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On the election to the Seimas of the Republic of Lithuania

Case No. 15/96

THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA

CONCLUSION

On the inquiries of the President of the Republic whether the Republic of Lithuania’s Law on Elections to the Seimas was violated during the election of Seimas members

23 November 1996, Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas Rasimavičius, Teodora Staugaitienė, and Juozas Žilys

The court reporter—Daiva Pitrėnaitė,

Armanas Abramavičius, the Adviser of the President of the Republic on State and Legal Issues, acting as the representative of the President of the Republic, the petitioner

Zenonas Vaigauskas, Chairman of the Central Electoral Commission, and Central Electoral Commission members Gintaras Goda and Isaakas Kaganas, acting as the representatives of the Central Electoral Commission

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 3 of Article 105 of the Constitution of the Republic of Lithuania and Paragraph 2 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 21 November 1996, considered case No. 15/96 subsequent to the inquiries submitted by the President of the Republic of Lithuania, the petitioner, whether the Republic of Lithuania’s Law on Elections to the Seimas during the election of Seimas members was violated in Baltija Constituency No. 20 and Pasvalys-Panevėžys Constituency No. 47 and, following the complaint of the Chairman of the Union for Social Justice, whether the Republic of Lithuania’s Law on Elections to the Seimas was violated.

The Constitutional Court

has established:

I

On 25 October 1996, the election to the Seimas took place. On 10 November 1996, the repeat voting took place in single-member constituencies. By its 16–17 November 1996 decisions, the Central Electoral Commission confirmed the final results of the election (Official Gazette Valstybės žinios, 1996, No. 111-2529).

The President of the Republic applied to the Constitutional Court with his inquiries whether the Republic of Lithuania’s Law on Elections to the Seimas was violated in Baltija Constituency No. 20 and Pasvalys-Panevėžys Constituency No. 47 during the election of Seimas members and, following the complaint of the Chairman of the Union for Social Justice, if the Republic of Lithuania’s Law on Elections to the Seimas was not violated.

The Constitutional Court by its 21 November 1996 decision joined the inquiries of the President of the Republic into one case.

II

The representative of the petitioner explained during the process of judicial investigation on what grounds the President of the Republic applied to the Constitutional Court with his inquiries if the Law on Elections to the Seimas was violated during the election of Seimas members.

The representatives of the Central Electoral Commission explained in the court hearing on what arguments the decisions of the Commission had been grounded.

The Constitutional Court

holds that:

One of fundamental characteristics of a democratic state is democratic elections of representative institutions of state authority. It is through elections that every citizen accomplishes his right to participate in running his country along with the other citizens.

The principal provisions of the right to vote are consolidated in the Constitution of the Republic of Lithuania. Paragraph 1 of Article 55 of the Constitution establishes that Seimas members shall be elected four a four-year term on the basis of universal, equal, and direct suffrage by secret ballot. In particular, the Law on Elections to the Seimas regulates the procedure for organising and conducting elections.

When democratic elections are conducted, the mechanisms of publicity and control are of crucial importance. It should be noted that the Law on Elections to the Seimas regulates in detail the guarantees to implement the publicity principle, as well as those for the election of representatives, and those for the rights of election observers.

The active participation of election observers, the press and representatives of other public mass media in the process of elections within the limits provided by law ensures that the will of voters will be appropriately expressed during the election of representatives. The remarks of the aforementioned representatives permit establishing violations of the Law on Elections to the Seimas. In this view, legal procedure regarding appeals against decisions of various levels of electoral commissions in court as consolidated in the Law on Elections to the Seimas are of much importance.

Paragraph 5 of Article 85 of the Law on Elections to the Seimas stipulates: “Any political party, or political organisation which nominated candidates for Seimas members, or candidates for Seimas members may lodge complaints concerning decisions of the Central Electoral Commission or its refusals to investigate complaints considering violations of the law on elections with the Seimas or the President of the Republic within 24 hours after the publication of official results of the election. In such cases, within 48 hours, the Seimas or the President of the Republic shall apply to the Constitutional Court with the inquiry regarding violations of the Law on Elections to the Seimas.”

Paragraph 2 of Article 94 of the said law provides: “The Constitutional Court shall investigate and assess the decision of the Central Electoral Commission or its refusal to investigate complaints regarding violations of the Law on Elections to the Seimas in the cases when the decisions were adopted or other deeds of the Commission were accomplished after the termination of the election.”

  1. On the inquiry of the President of the Republic whether the Law on Elections to the Seimas was violated in Baltija Constituency No. 20.
  2. Gentvilas, the Chairman of the Liberal Union of Lithuania, a candidate for the Seimas in Baltija Constituency No. 20 and A. Ramanauskas, the representative of the Liberal Union of Lithuania in the Central Electoral Commission, ground their complaints on remarks of the election observers concerning the electoral results entered in the vote calculation records. In their opinion, even minute arithmetic mistakes may have influenced the final results of the election.

Paragraph 4 of Article 85 of the Law on Elections to the Seimas prescribes: “While investigating a complaint regarding the decision of the constituency electoral commission concerning writing down of vote calculation records of the constituency, the Central Electoral Commission may recalculate the ballot-papers presented by the constituency electoral commission, and shall, upon establishing an arithmetic mistake in the vote calculation records, or incorrectly calculated valid and invalid ballot-papers, write down additional vote calculation records of the constituency and attach it to the vote calculation records of the constituency.”

The Central Electoral Commission has considered the arguments indicated in the aforesaid complaints. When adopting its decision, it based itself on the fact that a small difference in votes in itself does not provide with the grounds to recalculate the ballot-papers. It is impossible not to agree with such an argument of the Central Electoral Commission as Paragraph 4 of Article 85 of the Law on Elections of the Seimas entitles the Central Electoral Commission to decide by itself in what cases the ballot-papers are to be recalculated.

  1. Aleksandrovas and M. Girdziuška, the representatives for the Liberal Union of Lithuania and observers in Debrecenas Polling District No. 36, and V. Simanauskas, the observer in Rumpiškės Polling District No. 22, expressed their remarks on alleged violations in the vote calculation records only after the preliminary results of the election in the constituency were already known. They had signed in the vote calculation records of the aforesaid electoral districts and had not given any remarks. The Central Electoral Commission, by adopting its decision to refuse to recalculate the ballot-papers in Baltija Constituency No. 20, actually based itself on the indicated circumstances. The arguments which may deny the validity of the Central Electoral Commission decision have not been presented, therefore, there are no grounds to conclude that the Law on Elections to the Seimas was violated.

The Central Electoral Commission was also informed that the seal of the electoral documents sack was damaged in Dainava Polling District No. 32. The Central Electoral Commission investigated and assessed this case. Basing itself on the fact that the vote calculation records of polling districts had been written down until that case and there had been no remarks as regards that, the Central Electoral Commission held that there existed no grounds to recalculate the ballot-papers because of the aforementioned damaged seal. It is impossible not to agree with this conclusion of the Central Electoral Commission.

Taking account of the reasoning and arguments set forth, the conclusion should be drawn that the decision of the Central Electoral Commission to refuse to recalculate the ballot-papers in Baltija Constituency No. 20 is in compliance with the Law on Elections to the Seimas.

  1. On the inquiry of the President of the Republic whether the Law on Elections to the Seimas was violated in Pasvalys-Panevėžys Constituency No. 47.
  2. It was indicated in the complaint of the Presidium of the Council of the Democratic Labour Party of Lithuania (DLPL) that on 16 November 1996 the Central Electoral Commission had adopted, in their opinion, an illegal decision “Not to satisfy the requests of the Presidium of the Council of the Democratic Labour Party of Lithuania and the observers in constituency No. 47 to recalculate the ballot papers in Pasvalys-Panevėžys Constituency No. 47, as well as to annul the election results in the said constituency.”
  3. L. Butienė, the representative of the DLPL for the election in the electoral commission of Pasvalys-Panevėžys Constituency No. 47, filed a complaint with the Central Electoral Commission because of violations which, in her opinion, had been made during the election and requested the recalculation of all the ballot-papers of the said constituency. She grounded her request on the argument that the constituency electoral commission had recalculated only a small portion of the ballot-papers of the polling districts which she had indicated and the said commission established that three thereof were invalid even though previously they had been deemed to be valid in favour of the candidate for Seimas members A. Matulas. The representative for the election also informed that violations of an analogous character had occurred in the Pušalotas, Narteikiai, Grūžiai, Kalnas, Valakėliai, Gulbinėliai, and other district electoral commissions.

The constituency electoral commission refused to look through all the list of voters in Karsakiškis polling district one more time despite of the requests of R. Bružis, an observer, and A. Varvuolis and G. Šlekonienė, members of the electoral commission. They grounded their request on the argument that in the list of voters one voter had signed for several persons who did not take part in the election, thus, there might have been more such violations.

Having investigated the complaint of the Presidium of the Council of the DLPL, the Central Electoral Commission noted: “The constituency electoral commission has recalculated the ballot-papers of five polling districts. The number of the ballot-papers of four polling districts coincided with the number of ballot-papers indicated in the vote calculation records. There appeared a small inaccuracy in one polling district. The constituency electoral commission refused to further check the ballot-papers as the observers of the election did not request any such actions.”

Almost in all polling districts the observers participated in pursuance of Article 60 of the Law on Elections to the Seimas, and they confirmed that by their signatures and did not put down any remarks as regards violations of the Law on Elections to the Seimas. The remarks and special opinions of the election observers and the commission members had been attached to the vote calculation records of some polling districts. Therefore, the constituency electoral commission recalculated the ballot-papers of the polling districts on the work of which particular remarks were expressed. The request to recalculate all ballot-papers of the districts of the constituency was presented only after it had become evident that the difference in votes of those who voted for the candidates for Seimas members is a small one. As it was mentioned, according to the Law on Elections to the Seimas, a small difference in votes is not the basis in itself to recalculate the ballot-papers. The complaint of the Council of Presidium of the DLPL does not give any other data concerning violations of the Law on Elections to the Seimas.

  1. The complaint of the Council of Presidium of the DLPL also indicates that on 9 November 1996 Lithuanian Television in its television programme “Panorama” disclosed discrediting material in respect of the candidate for Seimas members by which it was attempted to influence the potential voters. In the opinion of the Presidium, thereby Article 52 of the Law on Elections to the Seimas was grossly violated.

Paragraph 2 of Article 52 of the Law on Elections to the Seimas stipulates: “The discrediting material in respect of the candidate shall be recognised such a material by which it is attempted to influence the voters so that they did not vote for a particular candidate and wherein the negative news illustrating the candidate is imparted. The opinion (differently from the news, the criteria of the truth shall not be applied to the opinion), as well as the negative one, publicised by public mass media in regard of the candidate shall not be recognised as a discrediting material and this does not entitle the candidate to require to publicise the counterclaim opinion.”

In the opinion of the Presidium of the Council of the DLPL, the publication of the discrediting material is a gross violation of the Law on Elections to the Seimas, and this may serve as the grounds to recognise the results of the election invalid as it is established in Paragraph 1 of Article 90 of the Law on Elections to the Seimas.

The norm of Paragraph 1 of Article 90 of the Law on Elections to the Seimas grants the Central Electoral Commission wide discretionary rights as regards the recognition of the results of election invalid. The provision of the norm “gross violations of this law made in the polling district and constituency” is a sign to be assessed the content of which must be established by the Central Electoral Commission by taking account of particular circumstances, e.g., what article of this law was violated, the character of violation, who made the violation, what effects that could have made or made, etc. Only the whole complex of the circumstances which were established by the Central Electoral Commission provides the grounds to decide in every particular case whether the violation must be regarded as a gross one.

Having established that the violation is a gross one, it must be assessed whether it “had a decisive influence upon the results of the election”. This is also the matter of the assessment of the circumstances stated by the Central Electoral Commission.

Having established that the violations of the Law on Elections to the Seimas were gross ones and had a decisive influence upon the results of the election, the Central Electoral Commission is entitled to recognise the election invalid. Assessing such a wording of the norm of Paragraph 1 of Article 90 of the Law on Elections to the Seimas, there exist assumptions that this norm does not secure entirely a thorough legal regulation of the settling of the conflicts which arise in the process of an election.

The representatives of the Central Electoral Commission pointed out in the hearing of the Constitutional Court that the Central Electoral Commission assessed the subject shown on Lithuanian Television in the 9 November 1996 programme “Panorama”, i.e. on the day when, according to Article 55 of the Law on Elections to the Seimas, the campaigning was prohibited and adopted the decision that that was not a violation of the Law on Elections to the Seimas.

In the process of judicial investigation the representatives of the Central Electoral Commission indicated other circumstances as well which were of significance when deciding the issue whether the subject shown on the Lithuanian Television in its programme “Panorama” had a decisive influence (the data on voting by mail, etc.) upon the electoral results. The Central Electoral Commission did not establish that the said subject had had a decisive influence on the electoral results.

It should be noted that the Law on Elections to the Seimas does not provide for sufficient legal guarantees which could prevent from publicising discrediting material during the time when the campaigning is prohibited.

Taking account of the arguments and reasoning forth, the conclusion should be made that the 16 November 1996 decision of the Central Electoral Commission to refuse to recalculate the ballot-papers in Pasvalys-Panevėžys Constituency No. 47 and to annul the results of the election at this constituency is in compliance with the Law on Elections to the Seimas.

  1. On the inquiry of the President of the Republic subsequent to the complaint of the Chairman of the Union of Social Justice of Lithuania whether the Law on Elections to the Seimas was violated.

In response to the 18 November 1996 complaint of K. J. Jocius, the Chairman of the Union of Social Justice of Lithuania, the President of the Republic applied to the Constitutional Court with his inquiry on violations of the Law on Elections to the Seimas. The complaint points out that after the Central Electoral Commission had announced the official results of the election it became evident that previous complaints of the chairman and gross violations of the Law on Elections to the Seimas indicated therein had been left out of account.

It should be noted that the Central Electoral Commission investigated the 16 October 1996 public statement of the Chairman of the Union of Social Justice of Lithuania, as well as his 24 October 1996 statement. The decisions of the Central Electoral Commission were not appealed against pursuant to the procedure established by law.

On 17 November 1996, the Central Electoral Commission published the final results of the election of Seimas members. The 18 November 1996 complaint of the Chairman of the Union of Social Justice of Lithuania indicates that after the official results of the election had been published it became evident that previous complaints of that organisation and gross violations of the Law on Elections to the Seimas indicated therein had been left out of account. However, the Chairman of the Union of Social Justice of Lithuania did not apply to the Central Electoral Commission as regards the official results of the election, therefore, the Central Electoral Commission did not investigate any complaint of his.

Paragraph 2 of Article 94 of the Law on Elections to the Seimas establishes that the Constitutional Court shall investigate and assess the decision of the Central Electoral Commission or its refusal to investigate complaints regarding violations of the Law on Elections to the Seimas in the cases when the decisions were adopted or other deeds of the Commission were accomplished after the termination of the election. The complaint subsequent to which the President of the Republic applied to the Constitutional Court with the inquiry on violations of the Law on Elections to the Seimas contains no indication to any concrete decision or act of the Central Electoral Commission. As there is no matter subject to investigation, i.e., a concrete decision or refusal of the Central Electoral Commission to investigate the complaint, the legal proceedings commenced in this case are to be terminated in pursuance of Paragraph 2 of Article 80 of the Law on the Constitutional Court.

Conforming to Paragraph 2 of Article 80 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court adopts the following

decision:

To dismiss the legal proceedings instituted subsequent to the inquiry of the President of the Republic following the complaint of the Chairman of the Union of Social Justice of Lithuania.

Conforming to Paragraph 3 of Article 105 of the Constitution of the Republic of Lithuania, as well as Paragraph 1 of Article 73, and Article 83 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

conclusion:

  1. The decisions of the Central Electoral Commission regarding the results of the election in Baltija Constituency No. 20 are in compliance with the Republic of Lithuania’s Law on Elections to the Seimas.
  2. The decisions of the Central Electoral Commission regarding the results of the election in Pasvalys-Panevėžys Constituency No. 47 are in compliance with the Republic of Lithuania’s Law on Elections to the Seimas.

This conclusion of the Constitutional Court is final and not subject to appeal.

Justices of the Constitutional Court:

 Egidijus Jarašiūnas                           Zigmas Levickis                            Augustinas Normantas

 Vladas Pavilonis                              Jonas Prapiestis                             Pranas Vytautas Rasimavičius

 Teodora Staugaitienė                       Juozas Žilys