gumbys, S. Paukštė and V. Vičkačka went to
Tausalo lake, where they talked about the company "Žemaitijos
keliai" UAB. A. Drakšas maintained that if the shares of the
company "Žemaitijos keliai" UAB were transferred, then
contracts in Russia "of millions of hundreds of dollars in
value" would be awaiting for this company, therefore the court
disputes concerning the transfer of shares of the company
"Žemaitijos keliai" UAB must be settled as soon as possible. In
addition, A. Drakšas said that the transfer of shares is only a
matter of time, which, "if the process goes of its own accord",
will take up to one year, and "in case of an atomic
explosion-up to two or three weeks" (A. Drakšas did not explain
what he meant by "atomic explosion"). A. Drakšas stated that
"in four years' time, 'Žemaitijos keliai' will become a strong
firm". When S. Paukštė expressed his doubts that this would
happen not in four but nine years' time perhaps, A. Drakšas
replied that "they must arrange everything during the
presidency of Paksas". A. Drakšas stated to V. Vičkačka that
"they have the President, with his help they will take the
economy, will possess much money, then the state government
will be favourable to them, and they will have the government
they want" (Special Investigation Commission material, c.
16.77/22-202, protocol of questioning of the witness S. Paukštė
on 30 December 2003, pp. 147-148; ibid., c. 16.77/22-202,
protocol of questioning of the witness V. Vičkačka at the
Office of the Prosecutor General on 12 January 2004, p. 150;
ibid., c. 8.39/05-202, protocol of questioning of the witness
S. Paukštė at the Office of the Prosecutor General on 23
January 2004, pp. 27-29; ibid., c., 8.39/05-202, protocol of
questioning of the witness V. Vičkačka on 29 January 2004, pp.
110-111).
5.7. In the summer of 2003 (exact date has not been
established), A. Drakšas. G. Striaukas and A. Gumbys met in
Aukštadvaris. They spoke about that "there is a problem" with
the company "Žemaitijos keliai" UAB. A. Drakšas said, "Gumbys
bought shares of this company, they were registered, but on the
next day their registering was revoked. Besides, the company
isn't permitted to take part in public tenders, and it receives
orders under subcontract via 'Šiaulių plentas'; 'Šiaulių
plentas' is owning about 2,000,000 litas to 'Žemaitijos
keliai', plainly speaking, after Gumbys had acquired the
shares, someone was clearly attempting to wreck this company.
There were some talks what could be done in this situation. I
said that perhaps we must apply to the people who could give
advice what to do in such a situation. Then we started thinking
who such people might be. During the conversation with
Striaukas we found a common acquaintance, who was Visvaldas
Račkauskas. I told Striaukas that I must have his phone number
somewhere. I remember that at that time I did not give him V.
Račkauskas' phone number, since I had not entered it into my
phone. I gave it to him some time later." (Special
Investigation Commission material, c. 16.77/22-202, protocol of
questioning of the witness A. Drakšas at the Office of the
Prosecutor General on 9 January 2003, pp. 158-161; ibid., c.
16.77/22-202, protocol of questioning of the witness G.
Striaukas at the Office of the Prosecutor General on 8 January
2004, pp. 162-166).
5.8. In the summer of 2003 (exact date has not been
established), in Vilnius G. Striaukas met Visvaldas Račkauskas,
advisor to the President of the Republic Rolandas Paksas on
legal issues, and requested that he attend to the company
"Šiaulių plentas" UAB, reasoning his request that allegedly
there were certain abuses in the said company. Visvaldas
Račkauskas promised to think what could be done. Meeting G.
Striaukas again (exact date has not been established),
Visvaldas Račkauskas said that he had no idea of what could be
done and that he could not be of any help (Special
Investigation Commission material, c. 16.77/22-202, protocol of
questioning of the witness G. Striaukas at the Office of the
Prosecutor General on 8 January 2004, p. 163; ibid., c.
16.77/22-202, protocol of questioning of the witness V.
Račkauskas at the Office of the Prosecutor General on 15
January 2004, pp. 168).
5.9. In October 2003 (exact date has not been established)
G. Striaukas met A. Armalas. G. Striaukas suggested that he and
Armalas go to the seat of the company "Restako" UAB. There they
were met by A. Drakšas. G. Striaukas explained to A. Armalas
that the building they were in had been the election
headquarters of Rolandas Paksas, a candidate to the President
of the Republic. G. Striaukas introduced A. Drakšas to A.
Armalas and said that it was A. Drakšas who would decide all
questions related with the transfer of shares, while he could
not be of any help on this issue. A. Armalas said that he felt
the turn of things. He said, "I knew that big forces are at
play here", since G. Striaukas and A. Drakšas were friends. G.
Striaukas and A. Drakšas had a talk with A. Armalas concerning
transfer of shares of the company "Žemaitijos keliai" UAB with
A. Gumbys. A. Drakšas told A. Armalas that one has to speed up
the transfer of shares, since one was planning to work in
Russia, therefore one had to take over the control of the
company "Žemaitijos keliai" UAB. A. Armalas responded that he
could decide the question of the transfer of shares only with
A. Mikšys (Production Director of the company "Šiaulių plentas"
AB), and proposed that after some time they meet to discuss
this issue in Kaunas (Special Investigation Commission
material, c. 16.77/22-202, protocol of questioning of the
witness A. Armalas at the Office of the Prosecutor General on
22 December 2003, p. 139; ibid., c. 16.77/22-202, protocol of
questioning of the witness A. Drakšas at the Office of the
Prosecutor General on 9 January 2004, pp. 159, 160; ibid., c.
8.39/05-202, testimony of the witness A. Armalas on 23 January
2004, p. 15).
5.10. On 9 October 2003, A. Drakšas, G. Striaukas and A.
Gumbys met with A. Armalas and A. Mikšys in Kaunas. A. Drakšas
suggested that they end their dispute in court and that shares
of the company "Žemaitijos keliai" UAB be transferred to the
company "Restako" UAB. A. Drakšas also said that he had plans
to build roads in Russia, therefore a Lithuanian company, which
had experience in Russia and had a good name there, was needed.
Such a company was "Žemaitijos keliai" UAB, which operated in
the Kaliningrad (Karaliaučius) region (Special Investigation
Commission material, c. 16.77/22-202, protocol of questioning
of the witness A. Armalas at the Office of the Prosecutor
General on 22 December 2003, p. 139; ibid., c. 16.77/22-202,
protocol of questioning of the witness A. Mikšys at the Office
of the Prosecutor General on 6 January 2004, p. 143; ibid., c.
8.39/05-202, testimony of the witness A. Armalas on 23 January
2004, pp. 7-8; c. 8.39/05-202, testimony of the witness A.
Mikšys on 29 January 2004, p. 89).
5.11. A. Armalas later told R. Matiukas about his meeting
with A. Drakšas, G. Striaukas and A. Gumbys that had taken
place on 9 October 2003, and he complained that G. Striaukas,
while urging him to transfer the shares of the company
"Žemaitijos keliai" UAB, threatened him that inspectors would
be sent. A. Armalas also told A. Mikšys that in case of failure
to reach an agreement on transfer of shares of the company
"Žemaitijos keliai" UAB, the "structures of power" would be
used against the company "Šiaulių plentas" AB (Special
Investigation Commission material, c. 8.39/07-202, testimony of
the witness A. Mikšys on 29 January 2004, p. 44; ibid., c.
16.77/22-202, protocol of questioning of the witness R.
Matiukas at the Office of the Prosecutor General on 29 January
2004, pp. 154-155).
5.12. On 10 October 2003, in the morning (from 9.23
o'clock till 11.15 o'clock) A. Drakšas spoke with G. Striaukas
on the telephone seven times. After that, at 11.20 o'clock A.
Drakšas made a telephone call to A. Mikšys, while at 11.20
o'clock he again made a telephone call to G. Striaukas (Special
Investigation Commission material, c. 16.77/22-202, transcript
of A. Drakšas' calls made by mobile telephone No.*, p. 321).
At 11.55 o'clock, the President of the Republic Rolandas
Paksas made a telephone call to A. Drakšas. A. Drakšas said to
the President of the Republic Rolandas Paksas, "Well, actually
the help of Visvaldas is needed. <...> There's nothing new in
that matter, I'm waiting in that matter. <...> If you could, it
would be excellent." The President of the Republic Rolandas
Paksas replied, "So I tell you, I've already arranged it. I did
it on the same day when we were speaking. I'll do it again."
The President of the Republic Rolandas Paksas warned A. Drakšas
that one should not "create more trouble than good" (Special
Investigation Commission material, c. 16.77/22-202, 16 December
2003 State Security Department Protocol No. 03-19-1154/03
concerning use of technical equipment in operational actions,
p. 124; telephone conversation No. 1, pp. 124-125; ibid., c.
16.77/22-202, transcript of A. Drakšas' calls made by mobile
telephone No.*, p. 321).
After the conversation with the President of the Republic
Rolandas Paksas (11.58 o'clock), A. Drakšas again made a
telephone call to G. Striaukas. On that day they spoke three
times in addition (from 12.08 till 12.43 o'clock) (Special
Investigation Commission material, c. 16.77/22-202, transcript
of A. Drakšas' calls made by mobile telephone No.*, p. 321).
On the same day, i.e. on 10 October 2003, at 21.19
o'clock, the President of the Republic Rolandas Paksas made a
telephone call to A. Drakšas once again. The President of the
Republic Rolandas Paksas said to A. Drakšas, "Well, I once
again had some conversations on what you said. I had some
talks, I'll see what to do <...>." A. Drakšas thanked, "Well,
thank you very much." Rolandas Paksas said, "Now, now. Perhaps
in that matter certain extraordinary actions are needed, I'll
have to think what, like, you know, what we can do. I think so.
<...> Like, extraordinary, like something smart, to do
something like that. <...> If we chew it over, take it in a
different angle, you know, I think it'd be like smarter, you
know." A. Drakšas inquired whom he could consult with. The
President of the Republic Rolandas Paksas replied that "there's
nobody to consult with. We, you know, so far we've been doing
it in one direction, like, to try, so to speak, to pin down.
Or, perhaps someone could tempt him with something. Perhaps one
could look through a different front". A. Drakšas said that the
"tempting" had taken place, there had been good commercial
proposals, but "nothing works". The President of the Republic
Rolandas Paksas said, "Well, perhaps it has been of the wrong
kind. Perhaps it should've been different. Well, I don't know,
don't know, don't know. But with so much efforts, and they do
it... Indeed, we'll see what'll be after that. After the last
talk. But I feel it inside, though I don't know everything,
that somehow the methods must be changed." A. Drakšas inquired
the President of the Republic Rolandas Paksas whether he would
take it up. The President of the Republic replied, "Er, no, er.
Yes. Yes. Yes." (Special Investigation Commission material, c.
16.77/22-202, 16 December 2003 State Security Department
Protocol No. 03-19-1154/03 concerning use of technical
equipment in operational actions, p. 12,; telephone
conversation No. 2, pp. 125-126; ibid., c. 16.77/22-202,
transcript of A. Drakšas' calls made by mobile telephone No.*,
p. 321).
5.13. On 10 August-30 October 2003, G. Striaukas spoke
with Visvaldas Račkauskas on the telephone forty three times.
They met each other more than once. During one of the meetings
A. Drakšas also participated. G. Striaukas was asserting to
Visvaldas Račkauskas that the company "Šiaulių plentas" UAB is
"one of problematic objects in Lithuania, where abuses of
various kinds are possible" and that the company "Šiaulių
plentas" AB is wrecking the company "Žemaitijos keliai" UAB
(Special Investigation Commission material, c. 8.39/09-202,
testimony of the witness V. Račkauskas on 19 January 2004, pp.
96-97; ibid., c. 8.39/10-202, testimony of the witness G.
Striaukas on 22 January 2004, pp. 97-98; ibid., c.
16.77/22-202, protocol of questioning of the witness G.
Striaukas at the Office of the Prosecutor General on 8 January
2004, p. 163; ibid., c. 16.77/22-202, transcript of V.
Račkauskas' calls made by mobile telephone No.*, pp. 242-333).
5.14. On 11 August-30 October 2003, Visvaldas Račkauskas,
advisor to the President of the Republic Rolandas Paksas, spoke
on the telephone with V. Maigys, Chief Police Commissioner of
the town of Šiauliai twenty four times. At the same time
period, Visvaldas Račkauskas also used to visit Šiauliai and
meet V. Maigys; during their meetings, they would discuss the
issues that Visvaldas Račkauskas was interested in. Visvaldas
Račkauskas was especially interested in the activities of the
company "Šiaulių plentas" AB. He dropped a hint to V. Maigys
that he had certain information related to links of the company
"Šiaulių plentas" AB with organised criminal structures of
Šiauliai. V. Maigys talked with Visvaldas Račkauskas as with a
representative of the Office of the President. In the practice
of V. Maigys, this was the first time when a person, who was an
advisor to the President of the Republic, had so much interest
in the activities of a particular private enterprise (Special
Investigation Commission material, c. 8.39/09-202, testimony of
the witness V. Maigys on 20 January 2004, pp. 146, 147, 151,
155; ibid., c. 8.39/09-202, testimony of the witness V.
Račkauskas on 19 January 2004, p. 100; ibid., c. 16.77/22-202,
transcript of V. Račkauskas' calls made by mobile telephone
No.*, pp. 242-333).
5.15. On 20, 21, 23 October 2003, officers of the Economic
Crimes Division of the Criminal Police Crimes Investigation
Service at the Chief Police Commissioner's Office of the town
of Šiauliai conducted inspection at the company "Šiaulių
plentas" AB. According to V. Maigys, the inspection was
determined by the special interested of Visvaldas Račkauskas in
this enterprise: if it were not for the hints made by Visvaldas
Račkauskas about the links of the company "Šiaulių plentas" AB
with the criminal world, the inspection of this company would
definitely not have been conducted on those days (Special
Investigation Commission material, c. 8.39/09-202, testimony of
the witness V. Maigys on 20 January 2004, pp. 146, 147, 151,
155).
V. Maigys, after he had received summons to appear before
the Seimas Provisional Investigation Commission, informed V.
Grigaravičius, Lithuanian Police General Commissioner, about
the telephone calls of Visvaldas Račkauskas and meetings with
him (Special Investigation Commission material, c. 8.39/09-202,
testimony of the witness V. Maigys on 20 January 2004, pp. 146,
147, 151, 155; ibid., c. 16.77/22-202, inspection documents of
the company "Šiaulių plentas" AB, pp. 211-215; ibid., c.
8.39/09-202, testimony of the witness V. Račkauskas on 19
January 2004, p. 100; ibid., c. 8.39/09-202, testimony of the
witness V. Grigaravičius on 19 January 2004, pp. 118-119).
It was held in Reference No. 35-11-106 "On the Inspection
within the Service" of 17 February 2004, issued by the Interior
Investigation Board of the Police Department under the Ministry
of the Interior of the Republic of Lithuania, that upon the
inspection within the service it was established that the
inspection of the company "Šiaulių plentas" AB on 20, 21, 23
October 2003 had been conducted without valid reasons. In the
course of the inspection of the company "Šiaulių plentas" AB no
violations were found (Note No. 55-11-106 "On the Inspection
within the Service" of 17 February 2004 issued by the Interior
Investigation Board of the Police Department under the Ministry
of the Interior of the Republic of Lithuania, received at the
Constitutional Court on 15 March 2004, reg. No. 13B-90).
5.16. On 27 October 2003, the Financial Crimes
Investigation Service under the Ministry of the Interior
received an anonymous complaint addressed to the head of this
service. The complaint noted that "big money is being
laundered" via the company "Šiaulių plentas" AB, and contained
accusations in regard of the Director General of the said
company. This anonymous complaint was sent over to the Šiauliai
Regional Division of the Financial Crimes Investigation Service
under the Ministry of the Interior, which received it on 30
October 2003 (Special Investigation Commission material, c.
16.77/24-202, anonymous complaint to the head of the Financial
Crimes Investigation Service, p. 57).
5.17. On 30 October 2003, A. Drakšas made a telephone call
to G. Striaukas. G. Striaukas said to A. Drakšas that
"Visvaldas made a phone call" to him (G. Striaukas) and told
him that "hell, on my word, everything's going to be done"
(Special Investigation Commission material, c. 16.77/22-202, 16
December 2003 State Security Department Protocol No.
03-19-1154-103 concerning use of technical equipment in
operational actions, p. 124, telephone conversation No. 7, pp.
132-134).
5.18. On 4 November 2003, the Šiauliai Regional Division
of the Financial Crimes Investigation Service under the
Ministry of the Interior launched an inspection of the company
"Šiaulių plentas" AB subsequent to the above-mentioned
anonymous complaint received at the Financial Crimes
Investigation Service under the Ministry of the Interior on 27
October 2003. On 7 January 2004 the inspection act was drawn up
and decision was taken to refuse to institute pre-trial
investigation in regard of the activities of the company
"Šiaulių plentas" AB for the reason of "absence of elements of
crime or misdemeanour". According to R. Boreika, Director of
the Financial Crimes Investigation Service under the Ministry
of the Interior, "no one was interested in the inspection"
(Special Investigation Commission material, c. 8.39/09-202,
testimony of the witness R. Boreika on 19 January 2004, pp.
88-89; ibid., c. 16.77/24-202, material submitted by the
Financial Crimes Investigation Service, pp. 57-62).
5.19. From 13 May 2003 till 12 November 2003, eighty three
calls between the mobile telephone used by A. Drakšas and the
mobile telephone used by the President of the Republic Rolandas
Paksas were traced. During the same period six hundred and
thirty calls between the mobile telephone used by A. Drakšas
and the mobile telephone used by G. Striaukas were traced
(Special Investigation Commission material, c. 16.77/22-202,
transcript of A. Drakšas' calls made by mobile telephone No.*,
pp. 276-333).
5.20. A. Drakšas spoke to the President of the Republic
Rolandas Paksas about the company "Žemaitijos keliai" UAB more
than once. A. Drakšas used to retell the President of the
Republic Rolandas Paksas the information about the company
"Žemaitijos keliai" UAB, which the former used to receive from
G. Striaukas (Special Investigation Commission material, c.
16.77/22-202, protocol of questioning of the witness A. Drakšas
at the Office of the Prosecutor General on 9 January 2004, pp.
158-161).
5.21. During his interrogation at the Special
Investigation Commission on 23 January 2004, to the question
"Did Mr. G. Striaukas, during all this story, brag about that
he knew the President of the Republic?" A. Armalas replied,
"There was such a conversation, but there it was related with
the tender, since the Turks had got the gravel road programmes
in the tender, and everything. We were told: if you give your
shares voluntarily, there won't be the Turks. But I think it
didn't reach the President. For all I know, there was such a
conversation." To the question "With whom did you converse?",
A. Armalas replied, "With G. Striaukas." To the question "Was
or was not the President mentioned in that conversation?" A.
Armalas replied, "He said he could do that there wouldn't be
the Turks, that he would go to the President and there wouldn't
be the Turks. Yes, he said such a phrase."
During the same interrogation, to the question "Could you
describe more precisely, in what words G. Striaukas used to
speak about problems in the tenders?", A. Armalas replied, "He
used to say that top people were interested in the shares. He
did not say, though, who the top people were. I only found it
out later, when I met A. Drakšas, then everything became
clear." To the question "Did he mention from which structure
these top people were?", A. Armalas replied, "No. But I
understood later, that they were from the Office of the
President." To the question "From what year G. Striaukas began
to talk that top persons are interested in the shares?", A.
Armalas replied, "He began it in 2002, but, it's possible to
say, within the limits of decency, but later there was big
pressure." (Special Investigation Commission material, c.
8.39/05-202, protocol of questioning of the witness A. Armalas
on 23 January 2004, pp. 3-23.)
6. It has been mentioned that in the 10 February 2004
explanations to the Special Investigation Commission, the
President of the Republic Rolandas Paksas maintained that he
did not exert any unlawful influence to the shareholders of the
company "Šiaulių plentas" AB, nor did he authorise his advisors
to do so (Special Investigation Commission material, c.
8.39/07-202, the 10 February 2004 explanations of the President
of the Republic Rolandas Paksas, p. 41). These explanations of
the President of the Republic Rolandas Paksas are to be
assessed critically. They are denied by the telephone
conversations between the President of the Republic Rolandas
Paksas himself and A. Drakšas, the statement of the member of
the Seimas D. A. Barakauskas in the programme "Spaudos klubas"
of the Lithuanian Television, the testimony of the witnesses A.
Armalas, V. Maigys, V. Mikšys, V. Vičkačka, actions of
Visvaldas Račkauskas, also the inspections carried out by
institutions of law and order at the company "Šiaulių plentas"
AB.
Attention must also be paid to the fact that on 15 January
2004 the witness, member of the Seimas D. A. Barakauskas
asserted in the Office of the Prosecutor General that the
President of the Republic Rolandas Paksas had not given him any
instruction as regards transfer of shares of the company
"Žemaitijos keliai" UAB, while on 20 January 2004, at the
Special Investigation Commission-that the President of the
Republic Rolandas Paksas had not spoken to him on the fact that
A. Armalas and A. Drakšas ought to sit at the table and discuss
the affairs of both companies (Special Investigation Commission
material, c. 16.77/22-202, protocol of questioning of the
witness D. A. Barakauskas on 15 January 2004, pp. 171-172;
ibid., c. 8.39/09-202, testimony of the witness D. A.
Barakauskas on 20 January 2004, pp. 5-6). These statements of
the member of the Seimas D. A. Barakauskas are to be assessed
critically. They are denied by the statement of the member of
the Seimas D. A. Barakauskas in the programme "Spaudos klubas"
of the Lithuanian Television, as well as the testimony of the
witness A. Armalas.
Attention is also to be paid to the fact that, on 15
January 2004, the witness Visvaldas Račkauskas, advisor to the
President of the Republic on legal issues, gave testimony in
the Office of the Prosecutor General that the President of the
Republic Rolandas Paksas had not given him any instructions in
regard of the company "Šiaulių plentas" AB (Special
Investigation Commission material, c. 16.77/22-202, protocol of
questioning of the witness V. Račkauskas at the Office of the
Prosecutor General on 15 January 2004, pp. 167-169). This
testimony of the witness Visvaldas Račkauskas is to be assessed
critically. It is denied by the actions of Visvaldas Račkauskas
himself, telephone conversations between the President of the
Republic Rolandas Paksas and A. Drakšas, the testimony of the
witnesses V. Grigaravičius and V. Maigys, as well as the
inspections carried out at the company "Šiaulių plentas" AB.
7. On 23 January 2004, the witnesses A. Armalas and S.
Paukštė maintained before the Special Investigation Commission
that A. M. Steponavičienė, a shareholder of the company
"Žemaitijos keliai" AB, said to them in the summer of 2003 that
the President of the Republic Rolandas Paksas had made a
telephone call to her and asked her not to sell her shares of
the company "Žemaitijos keliai" UAB to the company "Šiaulių
plentas" AB (Special Investigation Commission material, c.
8.39/05-202, testimony of the witness A. Armalas on 23 January
2004, p. 16; ibid., c. 8.39/05-202, testimony of the witness S.
Paukštė on 23 January 2004, p. 27).
On 29 January 2004, the witness A. M. Steponavičienė
asserted before the Special Investigation Commission that the
President of the Republic Rolandas Paksas had made no telephone
call to her (Special Investigation Commission material, c.
8.39/07-202, testimony of the witness A. M. Steponavičienė on
29 January 2004, pp. 51-59).
In the case at issue, the Constitutional Court will not
base itself on the said testimonies of the witnesses A.
Armalas, S. Paukštė, nor that of A. M. Steponavičienė
concerning the telephone call by the President of the Republic
Rolandas Paksas to A. M. Steponavičienė.
8. On the grounds of what has been established in the
case, one is to hold that, in 2003, A. Drakšas, Director of the
company "Restako" UAB and a close friend of the President of
the Republic Rolandas Paksas, together with G. Striaukas and A.
Gumbys attempted to take over the shares of the company
"Žemaitijos keliai" AB from the company "Šiaulių plentas" AB
and other shareholders of the company "Žemaitijos keliai" UAB.
While doing so, A. Drakšas and G. Striaukas gave a hint to the
heads and shareholders of the company "Žemaitijos keliai" UAB
that the President of the Republic Rolandas Paksas was
interested in such transfer of shares. In the spring of 2003,
the President of the Republic Rolandas Paksas asked the member
of the Seimas D. A. Barakauskas to mediate between A. Armalas
and A. Drakšas so that they would agree on the transfer of
shares of the company "Žemaitijos keliai" UAB; the member of
the Seimas D. A. Barakauskas accomplished this request of the
President of the Republic Rolandas Paksas. For the purpose that
the shareholders of the company "Žemaitijos keliai" UAB
transfer their shares, A. Drakšas applied to the President of
the Republic Rolandas Paksas for help, while the President of
the Republic Rolandas Paksas rendered such help. Upon the
request of A. Drakšas, the President of the Republic Rolandas
Paksas instructed his advisor on legal issues Visvaldas
Račkauskas to perform actions whereby the shareholders of the
company "Žemaitijos keliai" UAB ("Šiaulių plentas AB, etc.)
might be influenced so that the question of the transfer of
shares of the company "Žemaitijos keliai" UAB could be decided
in favour of A. Gumbys, G. Striaukas and A. Drakšas; Visvaldas
Račkauskas accomplished this instruction of the President of
the Republic Rolandas Paksas.
9. Having held this, one is also to hold that the
President of the Republic Rolandas Paksas, seeking to implement
property interests of private persons close to him, by making
use of his status, gave orders to his advisor Visvaldas
Račkauskas, to seek to influence, by making use of his official
position, through institutions of law and order, decisions of
heads and shareholders of the company "Žemaitijos keliai" UAB
concerning transfer of shares to persons close to Rolandas
Paksas, also that, in 2003, the President of the Republic
Rolandas Paksas, seeking to implement property interests of
private persons close to him, by making use of his status,
exerted influence on decisions of heads and shareholders of the
company "Žemaitijos keliai" UAB concerning transfer of shares
to persons close to Rolandas Paksas.
10. Under Paragraph 1 of Article 82 of the Constitution,
the elected President of the Republic will take an oath to the
Nation to be faithful to the Republic of Lithuania and the
Constitution, to conscientiously fulfil the duties of his
office, and to be equally just to all.
Paragraph 1 of Article 29 of the Constitution provides
that all persons shall be equal before the law, the court, and
other state institutions and officials.
From these provisions of the Constitution, as well as
other principles and norms of the Constitution follows a duty
of the President of the Republic to avoid the conflict of
public and private interests in his activity, not to bring
about such a conflict, not to make use of his status in order
to gain private profit either for himself or persons close to
him. Decisions of the President of the Republic must be based
upon the Constitution and law.
11. The President of the Republic, as any other state
official, is prohibited from bringing about the conflict of
public and private interests by the Republic of Lithuania Law
on the Adjustment of Private and Public Interests in the Public
Service. Under this law, private interests of persons employed
in the public service and public interests of the community
must be adjusted, it must be ensured that in making decisions
priority must be given to public interests, the impartiality of
the taken decisions must be secured and the emergence and
spread of corruption in the public service must be prevented
(Article 1). According to Article 3 of the same law, in order
to ensure the supremacy of public interest, persons in public
service must discharge their official duties impartially,
honestly and competently; avoid conflict of interest pursuant
to law and by legal means; refrain from using official position
for personal gains; in the process of decision-making be guided
by laws and the principle of equality of all persons; refrain
from using and prevent others from using, in a manner other
than that laid down by law or to the extent not prescribed by
law, official or other information acquired in the course of
their official duties; not use and prevent others from using
state-owned property, also any property leased by the state,
for purposes other than those related to the exercise of their
official duties.
12. It has been held in this Conclusion of the
Constitutional Court that the President of the Republic
Rolandas Paksas, seeking to implement property interests of
private persons close to him, by making use of his status, gave
orders to his advisor Visvaldas Račkauskas, to seek to
influence, by making use of his official position, through
institutions of law and order, decisions of heads and
shareholders of the company "Žemaitijos keliai" UAB concerning
transfer of shares to persons close to Rolandas Paksas, also
that, in 2003, the President of the Republic Rolandas Paksas,
seeking to implement property interests of private persons
close to him, by making use of his status, exerted influence on
decisions of heads and shareholders of the company "Žemaitijos
keliai" UAB concerning transfer of shares to persons close to
Rolandas Paksas.
By these actions the President of the Republic Rolandas
Paksas interfered with relations between private entities of
economy and natural persons and, making use of his status as
the President of the Republic, together with other persons
performed actions by which shareholders of the company
"Žemaitijos keliai" UAB ("Šiaulių plentas" AB etc.) were being
influenced so that the question of transfer of the shares might
be decided in favour of the persons close to Rolandas Paksas.
By such actions the President of the Republic Rolandas
Paksas grossly violated Paragraph 1 of Article 82, Paragraph 1
of Article 29, and Paragraph 2 of Article 77 of the
Constitution. By these actions the President of the Republic
Rolandas Paksas also violated the requirements of Article 3 of
the Law on the Adjustment of Private and Public Interests in
the Public Service.
13. Taking account of the arguments set forth, one is to
hold that the actions of President Rolandas Paksas of the
Republic of Lithuania, by which he, seeking to implement
property interests of private persons close to him, by making
use of his status, gave orders to his advisor Visvaldas
Račkauskas to seek to influence, by making use of his official
position, through institutions of law and order, decisions of
heads and shareholders of the company "Žemaitijos keliai" UAB
concerning transfer of shares to persons close to Rolandas
Paksas, also the actions of President Rolandas Paksas of the
Republic of Lithuania, by which he, in 2003, seeking to
implement property interests of private persons close to him
and by making use of his status, exerted influence on decisions
of heads and shareholders of the company "Žemaitijos keliai"
UAB concerning transfer of shares to persons close to Rolandas
Paksas, are in conflict with the Constitution of the Republic
of Lithuania. By these actions President Rolandas Paksas of the
Republic of Lithuania breached the oath given to the Nation and
grossly violated the Constitution of the Republic of Lithuania.
14. Having held that the actions of the President of the
Republic Rolandas Paksas, by which he, seeking to implement
property interests of private persons close to him, by making
use of his status, gave orders to his advisor Visvaldas
Račkauskas, to seek to influence, by making use of his official
position, through institutions of law and order, decisions of
heads and shareholders of the company "Žemaitijos keliai" UAB
concerning transfer of shares to persons close to Rolandas
Paksas, also the actions of the President of the Republic
Rolandas Paksas, by which he, in 2003, seeking to implement
property interests of private persons close to him and by
making use of his status, exerted influence on decisions of
heads and shareholders of the company "Žemaitijos keliai" UAB
concerning transfer of shares to persons close to Rolandas
Paksas, grossly violated the Constitution, and having taken
account of the evidence that is in this case, one is also to
hold that it is impossible to separate the actions indicated in
the 19 February 2004 Seimas Resolution "On the Application to
the Constitutional Court of the Republic of Lithuania" that the
President of the Republic Rolandas Paksas, being aware that
unlawful influence was being exerted on the heads and
shareholders of the company "Žemaitijos keliai" UAB by making
use of his name as the President of the Republic, took no
measures to prevent this, from the other two actions of the
President of the Republic Rolandas Paksas by which influence
was exerted on the heads and shareholders of the company
"Žemaitijos keliai" UAB concerning transfer of shares to
persons close to Rolandas Paksas, which have been established
by the Constitutional Court. There are no grounds to maintain
that the actions of the President of the Republic Rolandas
Paksas by which influence was exerted on the heads and
shareholders of the company "Žemaitijos keliai" UAB were,
alongside, actions by which the President of the Republic
Rolandas Paksas, being aware that unlawful influence was being
exerted on the heads and shareholders of the company
"Žemaitijos keliai" UAB by making use of his name as the
President of the Republic, took no measures to prevent this. In
this respect the actions indicated in the 19 February 2004
Seimas Resolution "On the Application to the Constitutional
Court of the Republic of Lithuania" that the President of the
Republic Rolandas Paksas, being aware that unlawful influence
was being exerted on the heads and shareholders of the company
"Žemaitijos keliai" UAB by making use of his name as the
President of the Republic, took no measures to prevent this,
are not independent actions.
15. Taking account of this, one is to hold that the
President of the Republic Rolandas Paksas did not perform the
actions indicated in the 19 February 2004 Seimas Resolution "On
the Application to the Constitutional Court of the Republic of
Lithuania", by which he, being aware that unlawful influence
was being exerted on the heads and shareholders of the company
"Žemaitijos keliai" UAB by making use of his name as the
President of the Republic, took no measures to prevent this.
Thus, one is to hold that in this case there are no
actions of the President of the Republic Rolandas Paksas the
compliance of which with the Constitution ought to be
investigated.
16. Under Item 4 of Paragraph 1 of Article 80 of the Law
on the Constitutional Court, the Constitutional Court shall
refuse to examine an inquiry concerning the presentation of a
conclusion in the absence of an action or decision whose
compliance with the Constitution must be verified.
Paragraph 2 of Article 80 of the Law on the Constitutional
Court provides that if in the course of the consideration of
the inquiry the matter under consideration ceases to exist, the
Constitutional Court shall dismiss the initiated legal
proceedings on the grounds thereof.
Under Paragraph 3 of Article 69 of the Law on the
Constitutional Court, in the event that the grounds for refusal
to consider a petition have been established after the
commencement of the investigation of the case during the
hearing of the Constitutional Court, a decision to dismiss the
case shall be adopted.
Pursuant to Paragraph 3 of Article 69 and Article 80 of
the Law on the Constitutional Court, the part of the case
concerning the inquiry set forth in the Seimas 19 February 2004
Resolution "On the Application to the Constitutional Court of
the Republic of Lithuania" requesting for a conclusion whether
the actions of the President of the Republic Rolandas Paksas by
which the President of the Republic Rolandas Paksas, being
aware that unlawful influence was being exerted on the heads
and shareholders of the company "Žemaitijos keliai" UAB by
making use of his name as the President of the Republic, took
no measures to prevent this, were in conflict with the
Constitution, is to be dismissed.
17. Conforming to Paragraph 3 of Article 69 and Article 80
of the Law on the Constitutional Court, the Constitutional
Court dismisses the part of the case concerning the inquiry set
forth in the Seimas 19 February 2004 Resolution "On the
Application to the Constitutional Court of the Republic of
Lithuania" requesting for a conclusion whether the actions of
the President of the Republic Rolandas Paksas by which the
President of the Republic Rolandas Paksas, being aware that
unlawful influence was being exerted on the heads and
shareholders of the company "Žemaitijos keliai" UAB by making
use of his name as the President of the Republic, took no
measures to prevent this, were in conflict with the
Constitution.
IX
On the presentation of the conclusion, requested in the
inquiry set forth in the 19 February 2004 Seimas Resolution "On
the Application to the Constitutional Court of the Republic of
Lithuania", whether the public statements of the President of
the Republic Rolandas Paksas about conclusions of the
Provisional Commission of the Seimas of the Republic of
Lithuania for Investigation into Possible Threats to Lithuanian
National Security and the Constitutional Court ruling of 30
December 2003, by which he discredited the authority of the
Seimas and the Constitutional Court, are in conflict with the
Constitution.
1. In its 19 February 2004 Resolution "On the Application
to the Constitutional Court of the Republic of Lithuania", in
the inquiry set forth the Seimas requests for a conclusion
whether the public statements of the President of the Republic
Rolandas Paksas about conclusions of the Provisional Commission
of the Seimas of the Republic of Lithuania for Investigation
into Possible Threats to Lithuanian National Security and the
Constitutional Court ruling of 30 December 2003, by which he
discredited the authority of the Seimas and the Constitutional
Court, are in conflict with the Constitution.
2. In the 19 February 2004 Conclusion "On the Proposal to
Institute Impeachment Proceedings against the President of the
Republic Rolandas Paksas" of the Special Investigation
Commission, which was received together with the inquiry of the
petitioner-the 19 February 2004 Seimas Resolution "On the
Application to the Constitutional Court of the Republic of
Lithuania", it is indicated that one of the main functions of
the President of the Republic is to ensure harmony of
activities and co-operation of all state institutions, their
unity in the implementation of common tasks and functions of
the state. While implementing the powers established to him in
the Constitution and laws, the President of the Republic
follows only the Constitution and laws, he may not violate
them, may not act for the sake of different purposes and
interests that are incompatible with the Constitution and laws,
as well as with public interests. The conclusion of the said
commission points out (quotes) the public statements of the
President of the Republic Rolandas Paksas made on 30 October
2003 in the programme "Panorama" of the Lithuanian Television,
on 24 November 2003 in Širvintos during his meeting with
residents, on 26 November 2003 in Kretinga during his meeting
with residents, on 1 December 2003 in Alytus during his meeting
with residents, on 15 December 2003 in Telšiai during his
meeting with residents, on 31 December 2003 during his speech
on television, on 6 January 2004 in Vilkavškis during his
meeting with residents, on 9 January 2004 in Jonava during his
meeting with residents. In the opinion of the commission, the
public accusations and statements by the President of the
Republic Rolandas Paksas in regard of the Seimas Provisional
Investigation Commission and the Constitutional Court are
ruining the authority of the State of Lithuania and its state
institutions, violate co-operation and harmony of the
activities of state institutions, are in conflict with the
requirements of Articles 5, 76, 77 Paragraph 1 of Article 82,
Article 84 of the Constitution, Article 3 of the Law on the
President of the Republic of Lithuania and are gross violation
of the duty of the President of the Republic to follow only the
interests of the Nation and the State of Lithuania (Special
Investigation Commission material, c. 8.39/11-202, Items
5.3-5.5 of the 19 February 2004 Conclusion of the Special
Investigation Commission, pp. 102-105).
3. As mentioned, the Constitutional Court will investigate
only the actions of the President of the Republic that were
performed prior to 18 December 2003, i.e. until the day when a
proposal was submitted to the Seimas by a group of members of
the Seimas to institute impeachment proceedings against the
President of the Republic Rolandas Paksas.
4. The following actions-public statements by the
President of the Republic Rolandas Paksas are pointed out in
the 19 February 2004 Conclusion "On the Proposal to Institute
Impeachment Proceedings against the President of the Republic
Rolandas Paksas" of the Special Investigation Commission.
4.1. On 30 October 2003, in the programme "Panorama" of
the Lithuanian Television the President of the Republic
Rolandas Paksas stated, "Good evening, dear people of
Lithuania! Today someone has tried to convince you that
allegedly the President elected by you has certain unspecified
ties, is linked with criminal groups. I am stupefied and
shocked that in order to defend certain lobby groups and
because of fear of any changes the authority of the state,
security of people and your future are put on the table of the
political game. I categorically deny and reject any
fabrications. I have no doubt that responsible officials of our
state will be able to establish what is the truth, and what is
political games, which have overstepped the limits of common
sense. Having familiarised with the reference from the state
Security Department, which I have received only this evening, I
suspended the powers of my advisor on national security issues
Remigijus Ačas, and he will apply to institutions of law and
order, under procedure established by laws, as to the
accusations in his regard. Someone has resorted to such actions
on the eve of visits to the European Parliament, Berlin,
Washington and Brussels. This shows that it might be actions
well planned in advance, in attempt to lessen the authority of
the President, without regard to the consequences to the state
and its citizens. The fact when references are made public, by
not submitting them to the President, may be named as a plot. I
once again distance myself from all today's attempts to
associate me with the criminal world. I am certain that soon
the authors of this story will be named. I wish you good
night." (Special Investigation Commission material, c.
8.39/11-202, the 30 October 2003 video recording, internet page
http://www.president.lt/one.phtml?id=4433; Special
Investigation Commission material, c. 8.39/11-202, Item 5.3.2
of the 19 February 2004 Conclusion of the Special Investigation
Commission, pp. 102-103).
4.2. On 24 November 2003, in Širvintos during his meeting
with residents, to the question "Tell the people that there has
never been any agreement, either oral, or written, between you
and Borisov" the President of the Republic Rolandas Paksas
replied, "No, there isn't. Never been." (Special Investigation
Commission material, c. 8.39/11-202, the 24 November 2003 video
recording, video cassette No. 202-VĮ-03; ibid., c. 8.39/11-202,
Item 5.3.3 of the 19 February 2004 Conclusion of the Special
Investigation Commission, p. 103.)
4.3. On 26 November 2003, in Kretinga during his meeting
with residents, the President of the Republic Rolandas Paksas
said, "I speak to you. I came here for this purpose. Yesterday
I was in one place, the day before yesterday I was in another
one, I will go tomorrow, I will go the day after tomorrow. And
so every evening. Since I have no opportunity to appear on
newspaper pages. I have no opportunity to go to the TV screen.
What remains to me is to meet you and tell you about what I
think, and listen precisely to what you say. <...> With my hand
on my heart, as I was asked in one place, with my hand on my
heart I can tell you: I have never had, I don't have nor am I
about to have any agreements, any contracts, any obligations."
The President of the Republic Rolandas Paksas also said at
the same meeting, "Lately, the Seimas, the Seimas commission,
certain officials, certain means of information have indeed
infringed the law several times. Actually, the legal defence,
not only political defence, such as it is at present, is
necessary, and because of this I have invited experienced
lawyers so that it could be proven what has been infringed, and
that the people who did all this thing, who weakened your
trust, who weakened the image of the sate abroad, that they
would really be held responsible as it is required. There are
two cases in the Constitution when the President may dissolve
the Seimas. You know perfectly well them and the
Constitution... But I think that I will have enough strength
and opportunities to work, together with you, with this
Constitution." (Special Investigation Commission material, c.
8.39/11-202, the 26 November 2003 video recording, video
cassette No. 202-VĮ-03, 202-VĮ-08; Special Investigation
Commission material, c. 8.39/11-202, Item 5.3.4 of the 19
February 2004 Conclusion of the Special Investigation
Commission, p. 103.)
4.4. On 1 December 2003, in Alytus during his meeting with
residents to the question submitted in writing "What do you
think about the Commission's conclusions unfavourable to the
President?" the President of the Republic Rolandas Paksas
replied, "The Commission will submit its conclusions to the
Seimas tomorrow, and, for all I know, the Seimas will vote on
the conclusions of the Commission: 'to approve' or 'not to
approve'. If they approve or something like that, the
impeachment proceedings will start. Then lawyers will join this
process, it means that every conclusion will be evaluated from
the legal standpoint. So far I have seen only political
evaluations, decided beforehand, and, perhaps, I'd say, rather
tendentious." At the same meeting the President of the Republic
Rolandas Paksas also said, "I want to answer, to ask and answer
three questions myself. The first thing: is Paksas indebted to
Borisov? The answer is no. The second question, the second
question is: Are there any written agreements or contracts,
whether oral, in writing, or of any other kind? The answer is
no. And the third thing, so that it might be clear to everyone
that I respond very precisely and to the point: Will Rolandas
Paksas resign? The answer is no." (Special Investigation
Commission material, c. 8.39/11-202, the 1 December 2003 video
recording, video cassette No. 202-VĮ-03; Special Investigation
Commission material, c. 8.39/11-202, Item 5.3.5 of the 19
February 2004 Conclusion of the Special Investigation
Commission, p. 103.)
4.5. On 15 December 2003 in Telšiai during his meeting
with residents, the President of the Republic Rolandas Paksas
said, "I have breached neither the Constitution, nor my oath,
nor laws. And everything that now is written by the Provisional
Commission, headed by Sakalas, its conclusions are rumours,
assumptions and fabrications. I state this to you firmly. I
think that the lawyers as well as other people will have enough
wit to separate the wheat from the chaff." (Special
Investigation Commission material, c. 8.39/11-202, the 15
December 2003 video recording, video cassette No. 202-VĮ-03;
Special Investigation Commission material, c. 8.39/11-202, Item
5.3.6 of the 19 February 2004 Conclusion of the Special
Investigation Commission, p. 104.)
5. The Constitutional Court ruling of 30 December 2003 is
not mentioned in any of the above six statements. The Seimas
Provisional Commission for Investigation into Possible Threats
to Lithuanian National Security and/or its conclusions were
mentioned in these public statements made by the President of
the Republic Rolandas Paksas:
1) "Lately, the Seimas, the Seimas commission, certain
officials, certain means of information have indeed infringed
the law several times. Actually, the legal defence, not only
political defence, such as it is at present, is necessary, and
because of this I have invited experienced lawyers so that it
could be proven what has been infringed, and that the people
who did all this thing, who weakened your trust, who weakened
the image of the sate abroad, that they would really be held
responsible as it is required." (26 November 2003, Kretinga);
2) The Commission will submit its conclusions to the
Seimas tomorrow, and, for all I know, the Seimas will vote on
the conclusions of the Commission: 'to approve' or 'not to
approve'. If they approve or something like that, the
impeachment proceedings will start. Then lawyers will join this
process, it means that every conclusion will be evaluated from
the legal standpoint. So far I have seen only political
evaluations, decided beforehand, and, perhaps, I'd say, rather
tendentious." (1 December 2003, Alytus);
3) "I have breached neither the Constitution, nor my oath,
nor laws. And everything that now is written by the Provisional
Commission, headed by Sakalas, its conclusions are rumours,
assumptions and fabrications. I state this to you firmly. I
think that the lawyers as well as other people will have enough
wit to separate the wheat from the chaff." (15 December 2003,
Telšiai).
6. Thus, in this case the Constitutional Court will
investigate whether the aforesaid public statements made by the
President of the Republic Rolandas Paksas, which are indicated
in the inquiry set forth in the 19 February 2004 Seimas
Resolution "On the Application to the Constitutional Court of
the Republic of Lithuania" requesting for a conclusion, which
are about conclusions of the Seimas Provisional Commission for
Investigation into Possible Threats to Lithuanian National
Security, by which he discredited the authority of the Seimas,
are in conflict with the Constitution.
7. In his 10 February 2004 explanations to the Special
Investigation Commission, the President of the Republic
Rolandas Paksas maintains that his public statements about the
assessment of the situation related with the sources and
process of the impeachment proceedings, including the criticism
with regard to the activities and conclusions of the Seimas
Provisional Commission for Investigation into Possible Threats
to Lithuanian National Security, should not be evaluated as
those clearly violating the harmony of branches of state power
and discrediting state authority-they may and should be
regarded as an expression of an opinion by a person against
whom impeachment may be instituted (Seimas Investigation
Commission material, c. 16.77/23-202, the 10 February 2004
explanations by the President of the Republic R. Paksas, p.
42).
In the 12 March 2004 explanations of the President of the
Republic Rolandas Paksas to the Constitutional Court, it is
maintained that the publicly made criticism with regard to the
Seimas Provisional Investigation Commission may not be held as
being in conflict with the Constitution, as this criticism is
not directed against the constitutional order of the state; it
is guaranteed by the right of the person to have his own
convictions and freely express them (Article 25 of the
Constitution); the freedom to express convictions, as well as
to obtain and impart information, may not be restricted other
than by law, if it is necessary to protect the health, honour
and dignity, private life, and morals of a human being, or to
defend constitutional order (Paragraph 3 of Article 25 of the
Constitution); an opinion stated in public by the President of
the Republic may not be legally assessed as discrediting
branches of state powers.
8. In the statements publicly made by the President of the
Republic Rolandas Paksas during his meetings with residents on
26 November 2003 in Kretinga, on 1 December 2003 in Alytus and
on 15 December 2003 in Telšiai the Seimas Provisional
Commission for Investigation into Possible Threats to
Lithuanian National Security and/or its conclusions were
assessed in a negative manner.
9. Paragraph 2 of Article 33 of the Constitution provides
that citizens shall be guaranteed the right to criticise the
work of state institutions or their officials, and to appeal
against their decisions, and that persecution for criticism
shall be prohibited. This constitutional civil right is
inseparable from the human right to have his own convictions
and freely express them, from his right to impart information
as well as ideas, which are enshrined in Article 25 of the
Constitution. It needs to be noted that the freedom to express
convictions and impart information is incompatible with
criminal actions-the instigation of national, racial,
religious, or social hatred, violence and discrimination,
slander and disinformation.
10. The right to criticise state institutions or officials
is a right of every citizen of the Republic of Lithuania,
including state officials or politicians. It is clear that the
President of the Republic also enjoys this constitutional
right.
It should be noted that publicly stated criticism by the
President of the Republic in regard of state institutions or
officials, negative assessment of their decisions in themselves
are not to be treated as discrediting of the authority of
corresponding state institutions or officials. While assessing
whether publicly stated criticism by the President of the
Republic in regard of state institutions or officials, negative
assessment of their decisions does not discredit these
institutions or officials, one has to take account of the
content of this criticism (negative assessment), also of all
circumstances under which this criticism (negative assessment)
was made public.
Alongside, it needs to be noted that the President of the
Republic is the Head of State, he represents the State of
Lithuania. The President of the Republic is one of institutions
of state power. All activities of the President of the Republic
must be based on the respect towards the state, its all
institutions of power. The constitutional status of the
President of the Republic implies his duty to evade the
conflict of branches of power, by his public criticism of other
state institutions or their officials, as well as unreasonable
belittling, non-reasoned denial of their decisions. The
exceptional constitutional status of the President of the
Republic and his role in the state obligate him to choose
proper, correct forms of expression of criticism. In case these
requirements were disregarded, the trust of the Nation in the
institution of the President of the Republic itself would be
degraded, and the authority of this institution would be
diminished.
11. One is to hold that the negative assessment of the
Seimas Provisional Commission for Investigation into Possible
Threats to Lithuanian National Security and/or its conclusions
in the statements publicly made by the President of the
Republic Rolandas Paksas during his meetings with residents on
26 November 2003 in Kretinga, on 1 December 2003 in Alytus and
on 15 December 2003 in Telšiai was incorrect, improper for the
Head of State.
Alongside, it should be noted that the aforesaid
statements publicly made by the President of the Republic
Rolandas Paksas during his meetings with residents on 26
November 2003 in Kretinga, on 1 December 2003 in Alytus and on
15 December 2003 in Telšiai are not, in themselves, sufficient
grounds to recognise that by these public statements the
President of the Republic discredited the authority of the
Seimas, the representation of the Nation, and that the
President of the Republic violated the Constitution.
12. Taking account of the arguments set forth, one is to
hold that the statements publicly made by President Rolandas
Paksas of the Republic of Lithuania during his meetings with
residents on 26 November 2003 in Kretinga, on 1 December 2003
in Alytus and on 15 December 2003 in Telšiai concerning
conclusions of the Seimas Provisional Commission for
Investigation into Possible Threats to Lithuanian National
Security are not in conflict with the Constitution of the
Republic of Lithuania.
X
On the presentation of the conclusion, requested in the
inquiry set forth in the 19 February 2004 Seimas Resolution "On
the Application to the Constitutional Court of the Republic of
Lithuania" whether the actions of the President of the Republic
Rolandas Paksas by which the President of the Republic Rolandas
Paksas, by not following the procedure and grounds established
in laws, gave an unlawful order to his advisor Remigijus Ačas
to collect information about the private life of persons, and
due to this, Remigijus Ačas and Evaldas Vaitkus, advisors to
the President of the Republic, gave unlawful instructions to
the Special Investigation Service to collect information about
the private lives of 44 persons, are in conflict with the
Constitution.
1. In its 19 February 2004 Resolution "On the Application
to the Constitutional Court of the Republic of Lithuania", in
the inquiry set forth the Seimas requests for a conclusion
whether the actions of the President of the Republic Rolandas
Paksas by which the President of the Republic Rolandas Paksas,
by not following the procedure and grounds established in laws,
gave an unlawful order to his advisor Remigijus Ačas to collect
information about the private life of persons, and due to this,
Remigijus Ačas and Evaldas Vaitkus, advisors to the President
of the Republic, gave unlawful instructions to the Special
Investigation Service to collect information about the private
lives of 44 persons, are in conflict with the Constitution.
2. In the 19 February 2004 Conclusion "On the Proposal to
Institute Impeachment Proceedings against the President of the
Republic Rolandas Paksas" of the Special Investigation
Commission it is pointed out that Remigijus Ačas and Evaldas
Vaitkus, advisors to the President of the Republic, while
implementing the instruction of the President of the Republic
Rolandas Paksas, unlawfully, shielding themselves with Article
9 of the Republic of Lithuania Law on Prevention of Corruption,
collected information for the purposes not provided for in the
said law, i.e., in 44 cases they unreasonably collected
information about the persons who did not seek to enter an
office in a state institution, nor were they holding an office
in a state institution to which the President of the Republic
appoints. In the opinion of the Seimas, by these actions
Paragraph 3 of Article 22 of the Constitution, which prohibits
to collect information about the private life of a person on
the grounds other than by law, and Paragraph 10 of Article 9 of
the Law on Prevention of Corruption, which prohibits to use the
data of the person for the purposes other than taking of a
decision on the trust regarding the person, were violated. The
conclusion of the Special Investigation Commission also
indicates that in most cases Remigijus Ačas and Evaldas
Vaitkus, advisors to the President of the Republic, while
implementing instructions of the President of the Republic
Rolandas Paksas, by violating Paragraph 2 of Article 2 of the
Law on Prevention of Corruption, used not to submit requests to
the Special Investigation Service for information about persons
seeking to hold an office in a state institution, although,
according to the law, they ought to have been submitted, and
used to submit requests for information about the persons
seeking to hold an office in a state institution, when the law
would not grant such a right. The Seimas also is of the opinion
that the President of the Republic Rolandas Paksas not only
gave the unlawful instruction, but that he also did not verify
how his instruction was being carried out, nor did he take
measures to discontinue the violations of the law. In the
opinion of the Seimas, even though the advisors of the
President of the Republic used to submit unlawful requests to
the Special Investigation Service, however, they were executing
a direct order of the President of the Republic Rolandas
Paksas, therefore the President of the Republic Rolandas Paksas
is directly responsible for the fact that by the said requests
of his advisors the right of a human being to private life was
violated, in particular, Paragraph 3 of Article 22 of the
Constitution (Special Investigation Commission material, c.
8.39/11-202, the 19 February 2004 Conclusion "On the Proposal
to Institute Impeachment Proceedings against the President of
the Republic Rolandas Paksas" of the Special Investigation
Commission, Item 6.10, pp. 125-126).
3. In the 12 March 2004 explanations of the President of
the Republic Rolandas Paksas to the Constitutional Court it is
stated that the petitioner does not point out as to when, in
what form the President of the Republic Rolandas Paksas gave
the instruction to collect the information, what the content of
the instruction was, and who were the persons about whose
private life the President of the Republic Rolandas Paksas gave
an instruction to collect information. In the opinion of the
President of the Republic Rolandas Paksas, it is not clear upon
what arguments the unlawfulness of such alleged instruction is
grounded.
At the Constitutional Court hearing, the advocate G.
Baublys, a representative of the President of the Republic,
explained that the President of the Republic Rolandas Paksas
was not aware that applications were being made to the Special
Investigation Service concerning certain private persons, and
that the content of respective papers was not, indeed,
co-ordinated with the President of the Republic Rolandas
Paksas. According to the advocate G. Baublys, the Head of State
gave only one instruction to his advisors-to ensure that no
persons of doubtful reputation would find their place in the
Office of the President.
4. The following has been established in the case:
4.1. During one of the morning counsels of the President
of the Republic Rolandas Paksas with his advisors, which was
held in the spring of 2003 (exact date has not been
established), when discussion began regarding the formation of
public councils under the President of the Republic and the
procedure of selection of public consultants, the President of
the Republic Rolandas Paksas said that his advisors had to
ensure that no persons of doubtful reputation would find their
way into positions at the Office of the President, nor that
such persons would become members of public councils (Special
Investigation Commission material, c. 8.39/10-202, testimony of
the witness R. Ačas on 22 January 2002, p. 167; testimonies of
the witnesses O. Buišienė and R. Ačas at the Constitutional
Court hearing on 18 March 2004).
4.2. From 20 March 2003 till 29 October 2003, Remigijus
Ačas and Evaldas Vaitkus submitted 19 requests to the Special
Investigation Service for information about 71 private persons
(Special Investigation Commission material, c. 16.77/17-202,
Note No. 104-S-262 of 24 December 2003 (with annexes) of the
Committee on National Security and Defence of the Seimas of the
Republic of Lithuania, pp. 3-95).
The said requests were signed by the advisors of the
President of the Republic who were Remigijus Ačas and Evaldas
Vaitkus; the President of the Republic Rolandas Paksas did not
sign any of these requests (Special Investigation Commission
material, c. 16.77/17-202, Note No. 104-S-262 of 24 December
2003 (with annexes) of the Committee on National Security and
Defence of the Seimas of the Republic of Lithuania, pp. 3-95).
4.3. The requests of Remigijus Ačas and Evaldas Vaitkus,
advisors to the President of the Republic Rolandas Paksas, for
information about private persons were regarded in the Special
Investigation Service as inquiries of the advisors empowered by
the President of the Republic Rolandas Paksas (Special
Investigation Commission material, c. 8.39/10-20, testimony of
the witness V. Junokas on 20 January 2004, p. 12).
4.4. Evaldas Vaitkus, advisor to the President of the
Republic Rolandas Paksas, used to receive instructions to apply
to the Special Investigation Service for information about
private persons from individual advisors of the President of
the Republic Rolandas Paksas (Special Investigation Commission
material, c. 8.39/10-20, testimony of the witness E. Vaitkus on
20 January 2004, pp. 29, 34-35; ibid., 8.39/10-202, testimony
of the witness R. Ačas on 22 January 2004, p. 168).
5. One is to pay attention to the fact that the mere
existence of written requests of Remigijus Ačas and Evaldas
Vaitkus, advisors to the President of the Republic Rolandas
Paksas, to the Special Investigation Service for information
about private persons, also the fact that at the Special
Investigation Service the said requests used to be regarded as
inquiries by the advisors empowered by the President of the
Republic Rolandas Paksas, of their own accord cannot serve as
sufficient grounds to recognise that the President of the
Republic Rolandas Paksas gave an instruction to his advisor
Remigijus Ačas to collect information about private lives of
certain persons.
6. On the grounds of what has been established in the
case, one is to hold that there is not any evidence in the case
that would permit to assert that the President of the Republic
Rolandas Paksas gave an instruction to his advisor Remigijus
Ačas to collect information about private lives of certain
persons.
7. Taking account of this, one is to hold that the
President of the Republic Rolandas Paksas did not perform the
actions indicated in the 19 February 2004 Seimas Resolution "On
the Application to the Constitutional Court of the Republic of
Lithuania", by which he by not following the procedure and
grounds established in laws, gave an unlawful order to his
advisor Remigijus Ačas to collect information about the private
life of persons, and due to this, Remigijus Ačas and Evaldas
Vaitkus, advisors to the President of the Republic, gave
unlawful instructions to the Special Investigation Service to
collect information about the private lives of 44 persons.
Therefore, one is to hold that in this case the actions of
the President of the Republic Rolandas Paksas, the compliance
of which with the Constitution ought to be investigated, are
absent.
8. As mentioned, under Item 4 of Paragraph 1 of Article 80
of the Law on the Constitutional Court, the Constitutional
Court shall refuse to examine an inquiry concerning the
presentation of a conclusion in the absence of an action or
decision whose compliance with the Constitution must be
verified; Paragraph 2 of Article 80 of the Law on the
Constitutional Court provides that if in the course of the
consideration of the inquiry the matter under consideration
ceases to exist, the Constitutional Court shall dismiss the
initiated legal proceedings on the grounds thereof; Under
Paragraph 3 of Article 69 of the Law on the Constitutional
Court, in the event that the grounds for refusal to consider a
petition have been established after the commencement of the
investigation of the case during the hearing of the
Constitutional Court, a decision to dismiss the case shall be
adopted.
Pursuant to Paragraph 3 of Article 69 and Article 80 of
the Law on the Constitutional Court, the part of the case
concerning the inquiry set forth in the Seimas 19 February 2004
Resolution "On the Application to the Constitutional Court of
the Republic of Lithuania" requesting for a conclusion whether
the actions of the President of the Republic Rolandas Paksas by
which the President of the Republic Rolandas Paksas, by not
following the procedure and grounds established in laws, gave
an unlawful order to his advisor Remigijus Ačas to collect
information about the private life of persons, and due to this,
Remigijus Ačas and Evaldas Vaitkus, advisors to the President
of the Republic, gave unlawful instructions to the Special
Investigation Service to collect information about the private
lives of 44 persons, are in conflict with the Constitution, is
to be dismissed.
9. Pursuant to Paragraph 3 of Article 69 and Article 80 of
the Law on the Constitutional Court, the Constitutional Court
dismisses the part of the case concerning the inquiry set forth
in the Seimas 19 February 2004 Resolution "On the Application
to the Constitutional Court of the Republic of Lithuania"
requesting for a conclusion whether the actions of President
Rolandas Paksas of the Republic of Lithuania by which the
President of the Republic Rolandas Paksas, by not following the
procedure and grounds established in laws, gave an unlawful
order to his advisor Remigijus Ačas to collect information
about the private life of persons, and due to this, Remigijus
Ačas and Evaldas Vaitkus, advisors to the President of the
Republic, gave unlawful instructions to the Special
Investigation Service to collect information about the private
lives of 44 persons, are in conflict with the Constitution of
the Republic of Lithuania.
Conforming to Paragraph 3 of Article 105 of the
Constitution of the Republic of Lithuania and Articles 73 and
83 of the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has presented the following
conclusion:
1. The actions of President Rolandas Paksas of the
Republic of Lithuania, when he, by Decree No. 40 of 11 April
2003, unlawfully granted citizenship of the Republic of
Lithuania to Jurij Borisov for financial and other notably
solid support rendered by the latter are in conflict with the
Constitution of the Republic of Lithuania. By the said actions
President Rolandas Paksas of the Republic of Lithuania grossly
violated the Constitution of the Republic of Lithuania.
2. The actions of President Rolandas Paksas of the
Republic of Lithuania by which he knowingly dropped a hint to
Jurij Borisov that in his regard institutions of law and order
were conducting operational investigation and tapping his
telephone conversations are in conflict with the Constitution
of the Republic of Lithuania. By the said actions President
Rolandas Paksas of the Republic of Lithuania grossly violated
the Constitution of the Republic of Lithuania.
3. The actions of President Rolandas Paksas of the
Republic of Lithuania, by which he, seeking to implement
property interests of private persons close to him, by making
use of his status, gave orders to his advisor Visvaldas
Račkauskas, to seek to influence, by making use of his official
position, through institutions of law and order, decisions of
heads and shareholders of the company "Žemaitijos keliai" UAB
concerning transfer of shares to persons close to Rolandas
Paksas, also the actions of President Rolandas Paksas of the
Republic of Lithuania, by which he, in 2003, seeking to
implement property interests of private persons close to him
and by making use of his status, exerted influence on decisions
of heads and shareholders of the company "Žemaitijos keliai"
UAB concerning transfer of shares to persons close to Rolandas
Paksas, are in conflict with the Constitution of the Republic
of Lithuania. By the said actions President Rolandas Paksas of
the Republic of Lithuania grossly violated the Constitution of
the Republic of Lithuania.
4. The statements publicly made by President Rolandas
Paksas of the Republic of Lithuania during his meetings with
residents on 26 November 2003 in Kretinga, on 1 December 2003
in Alytus and on 15 December 2003 in Telšiai concerning
conclusions of the Seimas Provisional Commission for
Investigation into Possible Threats to Lithuanian National
Security are not in conflict with the Constitution of the
Republic of Lithuania.
This Constitutional Court conclusion is final and not
subject to appeal.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas