THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON THE INQUIRY SET FORTH IN DECREE OF THE PRESIDENT OF
THE REPUBLIC NO. 1K-1575 "ON THE INQUIRY TO THE
CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA" OF 7
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
10 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,
at a procedural sitting of the Constitutional Court
considered the inquiry "whether during the 2008 elections of the
Members of the Seimas of the Republic of Lithuania, the
provisions of Articles 5, 5-1, 61, 67, 67-1, 84 and 87 of the Law
on Elections to the Seimas which enshrine the principle of secret
ballot and democratic procedures of elections, the following of
which is necessary for recognition of the results of elections as
legitimate and lawful, were not violated" which was set forth in
the 7 November 2008 Decree No. 1K-1575 "On the Inquiry to the
Constitutional Court of the Republic of Lithuania" of the
President of the Republic of Lithuania, the petitioner.
The Constitutional Court
has established:
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 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 of
the Republic of Lithuania 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 6 November 2008, Dalia Štraupaitė, a candidate to
Members of the Seimas from the Liberal and Centre Union, and the
Liberal and Centre Union lodged the complaints "Regarding
Decision of the Central Electoral Commission No. 194 of 31
October 2008" with the President of the Republic in which they
inter alia requested to apply to the Constitutional Court with an
inquiry concerning gross violations of Articles 5, 5-1, 61, 67,
67-1, 84 and 87 of the Republic of Lithuania Law on Elections to
the Seimas committed in Zarasai-Visaginas Constituency No. 52.
4. By his Decree No. 1K-1575 "On the Inquiry to the
Constitutional Court of the Republic of Lithuania" of 7 November
2008, the President of the Republic applied to the Constitutional
Court with an inquiry "whether during the 2008 elections of the
Members of the Seimas of the Republic of Lithuania, the
provisions of Articles 5, 5-1, 61, 67, 67-1, 84 and 87 of the Law
on Elections to the Seimas which enshrine the principle of secret
ballot and democratic procedures of elections, the following of
which is necessary for recognition of the results of elections as
legitimate and lawful, were not violated".
The Constitutional Court
holds that:
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 total number of 71 such
constituencies. On 26 October 2008 a repeat voting took place in
these single-member constituencies.
2. In Zarasai-Visaginas Single-member Constituency No. 52
the repeat voting took place as regards two candidates to Members
of the SeimasDalia Štraupaitė and Algimantas Dambravawho had
received most of the votes during the first electoral round.
3. It is obvious from the material attached to the inquiry
by the President of the Republic, the petitioner, to the
Constitutional Court that after the repeat voting was over and
upon counting of the votes of voters, in Zarasai-Visaginas
Single-member Constituency No. 52 the candidate for a Member of
the Seimas D. Štraupaitė received 229 votes less than the
candidate to a Member of the Seimas A. Dambrava.
4. On 29 October 2008, the Central Electoral Commission
received a complaint from D. Štraupaitė, a candidate to a Member
of the Seimas from the Liberal and Centre Union, whereby it was
requested: to recognise the protocol of the electoral commission
of Zarasai-Visaginas Single-member Constituency No. 52 as
invalid; to recount the votes given for each candidate to Members
of the Seimas in Zarasai-Visaginas Single-member Constituency No.
52 as well as the votes of the voters who voted by post in
advance in order to precisely establish the votes given by the
voters; to compare the lists of participants who took part in the
elections to the Seimas in the Zarasų rytų, Zarasų vakarų and
Kosmoso polling-districts of Zarasai-Visaginas Single-member
Constituency No. 52 (also including special post-offices) and the
signatures with the lists (in the documents of elections) which
are held in the electoral commission as well as with the
signatures of those voters who voted by post and in advance at
their homes in the first and second electoral rounds; to apply to
the Office of the Prosecutor General with a request to
investigate whether the rights of voters and the rights of
elections were not violated in Zarasai-Visaginas Single-member
Constituency No. 52 during the elections to the Seimas.
5. By decision of the Central Electoral Commission No. 194
"Regarding the Complaints from Dalia Štraupaitė, a Candidate to a
Member of the Seimas from the Liberal and Centre Union, and the
Liberal and Centre Union, Concerning the Decision of the
Electoral Commission of Zarasai-Visaginas Single-member
Constituency No. 52 on Approval of the Protocol of Counting of
Votes and Requesting to Recognise this Protocol as Invalid", the
complaint of D. Štraupaitė, a candidate to a Member of the Seimas
from the Liberal and Centre Union, was rejected.
6. 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 issue of 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).
7. 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 of Article 3).
8. Paragraph 1 of Article 93 (wording of 11 May 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. In addition, Paragraph 2 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".
Thus, 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".
9. It needs to be noted 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, that they 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.
10. It needs to be noted that the provision of Paragraph 2
of Article 93 of the Law on Elections to the Seimas, whereby 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" is in various aspects related
to the provision of Paragraph 2 of this article that the Central
Electoral Commission shall announce the final election results
not later than within 7 days following the election or the repeat
voting, as well as to other provisions of the Law on Elections to
the Seimas and the provisions of the Law on the Constitutional
Court. For example, in the aspect of counting of the
corresponding time periods, this provision is related to
Paragraph 5 of Article 86 of the Law on Elections to the Seimas,
under which the parties which have nominated candidates for a
Seimas Member, as well as candidates for Seimas Members, 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 official announcement 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, Paragraph 5 of this 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 falsified 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, under which, 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 terms specified in this article shall
also include non-working days.
Under Paragraph 1 of Article 93 of the Law on Elections, as
well as under Paragraph 2 (wording of 11 May 2004) of this
article, final results of the elections shall be established and
announced by the Central Electoral Commission. In Paragraph 1 of
Article 12 of the Republic of Lithuania Law on Central Electoral
Commission it is established that while implementing its powers,
the Central Electoral Commission shall pass actsdecisions. It
has been mentioned that under Item 7 (wording of 10 December
2002) of Paragraph 1 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 officially
announced in the official gazette "Valstybės žinios".
For the description of the legal factannouncement of the
results of elections to the Seimas by the Central Electoral
Commission to which, in certain provisions of the Law on
Elections to the Seimas and the Law on the Constitutional Court,
counting of the time periods is linkeddifferent formulas are
used in the Law on Elections to the Seimas, inter alia Paragraphs
2 and 5 of Article 86, Paragraph 2 (wording of 11 May 2004) of
Article 93 and Paragraph 1 of Article 94, and in Paragraph 1 of
Article 77 of the Law on the Constitutional Court, such as:
official announcement of the final results of elections
(Paragraph 2 of Article 86 of the Law on Elections to the
Seimas), announcement of the final results of elections
(Paragraph 2 (wording of 11 May 2004) of Article 93 of the Law on
Elections to the Seimas), announcement of the results of
elections (Paragraph 1 of Article 94 of the Law on Elections to
the Seimas), announcement of the official results of elections
(Paragraph 5 of Article 86 and Paragraph 1 of Article 95 of the
Law on Elections to the Seimas, Paragraph 1 of Article 77 of the
Law on the Constitutional Court).
Under Paragraph 1 (wording of 7 July 2005) of Article 2 of
the Law on the Procedure of Publication and Coming into Force of
Laws and Other Legal Acts, the official publication of laws and
other legal acts shall be their publishing in the official
gazette "Valstybės žinios". It has been mentioned that 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)). Under Paragraph 2 of
this article, the official text of the law or other legal act is
the one which, before the announcement, is signed by an official,
who has this right according to laws.
The formulasofficial announcement of the final results of
elections, announcement of the final results of elections,
announcement of the results of elections and announcement of the
official results of electionsmay not be opposed and construed in
a different manner. In the context of the overall legal
regulation established in the Law on Elections to the Seimas, the
Law on the Constitutional Court and the Law on the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts,
it needs to be noted that the final results of elections
established by a decision of the Central Electoral Commission are
the official results of elections which must be officially
announced by the Central Electoral Commission.
11. It also needs to be noted that 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.
12. 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.
13. 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 the 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 1
January 2003) of Paragraph 1 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 officially 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 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 enshrine the
procedure of publication of acts of the Central Electoral
Commission, while establishing an exact date when the official
results of elections were announcedupon their publication on the
Internet or in the official gazette "Valstybės žinios", one must
follow lex specialisthe provisions of the Law on Elections to
the Seimas.
14. 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.
15. 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.
16. It has been mentioned that the official results of
elections to the Seimas were announced on the Internet on 2
November 2008. It has also been mentioned that the President of
the Republic received the complaints from D. Štraupaitė, a
candidate to a Member of the Seimas from the Liberal and Centre
Union, and from this party regarding the results of elections to
the Seimas in Zarasai-Visaginas Single-member Constituency No. 52
on 6 November 2008, and on the next day, on 7 November, i.e.
after more than 3 days upon the announcement of the final results
of elections to the Seimas on the Internet had elapsed, he
applied to the Constitutional Court with an inquiry whether
during the 2008 elections to the Seimas the Law on Elections to
the Seimas was not violated.
It has also been mentioned that, under Paragraph 1 of
Article 77 of the Law on the Constitutional Court and 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 President of the Republic may apply to the
Constitutional Court with the inquiry whether the Law on
Elections to the Seimas has been violated.
It needs to be held that the 7 November 2008 inquiry of the
President of the Republic whether during the 2008 elections to
the Seimas the Law on Elections to the Seimas was not violated
was submitted to the Constitutional Court after the time period
for submitting such inquiry established in Paragraph 1 of Article
95 of the Law on Elections to the Seimas and Article 77 of the
Law on the Constitutional Court had elapsed, therefore, such
inquiry does not fall under the jurisdiction of the
Constitutional Court.
17. Under Item 3 of Paragraph 1 of Article 80 of the Law on
the Constitutional Court, the Constitutional Court shall refuse
to examine an inquiry concerning the presentation of a conclusion
when the consideration of a concrete issue does not fall under
the jurisdiction of the Constitutional Court.
18. Taking account of the arguments set forth, one is to
refuse to consider the inquiry "whether during the 2008 elections
of the Members of the Seimas of the Republic of Lithuania, the
provisions of Articles 5, 5-1, 61, 67, 67-1, 84 and 87 of the Law
on Elections to the Seimas which enshrine the principle of secret
ballot and democratic procedures of elections, the following of
which is necessary for recognition of the results of elections as
legitimate and lawful, were not violated" which was set forth in
the 7 November 2008 Decree No. 1K-1575 "On the Inquiry to the
Constitutional Court of the Republic of Lithuania" of the
President of the Republic of Lithuania, the petitioner.
Conforming to Paragraphs 3 and 4 of Article 22, Article 28
and Item 3 of Paragraph 1 of Article 80 of the Law on the
Constitutional Court of the Republic of Lithuania, the
Constitutional Court of the Republic of Lithuania has passed the
following
decision:
To refuse to consider the inquiry "whether during the 2008
elections of the Members of the Seimas of the Republic of
Lithuania, the provisions of Articles 5, 5-1, 61, 67, 67-1, 84
and 87 of the Law on Elections to the Seimas which enshrine the
principle of secret ballot and democratic procedures of
elections, the following of which is necessary for recognition of
the results of elections as legitimate and lawful, were not
violated" which was set forth in the 7 November 2008 Decree No.
1K-1575 "On the Inquiry to the Constitutional Court of the
Republic of Lithuania" of the President of the Republic of
Lithuania, the petitioner.
This Constitutional Court decision is final and not subject
to appeal.
The decision is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court:
Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis