Case No. 32/08
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
CONCLUSION
ON THE INQUIRY SET FORTH IN DECREE OF THE PRESIDENT OF
THE REPUBLIC NO. 1K-1564 OF 5 NOVEMBER 2008 WHETHER THE
REPUBLIC OF LITHUANIA LAW ON ELECTIONS TO THE SEIMAS WAS
NOT VIOLATED DURING THE 2008 ELECTIONS TO THE SEIMAS OF
THE REPUBLIC OF LITHUANIA
7 November 2008
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis,
Algirdas Taminskas and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the presence of:
the representatives of the President of the Republic, the
petitioner, who were Aušra Rauličkytė and Mindaugas Kluonis,
advisers to the President of the Republic, and
Zenonas Vaigauskas, Chairman of the Central Electoral
Commission of the Republic of Lithuania, Pavelas Kujalis, Vice-
chairman of the Central Electoral Commission of the Republic of
Lithuania and Julius Jasaitis, a member of this commission,
pursuant to Item 1 of Paragraph 3 of Article 105 of the
Constitution of the Republic of Lithuania, 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, in its public
hearing on 6 November 2008 heard constitutional justice case No.
32/08 subsequent to inquiry set forth in 5 November 2008 Decree
No. 1K-1564 "On the Inquiry to the Constitutional Court of the
Republic of Lithuania" of the President of the Republic, the
petitioner, regarding a conclusion whether the provisions of
Paragraph 2 of Article 77, Paragraphs 2 and 4 of Article 79,
Paragraph 1 of Article 80, Paragraph 1 of Article 81 and
Paragraph 2 of Article 82 of the Republic of Lithuania Law on
Elections to the Seimas were not violated during the 2008
elections to the Seimas of the Republic of Lithuania.
The Constitutional Court
has established:
I
1. On 12 October 2008 the elections to the Seimas took
place. The Members of the Seimas were not elected in 68 single-
member constituencies from the total number of 71 such
constituencies. On 26 October 2008 a repeat voting took place in
these single-member constituencies.
2. On 2 November 2008, the Central Electoral Commission
confirmed the final results of the 2008 elections to the Seimas
by its decision No. 191 "On the Final Results of Elections to the
Seimas of the Republic of Lithuania of 12 October 2008". This
decision of the Central Electoral Commission was announced on the
Internet on 2 November 2008, and in the official gazette
"Valstybės žinios"on 6 November 2008 (Official Gazette Valstybės
žinios, 2008, No. 127-4891).
3. On 4 November 2008, the Lithuanian Social Democratic
Party lodged a complaint with the President of the Republic
concerning the violations of the Law on Elections to the Seimas
whereby it was requested to apply to the Constitutional Court
with an inquiry "regarding the repeat elections of the Member of
the Seimas of the Republic of Lithuania in Šeškinė Constituency
No. 6".
4. By his Decree No. 1K-1564 "On the Inquiry to the
Constitutional Court of the Republic of Lithuania" of 5 November
2008, 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 2008
elections to the Seimas.
II
1. At the Constitutional Court hearing, A. Rauličkytė, 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 2008
elections to the Seimas was determined by the concern of the Head
of State whether during the repeat voting in the Šeškinė single-
member constituency the procedures of the elections to the Seimas
linked to the counting of votes, record of the bulletins and
ensuring of their security were not violated.
2. At the Constitutional Court hearing, Chairman of the
Central Electoral Commission Z. Vaigauskas explained what facts
were investigated and assessed by the Central Electoral
Commission and by what arguments it was guided in the course of
adoption of Decision No. 198 "Regarding the Complaint of the
Lithuanian Social Democratic Party Whereby It is Requested to
Recognise the Results of the Elections as Invalid" of 2 November
2008.
3. At the Constitutional Court hearing, A. Rauličkytė, the
representative of the President of the Republic, the petitioner,
and J. Jasaitis, the representative of the Central Electoral
Commission, expressed their doubt regarding the official source
for announcement of the results of elections and counting of the
corresponding time periods which are linked thereto and which are
established in laws.
The Constitutional Court
holds that:
I
1. On 12 October 2008 the elections to the Seimas took
place. The Members of the Seimas were not elected in 68 single-
member constituencies from the total number of 71 such
constituencies. On 26 October 2008 a repeat voting took place in
these single-member constituencies.
2. In Šeškinė Single-member Constituency No. 6, the repeat
voting took place as regards two candidates to Members of the
Seimas who had received most votes during the first electoral
round, and who were Vilija Blinkevičiūtė and Audronius Ažubalis.
3. After the repeat voting was over and upon counting of the
votes, on 26 October 2008 at 23.35 o'clock the protocol of the
Electoral Commission of the Šeškinė Constituency was signed in
which it was specified that 12,335 voters took part in the vote.
11,762 ballot-papers were recognised to be valid and it was
counted that 5,865 votes went for A. Ažubalis and 5,897 votes
went for V. Blinkevičiūtė (the protocol of counting of votes of
the Electoral Commission of the Šeškinė Constituency of 26
October 2008). Thus, the difference between the votes cast for
the candidates was 32 votes in favour of V. Blinkevičiūtė.
4. On 27 October 2008, Paulius Švilpa, the representative of
the Homeland Union-Lithuanian Christian Democrats in Šeškinė
Constituency No. 6 requested the electoral commission of the
constituency to recount all the ballot-papers in Šeškinė Single-
member Constituency No. 6.
5. After the Electoral Commission of the Šeškinė
Constituency has recounted the ballot-papers, on 29 October 2008
at 23.50 o'clock the protocol of the Electoral Commission of the
Šeškinė Constituency was signed in which it was recorded that
12,337 voters took part in the vote, the number of invalid
ballot-papers was 639, while the number of the valid ballot-
papers was 11,698, as well as that 5,877 votes went for A.
Ažubalis and 5,821 votes went for V. Blinkevičiūtė (the protocol
of counting of votes of the Electoral Commission of the Šeškinė
Constituency of 29 October 2008). Thus, the difference between
the votes cast for the candidates was 56 votes in favour of A.
Ažubalis.
6. On 28 October 2008, Chairman of the Central Electoral
Commission Z. Vaigauskas addressed the Prosecutor General of the
Republic of Lithuania with a request to initiate the pre-trial
investigation regarding the possibly incorrect counting of votes
of the elections to the Seimas in Šeškinė Single-member
Constituency No. 6 which meets the features of the crime provided
for in Article 174 of the Criminal Code of the Republic of
Lithuania.
7. On 29 October 2008, the Central Electoral Commission
received a complaint "Regarding Tampering with the Results of
Elections to the Seimas of the Republic of Lithuania" from Julius
Jurginis, the representative of the Lithuanian Social Democratic
Party at the Central Electoral Commission for the elections,
whereby it is requested to recognise "the results (of the repeat
voting of elections to the Seimas of 26 October 2008) of the
initial counting of votes as final or to call repeat elections to
the Seimas in Šeškinė Constituency No. 6". This complaint is
grounded on the fact that, according to J. Jurginis, the results
of counting of the repeat voting could be determined by the deeds
provided for in Article 173 titled "Tampering with a document of
elections or referendum or use of the tampered document of
elections or referendum" of the Criminal Code and Article 174
titled "False counting of votes of the elections" of the same
code. According to him, upon recounting of votes, one found the
ballot-papers with the marked surname of candidate A. Ažubalis
which, purportedly, had not been counted previously, and could be
put in the bags of the ballot-papers after the (first) counting
of votes at night of the elections.
8. On 29 October 2008, the Central Electoral Commission
formed a working group composed of the Chairman of the Central
Electoral Commission Z. Vaigauskas, Vice-chairman P. Kujalis and
members Vaidotas Vaičaitis and Živilė Verbylaitė. This working
group checked the bags of the ballot-papers of Šeškinė Single-
member Constituency No. 6, Šeškinės Polling District No. 258 and
Statybininkų Poling District No. 305, and it drew up two
verification acts. In these acts it was held that in both polling
districts the number of ballot-papers sealed with the seal of the
constituency is not bigger than that specified in the protocol of
counting of votes and that no ballot-papers sealed with the seals
of electoral commissions of other polling districts were found.
The 30 October 2008 verification would not essentially change the
recounting results of 29 October 2008: while carrying out the
verification, it was established that in Šeškinės Polling
District No. 258, 363 voters voted for A. Ažubalis and 410 voted
for V. Blinkevičiūtė (2 ballot-papers were not sealed), while in
Statybininkų Poling District No. 305, 503 voters voted for A.
Ažubalis (11 ballot-papers were not sealed) and 448 voted for V.
Blinkevičiūtė (7 ballot-papers were not sealed) (Decision of the
Central Electoral Commission No. 198 "Regarding the Complaint of
the Lithuanian Social Democratic Party Whereby It is Requested to
Recognise the Results of the Elections as Invalid" of 2 November
2008).
On 29 October 2008, the Electoral Commission of the Šeškinė
Constituency recounted the annulled ballot-papers of all polling
districts of the Šeškinė constituency, matched the numbers of
counterfoils of these ballot-papers with the numbers of
counterfoils of the ballot-papers issued to the electoral
commissions of the polling districts (the protocol of recounting
of votes of the polling districts of Šeškinė Single-member
Constituency No. 6 of 29 October 2008).
9. On 29 October 2008 J. Jurginis, the representative of the
Lithuanian Social Democratic Party at the Central Electoral
Commission for the elections, addressed the Prosecutor General
with a request to carry out the pre-trial investigation regarding
recounting of votes of the elections to the Seimas in Šeškinė
Single-member Constituency No. 6 which met the features of the
crimes provided for in Articles 173 and 174 of the Criminal Code.
10. On 29 October 2008, the Office of the Prosecutor General
assigned the Chief Prosecutor of the Local Prosecutor's Office of
the Vilnius City to conduct the pre-trial investigation.
11. On 1 November 2008, the Chief Prosecutor of the Second
Division of Organised Crimes Investigation of the Local
Prosecutor's Office of the Vilnius City adopted a decision to
dismiss the pre-trial investigation subsequent to the petitions
of the Chairman of the Central Electoral Commission Z. Vaigauskas
and J. Jurginis, the representative of the Lithuanian Social
Democratic Party at the Central Electoral Commission for the
elections, since in Šeškinė Single-member Constituency No. 6 and
polling districts, while counting the results of the elections to
the Seimas of the second electoral round, no criminal deed
provided for in Paragraph 1 of Article 173 and Paragraph 1 of
Article 174 of the Criminal Code had been committed.
The joint investigation group of the officials of the
Prosecutor's Office of the Vilnius City and the State Security
Department established that the seals and envelopes of the bags
with the ballot-papers of the elections were undamaged except for
one envelope with invalid ballot-papers which was in the bag
received from Statybininkų Poling District No. 305its side was
torn. The seal of the bag received from Ozo Polling District No.
251 was not fully tightened (therefore, it was easy to take it
off, even though it had to be taken off only after breaking it),
however, after having recounted the ballot-papers of this polling
district, no discrepancies were found. According to the data of
the investigation, the premises where the ballot-papers were kept
were always locked, the member of the electoral commission K.
Kazliūnas had the key, and later the key was held by the Deputy
Chairman of the electoral commission L. Lajauskas. According to
the witness L. Lajauskas, for the night of 26 to 27 October 2008,
the alarm was turned on in the premises. No traces of break-in
were found in the lock. Upon receipt of the request from the
observer of the elections P. Švilpa on 27 October 2008, the
ballot-papers of the polling districts of Šeškinė Constituency
No. 6 were recounted, first of all of Statybininkų Poling
District No. 305 in which the difference of votes for the
candidates was the smallest (Decision of the Chief Prosecutor of
the Second Division of Organised Crimes Investigation of the
Local Prosecutor's Office of the Vilnius City of 1 November
2008).
12. By Decision of the Central Electoral Commission No. 198
"Regarding the Complaint of the Lithuanian Social Democratic
Party, Whereby It is Requested to Recognise the Results of the
Elections as Invalid" of 2 November 2008, the complaint of J.
Jurginis, the representative of the Lithuanian Social Democratic
Party at the Central Electoral Commission for the elections, was
rejected. The Central Electoral Commission drew a conclusion that
all the feasible possibilities had been used to verify and make
sure that during the time period between the counting of the
results of voting on 26 October 2008 and their recounting on 29
October 2008 no unlawful actions were committed in order to try
to change the ballot-papers. The Central Electoral Commission
also held that the votes were recalculated in the Electoral
Commission of the Šeškinė Constituency on 29 October 2008
pursuant to the provisions of Paragraph 6 of Article 82 of the
Law on Elections to the Seimas and that there was no legal ground
to doubt the recounting results or to make any additional
recounting. Therefore, the Central Electoral Commission drew a
conclusion that the request to recognise the results of the
initial counting of votes of 26 October 2008 as final or to
recognise the results of the repeat voting as invalid and to
announce the repeat elections was groundless and was to be
rejected.
13. On 2 November 2008, the Central Electoral Commission
adopted Decision No. 191 "On the Final Results of Elections to
the Seimas of the Republic of Lithuania of 12 October 2008",
whereby it was decided:
"1. To establish the results of the repeat voting of the
Elections to the Seimas of 26 October 2008 in 68 single-member
constituencies (Annex 1);
2. To establish the final ranks of the lists of candidates
for Members of the Seimas in the multi-member constituency of the
elections to the Seimas of 12 October 2008 (Annex 2);
3. According to the results of the elections in multi-member
and single-member constituencies, to establish the persons who
have been elected to the Seimas of the Republic of Lithuania
(Annex 3). To grant the certificate of Seimas Member to the
elected Members of the Seimas in the March 11th Hall of the
Seimas of the Republic of Lithuania at 12 o'clock on 5 November
2008;
<...>
5. To announce the final results of the elections on the
Internet and in the next the official gazette 'Valstybės žinios'
".
This decision of the Central Electoral Commission was
announced on the Internet on 2 November 2008 and in the official
gazette "Valstybės žinios"on 6 November 2008 (Official Gazette
Valstybės žinios, 2008, No. 127-4891).
14. On 4 November 2008, the Lithuanian Social Democratic
Party addressed the President of the Republic requesting to apply
to the Constitutional Court with request "regarding the repeat
elections of the Member of the Seimas of the Republic of
Lithuania in Šeškinė Constituency No. 6".
In the complaint of the Lithuanian Social Democratic Party
it is stated that while recounting the votes, one noticed the
uncounted ballot-papers which had been cast for A. Ažubalis, and
these ballot-papers could be put in the bags of the ballot-papers
already after counting the votes on the day of elections. It is
also specified that upon recounting the ballot-papers, all the
non-sealed ballot-papers in the constituency were recognised as
invalid, even though, according to Article 80 of the Law on
Elections to the Seimas, only the ballot-papers which were sent
by post and which are not sealed with the seal of the
constituency may be recognised as invalid. Before taking the bags
of the ballot-papers of the repeat voting to the electoral
constituency and before the recounting of votes in the election
commission of the constituency, the seals of all bags should have
been checked, however, this was not done.
15. In this context, it needs to be noted that the Republic
of Lithuania Law on the Procedure of Publication and Coming into
Force of Laws and Other Legal Acts inter alia provides: the
official publication of laws and other legal acts shall be their
publishing in the official gazette "Valstybės žinios", the day of
their publication in the official gazette "Valstybės žinios"
shall be the day of their release; in cases established by this
law, the official publication of other legal acts shall be their
publishing in the mass media or in the internet websites of a
corresponding institution (Paragraph 1 (wording of 7 July 2005)
of Article 2)); the decisions of the Central Electoral Commission
regarding the final results of the elections to the Seimas must
be announced in the official gazette "Valstybės žinios" (Item 7
(wording of 10 December 2002) of Paragraph 1 (wording of 16
January 2007) of Article 3).
16. Paragraph 1 of Article 93 (wording of 11 December 2004)
of the Law on Elections to the Seimas provides that the Central
Electoral Commission shall establish the final election results
after it has investigated all complaints and established all
election results in the constituency, including of the voters who
have voted on ships and abroad. Paragraph 2 (wording of 11 May
2004) of the same article inter alia provides that the Central
Electoral Commission shall announce the final election results
not later than within 7 days following the election or the repeat
voting, and that the Central Electoral Commission shall first of
all announce the final results on the Internet and in the next
issue of the official gazette "Valstybės žinios".
Therefore, Paragraph 2 (wording of 11 May 2004) of Article
93 of the Law on Elections to the Seimas provides for two sources
for announcement of the final results of the elections to the
Seimas: the Internet and the official gazette "Valstybės žinios".
17. It needs to be mentioned that in its ruling of 27 June
2007, the Constitutional Court held: in general, the legislator
may regulate the official publishing of the legal acts in a
differentiated manner also on other grounds and to establish
alternative (in comparison with the general procedure of the
official publishing of the legal acts) sources, ways and
procedure of the official publishing of legal acts; such
situations are possible when a certain legal act must come into
force immediately, right after being issued. In such cases, one
must ensure the necessary expeditious and as fast as possible
official publishing of legal acts; the official public publishing
of the whole legal act is not an end in itselfit is necessary so
that the subjects of law would know what the corresponding legal
act is, would be able to familiarise themselves with the whole
legal act and to follow it; the purpose and essence of the
official public publishing of an entire legal act is that it
becomes accessible to the subjects of law and no doubts remain
regarding the authenticity of its contents.
18. Alongside, it needs to be noted that the provision of
Paragraph 2 of Article 93 of the Law on Elections to the Seimas
establishes that the Central Electoral Commission shall first of
all announce the final results in the Internet and in the next
issue of the official gazette "Valstybės žinios" is in various
aspects related to other provisions of the Law on Elections to
the Seimas. Thus, in the aspect of counting of the corresponding
time periods, this provision is related to Paragraph 5 of Article
86 o f the Law on Elections to the Seimas, under which the
parties which have nominated candidates for Seimas Member, as
well as the candidates for the Seimas Member, may lodge
complaints against the decisions of the Central Electoral
Commission or against the refusal of the Central Electoral
Commission to investigate complaints about the violations of the
Law on Elections not later than within 24 hours after the
official announcement of the election results, to the Seimas or
the President of the Republic; in such cases, the Seimas or
President of the Republic shall, not later than within 48 hours,
apply to the Constitutional Court with the inquiry concerning the
violation of the Law in Elections to the Seimas. The aforesaid
provision is related with Paragraph 1 of Article 94 of the same
law, under which, after the proclamation of election results the
Central Electoral Commission shall issue certificates of Seimas
Member to the elected candidates within 3 days, and it is also
related with Paragraph 1 of Article 95 of the same law, under
which, not later than within 3 days of the official announcement
of the election results, the Seimas as well as the President of
the Republic may apply to the Constitutional Court with the
inquiry whether the Law on Elections to the Seimas has been
violated. In the said aspect, the provision of Paragraph 2 of
Article 93 of the Law on Elections to the Seimas is related to
Paragraph 1 of Article 77 of the Law on the Constitutional Court,
under which the Seimas or the President of the Republic may apply
to the Constitutional Court with inquiries concerning possible
violations of the laws on elections during the elections of the
President of the Republic or the Seimas elections within 3 days
of the publication of the official election results. In this
context, one is to mention Paragraph 4 of Article 95 of the Law
on Elections to the Seimas, under which, basing itself on the
conclusions of the Constitutional Court, the Seimas shall adopt
the final decision concerning the violation of the Law on
Elections to the Seimas, as well as Paragraph 5 of the same
article, under which, if the Constitutional Court makes a
conclusion that the Law on Elections to the Seimas has been
severely violated or election documents have been tampered and
this has had an essential influence on the establishment of the
election results, the Seimas may adopt one of the resolutions
provided for in this law, while under Paragraph 6 of this
article, the Seimas shall also pass a resolution on legally and
illegally elected Seimas Members. One is also to mention
Paragraph 3 of Article 77 of the Law on the Constitutional Court,
whereby the inquiry concerning possible violations of the laws on
elections during the elections of the President of the Republic
or the Seimas shall be examined within 72 hours of its filing
with the Constitutional Court; the time periods specified in this
article shall also include non-working days. Thus, while
construing the said provisions of the Law on Elections to the
Seimas and the Law on the Constitutional Court in the context of
the provision of Paragraph 2 of Article 93 of the Law on
Elections to the Seimas that the Central Electoral Commission
shall first of all announce the final results on the Internet and
in the next issue of the official gazette "Valstybės žinios",
there may arise certain obscurities regarding the counting of the
corresponding time periods, since it is possible that the
announcement of the final results of the elections on the
Internet and the announcement thereof in the official gazette
"Valstybės žinios" happen at different time.
It needs to be mentioned that Decision of the Central
Electoral Commission No. 191 "On the Final Results of Elections
to the Seimas of the Republic of Lithuania of 12 October 2008" of
2 November 2008 was announced on the Internet on 2 November 2008,
and in the official gazette "Valstybės žinios"on 6 November
2008, even though after the announcement of this decision of the
Central Electoral Commission on the Internet, the official
gazette "Valstybės žinios" was issued on 4 November 2008.
In the context of the constitutional justice case at issue,
it needs to be noted that the provision "the Central Electoral
Commission shall first of all announce the final results on the
Internet and in the next issue of the official gazette 'Valstybės
žinios'" of Paragraph 2 of Article 93 of the Law on Elections to
the Seimas is lex specialis with regard to the provisions of the
Law on the Procedure of Publication and Coming into Force of Laws
and Other Legal Acts which establish the procedure of
announcement of acts of the Central Electoral Commission.
The essence of the principle lex specialis derogat legi
generali is that when there is a competition between general and
special norms, the special norm shall be applied (Constitutional
Court rulings of 18 October 2000, 21 January 2008 and 15 March
2008).
It has been mentioned that under Item 7 (wording of 10
December 2002) of Paragraph 1 (wording of 16 January 2007) of
Article 3 of the Law on the Procedure of Publication and Coming
into Force of Laws and Other Legal Acts, the decisions of the
Central Electoral Commission regarding the final results of the
elections to the Seimas must be announced in the official gazette
"Valstybės žinios". Because of the fact that the provision "the
Central Electoral Commission shall first of all announce the
final results in the Internet and in the next issue of the
official gazette 'Valstybės žinios'" of Paragraph 2 of Article 93
of the Law on Elections to the Seimas is lex specialis with
regard to the provisions of the Law on the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts
which enshrine the procedure of publication of acts of the
Central Electoral Commission, therefore, while establishing the
exact date of the announcement of the official results of
elections, after such results were published either on the
Internet or in the official gazette "Valstybės žinios", one must
follow lex specialis, i.e. the provisions of the Law on Elections
to the Seimas.
19. Taking account of the arguments set forth, one is to
hold that the results of elections to the Seimas were officially
announced on 2 November 2008, when they were announced on the
Internet. It also needs to be noted that the fact that when there
is a competition between the general and special norms, the
special norm is applied, does not deny the duty of the legislator
to harmonise the provisions of the Law on the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts
with the legal regulation established in Paragraph 2 (wording of
11 May 2004) of Article 93 of the Law on Elections to the Seimas.
20. In this context, it needs to be noted that, as it has
been mentioned, under Paragraph 1 of Article 95 of the Law on
Elections to the Seimas, not later than within 3 days of the
official announcement of the election results, the Seimas as well
as the President of the Republic may apply to the Constitutional
Court with an inquiry whether the Law on Elections to the Seimas
has been violated, and under Paragraph 1 of Article 77 of the Law
on the Constitutional Court, the institutions specified in
Article 74 of the same law apply to the Constitutional Court with
inquiries concerning possible violations of the laws on elections
during the elections of the President of the Republic or the
Seimas elections within 3 days of the publication of the official
election results.
Thus, while construing Paragraph 2 of Article 93 and
Paragraph 1 of Article 95 of the Law on Elections to the Seimas
and Paragraph 1 of Article 77 of the Law on the Constitutional
Court in a systemic manner, one is to draw a conclusion that the
beginning of the time period established in Paragraph 5 of
Article 86, Paragraph 1 of Article 95 of the Law on Elections to
the Seimas and Article 77 of the Law on the Constitutional Court
within which one must present an inquiry regarding violation of
the Law on Elections to the Seimas is counted as from the
announcement of the final results of elections to the Seimas on
the Internet.
II
1. By his Decree No. 1K-1564 "On the Inquiry to the
Constitutional Court of the Republic of Lithuania" of 5 November
2008 (hereinafter also referred to as the 5 November 2008 decree
of the President of the Republic), the President of the Republic
applied to the Constitutional Court with an inquiry regarding a
conclusion whether the provisions of Paragraph 2 of Article 77,
Paragraphs 2 and 4 of Article 79, Paragraph 1 of Article 80,
Paragraph 1 of Article 81 and Paragraph 2 of Article 82 of the
Law on Elections to the Seimas were not violated during the 2008
elections to the Seimas.
2. In the 5 November 2008 decree of the President of the
Republic, it is specified: "By Central Electoral Commission
Decision No. 198 'Regarding the Complaint of the Lithuanian
Social Democratic Party Whereby It is Requested to Recognise the
Results of the Elections as Invalid' the complaint from J.
Jurginis, the representative of the Lithuanian Social Democratic
Party at the Central Electoral Commission for the elections,
whereby it is requested to recognise the results of the initial
counting of votes in Šeškinė Single-member Constituency No. 6 as
final or to recognise the results of recounting as invalid and to
call repeat elections, was rejected". The circumstances specified
in the said complaint, according to the President of the
Republic, may be assessed as violation of the provisions
regarding counting of votes and record of ballot-papers of
Paragraph 2 of Article 77 and Paragraphs 2 and 4 of Article 79 of
the Law on Elections to the Seimas, as violation of the provision
regarding recognition of ballot-papers as invalid of Paragraph 1
of Article 80 of the same law, and as violation of the provisions
regarding presentation of ballot-papers and ensuring their
security of Paragraph 2 of Article 82 of the same law.
3. The 5 November 2008 decree of the President of the
Republic is substantiated by these doctrinal provisions
formulated in the Constitutional Court conclusion of 5 November
2004: 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;
democratic elections are an important form of citizens'
participation in governing of the state, 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. The following was attached to the 5 November 2008 decree
of the President of the Republic: the 4 November 2008 complaint
of the Lithuanian Social Democratic Party, Decision of the
Central Electoral Commission No. 198 "Regarding the Complaint of
the Lithuanian Social Democratic Party Whereby It is Requested to
Recognise the Results of the Elections as Invalid" of 2 November
2008 and the 1 November 2008 statement of the Local Prosecutor's
Office of the Vilnius City to the Chairman of the Central
Electoral Commission that after no criminal deeds had been
established, a decision was adopted to dismiss the pre-trial
investigation which had been instituted subsequent to the
petitions of the Chairman of the Central Electoral Commission Z.
Vaigauskas and J. Jurginis, the representative of the Lithuanian
Social Democratic Party at the Central Electoral Commission for
the elections, in order to investigate whether in the course of
counting the results of elections to the Seimas of the repeat
voting in Šeškinė Single-member Constituency No. 6 there were not
any criminal deeds provided for in Articles 173 and 174 of the
Criminal Code.
5. Item 1 of Paragraph 3 of Article 105 of the Constitution
provides that the Constitutional Court shall present conclusions
whether there were violations of election laws during elections
of the President of the Republic or elections of members of the
Seimas.
In Paragraph 2 of Article 102 of the Constitution it is
enshrined that the status of the Constitutional Court and the
procedure for the execution of its powers shall be established by
the Law on the Constitutional Court of the Republic of Lithuania.
Under Article 77 of the 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.
6. Decree of the President of the Republic No. 1K-1564 "On
the Inquiry to the Constitutional Court of the Republic of
Lithuania" of 5 November 2008 requesting for a conclusion whether
the provisions regarding counting of votes and record of ballot-
papers of Paragraph 2 of Article 77, Paragraphs 2 and 4 of
Article 79 of the Law on Elections to the Seimas, whether the
provisions regarding recognition of ballot-papers as invalid of
Paragraph 1 of Article 80 of the same law, and whether the
provisions regarding presentation of ballot-papers and ensuring
their security of Paragraph 1 of Article 81 and Paragraph 2 of
Article 82 of the same law were not violated during the 2008
elections to the Seimas is related to the said 4 November 2008
complaint of the Lithuanian Social Democratic Party and Decision
of the Central Electoral Commission No. 198 "Regarding the
Complaint of the Lithuanian Social Democratic Party Whereby It is
Requested to Recognise the Results of the Elections as Invalid"
of 2 November 2008, which rejected the complaint of J. Jurginis,
the representative of the Lithuanian Social Democratic Party at
the Central Electoral Commission for the elections, whereby it is
requested "to recognise the results of the initial counting of
votes (of the repeat voting of elections to the Seimas of 26
October 2008) as final or to call repeat elections in Šeškinė
Single-member Constituency No. 6".
7. It has been mentioned that under Article 77 of the 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.
8. Taking account of the fact that by his decree of 5
November 2008, the President of the Republic requests to present
a conclusion whether during the elections to the Seimas one did
not violate the provisions of Paragraph 2 of Article 77 and
Paragraphs 2 and 4 of Article 79 of the Law on Elections to the
Seimas regarding counting of votes and record of ballot-papers,
the provision of Paragraph 1 of Article 80 of the same law
regarding recognition of ballot-papers as invalid and the
provisions of Paragraph 1 of Article 80 and Paragraph 2 of
Article 82 of the same law regarding presentation and ensuring
the security of ballot-papers, as well as taking account of the
fact that this decree is related to the said complaint of the
Lithuanian Social Democratic Party of 4 November 2008 and
Decision of the Central Electoral Commission No. 198 "Regarding
the Complaint of the Lithuanian Social Democratic Party Whereby
It is Requested to Recognise the Results of the Elections as
Invalid" of 2 November 2008, it needs to be held that the
President of the Republic requests to present a conclusion
whether by its decision No. 198 "Regarding the Complaint of the
Lithuanian Social Democratic Party Whereby It is Requested to
Recognise the Results of the Elections as Invalid" of 2 November
2008, the Central Electoral Commission lawfully refused to grant
the complaint of J. Jurginis, the representative of the
Lithuanian Social Democratic Party at the Central Electoral
Commission for the elections, whereby it is requested "to
recognise the results of the initial counting of votes (of the
repeat voting of elections to the Seimas of 26 October 2008) as
final or to call repeat elections in Šeškinė Single-member
Constituency No. 6".
9. In this case subsequent to the 5 November 2008 decree of
the President of the Republic, the Constitutional Court will
investigate and assess whether Decision of the Central Electoral
Commission No. 198 "Regarding the Complaint of the Lithuanian
Social Democratic Party Whereby It is Requested to Recognise the
Results of the Elections as Invalid" of 2 November 2008 lawfully
refused to grant the complaint of J. Jurginis, the representative
of the Lithuanian Social Democratic Party at the Central
Electoral Commission for the elections, whereby it is requested
"to recognise the results of the initial counting of votes (of
the repeat voting of elections to the Seimas of 26 October 2008)
as final or to call repeat elections in Šeškinė Single-member
Constituency No. 6".
III
1. Article 2 of the Constitution enshrines that 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
governance of their state both directly and through their
democratically elected representatives. One of fundamental
characteristics of a democratic state is democratic elections of
representative institutions of state power. It is through
elections that every citizen accomplishes his right to
participate in running his country along with the other citizens
(Constitutional Court conclusion of 23 November 1996), in the
formation of the institution representing the Nationthe Seimas.
The constitutional requirement that the Lithuanian state
power would be organised democratically and that there would be a
democratic political regime in the state, as well as the
provision of Paragraph 1 of Article 33 of the Constitution that
citizens shall have the right to participate in the governance of
their state both directly and through their democratically
elected representatives are inseparable from Paragraph 3 of
Article 5 of the Constitution that state institutions shall serve
the people, as well as from the provision of Paragraph 2 of this
article that the scope of powers shall be limited by the
Constitution. The Constitutional Court has more than once held
that the responsibility of authority to society is one of
elements of the principle of the state under the rule of law
which is established by the Constitution, upon establishing that
state institutions will serve the people, that 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 requests and complaints of citizens, etc.
2. While emphasising the importance of the elections of the
representative institutions, the Constitutional Court has more
than once held that 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 lawfulness, 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. 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 lawful, if the
elections are held by trampling on the principles of democratic
elections established in the Constitution, and by violating
democratic electoral procedures (Constitutional Court ruling of
18 December 2004, conclusion of 5 November 2004 and ruling of 1
October 2008).
3. It needs to be noted that the principles of election of
the Representation of the Nationthe Seimas are enshrined in the
Constitution, they may not be denied, deviated from or restricted
by any legal act of lower power. Under Paragraph 1 of Article 55
of the Constitution, Members of the Seimas shall be elected on
the basis of universal, equal, and direct suffrage by secret
ballot.
4. While construing the provision of Paragraph 3 of Article
55 of the Constitution that the procedure for election of Members
of the Seimas shall be established by law, in its conclusion of 5
November 2004 the Constitutional Court held that 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 Constitutional Court conclusion of 5 November 2004,
it was also 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 might always arise certain
doubts as for legality of election of members of the Seimas.
IV
1. It has been mentioned that in his Decree of 5 November
2008, the President of the Republic requests to present a
conclusion whether during the 2008 elections to the Seimas one
did not violate the provisions of Paragraph 2 of Article 77 and
Paragraphs 2 and 4 of Article 79 of the Law on Elections to the
Seimas regarding counting of votes and record of ballot-papers,
the provision of Paragraph 1 of Article 80 of the same law
regarding recognition of ballot-papers as invalid and the
provisions of Paragraph 1 of Article 80 and Paragraph 2 of
Article 82 of the same law regarding presentation and ensuring
the security of ballot-papers.
1.1. Paragraph 2 of Article 77 of the Law on Elections to
the Seimas provides:
"2. Having ascertained that the ballot box has not been
tampered with, in the presence of at least 3/5 of the members of
the polling district commission as well as observers, it shall be
opened, all ballot-papers shall be placed on tables on which
there are no other documents and writing materials (except black
lead pencils), and the commission shall start counting votes.
Ballot-papers shall be sorted out according to constituencies
(single-member and multi-member), then - into valid and invalid
ballot-papers. Valid ballot-papers shall be divided into groups
according to the marks made in them by voters. Each group of
ballot-papers must be recounted at least two times. For the
second time ballot-papers must be counted by other members of the
commission. Ballot-papers which do not hold necessary attributes
(irregular ballot-papers, unsealed or sealed with a seal of
another electoral commission, etc.) must, if found, be separated
from the rest of the ballot-papers. The constituency electoral
commission shall be immediately informed about such ballot-papers
and such fact must be entered into the vote counting record of
the polling district. Counting results must be announced and
entered into the record, counted ballot-papers put into a special
envelope (envelopes) which is sealed and safeguarded. After the
electoral commission establishes how many votes have been cast by
voters who voted in the polling station of the polling district
for lists of candidates in the multi-member constituency and for
candidates in single-member constituencies, counting of votes
received by post shall commence."
1.2. Paragraphs 2 and 4 of Article 79 of the Law on
Elections to the Seimas provide:
"2. The vote counting record of the single-member
constituency shall include the following:
1) the number of voters in the polling district;
2) the number of ballot-papers of the single-member
constituency received from the constituency electoral commission;
3) the number of ballot-papers delivered to each member of
the commission, the number of ballot-papers delivered to voters,
the number of voters' signatures, the number of voter
certificates, the number of arrival cards, and the number of
unused and spoiled ballot-papers;
4) the number of annulled ballot-papers;
5) the number of voters who have voted in the polling
station of the polling district;
6) the time of the opening of the ballot box;
7) the number of invalid ballot-papers found in the ballot
box;
8) the number of valid ballot-papers found in the ballot
box;
9) the number of votes found in the ballot box which have
been separately cast for each candidate for Seimas Member;
10) the number of postal voting envelopes of voters who have
voted at home, the number of postal voting envelopes received by
post, the total number of postal voting envelopes received by
post and at home, and the number of sealed ballot-paper
envelopes;
11) the number of invalid ballot-papers received by post
(ballot-papers which are in unsealed and unopened envelopes shall
not be counted and shall not be indicated as invalid);
12) the number of valid ballot-papers received by post;
13) the number of votes received by post for each candidate
for Seimas Member;
14) the total number of voters who participated in the
elections in the polling district;
15) the total number of invalid ballot-papers in the polling
district; and
16) the total number of votes cast for each candidate for
Seimas Member. <...>
4. The number of the voters of the polling district shall be
established according to the electoral rolls of the polling
district. The number of the voters who have been delivered the
ballot-papers shall be established according to the voters'
signatures proving that the ballot-papers have been received. The
number of the voters who have voted in the polling district shall
be established according to the number of the ballot-papers
lawfully delivered to voters by the electoral commission of that
polling district and found in the ballot box of the polling
station. The total number of the voters who have participated in
the election in the polling district shall be established by
adding the number of the ballot-papers found in the ballot boxes
to the number of the ballot-papers received by post and counted."
1.3. Paragraph 1 of Article 80 of the Law on Elections to
the Seimas provides:
"1. Invalid ballot-papers shall be:
1) non-standard ballot-papers;
2) ballot-papers sealed with the seal of the electoral
commission of the wrong polling district (ballot-papers received
by postwithout the seal of the constituency electoral
commission);
3) ballot-papers of the wrong constituency;
4) in a single-member constituency, those ballot-papers on
which the voter has marked more than one candidate for Seimas
Member, or has not marked any candidate, or it is impossible to
ascertain the voter's will from the mark made thereon; and
5) in the multi-member constituency, the ballot-papers on
which the voter has marked more than one list of candidates or
has not marked any list of candidates, or it is impossible to
ascertain the voter's will from the mark made thereon."
1.4. Paragraph 1 of Article 81 of the Law on Elections to
the Seimas provides:
"1. The polling district commission shall put all ballot-
papers, as well as invalid and unused ballot-papers, other
election documents into packages, inventory them and affix the
seal to them in the manner prescribed by the Central Electoral
Commission. The packages shall be delivered together with the
vote counting record and its annexes, electoral rolls, records of
the polling district commission and financial documentation for
the whole period of its work to the constituency electoral
commission within 12 hours of the closing of the polls, unless
the Central Electoral Commission provides otherwise."
1.5. In Paragraph 2 of Article 82 of the Law on Elections to
the Seimas, it is established:
"2. The constituency electoral commission shall immediately
report the data of the vote counting record, its comments
concerning the documents submitted by the polling district
commission to the Central Electoral Commission in the manner
prescribed by it, and shall ensure the safety of submitted
documents."
2. In the context of this constitutional justice case at
issue, also other provisions of the Law of Elections to the
Seimas are to be mentioned, i.e. the provisions of Paragraph 6 of
Article 82 of the Law on Elections to the Seimas regarding the
duty to recount the ballot-papers, the provisions of Article 91
of the same law regarding recognition of the elections as null
and void, and those of Article 92 regarding the repeat elections.
2.1. Paragraph 6 of Article 82 of the Law on Elections to
the Seimas provides:
"6. The constituency electoral commission must adopt a
decision to recount ballot-papers of all the polling districts of
a single-member constituency when, prior to the signing of the
vote counting record, this has been requested by at least one
member of the commission, a representative of a party or a
candidate, and when the difference between the votes for the
candidates who came first or second in this single-member
constituency in accordance with the preliminary election results,
is less than 50."
2.2. Article 91 of the Law on Elections to the Seimas
provides:
"1. The Central Electoral Commission may declare the
election results in the constituency null and void, if it has
established that severe violations of Paragraph 1 of Article 5-1
of this Law or other laws which were committed in the
constituency or polling district, the falsification of documents
or the loss thereof had an essential influence on the election
results, and the following essential results cannot be determined
from the vote counting records or other election documents:
1) in a single-member constituencythe candidate who gets
the mandate, or the candidates who participate in the repeat
voting;
2) in the multi-member constituencythe lists of candidates
which take part in the distribution of mandates, or the number of
mandates due to the list of candidates can be determined at the
exactness of only more than one mandate.
2. The election cannot be declared invalid if the
indisputably determined election results allow to determine
essential election results."
2.3. Article 92 of the Law on Elections to the Seimas
provides:
"1. Repeat elections shall be held in constituencies in
which the elections did not take place or were declared invalid.
2. Repeat elections shall be held not later than within half
a year, and after the repeat elections which have not been held
not later than within a year.
3. The concrete procedure for holding repeat elections, the
repeat voting to the Seimas according to the requirements and
terms set in this Law shall be established by the Central
Electoral Commission taking into consideration the fact that
repeat elections, the repeat voting are held in one of the
single-member constituencies. When establishing the procedure for
holding the repeat elections, the Central Electoral Commission
cannot change the boundaries of constituencies. The citizens,
permanently residing on the territory of a constituency who are
aged 18 or over on the day of the repeat elections shall be
additionally entered on the electoral roll of this constituency,
and only the persons who have lost the right to vote shall be
crossed out. The voting shall not be conducted abroad, on ships
(with the exception of the case when the voters residing abroad
or the crews of ships are entered on the electoral rolls of the
constituency in which repeat elections shall be held), in the
post offices which are not located on the territory of this
constituency (except the central post offices of towns, regions).
4. Repeat elections shall not be held if the election date
planned to be announced falls within the period when less than a
year remains before the date of the next election to the Seimas,
as counted in compliance with the Constitution."
V
1. It has been mentioned that in this case subsequent to the
5 November 2008 decree of the President of the Republic, the
Constitutional Court will investigate and assess whether Decision
of the Central Electoral Commission No. 198 "Regarding the
Complaint of the Lithuanian Social Democratic Party Whereby It is
Requested to Recognise the Results of the Elections as Invalid"
of 2 November 2008 lawfully refused to grant the complaint of J.
Jurginis, the representative of the Lithuanian Social Democratic
Party at the Central Electoral Commission for the elections,
whereby it is requested "to recognise the results of the initial
counting of votes (of the repeat voting of elections to the
Seimas of 26 October 2008) as final or to call repeat elections
in Šeškinė Single-member Constituency No. 6".
2. It has been mentioned that on 29 October 2008, the
Central Electoral Commission received a complaint from Julius
Jurginis, the representative of the Lithuanian Social Democratic
Party at the Central Electoral Commission for the elections,
whereby it is requested to recognise "the results (of the repeat
voting of elections to the Seimas of 26 October 2008) of the
initial counting of votes as final or to call repeat elections to
the Seimas in Šeškinė Constituency No. 6". It has been also
mentioned that this complaint is grounded on the fact that,
according to J. Jurginis, the results of counting of the repeat
voting could be determined by the deeds provided for in Articles
173 and 174 of the Criminal Code.
The commission of the said deeds, according to J. Jurginis,
is confirmed by such circumstances: the seal of the bag with
ballot-papers received from Ozo Polling District No. 251 was not
fully tightened; according to him, the uncounted ballot-papers
which had been cast for A. Ažubalis and which were found when
recounting the votes, could be put in the bags already after
counting the votes on the day of elections.
3. It has been mentioned that the Central Electoral
Commission decided to reject the 29 October 2008 complaint from
J. Jurginis, the representative of the Lithuanian Social
Democratic Party at the Central Electoral Commission for the
elections, whereby it is requested to recognise "the results (of
the repeat voting of elections to the Seimas of 26 October 2008)
of the initial counting of votes as final or to call repeat
elections to the Seimas in Šeškinė Constituency No. 6".
It has also been mentioned that the Central Electoral
Commission has grounded its decision on the fact that all the
feasible possibilities have been used to verify and make sure
that during the time period between the counting of the results
of voting and their recounting no unlawful actions were committed
in trying to swap the ballot-papers.
4. While deciding whether Decision of the Central Electoral
Commission No. 198 "Regarding the Complaint of the Lithuanian
Social Democratic Party Whereby It is Requested to Recognise the
Results of the Elections as Invalid" of 2 November 2008 lawfully
refused to grant the complaint of J. Jurginis, the representative
of the Lithuanian Social Democratic Party at the Central
Electoral Commission for the elections, it needs to be held that,
as it is obvious from the material of the case:
- on 29 October 2008, a working group composed of the
Chairman of the Central Electoral Commission Z. Vaigauskas, vice-
chairman P. Kujalis and members V. Vaičaitis and Ž. Verbylaitė
checked the bags of the ballot-papers of Šeškinė Single-member
Constituency No. 6, Šeškinės Polling District No. 258 and
Statybininkų Poling District No. 305 and it drew up two
verification acts. In these acts it was held that in both polling
districts the number of ballot-papers sealed with the seal of the
constituency is not bigger than specified in the protocol of
counting of votes and that no ballot-papers sealed with the seals
of electoral commissions of other polling districts were found.
The 30 October 2008 verification would not essentially change the
recounting results of 29 October 2008;
- the seals and envelopes of the bags with the ballot-papers
of the elections of Šeškinė Single-member Constituency No. 6 were
undamaged; a side of one of the envelopes with invalid ballot-
papers which was in the bag received from in Statybininkų Poling
District No. 305 was torn, however, the ballot-papers were in the
envelope;
- the seal of the bag received from Ozo Polling District No.
251 of Šeškinė Single-member Constituency No. 6 was not fully
tightened (therefore, it was easy to take it off, even though it
had to be taken off only after breaking it), however, after
having recounted the ballot-papers of the said polling district
and having compared them with the results of the initial counting
of votes, no discrepancies were found;
- the premises where the ballot-papers were kept were always
locked; no traces of break-in were found in the lock.
In this context, it needs to be noted that, as it has been
mentioned, by the 1 November 2008 decision of the Chief
Prosecutor of the Second Division of Organised Crimes
Investigation of the Local Prosecutor's Office of the Vilnius
City, pre-trial investigation No. 01-2-150-08 was dismissed and
it was held that no criminal deed provided for in Paragraph 1 of
Article 173 and Paragraph 1 of Article 174 of the Criminal Code
had been committed.
5. Having assessed the said circumstances, it needs to be
held that there is no legal ground to state that Decision of the
Central Electoral Commission No. 198 "Regarding the Complaint of
the Lithuanian Social Democratic Party Whereby It is Requested to
Recognise the Results of the Elections as Invalid" of 2 November
2008 unlawfully refused to grant the complaint of J. Jurginis,
the representative of the Lithuanian Social Democratic Party at
the Central Electoral Commission for the elections.
Therefore, one is to draw a conclusion that Decision of the
Central Electoral Commission No. 198 "Regarding the Complaint of
the Lithuanian Social Democratic Party Whereby It is Requested to
Recognise the Results of the Elections as Invalid" of 2 November
2008, whereby it was refused to grant the complaint of J.
Jurginis, the representative of the Lithuanian Social Democratic
Party at the Central Electoral Commission for the elections,
regarding the results of the repeat voting of the Elections to
the Seimas of Šeškinė Single-member Constituency No. 6, did not
violate the Law on Elections to the Seimas.
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. 198 "Regarding the Complaint of the Lithuanian
Social Democratic Party Whereby It is Requested to Recognise the
Results of the Elections as Invalid" of 2 November 2008 whereby
it was refused to grant the complaint of J. Jurginis, the
representative of the Lithuanian Social Democratic Party at the
Central Electoral Commission for the elections, regarding the
results of the repeat voting of the Elections to the Seimas of
Šeškinė Single-member Constituency No. 6, did no violate the Law
on Elections to the Seimas.
This conclusion of the Constitutional Court of the Republic
of Lithuania is final and not subject to appeal.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis