Lietuviškai
Case No. 42/04
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
CONCLUSION
ON THE INQUIRY OF THE PRESIDENT OF THE REPUBLIC
WHETHER THE REPUBLIC OF LITHUANIA LAW ON ELECTIONS
TO THE SEIMAS WAS NOT VIOLATED DURING THE 2004
ELECTIONS TO THE Seimas OF THE REPUBLIC OF
LITHUANIA
5 November 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 representative of the President of the Republic of
Lithuania, the petitioner, who was Toma Birmontienė, a
consultant to the President of the Republic on legal issues,
Head of the Law Department,
Zenonas Vaigauskas, Chairman of the Central Electoral
Commission of the Republic of Lithuania, and Julius Jasaitis, a
member of this commission,
pursuant to Paragraph 3 of Article 105 of the Constitution
of the Republic of Lithuania and Paragraph 2 of Article 1, Item
1 of Article 73 and Article 77 of the Law on the Constitutional
Court of the Republic of Lithuania, on 4 November 2004 in its
public hearing heard Case No. 42/04 subsequent to the 3
November 2004 inquiry of the President of the Republic
requesting for a conclusion whether the Republic of Lithuania
Law on Elections to the Seimas was not violated during the 2004
elections to the Seimas of the Republic of Lithuania.
The Constitutional Court
has established:
I
1. On 10 October 2004 the elections to the Seimas took
place. The members of the Seimas were not elected in 66
one-candidate electoral districts from total number of 71. On
24 October 2004 a repeat vote took place in these electoral
districts.
2. On 31 October 2004, the Central Electoral Commission
confirmed the final results of the 2004 elections to the Seimas
by its Decision No. 406 "On the Final Results of the 24 October
2004 Repeat Vote of the Elections to the Seimas of the Republic
of Lithuania and the Members of the Seimas Elected in the
Multi-candidate Electoral District" (Official Gazette Valstybės
žinios, 2004, No. 159-5845).
3. On 1 November 2004, Kęstutis Skamarakas, a candidate to
the members of the Seimas in Raseiniai One-candidate Electoral
District No. 42, lodged a complaint with the President of the
Republic against Decision of the Central Electoral Commission
No. 403 "On the Request by the Candidate to the Members of the
Seimas K. Skamarakas to Recognise the Election Results in
Raseiniai One-candidate Electoral District No. 42 as Invalid"
of 30 October 2004 and requested that he apply to the
Constitutional Court with an inquiry concerning violation of
the Law on Elections to the Seimas.
4. By his Decree No. 116 "On the Inquiry to the
Constitutional Court of the Republic of Lithuania" of 3
November 2004, the President of the Republic applied to the
Constitutional Court with an inquiry requesting for a
conclusion whether the Law on Elections to the Seimas was not
violated during the 2004 elections to the Seimas.
II
1. At the Constitutional Court hearing, T. Birmontienė,
the representative of the President of the Republic, the
petitioner, explained that the application by means of inquiry
to the Constitutional Court by the President of the Republic
whether the Law on Elections to the Seimas was not violated
during the 2004 elections to the Seimas was determined by the
concern of the Head of State whether secret ballot was ensured
in the repeat vote of the 2004 elections to the Seimas where
the voters voted by mail, which is protected by the
Constitution and the Law on Elections to the Seimas (inter alia
Article 5, Paragraphs 1, 4, and 6 of Article 67 thereof).
2. At the Constitutional Court hearing, Zenonas
Vaigauskas, Chairman of the Central Electoral Commission, and
Julius Jasaitis, a member of this commission, explained as to
what facts had been considered and assessed by the Central
Electoral Commission by adopting its Decision No. 403 "On the
Request by the Candidate to the Members of the Seimas K.
Skamarakas to Recognise the Election Results in Raseiniai
One-candidate Electoral District No. 42 as Invalid" of 30
October 2004.
The Constitutional Court
holds that:
I
1. On 10 October 2004 the elections to the Seimas took
place. The members of the Seimas were not elected in 66
one-candidate electoral districts from total number of 71. On
24 October 2004 a repeat vote took place in these electoral
districts.
Under Paragraph 1 of Article 67 of the Law on Elections to
the Seimas, it is permitted to vote by mail at post offices
during their business hours beginning 5 days before the
election and ending 1 day before the election, provided the
voter is entered into the voter list of the electoral district,
which is in the town or district in question, and ending 2 days
before the election, provided the voter is not entered into the
voter list of the electoral district, which is in the town or
district in question.
In the one-candidate electoral districts in which members
of the Seimas were not elected during the elections to the
Seimas that took place on 10 October 2004, the voters who were
entered into the voter list of the electoral district, which is
in the town or district in question, were able to vote
repeatedly on 19-22 October 2004.
2. In Raseiniai One-candidate Electoral District No. 42
the repeat vote took place as regards two candidates to members
of the Seimas, who had received most votes during the first
election round, and who were G. Mikolaitis and K. Skamarakas.
3. After the repeat vote was over and upon calculation of
the votes, on 24 October 2004 at 23.10 o'clock the protocol of
the Electoral Commission of Raseiniai One-candidate Electoral
District No. 42 was signed. 15705 ballot-papers were recognised
to be valid, while from among them the votes went to the
candidates as follows: 7883 votes for G. Mikolaitis and 7822
votes for K. Skamarakas (from among them 4180 ballot-papers
cast by mail were recognised to be valid, while from among the
latter the votes went to the candidates as follows: 2057 votes
for G. Mikolaitis and 2123 votes for K. Skamarakas). Thus, the
difference between the votes cast for the candidates is 61
votes in favour of G. Mikolaitis.
4. On 24 October 2004, right after the protocol of the
Electoral Commission of Raseiniai One-candidate Electoral
District No. 42 had been signed, K. Skamarakas lodged a
complaint with the Central Electoral Commission and the
Electoral Commission of Raseiniai One-candidate Electoral
District No. 42. By this complaint it was asked to recount the
ballot-papers in Raseiniai One-candidate Electoral District No.
42, to give them over to the Central Electoral Commission and
to formulate a request to recognise the results in this
electoral district as invalid.
5. On 25 October 2004, the Central Electoral Commission
received a complaint from K. Skamarakas, by which he
supplemented his complaint of 24 October 2004.
6. In its 26 October 2004 sitting (Protocol No. 9), the
Electoral Commission of Raseiniai One-candidate Electoral
District No. 42, in the presence of representatives of the
candidates K. Skamarakas and G. Mikolaitis, considered the
issue of handing the results of the elections to the Seimas
over to the Central Electoral Commission and the request of the
representatives of K. Skamarakas to recount the ballot-papers.
The commission unanimously decided to confirm the protocols of
vote counting of polling-stations' commissions and to propose
that the Central Electoral Commission not recount the
ballot-papers, since no substantial violations of the Law on
Elections to the Seimas had been established.
7. On 27 October 2004, K. Skamarakas lodged a complaint
with the Central Electoral Commission, in which it was
requested to recount the ballot papers of Raseiniai
One-candidate Electoral District No. 42, and to apply to the
President of the Republic and the Seimas, so that they in their
turn apply to the Constitutional Court for a conclusion whether
the Law on Elections tot the Seimas had not been grossly
violated.
Having considered the aforesaid complaint, the Central
Electoral Commission adopted the Decision "On the 26 October
2004 Protocol of the Commission of Raseiniai One-candidate
Electoral District No. 42 and a gross Violation of the Law on
Elections to the Seimas", whereby (1) it refused to satisfy the
complaint of K. Skamarakas to the Central Electoral Commission
concerning the 26 October 2004 decision (Protocol No. 9) of the
Commission of Raseiniai One-candidate Electoral District No. 42
and decided to confirm the protocols of vote counting of
polling-stations' commissions and not to recount the ballot
papers of the said electoral district; (2) it refused to
consider the request of K. Skamarakas to apply to the President
of the Republic and the Seimas, so that they in their turn
apply to the Constitutional Court for a conclusion whether the
Law on Elections tot the Seimas had not been grossly violated.
8. On 28 October 2004, the advocate V. Sviderskis, the
representative of the candidate to members of the Seimas K.
Skamarakas, lodged a complaint with the Central Electoral
Commission. By the said complaint it was asked to recognise the
results of the election to the Seimas in Raseiniai
One-candidate Electoral District No. 42 as invalid.
9. On 29 October 2004, the Central Electoral Commission
received a complaint (with annexes) of K. Skamarakas who was a
candidate to members of the Seimas in Raseiniai One-candidate
Electoral District No. 42 concerning a gross violation of the
Law on Elections to the Seimas. By this complaint it was asked
to recognise the results of the election to the Seimas in
Raseiniai One-candidate Electoral District No. 42 as invalid.
It was maintained in the said complaint that in Raseiniai
One-candidate Electoral District No. 42 voter certificates had
been subject to buying, that the ballot-papers had been counted
improperly, and that the procedure of voting by mail had been
violated. In the opinion of K. Skamarakas, due to this the Law
on Elections to the Seimas had been grossly violated and
substantial impact had been made on the results of elections to
the Seimas in the said electoral district. Therefore, K.
Skamarakas requested that the Central Electoral Commission
thoroughly check and analyse the documents of voting by mail in
Raseiniai One-candidate Electoral District No. 42, demand and
receive the material of pre-trial investigation from the local
prosecutor's office of the Raseiniai district and consider it
in a sitting of the Central Electoral Commission, recount the
results of voting in Raseiniai One-candidate Electoral District
No. 42, and recognise the election results in the
aforementioned electoral district as invalid.
10. Having investigated the 29 October 2004 complaint of
K. Skamarakas, on 30 October 2004, the Central Electoral
Commission adopted Decision No. 403 "On the Request by the
Candidate to the Members of the Seimas K. Skamarakas to
Recognise the Election Results in Raseiniai One-candidate
Electoral District No. 42 as Invalid".
10.1. In the aforesaid decision, the Central Electoral
Commission held that the voting results in Raseiniai
One-candidate Electoral District No. 42 had been confirmed by
vote counting protocols of electoral commissions of
polling-stations, which had been signed by the chairmen and
members of the electoral commissions, as well as by observers
of the elections. The Central Electoral Commission also held
that no complaints had been received concerning incorrect
counting of votes or drawing up vote counting protocols of
polling-stations, and no facts had been established concerning
forging of voters' signatures or any other attempt to influence
the results of elections in the Raseiniai district. The Central
Electoral Commission also held that under Paragraph 6 of
Article 82 of the Law on Elections to the Seimas, the area
electoral commission must adopt a decision to recount all
ballot-papers of one-candidate electoral area when, prior to
signing of the vote counting protocol, the representative of a
candidate demands it, and when the difference of the votes in
this electoral area between the candidates that have taken the
first and second places is, according to preliminary election
results, less than 50. The decision whether or not there have
been gross violation of the law must be adopted by the Central
Electoral Commission after it takes account of all
circumstances of arrangement and execution of the elections,
after it assess the arrangement and execution of the elections
as a whole, as well as the damage inflicted on the elections by
established unlawful or criminal actions.
The Central Electoral Commission also held that on the day
of the consideration of K. Skamarakas' complaint two pre-trial
investigations were started.
For instance, S. Saročka was presented a suspicion that
he, with the purpose of influencing the results of the
elections, during the repeat vote by mail by means of bribery
or deception, had bough up voter certificates from 62 citizens
and thus hindered them to make use of their electoral right.
The Central Electoral Commission held that on the day of the
election voters had the right to vote at polling-stations even
if they did not have a voter certificate, therefore, a loss of
this certificate does not mean that the voter cannot make use
of his right to vote, besides, institutions of pre-trial
investigation barred the way to unlawful use the aforesaid
voter certificates in time. In the opinion of the Central
Electoral Commission, the said activity of S. Saročka was not
influential on the results of the elections. It also should be
mentioned that after A. Banys, the chief of K. Skamarakas'
election headquarters, had reported that N. Melešius, Linkus
and Bagdonas bought up voter certificates from the residents,
pre-trial investigation was started on 25 October 2004. The
Central Electoral Commission held that "both pre-trial
investigations have not been completed, all procedural
opportunities to collect evidence and establish the
circumstances have not been used, therefore it is impossible to
assert that the unlawful activities of S. Saročka and other
unknown persons were influential on the results of the
elections."
On 29 October 2004, I. P., an employee of the Raseiniai
district post office, was presented a suspicion that she, with
the purpose of influencing the results of the elections, had
unlawfully issued 15 ballot-papers to two unidentified persons
and in the part "c" of voting by mail checks forged signatures
of 15 voters, confirming the receipt of the ballot-papers. In
the opinion of the Central Electoral Commission, due to its
scale this fact could not have any substantial influence on the
results in Raseiniai One-candidate Electoral District No. 42.
The Central Electoral Commission, having analysed and
assessed the data presented by K. Skamarakas about buying up of
voter certificates, noted that all written data about possible
violations that might unlawfully influence the results of the
elections were submitted on 24 October 2004 and later, i.e.
after K. Skamarakas had learned about the preliminary election
results that were unfavourable to him. In addition, the persons
who testified in writing concerning protection of their
violated rights did not apply to corresponding institutions by
themselves, but, upon expiration of the term of lodging of
complaints, reported about that to K. Skamarakas or lodged
complaints with the Central Electoral Commission.
K. Skamarakas also had presented data to the Central
Electoral Commission about the fact that in the course of
issuance of ballot-papers in a special post office designated
for voting by mail in the Blinstrubiškiai Foster Home for the
Elderly, where three social workers unlawfully signed for 78
voters. Members of the Central Electoral Commission went to the
Blinstrubiškiai Foster Home for the Elderly together with an
investigator of the pre-trial institution and, having
questioned 15 residents (at choice) who had the electoral right
as well as the said three social workers, established that the
voting in the aforementioned foster home had taken place in the
presence of election observers, including election observers of
K. Skamarakas, who did not express any remarks concerning the
voting, in addition, not a single one from the questioned
residents articulated any complaints regarding restriction of
the expression of their will. In the opinion of the Central
Electoral Commission, the said violation was formal and
procedural, since it was committed due to the old age and bad
health of the residents.
K. Skamarakas also maintained that R. Ulinskienė, a member
of the election commission of one polling-station, bought voter
certificates from three persons. The Central Electoral
Commission stated that R. Ulinskienė categorically denied these
accusations.
10.2. In its decision, the Central Electoral Commission
held that it agreed with the arguments of K. Skamarakas that
the statement of the presence of the already known criminal
deed permits to draw a conclusion that the Law on Elections to
the Seimas was violated. Under Paragraph 1 of Article 91 of the
same law, if the Central Electoral Commission establishes that
gross violations of the law were substantially influential on
the election results, the election results may be recognised as
invalid. However, in the opinion of the Central Electoral
Commission, what was known about the committed violations of
the Law on Elections to the Seimas at the time of the adoption
of the said decision was not sufficient in order to recognise
the election results in Raseiniai One-candidate Electoral
District No. 42 as invalid. Therefore the Central Electoral
Commission refused to grant the complaint of K. Skamarakas.
11. On 1 November 2004, K. Skamarakas lodged a complaint
against Decision of the Central Electoral Commission No. 403
"On the Request by the Candidate to the Members of the Seimas
K. Skamarakas to Recognise the Election Results in Raseiniai
One-candidate Electoral District No. 42 as Invalid" of 30
October 2004 with the Seimas and the President of the Republic,
requesting that they apply to the Constitutional Court with an
inquiry concerning violation of the Law on Elections to the
Seimas.
12. On 2 November 2004, the Seimas adopted Resolution No.
IX-2533 "On the Application to the Constitutional Court with an
Inquiry Concerning Violation of the Law on Elections to the
Seimas in Raseiniai One-candidate Electoral District No. 42"
whereby it decided not to apply to the Constitutional Court
with an inquiry concerning violation of the Law on Elections to
the Seimas in Raseiniai One-candidate Electoral District No.
42. At the time of the consideration of this case at the
Constitutional Court the said resolution of the Seimas was not
officially published.
II
1. By his Decree No. 116 "On the Inquiry to the
Constitutional Court of the Republic of Lithuania" of 3
November 2004, the President of the Republic applied to the
Constitutional Court with an inquiry requesting for a
conclusion whether the Law on Elections to the Seimas was not
violated during the 2004 elections to the Seimas. The 3
November 2004 inquiry of the President of the Republic was
attached to the said decree of the President of the Republic.
It was written in the inquiry that on 1 November 2004 the
candidate to members of the Seimas K. Skamarakas applied to the
President of the Republic concerning violations of the Law on
Elections to the Seimas, whose complaint indicated that by its
Decision No. 403 "On the Request by the Candidate to the
Members of the Seimas K. Skamarakas to Recognise the Election
Results in Raseiniai One-candidate Electoral District No. 42 as
Invalid" of 30 October 2004, the Central Electoral Commission
refused to grant the request of K. Skamarakas to recognise the
election results in Raseiniai One-candidate Electoral District
No. 42 as invalid; the inquiry of the President of the Republic
points out that the complaint is grounded on the fact that
during the elections to the Seimas the provisions of the Law on
Elections to the Seimas related with voting by mail had been
violated, and this was substantially influential on the
establishment of the election results.
2. The President of the Republic requests that the
Constitutional Court present a conclusion whether the
provisions of Article 5 and Paragraphs 1, 4, and 6 of Article
67 of the Law on Elections to the Seimas which guarantee secret
ballot and prohibit to control the will of voters in elections
in cases when the voters vote by mail were not violated.
3. The 1 November 2004 complaint of the candidate to
members of the Seimas K. Skamarakas and Decision of the Central
Electoral Commission No. 403 "On the Request by the Candidate
to the Members of the Seimas K. Skamarakas to Recognise the
Election Results in Raseiniai One-candidate Electoral District
No. 42 as Invalid" of 30 October 2004 were attached to the 3
November 2004 inquiry of the President of the Republic.
4. Item 1 of Paragraph 3 of Article 105 of the
Constitution provides that the Constitutional Court shall
present a conclusion whether there were violations of election
laws during elections of the President of the Republic or
elections of members of the Seimas.
It is established in Paragraph 2 of Article 102 of the
Constitution that the status of the Constitutional Court and
the procedure for the execution of powers thereof shall be
established by the Law on the Constitutional Court of the
Republic of Lithuania.
Under Article 77 of Law on the Constitutional Court, while
investigating an inquiry on violation of election laws during
the elections of the President of the Republic or members of
the Seimas, the Constitutional Court shall examine and assess
only the decisions made by the Central Electoral Commission or
the refusal thereof to examine complaints concerning the
violation of laws on elections in cases when such decisions
were adopted or other deeds were carried out by the said
commission after the termination of voting in the elections of
members of the Seimas or the President of the Republic.
5. The 3 November 2004 inquiry of the President of the
Republic requesting for a conclusion whether the provisions of
Article 5 and Paragraphs 1, 4, and 6 of Article 67 of the Law
on Elections to the Seimas which guarantee secret ballot and
prohibit to control the will of voters in elections in cases
when the voters vote by mail were not violated is linked with
the said 1 November 2004 complaint of K. Skamarakas and
Decision of the Central Electoral Commission No. 403 "On the
Request by the Candidate to the Members of the Seimas K.
Skamarakas to Recognise the Election Results in Raseiniai
One-candidate Electoral District No. 42 as Invalid" of 30
October 2004 whereby it was decided to refuse to grant the 29
October 2004 complaint of K. Skamarakas to the Central
Electoral Commission requesting to recognise the election
results in Raseiniai One-candidate Electoral District No. 42 as
invalid.
6. As mentioned, under Article 77 of Law on the
Constitutional Court, the Constitutional Court shall examine
and assess only the decisions made by the Central Electoral
Commission or the refusal thereof to examine complaints
concerning the violation of laws on elections in cases when
such decisions were adopted or other deeds were carried out by
the said commission after the termination of voting in the
elections of members of the Seimas or the President of the
Republic.
Taking account of the fact that in his 3 November 2004
inquiry the President of the Republic requests for a conclusion
whether the provisions of Article 5 and Paragraphs 1, 4, and 6
of Article 67 of the Law on Elections to the Seimas which
guarantee secret ballot and prohibit to control the will of
voters in elections in cases when the voters vote by mail were
not violated during the elections to the Seimas, and of the
fact that the said inquiry of the President of the Republic is
linked with the 1 November 2004 complaint of K. Skamarakas and
Decision of the Central Electoral Commission No. 403 "On the
Request by the Candidate to the Members of the Seimas K.
Skamarakas to Recognise the Election Results in Raseiniai
One-candidate Electoral District No. 42 as Invalid" of 30
October 2004 whereby it was decided to refuse to grant the 29
October 2004 complaint of K. Skamarakas to the Central
Electoral Commission requesting to recognise the election
results in Raseiniai One-candidate Electoral District No. 42 as
invalid, one is to hold that the President of the Republic
requests for a conclusion whether the Central Electoral
Commission lawfully refused to grant the 29 October 2004
complaint of K. Skamarakas to the Central Electoral Commission
requesting to recognise the election results in Raseiniai
One-candidate Electoral District No. 42 as invalid by its
Decision No. 403 "On the Request by the Candidate to the
Members of the Seimas K. Skamarakas to Recognise the Election
Results in Raseiniai One-candidate Electoral District No. 42 as
Invalid" of 30 October 2004.
7. Subsequent to the 3 November 2004 inquiry of the
President of the Republic, the Constitutional Court will
investigate and assess in this case whether the 29 October 2004
complaint of K. Skamarakas to the Central Electoral Commission
requesting to recognise the election results in Raseiniai
One-candidate Electoral District No. 42 as invalid was lawfully
refused to be granted by Decision of the Central Electoral
Commission No. 403 "On the Request by the Candidate to the
Members of the Seimas K. Skamarakas to Recognise the Election
Results in Raseiniai One-candidate Electoral District No. 42 as
Invalid" of 30 October 2004.
III
1. Article 1 of the Constitution provides: "The State of
Lithuania shall be an independent democratic republic." It is
established in Article 1 of the Constitutional Law of the
Republic of Lithuania "On the Lithuanian State" that the
statement "The State of Lithuania shall be an independent
democratic republic" is a constitutional norm of the Republic
of Lithuania and a fundamental principle of the State. While
construing this provision of Article 1 of the Constitution, the
Constitutional Court has held that in this article the
fundamental principles of the Lithuanian State are established:
the Lithuanian State is a free and independent state; the
republic is the form of governance of the Lithuanian State; the
state power must be organised in a democratic way, and there
must be a democratic political regime in this country
(Constitutional Court rulings of 23 February 2000, 18 October
2000, 25 January 2001, and 19 September 2002).
Under Article 2 of the Constitution, sovereignty shall
belong to the Nation. The Nation shall execute its supreme
sovereign power either directly or through its democratically
elected representatives (Article 4 of the Constitution).
Paragraph 1 of Article 33 of the Constitution inter alia
provides that citizens shall have the right to participate in
the government of the State both directly and through their
democratically elected representatives.
The constitutional requirement that the state power in the
State of Lithuania is to be organised in a democratic way, and
that there must be a democratic political regime in this
country, as well as the provision of Paragraph 1 of Article 33
of the Constitution that citizens shall have the right to
participate in the government of the state both directly and
through their democratically elected representatives, is
inseparable from the provision of Paragraph 3 of Article 5 of
the Constitution that state institutions shall serve the
people, and from the provision of Paragraph 2 of the same
article that the scope of power shall be limited by the
Constitution. In its ruling of 1 July 2004, the Constitutional
Court held that the Constitution consolidates the principle of
responsible governing. The Constitutional Court has also held
that the responsibility of authority to society is a principle
of the state under the rule of law which is established by the
Constitution by providing that state institutions will serve
the people, while the citizens shall have the right to run the
country either directly or through democratically elected
representatives, to criticise the work of state institutions or
that of their officials, to lodge complaints against their
decisions, as well as by guaranteeing an opportunity for
citizens to defend their rights in court, the right of
petition, by regulating the procedure for investigation of
appeals and complaints of citizens etc. (Constitutional Court
ruling of 11 May 1999).
2. In a constitutional democracy, special requirements are
raised to the formation of political representative
institutions. These institutions may not be formed in a way so
that there might arise doubts as to their legitimacy and
legality, inter alia, as to the fact whether the principles of
a democratic state under the rule of law were not violated in
the course of election of persons to political representative
institutions. Otherwise, people's trust in the representative
democracy, state institutions, and the state itself, would be
undermined.
3. In the context of the case at issue, it needs to be
emphasised that democratic elections are an important form of
citizens' participation in governing of the sate, as well as it
is a necessary element of the formation of state political
representative institutions. Elections may not be regarded as
democratic, nor their results as legitimate and legal, if the
elections are held by trampling on the principles of democratic
elections established in the Constitution, and by violating
democratic electoral procedures.
4. It needs to be noted that the principles of elections
to the Seimas, the representation of the Nation, are
established in the Constitution, it is not permitted to deny,
distort or limit them by means of any legal act of lower power.
Under Paragraph 1 of Article 55 of the Constitution, members of
the Seimas are elected on the basis of universal, equal, and
direct electoral right by secret ballot.
Paragraph 3 of Article 55 of the Constitution provides
that the procedure for elections of members of the Seimas shall
be established by law. This constitutional provision means that
the legislator has a duty to consolidate, by means of a law, a
system of election of members of the Seimas, to establish the
grounds and procedure of arrangement of elections, inter alia
including nomination of candidates to members of the Seimas,
electoral campaigning, procedure of voting, establishment of
the results of election, procedures of settling electoral
disputes, as well as regulation of other relations of election
of members of the Seimas. While doing so, the legislator must
pay heed to the Constitution; he may neither himself deny,
distort or restrict the universal, equal and direct electoral
right and secret ballot, nor create any legal preconditions for
other entities to do so, as, otherwise, this would mean that
the supreme sovereign power of the Nation through the
representation of the Nation, the Seimas, is denied altogether.
In the context of the case at issue it needs to be noted
that the legislator, under the Constitution, has a duty to
establish, by means of a law, the legal regulation which
ensures that the voters vote in person and by secret ballot,
and that in the course of voting it would be impossible both to
influence the will of the voters and to control it. It is
impermissible in particular that the financing of elections is
non-transparent or uncontrollable, that in the election
campaign the election techniques are used which are contrary to
the morals, justice and the harmony of society. It also must be
underlined that, under the Constitution, no reasoning may
justify direct or indirect buying of votes of voters, also the
practice of an election campaign where the voters, by means of
presents or other rewards, are induced either to participate in
or abstain from elections and/or vote either for or against one
or another candidate. This is equivalent to bribery of voters,
meaning that citizens of the Republic of Lithuania are deprived
of their right to freely express their genuine will on their
own in elections of the Seimas, while the Nation is deprived of
its right to elect the representation of the Nation which would
be able to express its genuine supreme sovereign power.
It needs to be emphasised that a duty of the legislator
stems from the Constitution to establish, by means of a law,
the legal regulation ensuring honesty and transparency of the
election process to the Seimas, i.e. necessary preconditions
for the trust in the representation of the Nation.
In case the legislator disregards the said requirements
arising from the Constitution, if he does not establish a
mechanism ensuring democratic, free and honest elections, then
there always might arise certain doubts as for legality of
election of members of the Seimas.
5. According to Paragraph 2 of Article 34 of the
Constitution, the right to be elected shall be established by
the Constitution and by the election laws. As mentioned, the
legislator has a constitutional duty to consolidate, by means
of a law, a system of elections of members of the Seimas, to
establish the grounds and procedure of arrangement of
elections, however, he must pay heed to the Constitution.
In the context of the case at issue, it needs to be noted
that the legislator, while regulating electoral relations, may
not establish any such legal regulation which would create
preconditions so that a different person votes for the voter
(except when the voter is unable to implement his such
constitutional right by himself due to the state of his
health).
Personal (direct) voting is one of crucial guarantees of
free, thus democratic, expression of the will of voters. The
constitutional imperative of democratic elections requires that
the voters who, on the set day, are unable to appear at the
polling-station due to illness, disability, imprisonment,
performance of official tasks, as also due to a journey or
other personal reasons be granted an opportunity to express
their will in elections. The legislator has a constitutional
duty to establish the legal regulation ensuring that the
citizens who are unable to vote on the day of elections would
have an opportunity to implement their constitutional right at
some other time. While regulating the relations related with
absentee voting, the legislator enjoys discretion, however, he
may not violate the principles of democratic elections that are
consolidated in the Constitution.
One of common forms of absentee voting in democratic
states is voting by mail. The legislator, while deciding
whether to opt for this form of absentee voting, also by
regulating the relations linked with voting by mail, must take
into consideration not only the legal factors, but also
peculiarities of the political culture of society, the level of
civil maturity, public mentality, other social factors, for
they also determine the fact whether voting by mail would not
be abused, whether the institute of voting by mail would not
become means of distortion of the real will of voters and
whether it would not deny the right of the Nation to elect such
its representation which would express its real supreme
sovereign power.
6. It has been mentioned that the President of the
Republic requests in his inquiry of 3 November 2004 for a
conclusion whether the provisions of Article 5, Paragraphs 1, 4
and 6 of Article 67 of the Law on Elections to the Seimas,
which guarantee secret ballot and prohibit to control the will
of voters in the case when the voters vote by mail, were not
violated during the elections to the Seimas.
6.1. Article 5 of the Law on Elections to the Seimas
provides:
"1. Voters shall vote in person and by secret ballot. It
shall be prohibited for a person to vote instead of another
person or to vote by proxy. A voter who because of his physical
disability cannot cast a ballot himself, may vote with the
assistance of another person whom he trusts as laid down in
Paragraph 6 of Article 66 of this Law. If the secret of another
person's voting has come to the knowledge of anyone, it shall
be prohibited to disclose it.
2. Controlling the will of the voters in elections shall
be prohibited. It shall be prohibited to control the will of
the voters during the elections. It shall be prohibited during
the voting to influence the will of an elector to vote for or
against any candidate or a list of candidates. A voter must
have adequate conditions to mark his ballot in privacy and
without interference. It shall be prohibited to handle the
ballot in such a way that the secret of voting might be
disclosed."
6.2. Article 67 of the Law on Elections to the Seimas
provides:
"1. Voting by mail grants an opportunity to participate in
elections to the citizens who due to the state of their health
or because of other reasons are unable to come to the
polling-station to cast their votes. Voting by mail shall be
available at post offices during their business hours beginning
5 days before the election and ending 1 day before the
election, provided the voter is entered into the voter list of
the electoral district, which is in the town or district in
question, and ending 2 days before the election, provided the
voter is not entered into the voter list of the electoral
district, which is in the town or district in question.
Expenses related to voting by mail shall be covered by the
funds of the State Budget. <...>
4. In post offices there must be premises (place) where
the voter can, without interference and in secrecy, mark their
ballot papers and put them into voucher envelopes. The voting
may be observed by observers of parties and political
organisations, who have certificates permitting them to observe
elections at any polling-station. <...>
6. The voter shall vote by secret ballot:
1) he shall mark ballot-papers;
2) he shall put the marked ballot-papers into the voucher
envelope;
3) he shall seal the voucher envelope;
4) he shall put the voucher envelope and his voter
certificate into the outer envelope;
5) he shall seal the outer envelope. <...>"
6.3. It needs to be noted that Article 5, Paragraphs 1, 4
and 6 of Article 67 of the Law on Elections to the Seimas,
which are indicated in the inquiry of the President of the
Republic, are some of the provisions of the law, in which
voting by mail is consolidated as one of the forms of absentee
voting in the course of election of the Seimas. In the context
of the case at issue it needs to be noted that, under election
laws of Lithuania, inter alia the Law on Elections to the
Seimas, secret ballot must be ensured both when voters vote at
polling-stations and when they vote by mail.
IV
1. It was held in the 30 October 2004 decision of the
Central Electoral Commission that in the case instituted by the
Police Commissioner's Office of the Raseiniai District
subsequent to Article 172 of the Criminal Code of the Republic
of Lithuania pre-trial investigation had been started in the
course of which it was established that at the time of the
repeat vote by mail S. Saročka, with the purpose of influencing
the results of the elections, by means of bribery or deception,
had bough up voter certificates from 62 citizens and thus
hindered them to make use of their electoral right. During a
search, from S. Saročka 62 voter certificates were seized at
the back of which the personal data of the voter to whom the
voter certificate belonged were written in pencil. The
questioned 34 witnesses testified that they, being aware that
unlawful voting by mail will be carried out in their name, sold
for LTL 5-10 or gave without any payment their voter
certificates to S. Saročka.
It is written in the 30 October 2004 decision of the
Central Electoral Commission that while assessing the said
violation of the Law on Elections to the Seimas, one is to take
account of the fact that loss of a voter certificate "is not
regarded as absolute restriction of the right of the voter to
vote", and that form among the said 62 persons 4 persons
appeared on polling-stations on the day of the elections, in
which they were issued voter certificates and were able to
implement their electoral right, that the voter has an
opportunity to vote on the day of elections at the
polling-station even if he does not have his voter certificate,
that institutions of pre-trial investigation barred the way to
unlawful use the aforesaid 62 voter certificates in time,
therefore the aforementioned violation of the Law on Elections
to the Seimas was not substantially influential on the election
results.
While deciding whether the 30 October 2004 decision of the
Central Electoral Commission lawfully held that the buying or
other unlawful acquisition of the 62 voter certificates is not
a violation of the Law on Elections to the Seimas which was
substantially influential on the election results in Raseiniai
One-candidate Electoral District No. 42, it is important to
take account of the fact that the case material does not
contain any data about the fact that the said 62 voter
certificates were used in the voting during the repeat vote. It
is clear from the case material that the said 62 voter
certificates which S. Saročka had bought or otherwise
unlawfully acquired, were seized from him during the search and
are kept at the Police Commissioner's Office of the Raseiniai
District.
Therefore, one is to hold that the Central Electoral
Commission lawfully decided that the violation of the Law on
Election to the Seimas where S. Saročka bought or otherwise
unlawfully acquired 62 voter certificates was not substantially
influential on the election results in Raseiniai One-candidate
Electoral District No. 42 and that there were no grounds to
recognise the election results in the said district as invalid.
2. It was held in the 30 October 2004 decision of the
Central Electoral Commission that pre-trial investigation had
been started in the Police Commissioner's Office of the
Raseiniai District due to the fact that N. Melešius, Linkus and
Bagdonas bought up voter certificates from residents. The
material of the case does not contain any data as to how many
voter certificates had been bought.
It is written in the aforesaid decision of the Central
Electoral Commission that while assessing these facts one is to
take account of that fact that the pre-trial investigation
regarding the actions of these persons is not over yet, as well
as that all procedural opportunities to collect evidence and
establish the circumstances have not been used, therefore "it
is impossible to assert that the unlawful activities of these
persons were influential on the results of the election".
While deciding whether in the 30 October 2004 decision of
the Central Electoral Commission it was lawfully held that the
actions of N. Melešius, Linkus and Bagdonas are not the
violation of the Law on Elections to the Seimas which was
substantially influential on the election results in Raseiniai
One-candidate Electoral District No. 42, one must take account
of the fact that the material of the case does not contain any
evidence confirming that the said persons had bought or
otherwise unlawfully acquired voter certificates and used them
during the repeat vote in Raseiniai One-candidate Electoral
District No. 42, thus, there is not any evidence that the said
persons violated the Law on Elections to the Seimas.
Therefore, it is to be held that the Central Electoral
Commission lawfully decided that the deeds of the said persons
had not been substantially influential on the election results
in Raseiniai One-candidate Electoral District No. 42, and that
due to this there were not any grounds to recognise the
election results in the said district as invalid.
3. It is held in the 30 October 2004 decision of the
Central Electoral Commission that I. P., an employee of the
Raseiniai district post office, was presented a suspicion that
she, with the purpose of influencing the results of the
elections, had unlawfully issued 15 ballot-papers to two
unidentified persons and in the part "c" of voting by mail
checks forged signatures of 15 voters, confirming the receipt
of the ballot-papers.
It is written in the decision of the Central Electoral
Commission that due to its scale this fact could not have any
substantial influence on the results in Raseiniai One-candidate
Electoral District No. 42 and that due to this there were not
any grounds to recognise the election results in the said
district as invalid.
While deciding whether in the 30 October 2004 decision of
the Central Electoral Commission it was lawfully held that this
violation could not have any substantial influence on the
results in Raseiniai One-candidate Electoral District No. 42,
one must take account of the fact that according to the vote
counting protocol of the aforesaid electoral district, the
difference in the votes cast for the candidates is 61 votes in
favour of G. Mikolaitis. Even if all the said 15 ballot-papers
had been used to vote for K. Skamarakas, this would not have
changed the final election results in the said electoral
district in essence.
Therefore, it must be held that the Central Electoral
Commission lawfully decided that the violation of the Law on
Elections to the Seimas where I. P. unlawfully issued 15
ballot-papers could not have any substantial influence on the
election results in Raseiniai One-candidate Electoral District
No. 42.
4. It is indicated in the 30 October 2004 decision of the
Central Electoral Commission that three social workers signed
for 78 voters in the Blinstrubiškiai Foster Home for the
Elderly in the course of issuance of ballot-papers in a special
post office designated for voting by mail.
While assessing this fact, the Central Electoral
Commission noted in the said decision that members of the
Central Electoral Commission had gone to the Blinstrubiškiai
Foster Home for the Elderly together with an investigator of
the pre-trial institution and questioned 15 residents (at
choice) who had the electoral right as well as the said three
social workers. It was established that the aforementioned
violation was committed due to the old age and bad health of
the residents, that it was a formal and procedural violation,
that the voting in the aforementioned foster home had taken
place in the presence of election observers, including election
observers of K. Skamarakas, who did not express any remarks
concerning the voting, in addition, not a single one from the
questioned residents articulated any complaints regarding
restriction of the expression of their will.
While deciding whether in the 30 October 2004 decision of
the Central Electoral Commission it was lawfully held that the
signing by the three social workers for 78 voters in the course
of issuance of ballot-papers in a special post office
designated for voting by mail is not a violation of the Law on
Elections to the Seimas, which was substantially influential on
the election results in Raseiniai One-candidate Electoral
District No. 42, one must take account of the fact that the
case does not contain any evidence that the said three social
workers did not hand over the issued ballot-papers to the
voters, for whom they had signed, and that these voters did not
have an opportunity to freely express their will and to vote in
the elections by secret ballot.
Therefore, one is to hold that the Central Electoral
Commission lawfully decided that the aforesaid violation
committed by the three social workers was not substantially
influential on the election results in Raseiniai One-candidate
Electoral District No. 42 and that due to this there were not
any grounds to recognise the election results in the said
electoral district as invalid.
5. It is written in the 30 October 2004 decision of the
Central Electoral Commission that the statement of K.
Skamarakas' complaint had been verified that R. Ulinskienė, a
member of the election commission of one polling-station,
bought voter certificates from three persons. The Central
Electoral Commission stated that R. Ulinskienė categorically
denied these accusations.
It is clear from the material of the case that the fact
that R. Ulinskienė had bought voter certificates from three
persons was not proved, thus, there are not any grounds to
state that the Law on Elections to the Seimas was violated.
Therefore, one is to hold that the Central Electoral
Commission lawfully decided that due to the said reason the
election results in Raseiniai One-candidate Electoral District
No. 42 were not to be recognised as invalid.
6. Taking account of the arguments set forth, one is to
hold that the violations mentioned in Decision of the Central
Electoral Commission No. 403 "On the Request by the Candidate
to the Members of the Seimas K. Skamarakas to Recognise the
Election Results in Raseiniai One-candidate Electoral District
No. 42 as Invalid" of 30 October 2004, while assessing each of
them both separately and as a whole, do not give grounds to
conclude that the said decision of the Central Electoral
Commission violated the Law on Elections to the Seimas.
V
1. It is clear from the material of the case that in the
2004 elections to the Seimas during the repeat vote by mail
there were a number of violations of the Law on Elections to
the Seimas in Raseiniai One-candidate Electoral District No.
42, where the requirements of secret ballot and personal
(direct) voting were disregarded. At the hearing of the
Constitutional Court it came to light that similar violations
of the Law on the Election to the Seimas took place in other
electoral districts as well. In the election practice direct
and indirect buying of voters' votes has taken to spreading,
while this distorts the real will of the voters, it creates
preconditions to compete in elections dishonestly, and
decreases the trust in the representation of the Nation.
2. This shows that the provisions of the Law on Elections
to the Seimas that regulate voting by mail are not effective
enough. Neither the Law on Elections to the Seimas, nor any
other laws contain an effective mechanism, which would ensure
that voting by mail be not abused, and that the institute of
voting by mail itself not create preconditions to distort the
real will of the voters.
It needs to be emphasised that respective correction of
the legal regulation is a constitutional duty of the
legislator.
Conforming to Paragraph 3 of Article 105 of the
Constitution of the Republic of Lithuania and Paragraph 2 of
Article 1, Item 1 of Article 73, Article 77 and Article 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:
Decision of the Central Electoral Commission of the
Republic of Lithuania No. 403 "On the Request by the Candidate
to the Members of the Seimas K. Skamarakas to Recognise the
Election Results in Raseiniai One-candidate Electoral District
No. 42 as Invalid" of 30 October 2004 whereby it was refused to
grant the 29 October 2004 complaint of K. Skamarakas to the
Central Electoral Commission concerning recognition of the
election results in Raseiniai One-candidate Electoral District
No. 42 as invalid did not violate the Republic of Lithuania Law
on Elections to the Seimas.
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