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On the violations of the Law on Elections to the Seimas during the 2012 elections to the Seimas

Case No. 15/2012-16/2012

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 CONCLUSION

ON THE INQUIRIES OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA AND THE PRESIDENT OF THE REPUBLIC OF LITHUANIA WHETHER THE REPUBLIC OF LITHUANIA LAW ON ELECTIONS TO THE SEIMAS WAS NOT VIOLATED DURING THE 2012 ELECTIONS TO THE SEIMAS

 10 November 2012

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretary—Daiva Pitrėnaitė,

in the presence of the representatives of the President of the Republic of Lithuania, the petitioner, who were Rasa Svetikaitė, chief advisor to the President of the Republic of Lithuania, and Indrė Pukanasytė, an advisor to the President of the Republic of Lithuania,

the representative of the Seimas of the Republic of Lithuania, the petitioner, who was the Member of the Seimas Gintaras Songaila,

Zenonas Vaigauskas, Chairman of the Central Electoral Commission of the Republic of Lithuania, and members of the said commission—Rokas Stabingis, Jonas Udris and Justinas Žilinskas,

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 Republic of Lithuania, on 8 November 2012, in a public Court hearing considered case No. 15/2012-16/2012 subsequent to the following inquiries:

– the inquiry set forth in the Resolution (No. XI-2378) of the Seimas of the Republic of Lithuania “On the Inquiry to the Constitutional Court of Republic of Lithuania” of 6 November 2012 (No. 1B–28/2012) “regarding a conclusion:

1) whether during the 14 October 2012 elections to the Seimas of the Republic of Lithuania in the multi-member constituency the provisions of Articles 5, 51, 61, 67, 671, 84, 87 of the Law on Elections to the Seimas consolidating the principle of secret ballot and democratic election procedures, the adherence to which is necessary so that the election results would be recognised as legitimate and legal, were not violated; whether the gross violations of the Law on Elections enabled the Central Electoral Commission to determine the essential election results (the number of votes of voters) in the multi-member constituency at the exactness of only more than one mandate;

2) whether during the 14 October 2012 elections to the Seimas of the Republic of Lithuania in the single-member constituencies—Šilutė–Pagėgiai (No. 32), Biržai–Kupiškis (No. 48), Širvintos–Vilnius (No. 55), Vilnius–Trakai (No. 57), Kaišiadorys–Elektrėnai (No. 59), Jurbarkas (No. 62)—in which a considerable number of facts of buying of votes had been established, the provisions of Articles 5, 51, 61, 67, 671, 84, 87 of the Law on Elections to the Seimas consolidating the principle of secret ballot and democratic election procedures, the adherence to which is necessary so that the election results would be recognised as legitimate and legal, were not violated; whether the gross violations of the Law on Elections in those single-member constituencies enabled the Central Electoral Commission to determine exactly all the candidates who got into the run-off”;

– the inquiry (No. 1B–29/2012) set forth in the Decree (No. 1K-1248) of the President of the Republic of Lithuania “On the Inquiry to the Constitutional Court of the Republic of Lithuania” of 7 November 2012 requesting for a conclusion whether during the 2012 elections to the Seimas of the Republic of Lithuania the Republic of Lithuania Law on Elections to the Seimas had not been violated.

By the Constitutional Court’s decision of 7 November 2012 the said inquiries of the Seimas and the President of the Republic were joined into one case and it was given reference No. 15/2012-16/2012.

The Constitutional Court

has established:

I

  1. On 14 October 2012, the elections to the Seimas took place in 71 single-member constituencies and one multi-member constituency. 3 Members of the Seimas were elected in single-member constituencies; the election results were recognised as invalid in one of the single-member constituencies—Zarasai–Visaginas constituency No. 52 (Item 2 of the Decision (No. Sp-308) of the Central Electoral Commission “On the Results of the 14 October 2012 Elections to the Seimas of the Republic of Lithuania in Single-member Constituencies and in the Multi-member Constituency” of 21 October 2012 (hereinafter also referred to as the 21 October 2012 decision (No. Sp-308) of the Central Electoral Commission)) and new elections to the Seimas will be held in that constituency. 67 Members of the Seimas were not elected from the 71 single-member constituencies. On 28 October 2012, in those single-member constituencies the run-off voting was carried out.
  2. By its Decision (No. Sp-321) “On the Final Results of the 14 October 2012 Elections to the Seimas of the Republic of Lithuania” of 4 November 2012 (hereinafter also referred to as the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission), the Central Electoral Commission approved the final results of the 2012 elections to the Seimas. This decision of the Central Electoral Commission was published on the Internet on 4 November 2012, whereas in the official gazette “Valstybės žinios”—on 6 November 2012 (Official Gazette Valstybės žinios, 2012, No. 128-6462).
  3. By its Decision (No. Sp-324) “On Approving the Final Results of Voting in Šilutė–Pagėgiai Single-member Constituency No. 32” of 4 November 2012 (hereinafter also referred to as the 4 November 2012 decision (No. Sp-324) of the Central Electoral Commission), the Central Electoral Commission approved the final results of voting in Šilutė–Pagėgiai single-member constituency No. 32. This decision of the Central Electoral Commission was published on the Internet on 4 November 2012.
  4. On 5 November 2012, the Nationalist Union filed with the Seimas and the President of the Republic a repeat specified complaint regarding violations of the Law on Elections to the Seimas, requesting to apply to the Constitutional Court with an inquiry for a conclusion whether during the 2012 elections to the Seimas in the multi-member constituency and in the single-member constituencies—Šilutė–Pagėgiai (No. 32), Biržai–Kupiškis (No. 48), Širvintos–Vilnius (No. 55), Vilnius–Trakai (No. 57), Kaišiadorys–Elektrėnai (No. 59), Jurbarkas (No. 62)—the Law on Elections to the Seimas had not been violated.
  5. On 5 November 2012, the President of the Republic was filed a complaint from the Lithuanian Peasant and Greens Union regarding violations of the Law on Elections to the Seimas. This complaint requested that the President of the Republic apply to the Constitutional Court with an inquiry for a conclusion whether during the 2012 Seimas elections in Biržai–Kupiškis single-member constituency No. 48 the Law on Elections to the Seimas had not been violated.
  6. On 5 November 2012, the President of the Republic was filed a complaint from the Labour Party regarding violations of the Law on Elections to the Seimas. This complaint requested that the President of the Republic apply to the Constitutional Court with an inquiry for a conclusion whether during the 2012 Seimas elections in Pajūris single-member constituency No. 22 the Law on Elections to the Seimas had not been violated.
  7. On 6 November 2012, the Seimas, having received the aforesaid complaint of the Nationalist Union, adopted the Resolution (No. XI-2378) “On the Inquiry to the Constitutional Court of the Republic of Lithuania” (hereinafter also referred to as the Seimas resolution (No. XI-2378) of 6 November 2012), by which it applied to the Constitutional Court with an inquiry requesting for a conclusion whether during the 2012 elections to the Seimas in the multi-member constituency and in the single-member constituencies—Šilutė–Pagėgiai (No. 32), Biržai–Kupiškis (No. 48), Širvintos–Vilnius (No. 55), Vilnius–Trakai (No. 57), Kaišiadorys–Elektrėnai (No. 59), Jurbarkas (No. 62)—the Law on Elections to the Seimas had not been violated.
  8. Having received the complaints of the Nationalist Union, the Lithuanian Peasant and Greens Union, and the Labour Party, the President of the Republic, by her Decree (No. 1K-1262) “On the Inquiry to the Constitutional Court of the Republic of Lithuania” of 7 November 2012 (hereinafter also referred to as the 7 November 2012 decree (No. 1K-1262) of the President of the Republic), applied to the Constitutional Court requesting for a conclusion whether during the 2012 elections to the Seimas the Law on Elections to the Seimas had not been violated.

II

  1. At the Constitutional Court hearing the representatives of the President of the Republic, the petitioner, who were R. Svetikaitė and I. Pukanasytė, explained that the President of the Republic had applied to the Constitutional Court with an inquiry whether during the 2012 elections to the Seimas the Law on Elections to the Seimas had not been violated because she had been seeking to disperse the doubts whether the 7 November 2012 decision (No. Sp-321) of the Central Electoral Commission, while approving the final results of the 2012 elections to the Seimas, had not violated the Law on Elections to the Seimas.
  2. The representative of the petitioner, the Seimas, who was the Member of the Seimas G. Songaila, explained that the Seimas had been prompted to apply to the Constitutional Court with an inquiry whether during the 2012 elections to the Seimas the Law on Elections to the Seimas had not been violated because it had been concerned by the fact that after the 2012 elections to the Seimas the Central Electoral Commission received a considerable number of notifications about buying of votes of voters and about other gross violations of the Law on Elections to the Seimas, which might have distorted the genuine will of the voters in essence.
  3. At the Constitutional Court hearing, Z. Vaigauskas, Chairman of the Central Electoral Commission, and R. Stabingis, J. Udris and J. Žilinskas, members of that commission, explained what facts had been investigated and assessed by the Central Electoral Commission and what arguments it had been following while adopting its decision (No. Sp-321) of 4 November 2012.
  4. At the Constitutional Court hearing, the witnesses—Jonė Valčiukienė, the representative of the Lithuanian Peasant and Greens Union at the Central Electoral Commission, Janina Girucka, Chairwoman of the Electoral Commission of Vilnius–Trakai Constituency No. 57, Vytautas Krutulis, Chairman of the Electoral Commission of Pajūris Constituency No. 22, and Rasa Miceikienė, the secretary of the Electoral Commission of Pajūris Constituency No. 22—were questioned.

The Constitutional Court

holds that:

I

  1. On 14 October 2012, the elections to the Seimas took place in 71 single-member constituencies and one multi-member constituency. 67 Members of the Seimas were not elected from the 71 single-member constituencies, inter alia they were not elected in the following single-member constituencies—Pajūris (No. 22), Šilutė–Pagėgiai (No. 32), Biržai–Kupiškis (No. 48), Širvintos–Vilnius (No. 55), Vilnius–Trakai (No. 57), Kaišiadorys–Elektrėnai (No. 59), Jurbarkas (No. 62). On 28 October 2012, in those single-member constituencies the run-off voting was carried out.
  2. On 4 November 2012, the Central Electoral Commission adopted the Decision (No. Sp-321) “On the Final Results of the 14 October 2012 Elections to the Seimas of the Republic of Lithuania”, whereby it approved the final results in the 2012 elections to the Seimas in 67 single-member constituencies and in the multi-member constituency.
  3. It has been mentioned that the Seimas, by its resolution (No. XI-2378) of 6 November 2012, and the President of the Republic, by her decree (No. 1K-1262) of 7 November 2012, applied to the Constitutional Court with inquiries requesting for a conclusion whether during the 2012 elections to the Seimas the Law on Elections to the Seimas was not violated after they had received the 5 November 2012 complaint of the Nationalist Union regarding a violation of the Law on Elections to the Seimas, wherein it is inter alia requested to investigate whether the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission had not violated the provisions of the Law on Elections to the Seimas in the single-member constituencies—Šilutė–Pagėgiai (No. 32), Širvintos–Vilnius (No. 55), Vilnius–Trakai (No. 57), Kaišiadorys–Elektrėnai (No. 59), Jurbarkas (No. 62).

3.1. By the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission, the final results of the 2012 elections to the Seimas were approved inter alia in Šilutė–Pagėgiai single-member constituency No. 32.

3.1.1. After the 14 October 2012 elections to the Seimas, upon counting the votes of the voters in Šilutė–Pagėgiai single-member constituency No. 32, it was established that the following candidates for Members of the Seimas received the most votes of the voters: Kęstas Komskis—5,160, i.e. he received 29.32 percent of the valid votes, Artūras Skardžius—2,750, i.e. he received 15.62 percent of the valid votes, and Saulius Stankevičius—2,222, i.e. he received 12.62 percent of the valid votes.

3.1.2. On 28 October 2012, in Šilutė–Pagėgiai single-member constituency No. 32 the run-off voting was carried out. According to the results of the run-off voting, A. Skardžius received 6,339 votes of the voters, i.e. he received 50.68 percent of the valid votes, K. Komskis—6,169 votes of the voters, i.e. he received 49.32 percent of the valid votes (Annex 1 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission).

3.1.3. In the Investigation Conclusion of the Central Electoral Commission “On the Violations of Laws on Elections to the Seimas in the 2012 Elections to the Seimas in the Multi-member Constituency” of 2 November 2012 approved upon considering the received complaints regarding the violations of the Law on Elections to the Seimas during the 2012 elections to the Seimas, one assessed also situations of alleged buying of votes in Šilutė–Pagėgiai single-member constituency No. 32.

In the 2 November 2012 investigation conclusion of the Central Electoral Commission it was held that it is possible to draw a conclusion from the specified information (press reports, police reports) that in the said constituency voters used to be bribed; there might have been more than a hundred cases of buying of votes.

3.1.4. On 4 November 2012, the Central Electoral Commission adopted decision No. Sp-324, wherein it noted that, according to the data of the Police Department under the Ministry of the Interior of the Republic of Lithuania, 6 pre-trial investigations were launched regarding allegedly committed criminal deeds in Šilutė–Pagėgiai single-member constituency No. 32:

– under Article 172 of the Criminal Code of the Republic of Lithuania subsequent to the received information that, on 10 October 2012, around 10.30 o’clock, during the early voting, in the home of N. Ž., in Smėlynų St., the town of Šilutė, and not far from her home an identified group of persons was waiting for payment for the voting in favour of the Labour Party; those persons were brought to the Police Commissioner’s Office of the Šilutė District;

– due to the fact that, on 10 October 2012, at 10 o’clock, Z. J., having turned up for the early voting on the premises of the municipality of Šilutė, had a ballot-paper marked in advance, which had been given to him by a woman, a casual acquaintance of his, who had promised to pay him LTL 20 after his voting;

– under Article 172 of the Criminal Code, due to the fact that, on 10 October 2012, around 12 o’clock, V. S., a member of the Nationalist Union, on his way to the early voting was paid LTL 10; V. S. pointed out that the votes of voters had been bought;

– due to the fact that, on 25 October 2012, around 10 o’clock, in the townlet of Rusnė, the Šilutė district, V. M. promised for three persons to repay them if they voted for K. Komskis, a member of the political party “Order and Justice” during the early voting.

– under Article 172 of the Criminal Code due to the fact that, on 28 October 2012, in Kęstučio St., the town of Šilutė, the detained R. Š. was suggesting that the voters vote for K. Komskis and paid money to them for the voting.

– under Article 172 of the Criminal Code due to the fact that, in the Pagėgiai municipality, R. V. paid LTL 15 to R. P. for alleged voting favourable for the Labour Party.

Those circumstances are also confirmed by the Letter (No. 5-S-4064) of the Police Department under the Ministry of the Interior of the Republic of Lithuania “On Provision of Information” of 31 October 2012 (hereinafter referred to as the 31 October 2012 letter of the Police Department) attached to the inquiry of set forth in the 7 November 2012 decree (No. 1K-1262) of the President of the Republic.

3.1.5. In the 4 November 2012 decision (No. Sp-324) of the Central Electoral Commission it was noted that:

– all launched pre-trail investigations are not related to buying of votes in favour of A. Skardžius;

– under Paragraph 3 of Article 51 of the Law on Elections to the Seimas, buying of votes is regarded as a gross violation, however, according to the scale of the intentions to buy the votes of voters, such a violation of the law could not have had an essential influence on the election results in that constituency.

3.1.6. Having assessed the accumulated material, by its decision (No. Sp-324) of 4 November 2012, while invoking Article 93 of the Law on Elections to the Seimas, the Central Electoral Commission approved the final election results in Šilutė–Pagėgiai single-member constituency No. 32.

3.2. By the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission, the final results of the 2012 elections to the Seimas were approved inter alia in Širvintos–Vilnius single-member constituency No. 55.

3.2.1. After the 14 October 2012 elections to the Seimas, upon counting the votes of the voters in Širvintos–Vilnius single-member constituency No. 55, it was established that the following candidates for Members of the Seimas received the most votes of the voters: Rita Tamašunienė—7,780, i.e. she received 31.5 percent of the valid votes, Živilė Pinskuvienė—5,308, i.e. she received 21.49 percent of the valid votes, and Violeta Podolskaitė—2,950, i.e. she received 11.94 percent of the valid votes.

3.2.2. The 31 October 2012 letter of the Police Department points out the following police reports regarding the violations committed in Širvintos–Vilnius single-member constituency No. 55:

– on 18 October 2012, a pre-trial investigation was launched under Article 172 of the Criminal Code due to the fact that, from 10 October till 14 October 2012, in the village of Kieliai, the Širvintos district, citizens might have been transported in a white car, whose number plate was unknown, to vote for the Labour Party and Ž. Pinskuvienė, the candidate of the said party for a Member of the Seimas; the said persons were paid LTL 10 each;

– on 20 October 2012, around 13.32 o’clock, a letter from the Chairwoman of the Electoral Commission of Širvintos–Vilnius Constituency No. 55 regarding the allegedly illegal activity of R. Š. was received: on 15 October 2012, in the village of Motiejūnai, the Širvintos district, the voter K. Z., who had the right to vote at home, was visited by her neighbour R. Š. and the latter stated that she was assisting in the work of the Electoral Commission of Motiejūnai Polling District No. 18 and was supposed to collect, from the voters, the invitations to come to vote during the 28 October 2012 second round of elections to the Seimas; the voter, without suspecting anything, gave the invitation to the neighbour; R. Š. was not a member of that commission; a pre-trial investigation under Article 172 of the Criminal Code was launched;

– on 22 October 2012, a pre-trial investigation was launched under Article 172 of the Criminal Code due to the fact that, in the village of Pakalniškės, the Širvintos district, citizens might have been transported in an unidentified car to vote for the Labour Party and Ž. Pinskuvienė, the candidate of the said party for a Member of the Seimas; they had been promised LTL 10 each, however, they had not been paid the money;

– on 29 October 2012, a pre-trial investigation was launched under Article 172 of the Criminal Code due to the fact that, on 10 October 2012, during the early voting, in the Širvintos Social Services Centre, A. R. K., the employee of the said centre, as the elections observer representing the Labour Party, might have given a packet of cigarettes to A. D., a resident of the centre, and might have asked that the latter vote for the Labour Party.

3.3. By the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission, the final results of the 2012 elections to the Seimas were approved inter alia in Vilnius–Trakai single-member constituency No. 57.

3.3.1. After the 14 October 2012 elections to the Seimas, upon counting the votes of the voters in Vilnius–Trakai single-member constituency No. 57, it was established that the following candidates for Members of the Seimas received the most votes of the voters: Jaroslav Narkevič—7,859, i.e. he received 36.9 percent of the valid votes, Mingailė Binkauskaitė—3,985, i.e. she received 18.71 percent of the valid votes, and Laurynas Kasčiūnas—2,060, i.e. he received 9.67 percent of the valid votes.

3.3.2. Upon the instruction of the Chairman of the Central Electoral Commission, the Special Working Group presented the Conclusion “On Recognising the Elections to the Seimas in the Vilnius–Trakai Constituency (No. 57) as Invalid” (the date of the approval of the conclusion is not specified).

The said conclusion contains the testimonies of the elections observers regarding violations of the Law on Elections to the Seimas—buying of votes of voters, transportation of voters to the polling place, carrying out electoral agitation not far away from and in polling stations, etc., it notes that gross violations of the law were recorded in 16 out of 22 polling districts, also that the police filed information about 24 reports regarding violations committed in Vilnius–Trakai single-member constituency No. 57, and, while invoking Paragraph 1 of Article 91 of the Law on Elections to the Seimas, the conclusion proposed that the results of the elections to the Seimas in that constituency be recognised as invalid.

3.3.3. In its 21 October 2012 sitting, the Central Electoral Commission considered the election results in Vilnius–Trakai single-member constituency No. 57 (minutes No. P-38 of the sitting). In that sitting the members of the commission were given the aforementioned Conclusion “On Recognising the Results of the Elections to the Seimas in Vilnius–Trakai Single-member Constituency (No. 57) as Invalid” prepared by the Special Working Group.

In the same sitting the Central Electoral Commission held that, according to the testimony of the election observers, gross violations had been committed, however, it decided to approve the election results in Vilnius–Trakai single-member constituency No. 57.

3.3.4. In the Investigation Conclusion of the Central Electoral Commission “On Violations of the Law on Elections to the Seimas in the Multi-member Constituency During the 2012 Elections to the Seimas” of 2 November 2012 one also assessed the violations recorded by election observers in Vilnius–Trakai single-member constituency No. 57.

In the 2 November 2012 investigation conclusion of the Central Electoral Commission it was held that the material held by the police, as well as the testimony of election observers confirm the facts of transportation of voters to vote in that constituency. From the available information it is impossible to establish the precise number of illegally transported voters, however, from the testimony of the election observers and the police reports one can make an assumption that up to 100 voters might have been transported illegally.

3.4. By the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission, the final results of the 2012 elections to the Seimas were approved inter alia in Kaišiadorys–Elektrėnai single-member constituency No. 59.

3.4.1. After the 14 October 2012 elections, upon counting the votes of the voters in Kaišiadorys–Elektrėnai single-member constituency No. 59, it was established that the following candidates for Members of the Seimas received the most votes of the voters: Bronius Bradauskas—6,225, i.e. he received 32.63 percent of the valid votes, Stanislovas Tomas—3,266, i.e. he received 17.12 percent of the valid votes, and Ramūnas Kartenis—1,957, i.e. he received 10.26 percent of the valid votes.

3.4.2. On 17 October 2012, the Central Electoral Commission received a complaint of the candidate for a Member of the Seimas Kristina Brazauskienė regarding the decision of the Electoral Commission of Kaišiadorys–Elektrėnai Constituency No. 59 to approve the vote-counting protocol.

3.4.3. On 21 October 2012, the Central Electoral Commission adopted the Decision (No. Sp-310) “On the Complaint Regarding Kaišiadorys–Elektrėnai Constituency No. 59”, in which, having investigated the information specified in the complaint, established that:

– the complaint does not point out any concrete violation of the Law on Elections to the Seimas;

– subsequent to the Law on Elections to the Seimas, the Electoral Commission of Kaišiadorys–Elektrėnai Constituency No. 59 recounted the votes of polling districts, removed the established inconsistencies and did not establish any essential violations of the Law on Elections to the Seimas;

– 986 voters had voted in Pravieniškės polling district No. 27, and 329 from the said voters had voted for the candidate from the Labour Party S. Tomas, which constitutes 33.37 percent of the number of all voters in that polling district; the part of the voters that voted for this candidate differs substantially from the part of the voters that voted for other candidates in this polling district and does not reflect the average votes—17.12 percent—cast in the constituency for S. Tomas, i.e. the deviance form the average votes constitutes 16.25 percent, i.e. around 480 votes; such a number of votes had no influence on the place in the list of the four candidates that had received the most votes, therefore, there was no ground to annul the election results in entire Kaišiadorys–Elektrėnai single-member constituency No. 59.

3.4.4. The Central Electoral Commission, while invoking Article 86 of the Law on Elections to the Seimas, decided not to grant the complaint of the candidate for a Member of the Seimas K. Brazauskienė regarding the decision of the Electoral Commission of Kaišiadorys–Elektrėnai Constituency No. 59 to approve the vote-counting protocol

3.5. By the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission, the final results of the 2012 elections to the Seimas were approved inter alia in Jurbarkas single-member constituency No. 62.

3.5.1. After the 14 October 2012 elections to the Seimas, upon counting the votes of the voters in Jurbarkas single-member constituency No. 62, it was established that the following candidates for Members of the Seimas received the most votes of the voters: Bronius Pauža—4,636, i.e. he received 32.64 percent of the valid votes, Robertas Raimundas Išganaitis—2,058, i.e. he received 14.49 percent of the valid votes, and Saulius Lapėnas—1,888, i.e. he received 13.29 percent of the valid votes.

3.5.2. In the 31 October 2012 letter of the Police Department it is noted that, on 11 October 2012, at 10.52 o’clock, a report was received at the Police Commissioner’s Office of the Jurbarkas District of the Chief Police Commissioner’s Office of the Marijampolė County that, allegedly, from house No. 98 in “Dariaus ir Girėno” St., the town of Jurbarkas, persons concerned were transporting asocial persons to vote. 4 persons were brought to the police commissioner’s office and, after questioning, released. A pre-trial investigation under Article 172 of the Criminal Code was launched due to the fact that, on 11 October 2012, around 10 o’clock, P. A. V. might have bribed persons so that they vote for the candidate B. Pauža in the elections to the Seimas.

  1. It has been mentioned that the President of the Republic, by her decree (No. 1K-1262) of 7 November 2012, applied to the Constitutional Court with an inquiry requesting for a conclusion whether during the 2012 elections to the Seimas the Law on Elections to the Seimas was not violated after she had received inter alia the 5 November 2012 complaint of the Labour Party regarding a violation of the Law on Elections to the Seimas, wherein it is requested to investigate and assess whether the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission had not violated the provisions of the Law on Elections to the Seimas in Pajūris single-member constituency No. 22.

4.1. The 5 November 2012 complaint of the Labour Party requests that the election results in Pajūris single-member constituency No. 22, due to gross violations of the Law on Elections to the Seimas committed during the 28 October 2012 run-off voting, be recognised as invalid. The complaint is essentially substantiated by the fact that the Central Electoral Commission, while adopting the decision (No. Sp-321) of 4 November 2012, did not take account of the fact that in the course of counting the postal voting votes cast by envelopes in the Ateitis, Aikštė, Saulė and Smiltelė polling districts of Pajūris single-member constituency No. 22 a gross violation of Item 3 of Paragraph 1 of Article 78 of the Law on Elections to the Seimas was committed: in the said polling districts, upon opening the postal voting return envelopes and in case they contained no voter’s poll card, ballot paper envelopes used to be opened, in which the ballot papers and voters’ poll cards used to be found and used to be recognised as valid by the electoral commissions of the said polling districts.

In the opinion of the Labour Party, the electoral commissions of the polling districts, having not found a voter’s poll card in the return envelopes, should have recognised the ballot papers contained in those envelopes as invalid a priori. Thus, due to this violation all 475 ballot papers found in the postal voting envelopes should have been recognised as invalid in the aforementioned polling districts.

Due to the violations pointed out in its complaint, the Labour Party presented the following material:

– video and audio recordings, in which Jusena Vanda Vainoraitė, Chairwoman of the Electoral Commission of the Ateitis Polling District, asserts that providing the members of the electoral commission of the polling district had found a voter’s poll card in the return envelope, they used to seal the ballot paper envelope, they used not to open it but used to put it aside. In case the envelopes did not contain a voter’s poll card, one used to cut the ballot paper envelopes to ascertain whether this card had not been put into the latter. According to J. V. Vainoraitė, the Chairman of the Electoral Commission of Pajūris Single-member Constituency No. 22 confirmed that providing members of electoral commissions of polling districts should find a voter’s poll card in the ballot paper envelopes, those ballot papers must be regarded as valid ones; she used to do precisely that. J. V. Vainoraitė also asserted that the number of such cases had been small. From the submitted material of visual and audio recordings it is impossible to establish how many such ballot papers were regarded as valid ones (when no voter’s poll card used to be found in the return envelope, but it used to be found in the ballot paper envelope);

– the 3 November 2012 statements by Ilona Adinavičienė, a member of the Electoral Commission of the Aikštė Polling District (she was proposed by the Labour Party for the electoral commission), Valentina Diatlova, an election observer at the Smiltelė polling district (she was appointed by the Labour Party), Erika Bubliauskienė, an election observer of the Aikštė polling district (she was appointed by the Labour Party), the 3 November 2012 confirmations by Albinas Jencius, a member of the Electoral Commission of the Smiltelė Polling District (he was proposed by the Labour Party for the electoral commission), Aurika Petraitienė, an election observer at the Saulė polling district (she was appointed by the Labour Party), and Edvinas Jonas Kaminskas, an election observer at the Ateitis polling district (he was appointed by the Labour Party), that in the aforesaid polling districts the ballot paper postal voting envelopes were regarded as proper ones if no voter’s poll card used to be found in the return envelopes, but those cards used to be found in the ballot paper envelopes.

4.2. During the 28 October 2012 run-off voting, in Pajūris single-member constituency No. 22, voters voted for the two candidates for a Member of the Seimas, who had received the most votes—Pranas Žeimys and Genoveita Krasauskienė. After the run-off voting, once the polling districts of Pajūris single-member constituency No. 22 had counted the votes of voters, the difference of 45 votes was established between the candidates for a Member of the Seimas in favour of P. Žeimys.

After the electoral commissions of the Ateitis, Aikštė, Saulė and Smiltelė polling districts of Pajūris single-member constituency No. 22 had counted the votes of voters and had signed the vote-counting protocols, the election observers did not make any remarks or lodge protests regarding inappropriate counting of votes or other detected violations (save the statement by Edvinas Krasauskas, an observer from the Labour Party, in the vote-counting protocol of the Ateitis polling district of Pajūris single-member constituency No. 22: “I disagree with the voting results, since there has been a lot of recounting with different result numbers”).

4.3. On 29 October 2012, the Electoral Commission of Pajūris single-member constituency No. 22, while invoking Paragraph 6 of Article 82 of the Law on Elections to the Seimas, wherein it is prescribed that 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 protocol, 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, recounted the ballot papers of all polling districts of Pajūris single-member constituency No. 22. Upon recounting the ballot papers, the difference of 48 votes between the candidates for a Member of the Seimas was established in favour of P. Žeimys.

After the Electoral Commission of Pajūris Single-member Constituency No. 22 had recounted the votes in the Ateitis, Aikštė, Saulė and Smiltelė polling districts, A. Bielskis, E. Bubliauskienė and I. Krasauskaitė, the observers from the Labour Party, already being aware of the preliminary voting results (the preliminary data submitted by the polling districts), according to which G. Krasauskienė, the candidate nominated by the Labour Party, received fewer votes than the other candidate for a Member of the Seimas P. Žeimys, inscribed the following remark in the vote-counting protocols: “We disagree with the vote-counting results and, as regards the violations of the Republic of Lithuania Law on Elections to the Seimas, we shall lodge a separate complaint/protest under procedure established by laws.”

4.4. The Central Electoral Commission received the following complaints: on 31 October 2012—from Eivydė Jokubauskaitė, the representative of the Labour Party at the Central Electoral Commission, and G. Krasauskienė, a candidate from the Labour Party for a Member of the Seimas, on 1 November 2012—from A. Petraitienė, A. Bielskis, I. Krasauskaitė, E. Bubliauskienė and E. J. Kaminskas, election observers from the Labour Party. In the said complaints they requested that the election results in Pajūris single-member constituency No. 22 be recognised as invalid.

4.4.1. The Central Electoral Commission, while considering the said complaints, in its 2 November 2012 sitting assented to the proposal that the ballot papers be recounted in the Alksnynė and Ateitis polling districts of Pajūris single-member constituency No. 22.

Having recounted the ballot papers of the said polling districts, the Central Electoral Commission established the following election results: P. Žeimys—6,185 votes (voting in polling districts—5,275, by mail—910), i.e. he received 50.16 percent of the valid votes, G. Krasauskienė—6,146 votes (voting in polling districts—5,655, by mail—491), i.e. 49.84 percent of the valid votes. Thus, the difference of 39 votes between the candidates for a Member of the Seimas was established in favour of P. Žeimys.

In this context it needs to be noted that there was not any significant difference between the election results established by the Central Electoral Commission and the voting results recounted by the Electoral Commission of Pajūris Single-member Constituency No. 22.

4.4.2. On 4 November 2012, the Central Electoral Commission adopted the Decision (No. Sp-323) “On the Complaint of the Candidate for a Member of the Seimas Genoveita Krasauskienė Regarding the Recognition of the Election Results in Pajūris Single-member Constituency No. 22 as Invalid and on Related Complaints” (hereinafter also referred to as the 4 November 2012 decision (No. Sp-323) of the Central Electoral Commission) wherein it established that the Electoral Commission of Pajūris Single-member Constituency No. 22 had recounted the ballot papers of all polling districts of that constituency, had considered the complaints received and had held that it had no grounds to reassess the voting results in individual polling districts. The Central Electoral Commission also held that upon recounting the voting results in the Alksnynė and Ateitis polling districts the vote-counting protocol of the Electoral Commission of Pajūris Single-member Constituency No. 22 had been corrected; the doubts regarding the Electoral Commission of Pajūris Single-member Constituency No. 22 had thus been removed. Taking account of that, the Central Electoral Commission decided: “Not to grant the received complaints regarding Pajūris single-member constituency No. 22.”

4.5. From the material available in the constitutional justice case at issue also the following factual circumstances can be established:

– according to the data of the Police Department, from 10 October 2012, 7 o’clock, till 30 October 2012, 7 o’clock, no pre-trial investigations related to the run-off voting in the elections to the Seimas in Pajūris single-member constituency No. 22 were launched (the 31 October 2012 letter of the Police Department);

– from the material submitted to the Constitutional Court by the representatives of the Central Electoral Commission at the 8 November 2012 Court hearing, it is clear that the Central Electoral Commission received the 30 October 2012 letter of Virgilijus Beržanskis, a member of the Electoral Commission of Pajūris Single-member Constituency No. 22, and the 30 October 2012 report of Paulius Martinėnas, the election observer from the Homeland Union-Lithuanian Christian Democrats at the said constituency, about the behaviour of the observers and the representative from the Labour Party in the course of recounting the results of the 28 October 2012 run-off voting in Pajūris single-member constituency No. 22. It is inter alia asserted therein that: the observers from the Labour Party were interfering with the recounting process; they used to unreasonably demand that the ballot papers recounted twice or thrice be recounted one more time; they were making noise; they were making instructions aloud as to what decision must be taken by the constituency electoral commission; they were filming and taking pictures all the time; they used to call police officers unreasonably; they attempted to open a tamper sealed bag.

The said circumstances were essentially confirmed by a witness—Rasa Miceikienė, the secretary of the Electoral Commission of Pajūris Constituency No. 22—questioned at the Constitutional Court’s hearing. She asserted that she had experienced a big pressure from the observers of the Labour Party, those observers were interfering with her work, were attempting to spoil the protocols, they were demanding that actions be performed that were not necessary according to laws;

– a witness—Vytautas Krutulis, Chairman of the Electoral Commission of Pajūris Constituency No. 22—questioned at the Constitutional Court’s hearing asserted that he had received remarks only from the Ateitis polling district regarding the counting of votes of the voters who had cast votes by postal envelopes; he was not aware of any cases, where voters’ poll cards had been found in ballot paper envelopes.

  1. It has been mentioned that the President of the Republic, by her decree (No. 1K-1262) of 7 November 2012, applied to the Constitutional Court with an inquiry requesting for a conclusion whether during the 2012 elections to the Seimas the Law on Elections to the Seimas was not violated after she had received inter alia the 5 November 2012 complaint of the Lithuanian Peasant and Greens Union regarding a violation of the Law on Elections to the Seimas, wherein it is requested to investigate and assess whether the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission had not violated the provisions of the Law on Elections to the Seimas in Biržai–Kupiškis single-member constituency No. 48. One needs to mention the fact that the complaint of the Nationalist Union, which was submitted to the Seimas and the President of the Republic on 5 November 2012, also requests to investigate the violations of the Law on Elections to the Seimas in the same constituency.

5.1. The 5 November 2012 complaint of the Lithuanian Peasant and Greens Union requests that, due to the violations of the Law on Elections to the Seimas during the 14 October 2012 elections to the Seimas, which had an essential influence on the final results of elections to the Seimas in Biržai–Kupiškis single-member constituency No. 48, the election results in that single-member constituency be recognised as invalid. This complaint is essentially substantiated by the following arguments:

– the Central Electoral Commission, while adopting its decision (No. Sp-321) of 4 November 2012, did not take account of the gross violations of the provisions of the Law on Elections to the Seimas regulating the procedure of recounting of votes, which were committed during the voting in the first round of elections to the Seimas, i.e. it did not take account of the fact that, after the voting had ended, the members of the Electoral Commission of Biržai–Kupiškis Single-member Constituency No. 48, in violation of the provisions of the Law on Elections to the Seimas, adopted an unlawful decision to take over the function of the Electoral Commission of Kaštonai Polling District No. 5 to count ballot papers, it failed to ensure the proper accounting of election documents and to prove that while transporting the documents no violations had been made, thus, the honesty and transparency of the electoral process had not been ensured;

– after the Central Electoral Commission had recounted the votes of voters in Kaštonai polling district No. 5 and upon establishing different results from those established by the constituency electoral commission after it had counted them, no decision was adopted to recount all votes of voters in Biržai–Kupiškis single-member constituency No. 48, although the difference in the number of votes of voters between the candidates that had taken the leading positions was very small (the difference in 5 votes between the first and the second places and the difference in 24 votes between the second and the third places) and might have changed in essence should the election results have changed in the other (all in all—41) polling districts.

In this context it needs to be noted that neither the complaint of the Nationalist Union, nor attachments thereto, which were submitted to the President of the Republic and the Seimas, contain any arguments and references to circumstances or events, which could substantiate the doubts regarding the lawfulness of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as it approved the final election results in Biržai–Kupiškis single-member constituency No. 48.

5.2. After the 14 October 2012 elections to the Seimas, upon counting the votes of the voters in Biržai-Kupiškis single-member constituency No. 48, it was established that the following candidates for Members of the Seimas received the most votes of the voters: Aleksandras Zeltinis—3,084, i.e. he received 18 percent of the valid votes, Ritas Vaiginas—3,079, i.e. he received 17.97 percent of the valid votes, and Nijolė Šatienė—3,055, i.e. she received 17.83 percent of the valid votes.

5.3. The Central Electoral Commission adopted its decision (No. Sp-308) of 21 October 2012, whereby inter alia it was decided to carry out the run-off voting in Biržai-Kupiškis single-member constituency No. 48 in the elections to the Seimas, in its 21 October 2012 sitting after it had considered the Conclusion of the Special Working group “On Recognising the Elections in Biržai-Kupiškis Constituency No. 48 as Invalid” (minutes No. P-38 of the 21 October 2012 sitting of the Central Electoral Commission, hereinafter also referred to as minutes No. P-38).

The conclusion of the Special Working Group established the following circumstances showing that in the course of counting the ballot papers in Biržai-Kupiškis single-member constituency No. 48 the procedure established in the Law on Elections to the Seimas was not being followed and violations of the Law on Elections to the Seimas had been committed that might have had influence on the voting results in the said constituency.

5.3.1. After the voting had ended and when the Chairman of the Electoral Commission of Kaštonai Polling District No. 5 had failed to answer the phone, upon receiving reports from election observers, four members of the Electoral Commission of Biržai-Kupiškis Single-member Constituency No. 48, having arrived at the said polling district, established that the chairman of the electoral commission of the same polling district was unable to organise the work of that commission properly, therefore, the said members decided unanimously to take over the ballot papers of Kaštonai polling district No. 5, to transport them to the work premises of the constituency electoral commission and to count them on the said premises.

From minutes No. 16 of the 15 October 2012 sitting of the Electoral Commission of Biržai-Kupiškis Single-member Constituency No. 48 submitted to the Constitutional Court, it is unclear why it was decided that the Chairman of the Electoral Commission of Kaštonai Polling District No. 5 had been unable to organise the work of that commission properly and why it was necessary to adopt a decision to take over the function of the polling district electoral commission to count the votes. The fact that the votes of Kaštonai polling district No. 5 were counted not by the polling district electoral commission, but the constituency electoral commission, is also pointed out inter alia in the 17 October 2012 letter (No. 2-68) of the Electoral Commission of Biržai-Kupiškis Single-member Constituency No. 48.

The witness J. Valčiukienė questioned at the Constitutional Court hearing confirmed that she had never received an answer to the question on what grounds and why the constituency electoral commission had adopted the decision itself to count the votes of Kaštonai polling district No. 5. She also noted that the Chairman of the Electoral Commission of Kaštonai Polling District No. 5 was experienced in organising the work of an electoral commission, he had already headed a constituency electoral commission before, therefore, it is doubtful whether he had actually been unable to organise the work of the Electoral Commission of Kaštonai Polling District No. 5.

5.3.2. In the course of taking over the ballot papers of Kaštonai polling district No. 5, the statement of transfer and acceptance No. 1 3-399 was drawn up, from which it is clear that, all in all, the constituency electoral commission took over 4,321 ballot papers from the polling district electoral commission, and, from among them, 1,386 ballot papers of the single-member constituency. In the statement of transfer and acceptance the word “envelopes” was crossed out and the word “ballot papers” was inscribed. The conclusion of the Special Working group noted that it could mean that only the ballot papers had been taken over, whereas the postal voting envelopes had not been taken over.

In the circumstances confirmation act No. 3-400 of the Electoral Commission of Biržai-Kupiškis Single-member Constituency No. 48 of 15 October 2012 it is noted that actually more bulletins were counted than had been taken over according to the statement of transfer and acceptance from Kaštonai polling district No. 5: all in all, 4,773 ballot papers were counted (difference in 452 ballot papers), and, from among them, 1,584 ballot papers of voting in the single-member constituency (difference in 198 ballot papers).

The conclusion of the Special Working Group noted that the established difference in the number of ballot papers is explained by the fact that 153 postal voting envelopes containing ballot papers had not been included into the statement of transfer and acceptance. The same conclusion also noted that this explanation still does not allow to establish why additional 45 ballot papers had been counted to the number taken over from Kaštonai polling district No. 5.

The witness J. Valčiukienė questioned at the Constitutional Court hearing additionally testified that the representatives of the Lithuanian Peasant and Greens Union at that constituency had neither been informed that the polling district electoral commission was not discharging its function to count the ballot papers, not had an opportunity to participate when the ballot papers were being counted by the constituency electoral commission.

5.3.3. The vote-counting protocol of Kaštonai polling district No. 5 was signed on 14 October 2012, at 23.30 o’clock, whereas, according to the data of the information system of the Central Electoral Commission, the data of the ballot papers of Kaštonai polling district No. 5 were downloaded to the computer system on 15 October 2013, at 11.15 o’clock.

5.3.4. The conclusion of the Special Working group notes that, upon counting the votes of voters in Kaštonai polling district No. 5, it was established that from among 1,597 participated voters 1,527 cast their votes in the single-member constituency. This is also confirmed by the vote-counting protocol of Kaštonai polling district No. 5.

According to the data published on the Internet website of the Central Electoral Commission and the vote-counting protocols, upon summing up the election results of all the rest polling districts of Biržai-Kupiškis single-member constituency No. 48, A. Zeltinis had received 2,479 votes, R. Vaiginas—2,790 votes, and N. Šatienė—2,888 votes. Thus, until the reception of the election results from Kaštonai polling district No. 5, N. Šatienė was the leading candidate in Biržai-Kupiškis single-member constituency No. 48. This fact was also noted in the conclusion of the Special Working Group. The said results changed in essence after the counted voting results had been received from Kaštonai polling district No. 5: A. Zeltinis moved from the third place to the first place, whilst N. Šatienė moved from the first place to the third place.

In addition, the witness J. Valčiukienė, who was questioned at the Constitutional Court hearing, noted that Kaštonai polling district No. 5 was the only one in the entire Biržai–Kupiškis single-member constituency the voting results of which had been received by the Central Electoral Commission after an unusually long waiting period, that the counting of the voting results in the said polling district had taken much more time than in other polling districts, and that the election results changed in the entire constituency after namely that polling district had submitted its results.

5.3.5. While taking account of the gathered information, the Special Working Group inter alia established that:

– it is doubtful whether the constituency electoral commission was allowed to arbitrarily take over the function of the polling district electoral commission to count ballot papers;

– the votes of Kaštonai polling district No. 5 exert an essential influence on the possibility to establish the election results in Biržai–Kupiškis single-member constituency No. 48.

On such grounds the Special Working Group drew a conclusion that the results of elections to the Seimas in Biržai–Kupiškis single-member constituency No. 48 should be recognised as invalid.

In its 20 October 2012 sitting (minutes No. P-37), the Central Electoral Commission, having considered the said conclusion of the Special Working Group, adopted a decision to recount the voting results in Kaštonai polling district No. 5.

5.4. The vote-counting protocol of Kaštonai polling district No. 5, which was filled in and signed by the members of the constituency electoral commission, points out that A. Zeltinis received 340 votes, R. Vaiginas–288 votes, and N. Šatienė—169 votes. After the Central Electoral Commission had recounted the voting results of Kaštonai polling district No. 5, the vote-counting protocol of Kaštonai polling district No. 5 pointed out that 1,519 voters had participated in the single member constituency (an 8-ballot-paper discrepancy), that A. Zeltinis had received 335 votes (5 votes less than it had been established), R. Vaiginas—289 votes (1 vote more than it had been established), whilst N. Šatienė—167 votes (2 votes less than it had been established). The recounting of the voting results in Kaštonai polling district No. 5 influenced the results of Biržai–Kupiškis single-member constituency No. 48 to the extent that the difference between A. Zeltinis and R. Vaiginas, who were in the first and the second places, decreased from 10 votes to 5 votes, and the difference between R. Vaiginas and N. Šatienė, who were in the second and the third places, increased from 21 votes to 24 votes.

Taking account of the fact that, upon recounting the results of only one polling district the results of the entire constituency changed, also that the difference between the candidates in the highest places is not big, J. Valčiukienė, the representative of the Lithuanian Peasant and Greens Union, who was participating at the 20 October 2012 sitting of the Central Electoral Commission, additionally asked that a decision to recount the election results of the entire constituency be adopted. It needs to be noted that, having taking account of the non-transparent organisation of the electoral process in Kaštonai polling district No. 5, the Lithuanian Peasant and Greens Union had filed the same request to recount the election results in the entire constituency prior to the recounting of the votes by the Central Electoral Commission. It is clear from minutes No. P-37 of the 20 October 2012 sitting of the Central Electoral Commission that also two members of the Central Electoral Commission proposed that the votes be recounted in entire Biržai–Kupiškis single-member constituency No. 48. The Central Electoral Commission considered the said request in its 20 October 2012 sitting and refused to grant it (minutes No. P-37). In its 21 October 2012 sitting (minutes No. P-38), the Central Electoral Commission decided to approve the election results in Biržai–Kupiškis single-member constituency No. 48.

The witness J. Valčiukienė, who spoke at the Constitutional Court hearing, asserted that, when the Central Electoral Commission was considering her request to recount the votes in entire Biržai–Kupiškis single-member constituency No. 48, the decision to reject the request was adopted without any concrete arguments.

  1. It has been mentioned that the Seimas, by its resolution (No. XI-2378) of 6 November 2012, and the President of the Republic, by her decree (No. 1K-1262) of 7 November 2012, applied to the Constitutional Court with an inquiry requesting for a conclusion whether during the 2012 elections to the Seimas the Law on Elections to the Seimas was not violated after they had received inter alia the 5 November 2012 complaint of the Nationalist Union regarding a violation of the Law on Elections to the Seimas, wherein it is inter alia requested to investigate whether the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission had not violated the provisions of the Law on Elections to the Seimas in the multi-member constituency.

6.1. The Nationalist Union filed a complaint with the Central Electoral Commission as far back as on 18 October 2012, wherein it requested to recognise the election results inter alia in the multi-member constituency as invalid.

6.2. The Central Electoral Commission, having performed an investigation into violations of the Law on Elections to the Seimas during the 2012 elections to the Seimas in the multi-member constituency, by the Decision (No. Sp-325) “On the Violations of the Law on Elections to the Seimas in the Multi-member Constituency during the 2012 Elections to the Seimas” of 4 November 2012 assented to the Investigation Conclusion of the Central Electoral Commission “On the Violations of Laws on Elections to the Seimas in the 2012 Elections to the Seimas in the Multi-member Constituency” of 2 November 2012 and recognised that during the 2012 elections to the Seimas violations of the Law on Elections to the Seimas had been committed, however, they had not had any essential influence on the establishment of the election results in that constituency.

6.3. The 2 November 2012 investigation conclusion of the Central Electoral Commission adopted upon consideration of the received complaints regarding violations of the Law on Elections to the Seimas during the 2012 elections to the Seimas, among them the 18 October 2012 complaint of the Nationalist Union, established the circumstances specified below.

6.3.1. On 27 and 29 September 2012, the portal www.delfi.lt published three video recordings showing persons discussing about bribing voters so that they vote for the list of the Labour Party candidates and cast preference votes for concrete candidates in that list. It was held in the 2 November 2012 investigation conclusion of the Central Electoral Commission that the circumstances specified in the conversation shown in the 27 September 2012 video recording allows one to assume that there was an intention to buy ranking votes (“numbers are being mentioned, they are speaking about 5 people who have agreed and who are participating in the elections to the Seimas, they are saying that Pinskus and his wife Živilė, who are two candidates in Naujoji Vilnia, must be supported, and that Paulauskas need not be supported”). In the 29 September 2012 video recording, allegedly made at the seat of Labour Party (Gedimino Ave. 10, Vilnius), the numbers of persons to be bribed and the system how they will be paid are particularised, details are given how votes must be ranked, also one speaks about a meeting with five persons (allegedly, with candidates receiving ranking votes), also about the sum of money that they wish to give for that purpose.

This information is supplemented with the data presented in the 18 October 2012 letter (No. 17.2-21531) of the Office of the Prosecutor General of the Republic of Lithuania. It is specified therein that the data collected during the pre-trial investigation allow reasonably to believe that the identified persons, acting as a group of accomplices, from 27 September 2012 till 2 October 2012, in the Statoil filling station at Ukmergės St. 177, Vilnius, at the seat of the Labour Party at Gedimino Ave. 10, Vilnius, and in other places received an instruction from persons identified during the pre-trial investigation and from other unidentified persons to exert influence on persons who are fulfilling their punishment of deprivation of freedom in places of confinement so that in the multi-member constituency the latter persons would vote for the Labour Party, as well as give ranking (preference) votes to the candidates Živilė Pinskuvienė, Jolanta Gaudutienė, Sergej Ursul, Vytautas Gricius and Viačeslav Ždanovič; thus, by bribing such persons they interfered with the implementation of the right of those persons to elect Members of the Seimas during the 14 October 2012 elections to the Seimas.

Having assessed the aforementioned video recordings and the data pointed out in the letter (No. 17.2-21531) of the Office of the Prosecutor General, the Central Electoral Commission drew a conclusion that the persons seen in the video recordings and identified by the Office of the Prosecutor General, might have bribed up to 3,000 voters, who, during the 2012 elections to the Seimas, might have voted for the Labour Party and ranked (given preference votes for) the candidates of the Labour Party in the multi-member constituency; the candidates (mentioned in the recording) Ž. Pinskuvienė received 6,694 preference votes and moved up in the list of the party from the 14th to the 10th place, J. Pinskus received 2,487 preference votes and moved up from the 120th to the 22nd place (it needs to be noted that decision of the Central Electoral Commission No. Sp-321 of 4 November 2012 established that before the elections the number of this candidate in the list was 140), J. Gaudutienė received 3,379 preference votes and moved up from the 21st to the 17th place, V. Gricius received 1,863 preference votes and moved up from the 57th to the 35th place, V. Ždanovič received 1,305 preference votes and moved up from the 118th to the 48th place.

6.3.2. The 2 November 2012 investigation conclusion of the Central Electoral Commission also assessed the influence of the violations of the Law on Elections to the Seimas recorded in the single-member constituencies of Šilutė–Pagėgiai (No. 32), Zarasai–Visaginas (No. 52), and Vilnius–Trakai (No. 57) upon the election results in the multi-member constituency and made the following conclusions.

6.3.2.1. In Šilutė–Pagėgiai single-member constituency No. 32 voters used to be bribed; there might have been more than a hundred cases of buying of votes. In the information about pre-trial investigations it is pointed out that the names of political parties are also mentioned in those investigations, therefore, the buying of votes might have had influence on the election results in the multi-member constituency as well.

6.3.2.2. By its decision (No. Sp-313) of 21 October 2012, the Central Electoral Commission recognised that, in Zarasai–Visaginas single-member constituency No. 52, Rimvydas Podolskis, the candidate for a Member of the Seimas nominated by the Labour Party, might have influenced the will of 394 voters. The Central Electoral Commission noted that the investigation material contains the data that the said candidate was seeking to bribe voters so that they, during the 2012 elections to the Seimas, would vote for the Labour Party and R. Podolskis, and made a conclusion that the candidate R. Podolskis, while bribing the voters and inducing them to vote for the Labour Party as well, might also have influenced the resolve of 394 voters to vote in the multi-member constituency, therefore, it might have had influence on the election results in the said constituency.

6.3.2.3. The material held by the police and the testimonies of the election observers confirm the cases of transportation of voters in Vilnius–Trakai single-member constituency No. 57. From the available information it is impossible to establish the number of voters who had been transported to the polling place illegally, however, it is possible to assume that there might have been up to 100 of such voters; such voters voted in the multi-member constituency as well.

6.3.3. In the investigation conclusion it was also noted that in the 2012 elections to the Seimas the quota of a mandate (the number of votes for receiving a mandate by the quota method) was 16,238 votes of voters. In addition, one paid attention to the fact that the second mandate could be received by the remainder method, i.e. for a fewer number of votes than the quota; the remainder is different for each list of candidates. The remainder of the Labour Party, which is the last that received a mandate by the remainder, equals to 11,712 votes of voters. Taking account of this fact, the Central Electoral Commission drew a conclusion that if the Labour Party had received 27,950 votes less, it would have received 2 mandates less.

6.3.4. Having summarised the investigation results, the Central Electoral Commission made the following conclusions: during the voting in the 2012 elections to the Seimas the will of up to 3,594 voters might have been influenced in the multi-member constituency; it is impossible to establish whether a concrete party was bribing the voters, however, from the collected material it is possible to draw a conclusion that representatives of concrete parties were doing that; even though the scale of bribing possibly does not exceed the critical number of votes necessary to receive one mandate, one must recognise the fact that violations of Article 51 of the Law on Elections to the Seimas were committed also in the multi-member constituency, also that those violations were gross ones, however, when account is taken of the gathered information, it is impossible to draw a conclusion that those violations had influence on the establishment of the election results.

6.4. On 5 November 2012, the Nationalist Union filed a complaint with the President of the Republic and with the Speaker of the Seimas requesting to apply to the Constitutional Court for a conclusion whether inter alia during the 2012 elections of Members of the Seimas in the multi-member constituency the provisions of Articles 5, 51, 61, 67, 671, 84, 87 of the Law on Elections to the Seimas had not been violated; the said provisions entrench the principle of secret ballot and democratic procedures of elections; the observance of those procedures is necessary in order to recognise results of elections as legitimate and lawful; also whether the established gross violations of the Law on Elections to the Seimas and other laws enabled the Central Electoral Commission to establish the essential election results in the multi-member constituency.

The complaint of the Nationalist Union is substantiated by the following arguments related to the establishment of the election results in the multi-member constituency by the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission:

– instances of buying of votes were recorded on a mass scale (already during the first round of elections to the Seimas one received the data about more than 1,000 violations of the Law on Elections to the Seimas, where the biggest part of the violations were gross violations of the law—alleged instances of buying of votes of voters);

– the Central Electoral Commission might have interpreted the criterion (“when they can be determined at the exactness of only more than one mandate”) established in Item 2 of Paragraph 1 of Article 91 of the Law on Elections to the Seimas in a wrongful way, when it added the amount of the remainder of votes to the number of votes constituting the one-mandate quota; the complaint points out that the aforesaid provision of the Law on Elections to the Seimas may also be interpreted in a different manner, i.e. that the exactness of only more than one mandate means the number of votes, which is received adding one vote to the difference between the remainders upon which depends the distribution of additional mandates among the lists; due to this, the mandates between the Labour Party and the Lithuanian Social Democratic Party might have been distributed in a different fashion because of several thousand votes;

– the Central Electoral Commission, while considering complaints regarding the violations in single-member constituencies, mostly did not assess the influence of the violations on the election results in the multi-member constituency (as, for instance, in Kaišiadorys–Elektrėnai single-member constituency No. 59);

– the Central Electoral Commission, while announcing the final election results and establishing the final sequence of the lists of candidates for Members of the Seimas and establishing the persons elected to the Seimas, did not take into account the influence of the buying of votes of voters on preference votes, and the suspected persons, the number of preference votes of which almost coincides with the number of votes (established in the investigation conclusion of the Central Electoral Commission) allegedly bought in prisons, were placed on the said lists.

II

  1. Item 1 of Paragraph 3 of Article 105 of the Constitution provides that the Constitutional Court shall present a conclusion whether there were violations of election laws during elections of the President of the Republic or elections of Members of the Seimas.

Paragraph 2 of Article 102 of the Constitution prescribes 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.

  1. Under Paragraph 1 of Article 77 of the Law on the Constitutional Court (also, under Paragraph 1 of Article 95 of the Law on Elections to the Seimas), the Seimas and the President of the Republic may apply the Constitutional Court with an inquiry concerning possible violations of the Law on Elections to the Seimas during the elections of Members of the Seimas within 3 days of the publication of the official election results.

Paragraph 2 of Article 77 of the Law on Constitutional Court (also Paragraph 2 of Article 95 of the Law on Elections to the Seimas) provides that the Constitutional Court, while investigating an inquiry concerning violations of the Law on Elections to the Seimas during the elections of Members of the Seimas, shall examine and assess only the decisions made by the Central Electoral Commission or the refusal thereof to examine complaints concerning the violations of the Law on Elections to the Seimas in cases when such decisions were adopted or other deeds were carried out by the said commission after the voting is over.

Under Paragraph 1 of Article 93 of the Law on Elections to the Seimas, the Central Electoral Commission shall establish the final election results after it has investigated all complaints and established all election results in the constituency. Paragraph 2 of the same article inter alia provides that the Central Electoral Commission shall proclaim the final election results not later than within 7 days following the election or the run-off voting; 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”.

  1. It needs to be noted that Paragraph 3 (wording of 20 June 2004) of Article 88 of the Law on Elections to the Seimas inter alia prescribes: “If more than two candidates have participated in the elections and a Seimas member has not been elected pursuant to Paragraph 2 of this Article, run-off voting shall be held after two weeks, in which two candidates who have received the majority of votes shall participate in the said poll.”

It has been mentioned that, during the 14 October 2012 elections to the Seimas, 67 Members of the Seimas were not elected from the 71 single-member constituencies and, on 28 October 2012, in those single-member constituencies the run-off voting was carried out. Thus, it was possible to establish the final official results of the 2012 elections to the Seimas in 67 single-member constituencies only after the run-off voting.

  1. It has been mentioned that the inquiries of the Seimas and the President of the Republic requesting for a conclusion whether during the 2012 elections to the Seimas the Law on Elections to the Seimas were not violated request that the Constitutional Court investigate and assess whether the Decision (No. Sp-321) of the Central Electoral Commission “On the Final Results of the 14 October 2012 Elections to the Seimas of the Republic of Lithuania” of 4 November 2012 did not violate the Law on Elections to the Seimas.

The said inquiries were received at the Constitutional Court on 7 November 2012.

  1. On 4 November 2012, the Central Electoral Commission adopted decision No. Sp-321, which was published on the Internet website of the Seimas on the same day, and, on 6 November 2012, it was also published in the official gazette “Valstybės žinios” (2012, No. 128-6462). The said decision inter alia decided the following:

“1. To establish the results in the 28 October 2012 run-off voting in the Seimas elections in 67 single-member constituencies (Annex 1).

  1. To establish the final sequence of the lists of candidates for Members of the Seimas in the 14 October 2012 elections to the Seimas in the multi-member constituency (Annex 2).
  2. According to the results of the elections in the multi-member and single-member constituencies, to establish the persons who have been elected to the Seimas of the Republic of Lithuania (Annex 3). On 7 November 2012, at 11 o’clock, at the conference hall of the Seimas of the Republic of Lithuania, to hand in the cards of Members of the Seimas to the elected Members of the Seimas.”

Thus, the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission was adopted after the voting in the elections of Members of the Seimas had finished; the said decision established the final official results of the 2012 elections to the Seimas in 67 single-member constituencies and the multi-member constituency.

Item 1 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission approved the final results of the 14 October 2012 elections to the Seimas after the run-off voting inter alia in the following single-member constituencies: Pajūris (No. 22), Šilutė–Pagėgiai (No. 32), Biržai–Kupiškis (No. 48), Širvintos–Vilnius (No. 55), Vilnius–Trakai (No. 57), Kaišiadorys–Elektrėnai (No. 59), Jurbarkas (No. 62); Item 2 thereof approved the final sequence of the lists of candidates for Members of the Seimas in the elections to the Seimas in the multi-member constituency; Item 3 thereof established the persons elected to the Seimas.

  1. It needs to be noted that, when the fact is taken into account that, during the 14 October 2012 elections to the Seimas, in 67 single-member constituencies Members of the Seimas had not been elected, inter alia they had not been elected in the following single-member constituencies: Pajūris (No. 22), Šilutė–Pagėgiai (No. 32), Biržai–Kupiškis (No. 48), Širvintos–Vilnius (No. 55), Vilnius–Trakai (No. 57), Kaišiadorys–Elektrėnai (No. 59), Jurbarkas (No. 62), thus, until the end of the run-off voting it was impossible to establish the official and final results of the 2012 elections to the Seimas, an inquiry requesting for a conclusion whether the Law on Elections has not been violated in those constituencies during the 14 October 2012 first round of elections to the Seimas could be filed with the Constitutional Court only after the run-off voting, upon establishing the final results of the elections to the Seimas, i.e. only after the Central Electoral Commission adopted its 4 November 2012 decision (No. Sp-321).
  2. The 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission, insofar as it approves the final results in the 2012 elections to the Seimas inter alia in Šilutė–Pagėgiai single-member constituency No. 32, is inseparably related to the 4 November 2012 decision (No. Sp-324) of the Central Electoral Commission which approves the final results of the voting in Šilutė–Pagėgiai single-member constituency No. 32.
  3. While taking account of the inquiries set forth in the Seimas resolution (No. XI-2378) of 6 November 2012 and the 7 November 2012 decree (No. 1K-1262) of the President of the Republic, in the constitutional justice case at issue the Constitutional Court will investigate and assess the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as it decided to establish the final results of the 2012 elections to the Seimas in the single member constituencies—Pajūris (No. 22), Biržai–Kupiškis (No. 48), Širvintos–Vilnius (No. 55), Vilnius–Trakai (No. 57), Kaišiadorys–Elektrėnai (No. 59), Jurbarkas (No. 62), also insofar as it decided to establish the final sequence of the lists of candidates for Members of the Seimas in the multi-member constituency in the 2012 elections to the Seimas and to establish the persons elected to the Seimas in the aforesaid single-member constituencies and in the multi-member constituency in the aspects pointed out by the petitioners.

While taking account of inter alia the fact that, as mentioned before, the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission, insofar as it establishes the final results in the 2012 elections to the Seimas in Šilutė–Pagėgiai single-member constituency No. 32, is inseparably related to the 4 November 2012 decision (No. Sp-324) of the Central Electoral Commission, the Constitutional Court will investigate and assess those two decisions in conjunction with one another.

III

  1. The Constitutional Court, while emphasising the importance of elections of representative institutions, has held more than once that in a constitutional democracy special requirements are raised to the formation of representative political 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 representative political 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 (the Constitutional Court’s conclusion of 5 November 2004, the ruling of 1 October 2008, the conclusion of 7 November 2008, the rulings of 9 November 2010 and 29 March 2012, the conclusion of 26 October 2012). While enshrining the provisions of the electoral right by means of a law, the legislator is obliged to follow those imperatives of legal regulation which are enshrined in the Constitution (the Constitutional Court’s rulings of 1 October 2008 and 29 March 2012, the conclusion of 2012 October 26).

In the Constitution the universally recognised democratic principles of election to representative political institutions are entrenched, as, for instance: elections must be conducted on the basis of universal, equal, and direct suffrage, the ballot must be secret; under the Constitution, only such elections are allowed where there is free and fair competition for the mandate, where the voters have the right and a real opportunity to choose from several candidates, where at the time of voting they can express their will freely and without being subjected to control; the requirements of transparency and publicity must be applied to the formation of a representative political institution (the Constitutional Court’s ruling of 9 November 2010).

  1. Paragraph 3 of Article 55 of the Constitution stipulates that the procedure for election of Members of the Seimas shall be established by law. The Constitutional Court has held that this constitutional norm means that the legislator has a duty to consolidate, by means of a law, a system of elections of Members of the Seimas, to establish the grounds and procedure of arrangement of elections, inter alia including nomination of candidates for Members of the Seimas, election agitation, procedure of voting, establishment of the results of election, procedures for settling electoral disputes, as well as regulation of other relations of election of Members of the Seimas; while doing so, the legislator must heed the Constitution, it may neither itself 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 (the Constitutional Court’s conclusions of 5 November 2004, 7 November 2008 and 26 October 2012).
  2. The Constitutional Court has emphasised that the Constitution does not establish a concrete system of elections of Members of the Seimas; according to the provision of Paragraph 3 of Article 55 of the Constitution, this is left to be decided by the legislator, who enjoys broad discretion: one may, by law, establish either only a proportional or only a majoritarian, or a different system of elections of Members of the Seimas, inter alia a mixed system of elections, in which the proportional and majoritarian electoral systems are combined (the Constitutional Court’s rulings of 1 October 2008 and 29 March 2012).

It is universally recognised that under the proportional system of elections to the parliament, in one multi-member constituency, it is the candidates which are recorded in the lists of political parties that usually (traditionally) take part; in the majoritarian parliamentary election system not only individual candidates nominated by political parties, but also individual persons, who have nominated themselves under procedure established in laws, can stand as candidates in single-member constituencies; in democratic states also a so-called mixed system of elections to the parliament is known, which unites the proportional and majoritarian systems of elections and from this viewpoint creates a possibility not only for persons who are recorded in the lists of the political parties, but also for individual persons who, under the procedure established by the laws, have nominated themselves or have been nominated by parties, to be candidates during the elections (the Constitutional Court’s ruling of 1 October 2008).

Whichever system of elections of Members of the Seimas (only proportional, only majoritarian or another, inter alia mixed system of elections in which the proportional and majoritarian systems of elections are combined) is chosen by the legislator, the legal regulation established by law must ensure that the elections are conducted while observing the principles of democratic, free and fair elections consolidated in the Constitution. After the legislator has chosen the so-called mixed system of parliamentary elections, combining the proportional and majoritarian systems of elections, the elections in the multi-member and single-member constituencies must also be conducted by applying the same standards of democratic, free and fair elections, whereas the same requirements must be raised for the candidates inscribed on the lists of political parties and the individual persons standing as candidates in single-member constituencies. In this context it also needs to be emphasised that the constitutional status of all Members of the Seimas is the same, regardless of whether they were elected while applying one (either proportional or majoritarian) system of elections, or different systems of elections (when the legislator has chosen a so-called mixed system of parliamentary elections). As it was held in the Constitutional Court’s rulings of 25 January 2001 and 1 July 2004, under the Constitution, each Member of the Seimas represents the entire Nation, all the members of the Seimas are equal, and they should have the same opportunities to participate in the activity of the Seimas.

  1. In the Constitutional Court’s conclusions of 5 November 2004 and 26 October 2012 it is held that the legislator, under the Constitution, has a duty to establish, by means of a law, the legal regulation which would ensure that the voters vote in person and by secret ballot, and that in the course of voting it would be impossible both to influence the will of the voters and to control it; it is notably impermissible that the financing of elections is non-transparent or uncontrollable, that in the election campaign the election techniques are used which are contrary to the morals, justice and the harmony of society; under the Constitution, no reasoning may justify direct or indirect buying of votes of voters, also the practice of an election campaign where the voters, by means of presents or other rewards, are induced either to participate in or abstain from elections and/or vote either for or against one or another candidate—this is equivalent to bribery of voters, meaning that citizens of the Republic of Lithuania are deprived of their right to freely express their genuine will on their own in elections of the Seimas, while the Nation is deprived of its right to elect the representation of the Nation which would be able to express its genuine supreme sovereign power.
  2. The Constitutional Court has also emphasised more than once 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 electoral 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 it does not establish a mechanism ensuring democratic, free and honest elections, then there always might arise certain doubts as for legality of election of members of the Seimas (the Constitutional Court’s conclusions of 5 November 2004, 7 November 2008 and 26 October 2012).
  3. When democratic elections are held, the mechanisms of publicity and control are of crucial importance (the Constitutional Court’s ruling of 23 November 1996 and the conclusion of 26 October 2012). As it has been held in the Constitutional Court’s jurisprudence, according to Item 13 of Paragraph 1 of Article 67 of the Constitution, wherein it is prescribed that the Seimas shall form the Central Electoral Commission and alter its composition, a universal institution for the organisation of elections—the Central Electoral Commission—must be formed in Lithuania; the constitutional provision pertaining to the Central Electoral Commission should be implemented only by legislative consolidation of its purpose in accordance with other constitutional provisions, of principles of formation and competence (the Constitutional Court’s decision (No. 5/94) of 11 July 1994 and the conclusion of 26 October 2012). In the Constitutional Court’s conclusion of 26 October 2012 it was noted that such legal regulation on the procedure for forming the Central Electoral Commission and territorial institutions for organising elections must be established by law, where the said legal regulation would create preconditions for those institutions to adopt objective and efficient decisions on organising elections.

The Constitutional Court has also noted that the constitutional purpose of the Central Electoral Commission to organise elections also implies its powers to exercise control and resort to measures so that the observance of the principles of democratic, free and fair elections would be efficiently ensured, inter alia that the principles of honesty and transparency of the electoral process would be ensured; while taking account of the aforesaid, under the Constitution, the legislator should establish such legal regulation on the electoral process whereby the Central Electoral Commission and the territorial institutions for organising elections would have the powers to act so that the adherence to the aforesaid electoral principles would be efficiently ensured, inter alia violations of these principles would be prevented, such violations would be investigated and sanctions would be applied to the participants of the electoral process and other persons that are responsible for such violations (the Constitutional Court’s conclusion of 26 October 2012).

The principle of responsible governance, which is consolidated in the Constitution, implies that all state institutions and officials, inter alia the Central Electoral Commission and the territorial institutions for organising elections, must discharge their functions while following the Constitution and law, while acting in the interests of the Nation and the State of Lithuania, must properly implement the powers granted to them by the Constitution and laws (the Constitutional Court’s conclusion of 26 October 2012).

In this context it also needs to be noted that a legal regulation should create inter alia the following organisational and material preconditions for the Central Electoral Commission and territorial institutions for organisation of elections so that they might act appropriately: the corresponding procedure enabling the Central Electoral Commission and territorial institutions for organisation of elections to cooperate with other state institutions (inter alia institutions conducting pre-trial investigation and the prosecutor’s office), the guarantees necessary to discharge the duties of the heads and members of the Central Electoral Commission and of territorial institutions for organisation of elections.

  1. In the context of the constitutional justice case at issue it also needs to be emphasised that, as it was held in the Constitutional Court’s conclusion of 26 October 2012, mass and/or systemic bribing of voters, inter alia inducing by offering gifts or other rewards voters or persons eligible to vote to attend or not to attend elections and/or to vote for or against one or another candidate during the electoral process (inter alia during the election agitation campaign and the period of voting) is to be regarded as a gross violation of the principles of democratic, free and fair elections, inter alia that of the fair and transparent electoral process. Such violations of the electoral principles create preconditions to reasonably doubt the legitimacy and legality of the election results, thus, they can limit or deny altogether the expression of the supreme sovereign power of the Nation through the representation of the Nation—the Seimas, therefore, one is to presume that the said violations, in themselves, are to be regarded as having an essential influence on the election results. Such a presumption may be negated by the Central Electoral Commission after it assesses other concrete circumstances of the electoral process, which are significant for establishment of the election results. It has also been emphasised in the aforesaid conclusion of the Constitutional Court that one-time distribution of goods, money or other gifts and/or rendition of services free of charge to a considerable number of voters during a rally or other event meant for entire society or only its part at the time of the electoral process, thus inducing one to attend or not to attend elections and/or to vote for or against one or another candidate during the electoral process, is also to be regarded as mass bribing of voters and persons eligible to vote.

In the context of the constitutional justice case at issue it needs to be noted that the provisions of the official constitutional doctrine regarding mass and/or systemic bribing of voters are to be applied also to bribing of voters by inducing them to vote either in favour or against the list of one or other political party and/or to rank the candidates on the list in one or other manner.

In the context of the case at issue it also needs to be emphasised that, in case one does not negate the presumption that the established gross violations of the principles of democratic, free and fair elections, inter alia the honesty and transparency of the electoral process, are to be regarded, in themselves, as having an essential influence on the election results, i.e. if one does not negate the fact that by the said gross violations the genuine will of the voters, which is the essential precondition of the legitimacy and lawfulness of the election results, might have been distorted, one cannot establish the genuine and correct results of the elections, thus, the candidates, during the elections of whom gross violations of the principles of democratic, free and fair elections were committed, may not receive the mandate of a Member of the Seimas; otherwise, the trust of the Nation in its representation and the state itself could be undermined.

  1. As mentioned before, under the Constitution, the legislator should establish such legal regulation on the electoral process whereby the Central Electoral Commission and the territorial institutions for organising elections would have the powers to act so that the adherence to the principles of democratic, free and fair elections, inter alia the honesty and transparency of the electoral process, would be efficiently ensured. It, among other things, means that, under the Constitution, the Central Electoral Commission should have sufficient powers so that, upon establishing gross violations of the aforesaid electoral principles, it could efficiently ensure that those violations would not distort the genuine will of the voters and the persons, regarding the election of whom there are doubts, would not receive a mandate of the Seimas. The Central Electoral Commission should have inter alia the powers to apply the strictest measure—to recognise the results of the elections as invalid. It needs to be noted that the legislator should provide for the said measure as an ultima ratio, i.e. such legal regulation of the electoral process should be established, whereby the Central Electoral Commission would also enjoy other measures to ensure that the genuine will of the voters would not be distorted, inter alia to recognise that the participants of the electoral process—candidates, during the elections of whom gross violations of the principles of democratic, free and fair elections, inter alia the honesty and transparency of the electoral process, were committed, or the entire list of a political party resorting to such tactics in its election campaign—have lost the right to participate in the elections and to be elected as Members of the Seimas, or for the list of candidates to participate in the distribution of mandates of Members of the Seimas; thus, the recognition of election results as invalid is to be regarded as a measure to be applied in the situations where it is impossible to achieve the non-distortion of the will of the voters by other means.

In the context of the constitutional justice case at issue it needs to be noted that, while regulating the said powers of the Central Electoral Commission by law, one must take account of the peculiarities of the electoral systems (inter alia of the fact that the recognition of election results in the multi-member constituency and in a single-member constituency could give rise to essentially different effects), also one must take account of the fact that, under Paragraph 2 of Article 55 of the Constitution, the Seimas shall be deemed elected when not less than 3/5 of the Members of the Seimas have been elected, therefore, when one takes into consideration the damage that might be inflicted upon the expectations of the voters and upon the stability of the system of state authority in case the election results of the elections to the Seimas conducted under the proportional electoral system are recognised as invalid, this measure (recognition of election results as invalid in the multi-member constituency) should be an ultima ratio.

  1. It needs to be noted that, under the Constitution, gross violations of the principles of democratic, free and fair elections, inter alia the honesty and transparency of the electoral process, committed during elections to the Seimas may also be established later, after the elected Members of the Seimas have been vested with their powers, i.e. after the elected Seimas convenes to its first sitting.

Item 6 of Article 63 of the Constitution prescribes that the powers of a Member of the Seimas shall cease when the election is recognised invalid, or if the law on election is grossly violated. This constitutional provision implies the powers of the Seimas to discontinue the powers of a Member of the Seimas if gross violations of democratic, free and fair elections are established after the Member of the Seimas has been vested with his powers. Under Item 6 of Article 63 of the Constitution, the powers of the Member of the Seimas may be discontinued both when the election is recognised as invalid (for example, in a single-member constituency, when gross violations (raising reasonable doubts as for the lawfulness of election of a certain Member of the Seimas and it is impossible to establish the election results reflecting the genuine will of the voters) of the election law are established, and when the election is not recognised invalid (for example, when gross violations of the election law are established, which raise reasonable doubts as for the lawfulness of election of certain Members of the Seimas in the multi-member constituency or a multi-member constituency, however, it is possible to establish the election results reflecting the genuine will of the voters).

In this context it needs to be noted that Item 1 of Paragraph 3 of Article 105 of the Constitution establishes the powers of the Constitutional Court inter alia to present a conclusion whether there were violations of the election law during elections of Members of the Seimas; under Paragraph 5 of Article 106 of the Constitution, the Seimas and the President of the Republic may request a conclusion from the Constitutional Court in cases concerning elections to the Seimas; Paragraph 3 of Article 107 of the Constitution inter alia provides that, on the basis of the conclusion of the Constitutional Court, the Seimas takes a final decision on the issues set forth in Paragraph 3 of Article 105 of the Constitution. While taking account of this fact, one is to draw a conclusion that the Seimas may adopt a decision on discontinuing the powers of a Member of the Seimas with reference to Item 6 of Article 63 of the Constitution only on the grounds of the Constitutional Court’s conclusion that during the elections to the Seimas the election law was violated, whilst the Constitutional Court may present such a conclusion only subsequent to an inquiry by the Seimas or the President of the Republic.

IV

On the Decision (No. Sp-321) of the Central Electoral Commission “On the Final Results of the 14 October 2012 Elections to the Seimas of the Republic of Lithuania” of 4 November 2012 insofar as it established the final election results in the 2012 elections to the Seimas in the multi-member constituency.

  1. In the constitutional justice case at issue, subsequent to the inquiries of the petitioners, the Constitutional Court will investigate and assess whether the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission, insofar as it approved the final election results in the 14 October 2012 elections to the Seimas inter alia in the multi-member constituency, did not violate the Law on Elections to the Seimas inter alia in the aspect impugned by the petitioners that the Central Electoral Commission had improperly assessed the established violations of the Law on Elections to the Seimas—buying of preference votes in the multi-member constituency in favour of candidates of the Labour Party, also in the aspect whether the Central Electoral Commission, while establishing the final election results in the multi-member constituency by its decision (No. Sp-321) of 4 November 2012, did not violate Item 2 of Paragraph 1 of Article 91 (wording of 15 April 2008) of the Law on Elections to the Seimas in the aspects impugned by the petitioners.
  2. It needs to be noted that the arguments of the petitioners regarding the lawfulness of the decision (No. Sp-321) of the Central Electoral Commission of 4 November 2012 insofar as it approved the final election results of the 14 October 2012 elections to the Seimas inter alia in the multi-member constituency are related inter alia with the fact whether the Central Electoral Commission properly assessed the established violations of the Law on Elections to the Seimas—buying of preference votes in the multi-member constituency in favour of candidates of the Labour Party.
  3. It has been mentioned that the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission inter alia decided the following:

“1. To establish the results in the 28 October 2012 run-off voting in the Seimas elections in 67 single-member constituencies (Annex 1).

  1. To establish the final sequence of the lists of candidates for Members of the Seimas in the 14 October 2012 elections to the Seimas in the multi-member constituency (Annex 2).
  2. According to the results of the elections in the multi-member and single-member constituencies, to establish the persons who have been elected to the Seimas of the Republic of Lithuania (Annex 3). On 7 November 2012, at 11 o’clock, at the conference hall of the Seimas of the Republic of Lithuania, to hand in the cards of Members of the Seimas to the elected Members of the Seimas.”

Thus, by Item 2 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission the final sequence of the lists of candidates for Members of the Seimas in the multi-member constituency, inter alia the sequence of the candidates of the Labour Party for Members of the Seimas, was approved, whereas by Item 3 the persons elected to the Seimas inter alia in the multi-member constituency, thus also those elected according to the list of the candidates of the Labour Party, were established.

  1. It needs to be noted that, while adopting this decision, the Central Electoral Commission was to invoke inter alia Article 90 “Calculation of the Ranking of Candidates for Members of the Seimas and Establishment of the Final Sequence of the Lists” (wording of 15 April 2008) of the Law on Elections to the Seimas.
  2. Article 90 (wording of 15 April 2008) of the Law on Elections to the Seimas prescribes:

“1. The Central Electoral Commission shall calculate the ranking of candidates for Members of the Seimas and shall establish a final sequence of these lists in accordance with the will expressed by voters and preference votes cast.

  1. At first preference votes cast for each candidate in single-member constituencies shall be summed up and the sum total of all the preference votes for each candidate shall be calculated. In the event when the sum total of the candidate’s preference votes is bigger than the number of the Members of the Seimas who are being elected in the multi-member constituency or such a sum is equal to the said number, the points of ranking of the candidate shall be equal to that sum, and, if the sum total of the candidate’s preference votes is smaller, the points of ranking of the candidate shall be deemed to be equal to zero.
  2. The final sequence of candidates for Members of the Seimas on the lists shall be established according the points of the ranking received by each candidate. The first written down in the succession shall be the candidate who has received more points of the ranking. In the event that several candidates receive the equal amount of the ranking points, then the first written down shall be the candidate whose place on the election list is higher.
  3. The final sequence of the lists of candidates for Members of the Seimas shall be announced by the Central Electoral Commission on the same day as the results of voting in single-member constituencies.”

Thus, under Paragraphs 1 and 3 of Article 90 (wording of 15 April 2008) of the Law on Elections to the Seimas, the Central Electoral Commission must calculate the ranking of candidates for Members of the Seimas and establish the final sequence of the lists of candidates for Members of the Seimas according to the will expressed by the voters and the preference votes cast by the latter; the first written down in the succession is the candidate who has received more points of the ranking.

It needs to be noted that, under Paragraph 2 of the aforesaid article, the points of ranking of a candidate for a Member of the Seimas are calculated according to the preference votes cast.

It also needs to be noted that, under Paragraph 4 of the same article, the Central Electoral Commission announces the final sequence of the lists of candidates for Members of the Seimas on the same day as the results of voting in single-member constituencies.

  1. Thus, while deciding whether Item 2 of the decision (No. Sp-321) of the Central Electoral Commission of 4 November 2012 insofar as it establishes the final sequence of the list of the candidates of the Labour Party for Members of the Seimas in the multi-member constituency, and Item 3 of the same decision insofar as it establishes that certain persons inscribed on the list of the candidates of the Labour Party have been elected to the Seimas, did not violate Article 90 (wording of 15 April 2008) of the Law on Elections to the Seimas, it needs to be noted that the preference votes cast by voters determine both the place of a candidate for a Member of the Seimas in the final sequence of a certain list of candidates for Members of the Seimas and his possibility to be elected in the multi-member constituency.

6.1. It has been mentioned that, under Paragraph 1 of Article 90 (wording of 15 April 2008) of the Law on Elections to the Seimas, the Central Electoral Commission must calculate the ranking of candidates for Members of the Seimas and establish the final sequence of the lists of candidates for Members of the Seimas according to the will expressed by the voters.

6.2. While construing the provision of Paragraph 1 of the said article that the Central Electoral Commission must establish the final sequence of the lists of candidates for Members of the Seimas according to the will expressed by the voters, it needs to be noted that, while doing so, the Central Electoral Commission has a duty to ascertain that there are no reasonable doubts that the genuine will of the voters, inter alia when the latter cast preference votes for candidates inscribed on a certain list of candidates for Members of the Seimas, might have been distorted.

6.3. It has been mentioned that in a constitutional democracy special requirements are raised to the formation of representative political 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 representative political institutions.

It has also been mentioned that, under the Constitution, only such elections are allowed where there is free and fair competition for the mandate, where at the time of voting the voters can express their will freely and without being subjected to control; the requirements of transparency and publicity must be applied to the formation of a representative political institution. Under the Constitution, no reasoning may justify direct or indirect buying of votes of voters, also the practice of an election campaign where the voters, by means of presents or other rewards, are induced either to participate in or abstain from elections and/or vote either for or against one or another candidate—this is equivalent to bribery of voters, meaning that citizens of the Republic of Lithuania are deprived of their right to freely express their genuine will on their own in elections of the Seimas, while the Nation is deprived of its right to elect the representation of the Nation which would be able to express its genuine supreme sovereign power; mass and/or systemic bribing of voters, inter alia inducing by offering gifts or other rewards voters or persons eligible to vote to attend or not to attend elections and/or to vote for or against one or another candidate during the electoral process (inter alia during the election agitation campaign and the period of voting) is to be regarded as a gross violation of the principles of democratic, free and fair elections, inter alia that of the fair and transparent electoral process.

6.4. In the context of the constitutional justice case at issue it needs to be noted that by direct or indirect bribing of voters, inter alia inducing, by offering gifts or other rewards, them to cast preference votes for one or another candidate in the multi-member constituency, the genuine will of the voters, which is the essential precondition of the legitimacy and lawfulness of the election results, can be distorted; thus, in every situation where the Central Electoral Commission approves the final sequence of the lists of candidates for Members of the Seimas, it has a duty to ascertain that there are no reasonable doubts that the genuine will of the voters, inter alia when the preference votes were cast for one or another candidate inscribed on the list of candidates of a party, might have been distorted.

6.5. It has been mentioned that the constitutional purpose of the Central Electoral Commission to organise elections implies its powers to exercise control and resort to measures so that the observance of the principles of democratic, free and fair elections would be efficiently ensured, inter alia that the principles of honesty and transparency of the electoral process would be ensured.

6.6. From the material of the constitutional justice case at issue, it is clear that the Central Electoral Commission, while approving, by its decision, inter alia the final sequence of the list of candidates of the Labour party for Members of the Seimas, and while establishing, which concrete persons in the list of the candidates of the Labour Party were elected to the Seimas in the multi-member constituency, did not take account of the available information, which is pointed out in the 2 November 2012 investigation conclusion of the Central Electoral Commission, that mass buying of votes was organised in penal institutions with the purpose of inducing voters to cast preference votes for the concrete persons on the list of the candidates of the Labour Party for Members of the Seimas, i.e. for J. Pinskus, Ž. Pinskuvienė, J. Gaudutienė, V. Gricius and V. Ždanovič. In that investigation conclusion, the Central Electoral Commission also noted that up to 3,000 voters might have been bribed, who, during the 14 October 2012 elections to the Seimas, might have voted for the Labour Party and cast preference votes for the said persons. It also needs to be noted that the said conclusion also mentions the data held by the Office of the Prosecutor General about the conducted pre-trial investigation.

The Central Electoral Commission, having established that voters might have been bribed by inducing them to cast preference votes for J. Pinskus, Ž. Pinskuvienė, J. Gaudutienė, V. Gricius and V. Ždanovič, who had been inscribed on the list of candidates of the Labour Party, did not assess this fact, counted the points of ranking of the said candidates and established the finals sequence of the candidates of the list of the Labour Party, into which inter alia Ž. Pinskuvienė (No. 10), J. Gaudutienė (No. 17), J. Pinskus (No. 22), V. Gricius (No. 35), V. Ždanovič (No. 48) were included.

In the context of the constitutional justice case at issue it needs to be noted that in the said conclusion of the Central Electoral Commission it is pointed out that voters might have been bribed also as regards S. Ursul, while inducing to cast preference votes in favour of the latter. It also needs to be noted that S. Ursul has been elected a Member of the Seimas in Naujoji Vilnia single-member constituency No. 10. In the case at issue the petitioners do not impugn his election a Member of the Seimas in the single member constituency.

6.7. In this context it needs to be mentioned that, under the provisions of Article 90 (wording of 15 April 2008) of the Law on Elections to the Seimas, the Central Electoral Commission, while calculating the ranking of candidates for Members the Seimas and establishing the final sequence of the lists of candidates for Members of the Seimas, should have followed inter alia the provisions of Paragraph 1 (wording of 15 April 2008) of Article 51 of the of the Law on Elections to the Seimas.

Paragraph 1 (wording of 15 April 2008) of Article 51 of the Law on Elections to the Seimas prescribes: “During the political campaign of elections to the Seimas, i.e. from announcement of the date of elections to the Seimas until the end of the period of election agitation as set out by this Law, as well as on the election day it shall be prohibited to directly or indirectly buy votes, to induce by offering gifts or other rewards a voter or a person eligible to vote to attend or not to attend elections and/or to vote for or against one or another person to be nominated, a candidate or a list of candidates, as well as to promise to reward the voters for voting after the elections, by having a purpose to affect the will of voters regarding particular political parties or candidates, or persons to be nominated, and thus hinder citizens from implementing their right to vote.”

6.8. It has been mentioned that, under the Constitution, in case one does not negate the presumption that the established gross violations of the principles of democratic, free and fair elections, inter alia the honesty and transparency of the electoral process, are to be regarded, in themselves, as having an essential influence on the election results, i.e. if one does not negate the fact that by the said violations the genuine will of the voters, which is the essential precondition of the legitimacy and lawfulness of the election results, might have been distorted, thus, the candidates, during the elections of whom those violations were committed, may not receive the mandate of a Member of the Seimas; otherwise, the trust of the Nation in its representation and the state itself could be undermined.

6.9. It needs to be noted that, in its conclusion of 26 October 2012, while construing the provisions of Paragraph 1 of Article 51 of the of the Law on Elections to the Seimas, the Constitutional Court noted that, one is to presume that gross violations of Paragraph 1 of that article, in themselves, are to be regarded as having an essential influence on the election results; such a presumption may be negated by the Central Electoral Commission after it assesses other concrete circumstances of the electoral process, which are significant for establishment of the election results (for example, a too small number of votes received by a candidate liable for gross violations of Paragraph 1 (wording of 15 April 2008) of Article 51 of the Law on Elections to the Seimas).

6.10. It has been mentioned that the preference votes cast by voters determine both the place of a candidate for a Member of the Seimas in the final sequence of a list of candidates for Members of the Seimas and his possibility to be elected in the multi-member constituency.

It is clear from the material of the constitutional justice case at issue that there are not any such circumstances that would deny the presumption that the gross violations of Paragraph 1 (wording of 15 April 2008) of Article 51 of the Law on Elections to the Seimas are to be regarded, in themselves, as having an essential influence on the election results. Quite to the contrary, according to the points of ranking established by the Central Electoral Commission and the place of the aforesaid candidates in the final sequence of the list of candidates for Members of the Seimas, the established violations had an essential influence on the election results, i.e. on the fact that Ž. Pinskuvienė, J. Gaudutienė, and J. Pinskus have been elected Members of the Seimas in the multi-member constituency.

It has also been mentioned that the Central Electoral Commission has not assessed the influence of those violations on the results of the elections to the Seimas in the multi-member constituency.

  1. It needs to be held that, by its 4 November 2012 decision (No. Sp-321) approving the sequence of the list of the candidates of the Labour Party and establishing that the said persons are elected to the Seimas according to the list of the Labour Party , the Central Electoral Commission was not following the Constitution and the requirements arising from Paragraph 1 (wording of 15 April 2008) of Article 51 of the Law on Elections to the Seimas to assess inter alia concrete circumstances of the electoral process, which are significant to establishing the election results.

Taking account of the arguments set forth, one is to draw a conclusion that Item 2 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as it was decided, in the course of establishing the final sequence of the lists of candidates for Members of the Seimas in the multi-member constituency, to inscribe Ž. Pinskuvienė (No. 10), J. Gaudutienė (No. 17), J. Pinskus (No. 22), V. Gricius (No. 35), V. Ždanovič (No. 48) in the final sequence of candidates for Members of the Seimas in the list of the Labour Party in the multi-member constituency, violated Paragraph 1 (wording of 15 April 2008) of Article 51 and Article 90 (wording of 15 April 2008) of the Law on Elections to the Seimas.

One is also to draw a conclusion that Item 3 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission, insofar as it established that J. Gaudutienė, J. Pinskus, Ž. Pinskuvienė had been elected to the Seimas in the multi-member constituency according to the list of the Labour Party, violated Paragraph 1 (wording of 15 April 2008) of Article 51 and Article 90 (wording of 15 April 2008) of the Law on Elections to the Seimas.

  1. It has been mentioned that, in the constitutional justice case at issue, subsequent to the inquiries of the petitioners, the Constitutional Court will also investigate whether the Central Electoral Commission, while establishing, by its 4 November 2012 decision (No. Sp-321), the final results in the multi-member constituency, did not violate Item 2 of Paragraph 1 of Article 91 (wording of 15 April 2008) of the Law on Elections to the Seimas in the aspect impugned by the petitioners.

8.1. Paragraph 1 (wording of 15 April 2008) of Article 91 of the Law on Elections to the Seimas inter alia prescribes:

“The Central Electoral Commission may recognise the election results in the constituency as invalid, if it has established that gross violations of Paragraph 1 of Article 51 of this Law or other laws which were committed in the polling district or constituency, 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 protocols or other election documents: <...>

2) in the multi-member constituency—the 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.”

8.2. From the material of the constitutional justice case and the explanations of the representatives of the Central Electoral Commission at the public hearing of the Constitutional Court, it is clear that in the election of Members of the Seimas on 14 October 2012, the scale of violations in the multi-member constituency was not sufficiently high so that it could have had an essential influence on the establishment of the number of mandates for the lists of candidates.

It has been mentioned that, in its investigation conclusion of 2 November 2012, the Central Electoral Commission, having summarised the results of the investigation into violations of the Law on Elections to the Seimas in the multi-member constituency, held that in the 14 October 2012 voting in the Seimas elections the will of up to 3,594 voters might have been influenced in the multi-member constituency. The Central Electoral Commission also held that violations of Article 51 of the Law on Elections to the Seimas had been committed also in the multi-member constituency, also that those violations had been gross ones, however, when account is taken of the gathered information, it is impossible to draw a conclusion that those violations had an essential influence on the establishment of the election results.

It needs to be noted that in the case at issue the petitioners have not submitted any reliable data substantiating the fact that the scale of violations of the Law on Elections to the Seimas during the election of Members of the Seimas in the multi-member constituency on 14 October 2012 was higher than that stated by the Central Electoral Commission.

8.3. It has also been held in this conclusion, that recognition of the results of election according to the proportional electoral system as invalid should be an ultima ratio.

8.4. It has been mentioned that in its conclusion of 26 October 2012, while construing the provisions of Paragraph 1 (wording of 15 April 2008) of Article 51 of the of the Law on Elections to the Seimas, the Constitutional Court noted that one is to presume that gross violations of the said paragraph, in themselves, are to be regarded as having an essential influence on the election results; such a presumption may be negated by the Central Electoral Commission after it assesses other concrete circumstances of the electoral process, which are significant for establishment of the election results (for example, a too small number of votes received by a candidate liable for gross violations of Paragraph 1 of Article 51 of the Law on Elections to the Seimas).

From the material of the constitutional justice case at issue and the facts established by the Central Electoral Commission it is clear that there exist circumstances denying the presumption that the gross violations of Paragraph 1 (wording of 15 April 2008) of Article 51 of the Law on Elections to the Seimas during the elections to the Seimas in the multi-member constituency are to be regarded as having an essential influence on the election results in that constituency, i.e. even after one has established that the will of up to 3,594 voters might have been influenced, the number of the mandates for the lists participating in the distribution of mandates does not change.

It also needs to be noted that it is clear from the constitutional justice case at issue that the Central Electoral Commission, while establishing the results of the 14 October 2012 elections to the Seimas in the multi-member constituency calculated the 16,238 voters’ quota (the number of votes to receive one mandate). Upon distributing the mandates according to the quota, the list of the Labour Party, which is the last that got a mandate by the remainder, received the division remainder of 11,712 votes of voters, which is bigger by 3,672 votes of voters than the division remainder of 8,040 votes of voters received by the list of the Lithuanian Social Democratic Party, which was next in the queue of distribution of mandates according to remainders.

Consequently, the scale of violations of the Law on Elections to the Seimas, which was stated by the Central Electoral Commission (even if it was established that the will of up to 3,594 voters might have been influenced), is the one that reaches neither the aforesaid established quota of voters’ votes, nor the division remainder of votes of voters received by the list of the Labour Party. Nor does it reach the aforementioned difference of the division remainders of votes of voters, which might have determined the fact that the list of the Lithuanian Social Democratic Party, but not that of the Labour Party, might have received an additional mandate.

8.5. Taking account of the arguments set forth, one is to draw a conclusion that Items 2 and 3 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission, in the aspect impugned by the petitioners, did not violate Item 2 of Paragraph 1 of Article 91 (wording of 15 April 2008) of the Law on Elections to the Seimas.

V

On the Decision (No. Sp-321) of the Central Electoral Commission “On the Final Results of the 14 October 2012 Elections to the Seimas of the Republic of Lithuania” of 4 November 2012 insofar as it established the final election results in the 2012 elections to the Seimas in the following single-member constituencies: Pajūris (No. 22), Šilutė–Pagėgiai (No. 32), Širvintos–Vilnius (No. 55), Vilnius–Trakai (No. 57), Kaišiadorys–Elektrėnai (No. 59), Jurbarkas (No. 62).

  1. In the constitutional justice case at issue, subsequent to the inquiries of the petitioners, the Constitutional Court will investigate and assess whether the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission, insofar as it established the final election results inter alia in the 14 October 2012 elections to the Seimas in the single-member constituencies—Pajūris (No. 22), Šilutė–Pagėgiai (No. 32), Širvintos–Vilnius (No. 55), Vilnius–Trakai (No. 57), Kaišiadorys–Elektrėnai (No. 59), Jurbarkas (No. 62)—did not violate the norms of the Law on Elections to the Seimas.
  2. As mentioned before, the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission inter alia decided the following:

“1. To establish the results in the 28 October 2012 run-off voting in the Seimas elections in 67 single-member constituencies (Annex 1).

  1. To establish the final sequence of the lists of candidates for Members of the Seimas in the 14 October 2012 elections to the Seimas in the multi-member constituency (Annex 2).
  2. According to the results of the elections in the multi-member and single-member constituencies, to establish the persons who have been elected to the Seimas of the Republic of Lithuania (Annex 3). On 7 November 2012, at 11 o’clock, at the conference hall of the Seimas of the Republic of Lithuania, to hand in the cards of Members of the Seimas to the elected Members of the Seimas.”

Thus, Item 1 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission approved the final results of the 14 October 2012 elections to the Seimas inter alia in the following single-member constituencies: Pajūris (No. 22), Šilutė–Pagėgiai (No. 32), Širvintos–Vilnius (No. 57), Vilnius–Trakai (No. 59), Kaišiadorys–Elektrėnai (No. 62), Jurbarkas (No. 3). By Item 3 of the said decision one established the persons elected to the Seimas inter alia in those single-member constituencies.

  1. It has been mentioned that the President of the Republic, by her decree (No. 1K-1262) of 7 November 2012, applied to the Constitutional Court with an inquiry requesting for a conclusion whether during the 2012 elections to the Seimas the Law on Elections to the Seimas was not violated after she had received inter alia the 5 November 2012 complaint of the Labour Party, wherein it is doubted as to the lawfulness of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as it approved the results of the 14 October 2012 elections to the Seimas in Pajūris single-member constituency No. 22.

3.1. It needs to be noted that the arguments presented in the 5 November 2012 complaint of the Labour Party are essentially related to the fact whether the Central Electoral Commission properly assessed the violations of Item 3 of Paragraph 1 (wording of 29 March 2012) of Article 78 “Keeping of the Records of Voters who Have Voted by Envelopes and the Counting of their Votes and Preference Votes for the Candidate” of the Law on Elections to the Seimas, which were committed wile counting the postal voting votes cast by envelopes in the Ateitis, Aikštė, Saulė and Smiltelė polling districts of Pajūris single-member constituency No. 22.

3.2. It has been mentioned that by the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission one approved the candidates elected in single-member constituencies and inter alia established that Pranas Žeimys was elected a Member of the Seimas in Pajūris single-member constituency No. 22.

3.3. It has also been mentioned that the Central Electoral Commission received complaints: on 31 m. October 2012—from E. Jokubauskaitė, the representative of the Labour Party at the Central Electoral Commission, and G. Krasauskienė, a candidate from the Labour Party for a Member of the Seimas, on 1 November 2012—from A. Petraitienė, A. Bielskis, I. Krasauskaitė, E. Bubliauskienė and E. J. Kaminskas, election observers from the Labour Party. In the said complaints they requested that the election results in Pajūris single-member constituency No. 22 be recognised as invalid.

On 4 November 2012, the Central Electoral Commission adopted decision No. Sp-323 wherein it established that the Electoral Commission of Pajūris Single-member Constituency No. 22 had recounted all ballot papers of all the polling districts of the said constituency, had considered the complaints received, and held that it did not have any ground to assess anew the voting results in individual polling districts. The Central Electoral Commission also held that upon recounting the voting results in the Alksnynė and Ateitis polling districts the vote-counting protocol of the Electoral Commission of Pajūris Single-member Constituency No. 22 had been corrected; the doubts regarding the Electoral Commission of Pajūris Single-member Constituency No. 22 had thus been removed. Taking account of that, the Central Electoral Commission decided: “Not to grant the received complaints regarding Pajūris single-member constituency No. 22.”

In this context it needs to be noted that the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as it approves the final results in the 14 October 2012 elections to the Seimas, inter alia in Pajūris single-member constituency No. 22, and its decision (No. Sp-323) of 4 November 2012 are interrelated.

3.4. It has been mentioned that in the constitutional justice case at issue it is doubted whether the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission, insofar as it approved the final results in the 14 October 2012 elections to the Seimas in Pajūris single-member constituency No. 22, did not violate Item 3 of Paragraph 1 (wording of 29 March 2012) of Article 78 of the Law on Elections to the Seimas. Thus, in the constitutional justice case at issue the provisions of Item 3 of Paragraph 1 (wording of 29 March 2012) of Article 78 of the Law on Elections to the Seimas, regarding the assessment of postal voting votes cast by envelopes, are of significance.

3.4.1. Item 3 of Paragraph 1 (wording of 29 March 2012) of Article 78 “Keeping of the Records of Voters who Have Voted by Envelopes and the Counting of their Votes and Preference Votes for the Candidates” of the Law on Elections to the Seimas:

“1. After the counting of ballot papers found in the ballot box, ballot papers received by post shall be calculated in the following procedure: <...>

3) a poll card is taken out of the return envelope, the voter’s surname and the number of the poll card is read aloud, these data are checked against the electoral roll of the polling district, and in the polling districts which are connected to the electronic electoral roll via electronic means of communication—also against the data of such a roll. The ballot paper envelope shall be stamped with the seal of the polling district. If the person entered on the poll card enclosed in the return envelope is not on the electoral roll of this polling district; or if the voter has already signed the electoral roll indicating that he has already voted in the polling district; or if the electoral roll indicates that a consent is given for this person to vote in another polling district, or if another postal voting envelope has been received from the same voter; or if there is no or more than one poll card in the return envelope, or if there is more than one ballot paper envelope in the return envelope—such a voting envelope shall be recognised as inappropriate. The seal shall not be affixed on the ballot paper envelope (envelopes) enclosed in the return envelope which is recognised as inappropriate, the ballot paper envelope shall be crossed through, the word “Invalid” shall be written down on it and the reason for recognising the envelope as inappropriate shall be indicated. The ballot paper (ballot papers) enclosed in such a ballot paper envelope shall be invalid and the envelope shall not be opened. The content of the envelopes recognised as inappropriate shall not be taken into account in the vote-counting protocol of the polling district, however, the number of these envelopes shall be entered; <...>.”

According to the legal regulation set forth in Item 3 of Paragraph 1 of Article 78 of the Law on Elections to the Seimas, if there is no poll card in the return envelope, such a voting envelope shall be recognised as inappropriate; the seal shall not be affixed on the ballot paper envelope (envelopes) enclosed in the return envelope which is recognised as inappropriate—the ballot paper envelope shall be crossed through, the word “Invalid” shall be written down on it and the reason for recognising the envelope as inappropriate shall be indicated; the ballot paper (ballot papers) enclosed in such a ballot paper envelope shall be invalid and the envelope may not be opened.

Thus, Item 3 of Paragraph 1 of Article 78 of the Law on Elections to the Seimas has established the rules for recognition of postal voting envelopes and ballot papers contained by such envelopes as inappropriate.

3.4.2. It needs to be noted that that, in itself, a violation of the rules (established in Item 3 of Paragraph 1 (wording of 29 March 2012) of Article 78 of the Law on Elections to the Seimas) for recognition of postal voting envelopes and ballot papers contained by such envelopes as inappropriate (when, in case no voter poll card is found in the return envelope, the ballot paper envelope is opened and the ballot paper found together with the voter’s poll card is recognised as valid) is not to be regarded as a gross violation of the Law on Elections to the Seimas.

3.5. In this Constitutional Court’s conclusion it has been noted that in a constitutional democracy special requirements are raised to the formation of representative political 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 representative political institutions. Elections may not be regarded as democratic, nor their results as legitimate and legal, if elections are held by trampling on the principles of democratic elections established in the Constitution and by violating democratic electoral procedures.

While taking account of this fact it needs to be held that a violation of the rules (established in Item 3 of Paragraph 1 (wording of 29 March 2012) of Article 78 of the Law on Elections to the Seimas) for recognition of postal voting envelopes and ballot papers contained by such envelopes as inappropriate (when, in case no voter poll card is found in the return envelope, the ballot paper envelope is opened and the ballot paper found together with the voter’s poll card is recognised as valid) is to be treated as a gross violation of the Law on Elections to the Seimas, in case it was established that, due to such violations, doubts could arise regarding the legitimacy and lawfulness of the Seimas (as well as regarding the election of Members of the Seimas) inter alia due to the fact whether during the elections of Members of the Seimas the principles of a democratic state under the rule of law were not violated. Thus, one should establish a fact that due to violations of the rules for recognition of postal voting envelopes and ballot papers contained by such envelopes as inappropriate (when, in case no voter poll card is found in the return envelope, the ballot paper envelope is opened and the ballot paper found together with the voter’s poll card is recognised as valid) there could arise reasonable doubts whether the Seimas (Members of the Seimas) was (were) elected lawfully.

3.6. It has been mentioned that the 5 November 2012 complaint of the Labour Party is grounded on the fact that in the course of counting the postal voting votes cast by envelopes in the Ateitis, Aikštė, Saulė and Smiltelė polling districts of Pajūris single-member constituency No. 22 one did not comply with the provisions of Item 3 of Paragraph 1 (wording of 29 March 2012) of Article 78 of the Law on Elections to the Seimas—in the said polling districts, upon opening the postal voting return envelopes and in case they contained no voter’s poll card, ballot paper envelopes used to be opened, in which the ballot papers and voters’ poll cards used to be found and used to be recognised as valid by the electoral commissions of the said polling districts.

3.6.1. It has also been mentioned that the circumstances specified in this complaint are substantiated by submitted audio and video recordings, in which J. V. Vainoraitė, Chairwoman of the Electoral Commission of the Ateitis Polling District, recognised that, in case the envelopes used not to contain a voter’s poll card, one used to cut the ballot paper envelopes to ascertain whether this card had not been put into the latter. In case of discovering a voter’s poll card in the ballot paper envelopes, those ballot papers used be regarded as valid ones; the number of such cases had been small.

3.6.2. It has been mentioned that the Constitutional Court also received statements and confirmations of members of electoral commissions of polling districts and observers in those polling districts regarding inappropriateness of counting votes of the voters who voted by postal votes. It needs to be noted that those statements and confirmations are dated 3 November 2012, when the said persons were aware of the preliminary results of the voting. In addition, I. Adinavičienė and A. Vencius, members of electoral commissions of polling districts, had signed the vote-counting protocols of the Aikštė and Smiltelė polling districts respectively and had not submitted any separate opinions (under Paragraph 6 of Article 79 of the Law on Elections to the Seimas) regarding the said violations; the election observers V. Diatlova and E. J. Kaminskas had respectively signed the vote-counting protocols of the Smiltelė and Ateitis polling districts regarding which they submitted their explanations and had not made any remarks (under Paragraph 6 of Article 79 of the Law on Elections to the Seimas) regarding the aforesaid violations; the election observers A. Petraitienė and E. Bubliauskienė had not signed, respectively, the vote-counting protocols of the Aikštė and Smiltelė polling districts regarding which they submitted their explanations (with reference to Paragraph 6 of Article 79 of the Law on Elections to the Seimas, it is possible to draw a conclusion that those observers were not participating when the vote-counting protocol was signed), nor had they made any remarks (under Paragraph 6 of Article 79 of the Law on Elections to the Seimas) regarding the aforesaid violations; no notes had been entered into the protocols regarding separate opinions or remarks attached to them.

As mentioned before, from the vote-counting protocols of the Ateitis, Aikštė, Saulė and Smiltelė polling districts of Pajūris single-member constituency No. 22 submitted to the Constitutional Court during the 8 November 2012 hearing by the representatives of the Central Electoral Commission, it is clear that those protocols do not contain any attached remarks of election observers and separate opinions of members of electoral commissions of polling districts (under Paragraph 6 of Article 79 of the Law on Elections to the Seimas) regarding counting of votes of the voters who had voted by postal envelopes.

3.6.3. It has been mentioned that after the Electoral Commission of Pajūris Single-member Constituency No. 22 had recounted the ballot papers of the Ateitis, Aikštė, Saulė and Smiltelė polling districts, no significant change in the voting results was established (the electoral commissions had established the difference of 45 votes in favour of P. Žeimys, whereas the electoral commission of the constituency established the difference of 48 votes); as mentioned before, no observers’ remarks had been presented regarding the work of the electoral commissions of the polling districts in counting the votes of the voters who had voted by postal envelopes.

After the Central Electoral Commissions had recounted the results of the Alksnynė and Aikštė polling districts, the difference of 39 in favour of P. Žeimys was established. Thus, it needs to be held that the final election results established by the Central Electoral Commission do not differ much from those established by the Electoral Commission of Pajūris Single-member Constituency No. 22.

3.6.4. From the material submitted in the complaint it is impossible to establish how many ballot papers were recognised as valid by allegedly violating the provisions of Item 3 of Paragraph 1 of Article 78 of the Law on Elections to the Seimas.

As mentioned before, J. V. Vainoraitė, Chairwoman of the Electoral Commission of the Ateitis Polling District, asserted that the number of such cases had been small. V. Krutulis, Chairman of the Electoral Commission of Pajūris Single-member Constituency No. 22, who was questioned at the Constitutional Court hearing as a witness, asserted that he had received remarks only from the Ateitis polling district regarding counting the votes of the voters who had voted by postal envelopes; he was not aware of any cases, where voters’ poll cards had been found in ballot paper envelopes.

3.6.5. While taking account of this fact it needs to be noted that, even though one had committed violations of the rules (established in Item 3 of Paragraph 1 (wording of 29 March 2012) of Article 78 of the Law on Elections to the Seimas) for recognition of postal voting envelopes and ballot papers contained by such envelopes as inappropriate, those violations had not been gross ones. Thus, there are no grounds to hold that due to the committed violations of Item 3 of Paragraph 1 (wording of 29 March 2012) of Article 78 of the Law on Elections to the Seimas any reasonable doubts would arise that the Seimas (Members of the Seimas) has (have) been elected lawfully and that those violations had an essential influence on the election results.

3.7. Taking account of the arguments set forth and having assessed the material in the constitutional justice case at issue, one is to make a conclusion that Items 1, 3 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as it approved the final results in the 28 October 2012 run-off voting in the elections to the Seimas in Pajūris single-member constituency No. 22 and, according to the election results, established the person who had been elected to the Seimas, did not violate the Law on Elections to the Seimas.

  1. It has been mentioned that the Seimas, by its resolution (No. XI-2378) of 6 November 2012, and the President of the Republic, by her decree (No. 1K-1262) of 7 November 2012, applied to the Constitutional Court with inquiries requesting for a conclusion whether during the 2012 elections to the Seimas the Law on Elections to the Seimas was not violated after they had received the 5 November 2012 complaint of the Nationalist Union wherein it is doubted as to the lawfulness of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as it established the final election results inter alia in Šilutė–Pagėgiai single-member constituency No. 32.

From the arguments submitted in the 5 November 2012 complaint of the Nationalist Union it is clear that it is doubted whether the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission did not violate the Law on Elections to the Seimas insofar as it is related with the results in the 14 October 2012 elections to the Seimas in Šilutė–Pagėgiai single-member constituency No. 32.

4.1. As mentioned before, Item 1 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission is inseparably related to the 4 November 2012 decision (No. Sp-324) of the Central Electoral Commission which approves the final results of the voting in Šilutė–Pagėgiai single-member constituency No. 32. Taking account of this fact, the Constitutional Court will investigate and assess those two decisions of the Central Electoral Commission in conjunction with one another.

4.2. It has been mentioned that, after the 14 October 2012 elections to the Seimas, upon counting the votes of the voters in Šilutė–Pagėgiai single-member constituency No. 32, it was established that the following candidates for Members of the Seimas received the most votes of the voters: K. Komskis—5,160, i.e. he received 29.32 percent of the valid votes, A. Skardžius—2,750, i.e. he received 15.62 percent of the valid votes, and S. Stankevičius—2,222, i.e. he received 12.62 percent of the valid votes (Annex 1 of the 21 October 2012 decision (No. Sp-308) of the Central Electoral Commission).

It has also been mentioned that, on 28 October 2012, in Šilutė–Pagėgiai single-member constituency No. 32 the run-off voting was carried out. According to the results of the run-off voting, A. Skardžius received 6,339 votes of the voters, i.e. he received 50.68 percent of the valid votes, K. Komskis—6,169 votes of the voters, i.e. he received 49.32 percent of the valid votes (Annex 1 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission).

4.3. While deciding whether the 4 November 2012 decision (No. Sp-321) and the 4 November 2012 decision (No. Sp-324) of the Central Electoral Commission, insofar as they established the final results of the elections to the Seimas in Šilutė–Pagėgiai single-member constituency No. 32, did not violate the Law on Elections to the Seimas, it needs to be held that, the following is clear from the material of the constitutional justice case at issue:

– in the Investigation Conclusion of the Central Electoral Commission “On the Violations of Laws on Elections to the Seimas in the 2012 Elections to the Seimas in the Multi-member Constituency” of 2 November 2012 it was held that it is possible to draw a conclusion from the specified information (press reports, police reports) that in the said constituency voters used to be bribed; there might have been more than a hundred cases of buying of votes;

– according to the data of the Police Department, 6 pre-trial investigations regarding bribing of voters have been launched;

 – in its 4 November 2012 decision (No. Sp-324) the Central Electoral Commission noted that, under Paragraph 3 of Article 51 of the Law on Elections to the Seimas, buying of votes is to be regarded as a gross violation.

4.4. Thus, the Central Electoral Commission, while following Paragraph 3 of Article 51 of the Law on Elections to the Seimas, assessed the aforementioned cases of bribing of voters as gross violations of Paragraph 1 of Article 51 of the Law on Elections to the Seimas.

4.5. In its conclusion of 26 October 2012, the Constitutional Court noted that, under Paragraph 1 of Article 91 (wording of 15 April 2008) of the Law on Elections to the Seimas, inter alia:

– the Central Electoral Commission enjoys the powers to recognise the results of elections to the Seimas in a constituency as invalid inter alia when gross violations of Paragraph 1 of Article 51 of the said law or other laws in the polling district or constituency are established;

– the powers of the Central Electoral Commission to recognise the election results in a constituency as invalid after gross violations of Paragraph 1 of Article 51 of the same law are to be construed as the powers of this commission to recognise the results of elections as invalid inter alia upon establishment of mass and/or systemic bribery of voters; one is to presume that such violations, in themselves, are to be regarded as having an essential influence on the election results; such a presumption may be negated by the Central Electoral Commission after it assesses other concrete circumstances of the electoral process, which are significant for establishment of the election results;

– the Central Electoral Commission must recognise the election results in a constituency as invalid in all situations when it establishes that gross violations of Paragraph 1 of Article 51 of the Law on Elections to the Seimas were committed, in case it does not establish any circumstances negating the presumption that those violations, in themselves, are to be regarded as having an essential influence on the election results, and in case there are not any other measures to ensure that the genuine will of the voters, which is the essential precondition of the legitimacy and lawfulness of the election results, will not be distorted.

4.6. While deciding whether the Central Electoral Commission, upon establishing that gross violations of Paragraph 1 of Article 51 of the Law on Elections to the Seimas had been committed, reasonably established, by means of its 4 November 2012 decision (No. Sp-321) and the 4 November 2012 decision (No. Sp-324), the final voting results in Šilutė–Pagėgiai single-member constituency No. 32, one must assess whether there are any circumstances negating the presumption that such gross violations had an essential influence on the election results.

It is clear from the material of the constitutional justice case at issue that, according to the scale of the intentions to buy votes of voters (there might have been more than a hundred cases of buying of votes), when one takes account of the fact that there was a very big difference (2,410 votes) between the votes cast for the candidates for Members of the Seimas K. Komskis and A. Skardžius after the 14 October 2012 elections to the Seimas, whereas, on 28 October 2012, upon the run-off voting it was A. Skardžius (as mentioned before, there are not any available data that votes might have been bought in his favour) who won in Šilutė–Pagėgiai single-member constituency No. 32, such a violation could not have had any essential influence on the election results in the same constituency.

4.7. Taking account of the arguments set forth and having assessed the material in the constitutional justice case at issue, one is to make a conclusion that neither Items 1, 3 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as they established the final results in the 28 October 2012 run-off voting in the elections to the Seimas in Šilutė–Pagėgiai single-member constituency No. 32 and, according to the election results, established the person who had been elected to the Seimas, nor the 4 November 2012 decision (No. Sp-324) of Central Electoral Commission violated the Law on Elections to the Seimas.

  1. It has been mentioned that the Seimas, by its resolution (No. XI-2378) of 6 November 2012, and the President of the Republic, by her decree (No. 1K-1262) of 7 November 2012, applied to the Constitutional Court with inquiries requesting for a conclusion whether during the 2012 elections to the Seimas the Law on Elections to the Seimas was not violated after they had received the 5 November 2012 complaint of the Nationalist Union wherein it is doubted as to the lawfulness of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as it established the final results of elections to the Seimas inter alia in Širvintos–Vilnius single-member constituency No. 55.

It has been mentioned that, from the arguments submitted in the 5 November 2012 complaint of the Nationalist Union, it is clear that it is doubted whether the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission did not violate the Law on Elections to the Seimas insofar as it is related with the tai results in the 14 October 2012 elections to the Seimas in Širvintos–Vilnius single-member constituency No. 55.

5.1. It has been mentioned that, after the 14 October 2012 elections to the Seimas, upon counting the votes of the voters in Širvintos–Vilnius single-member constituency No. 55, it was established that the following candidates for Members of the Seimas received the most votes of the voters: R. Tamašunienė—7,780, i.e. she received 31.5 percent of the valid votes, Ž. Pinskuvienė—5,308, i.e. she received 21.49 percent of the valid votes, and V. Podolskaitė—2,950, i.e. she received 11.94 percent of the valid votes (Annex 1 of the 21 October 2012 decision (No. Sp-308) of the Central Electoral Commission).

5.2. It has been mentioned that the 31 October 2012 letter of the Police Department points out that four pre-trial investigations have been launched regarding the violations committed in the said single-member constituency (two pre-trial investigations were launched due to the fact that citizens might have been transported to vote, in the other investigations there are suspicions that separate violations might have been committed).

It needs to be noted that those data in the material of the constitutional justice case at issue do not allow to draw a conclusion that mass bribing of voters or other persons eligible to vote might have been carried out.

5.3. It is clear from the material of the constitutional justice case at issue that, according to the scale of the influence on the voters, when one takes account of the fact that the difference between the votes cast for the candidates for Members of the Seimas R. Tamašunienė, Ž. Pinskuvienė and V. Podolskaitė is very big (2,472 votes between R. Tamašunienė and Ž. Pinskuvienė, whilst 2,358 votes between Ž. Pinskuvienė and V. Podolskaitė), such a violation of the Law on Elections to the Seimas in Širvintos–Vilnius single-member constituency No. 55 could not have had an essential influence on the results of the elections to the Seimas in this constituency.

5.4. Taking account of the arguments set forth and having assessed the material in the constitutional justice case at issue, one is to make a conclusion that Items 1, 3 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as it established the final results in the 28 October 2012 run-off voting in the elections to the Seimas in Širvintos–Vilnius single-member constituency No. 55 and, according to the election results, established the person who had been elected to the Seimas, did not violate the Law on Elections to the Seimas.

  1. It has been mentioned that the Seimas, by its resolution (No. XI-2378) of 6 November 2012, and the President of the Republic, by her decree (No. 1K-1262) of 7 November 2012, applied to the Constitutional Court with inquiries requesting for a conclusion whether during the 2012 elections to the Seimas the Law on Elections to the Seimas was not violated after they had received the 5 November 2012 complaint of the Nationalist Union wherein it is doubted as to the lawfulness of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as it established the final results of elections to the Seimas inter alia in Vilnius–Trakai single-member constituency No. 57.

It has been mentioned that, from the arguments submitted in the 5 November 2012 complaint of the Nationalist Union it is clear that it is doubted whether the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission did not violate the Law on Elections to the Seimas insofar as it is related with the tai results in the 14 October 2012 elections to the Seimas in Vilnius–Trakai single-member constituency No. 57.

6.1. It has been mentioned that, after the 14 October 2012 elections to the Seimas, upon counting the votes of the voters in Vilnius–Trakai single-member constituency No. 57, it was established that the following candidates for Members of the Seimas received the most votes of the voters: J. Narkevič—7,859, i.e. he received 36.9 percent of the valid votes, M. Binkauskaitė—3,985, i.e. she received 18.71 percent of the valid votes, and L. Kasčiūnas—2,060, i.e. he received 9.67 percent of the valid votes (Annex 1 of the 21 October 2012 decision (No. Sp-308) of the Central Electoral Commission).

6.2. While deciding whether the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission, insofar as it established the final results of the elections to the Seimas in Vilnius–Trakai single-member constituency No. 57, did not violate the Law on Elections to the Seimas, it needs to be held that, the following is clear from the material of the constitutional justice case at issue:

– in the Conclusion “On Recognising the Results of the Elections to the Seimas in Vilnius–Trakai Single-member Constituency (No. 57) as Invalid” submitted by the Special Working Group of the Central Electoral Commission it was noted that in 16 from 22 polling districts gross violations of the law had been recorded, also that the police had informed about 24 violations committed in Vilnius–Trakai single-member constituency No. 57;

– in its 21 October 2012 sitting, the Central Electoral Commission considered the election results in Vilnius–Trakai single-member constituency No. 57 and, while referring to the testimony of the election observers, held that some gross violations had been committed;

– in the Investigation Conclusion of the Central Electoral Commission “On Violations of the Law on Elections to the Seimas in the Multi-member Constituency During the 2012 Elections to the Seimas” of 2 November 2012, wherein one also investigated the violations recorded by election observers in Vilnius–Trakai single-member constituency No. 57, it was held that the material held by the police as well as testimonies confirmed the incidents of transportation of voters to vote in this single-member constituency; from the available information it is impossible to establish the precise number of illegally transported voters, however, from the testimony of the election observers and the police reports one can guess that up to 100 voters might have been transported illegally.

6.3. Thus, the Central Electoral Commission assessed the aforementioned cases as gross violations of Paragraph 1 (wording of 15 April 2008) of Article 51 of the Law on Elections to the Seimas.

6.4. As mentioned before, in its conclusion of 26 October 2012, the Constitutional Court noted that, under Paragraph 1 (wording of 15 April 2008) of Article 91 of the Law on Elections to the Seimas, the Central Electoral Commission must recognise the election results in a constituency as invalid in all situations when it establishes that inter alia gross violations of Paragraph 1 (wording of 15 April 2008) of Article 51 of the Law on Elections to the Seimas were committed, in case it does not establish any circumstances negating the presumption that those violations, in themselves, are to be regarded as having an essential influence on the election results, and in case there are not any other measures to ensure that the genuine will of the voters, which is the essential precondition of the legitimacy and lawfulness of the election results, will not be distorted.

6.5. While deciding whether the Central Electoral Commission, upon establishing that gross violations of Paragraph 1 (wording of 15 April 2008) of Article 51 of the Law on Elections to the Seimas had been committed, reasonably established, by means of its 4 November 2012 decision (No. Sp-321), the final voting results in Vilnius–Trakai single-member constituency No. 57, one must assess whether there are any circumstances negating the presumption that such gross violations had an essential influence on the results of the elections to the Seimas.

It is clear from the material of the constitutional justice case at issue that, according to the scale of the influence on the voters, when one takes account of the fact that the difference between the votes cast for the candidates for Members of the Seimas J. Narkevič, M. Binkauskaitė and L. Kasčiūnas is very big (3,874 votes between J. Narkevič and M. Binkauskaitė, whilst 1,925 votes between M. Binkauskaitė and L. Kasčiūnas), such a violation of the Law on Elections to the Seimas in Vilnius–Trakai single-member constituency No. 57 could not have had an essential influence on the results of the elections to the Seimas in this constituency.

6.6. Taking account of the arguments set forth and having assessed the material in the constitutional justice case at issue, one is to make a conclusion that Items 1, 3 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as it established the final results in the 28 October 2012 run-off voting in the elections to the Seimas in Vilnius–Trakai single-member constituency No. 57 and, according to the election results, established the person who had been elected to the Seimas, did not violate the Law on Elections to the Seimas.

  1. It has been mentioned that the Seimas, by its resolution (No. XI-2378) of 6 November 2012, and the President of the Republic, by her decree (No. 1K-1262) of 7 November 2012, applied to the Constitutional Court with inquiries requesting for a conclusion whether during the 2012 elections to the Seimas the Law on Elections to the Seimas was not violated after they had received the 5 November 2012 complaint of the Nationalist Union wherein it is doubted as to the lawfulness of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as it established the final results of the elections to the Seimas inter alia in Kaišiadorys–Elektrėnai single-member constituency No. 59.

It has been mentioned that, from the arguments submitted in the 5 November 2012 complaint of the Nationalist Union it is clear that it is doubted whether the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission did not violate the Law on Elections to the Seimas insofar as it is related with the tai results in the 14 October 2012 elections to the Seimas in Kaišiadorys–Elektrėnai single-member constituency No. 59.

7.1. It has been mentioned that, after the 14 October 2012 elections to the Seimas, upon counting the votes of the voters in Kaišiadorys–Elektrėnai single-member constituency No. 59, it was established that the following candidates for Members of the Seimas received the most votes of the voters: B. Bradauskas—6,225, i.e. he received 32.63 percent of the valid votes, S. Tomas—3,266, i.e. he received 17.12 percent of the valid votes, and R. Kartenis—1,957, i.e. he received 10.26 percent of the valid votes (Annex 1 of the 21 October 2012 decision (No. Sp-308) of the Central Electoral Commission).

7.2. While deciding whether the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission, insofar as it established the final results of the elections to the Seimas in Kaišiadorys–Elektrėnai single-member constituency No. 59, did not violate the Law on Elections to the Seimas, it needs to be held that, the following is clear from the material of the constitutional justice case at issue:

– in the complaint of the candidate for a Member of the Seimas K. Brazauskienė regarding the decision of the Electoral Commission of Kaišiadorys–Elektrėnai Constituency No. 59 to approve the vote-counting protocol one did not point out to the Central Electoral Commission any concrete violation of the Law on Elections to the Seimas;

– 986 voters had voted in Pravieniškės polling district No. 27 of this single-member constituency, and 329 from the said voters had voted for the candidate from the Labour Party S. Tomas, which constitutes 33.37 percent of the number of all voters in that polling district;

– the part of the voters of Pravieniškės polling district No. 27 who voted for the candidate of the Labour Party, S. Tomas, differs substantially from the part of the voters that voted for other candidates in this polling district and does not reflect the average votes—17.12 percent—cast for S. Tomas in Kaišiadorys–Elektrėnai single-member constituency No. 59, i.e. the deviance form the average votes constitutes 16.25 percent, i.e. around 480 votes;

– subsequent to the Law on Elections to the Seimas, the Electoral Commission of Kaišiadorys–Elektrėnai Single-member Constituency No. 59 recounted the votes of polling districts, removed the established inconsistencies and did not establish any essential violations of the Law on Elections to the Seimas.

7.3. Having assessed the material of the constitutional justice case at issue, one is to hold that it does not contain any data that during the 2012 elections to the Seimas concrete violations of the Law on Elections to the Seimas were committed due to which the genuine will of the voters, which is the essential precondition of the legitimacy and lawfulness of the election results, might have been distorted in Kaišiadorys–Elektrėnai single-member constituency No. 59.

Even if one established concrete circumstances allowing to assert that all 480 votes were cast for S. Tomas by such voters whose genuine will might have been influenced in Pravieniškės polling district No. 27, this fact alone would not essentially change the final results in Kaišiadorys–Elektrėnai single-member constituency No. 59, since, according to the vote-counting protocol of this constituency, the difference between S. Tomas, the candidate who took the second place, and R. Kartenis, the candidate who took the third place, is 1,309 votes in favour of S. Tomas.

7.4. Taking account of the arguments set forth and having assessed the material in the constitutional justice case at issue, one is to make a conclusion that Items 1, 3 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as it established the final results in the 28 October 2012 run-off voting in the elections to the Seimas in Kaišiadorys–Elektrėnai single-member constituency No. 59 and, according to the election results, established the person who had been elected to the Seimas, did not violate the Law on Elections to the Seimas.

  1. It has been mentioned that the Seimas, by its resolution (No. XI-2378) of 6 November 2012, and the President of the Republic, by her decree (No. 1K-1262) of 7 November 2012, applied to the Constitutional Court with inquiries requesting for a conclusion whether during the 2012 elections to the Seimas the Law on Elections to the Seimas was not violated after they had received the 5 November 2012 complaint of the Nationalist Union wherein it is doubted as to the lawfulness of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as it established the final results of the elections to the Seimas inter alia in Jurbarkas single-member constituency No. 62.

It has been mentioned that, from the arguments submitted in the 5 November 2012 complaint of the Nationalist Union, it is clear that it is doubted whether the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission did not violate the Law on Elections to the Seimas insofar as it is related with the tai results in the 14 October 2012 elections to the Seimas in Jurbarkas single-member constituency No. 62.

8.1. It has been mentioned that, after the 14 October 2012 elections to the Seimas, upon counting the votes of the voters in Jurbarkas single-member constituency No. 62, it was established that the following candidates for Members of the Seimas received the most votes of the voters: B. Pauža—4,636, i.e. he received 32.64 percent of the valid votes, R. Raimundas Išganaitis—2,058, i.e. he received 14.49 percent of the valid votes, and S. Lapėnas—1,888, i.e. he received 13.29 percent of the valid votes (Annex 1 of the 21 October 2012 decision (No. Sp-308) of the Central Electoral Commission).

8.2. It has been mentioned that the 31 October 2012 letter of the Police Department noted that a pre-trial investigation had been launched subsequent to Article 172 of the Criminal Code due to the fact that, on 11 October 2012, around 10 o’clock, P. A. V. might have bribed several persons so that they vote for the candidate B. Pauža in the Jurbarkas single-member constituency.

8.3. It is clear from the material of the constitutional justice case at issue that, according to the scale of the influence on the voters (there might have been attempts to bribe several voters so that they vote for B. Pauža), when one takes account of the fact that the difference between the votes cast for the candidates for Members of the Seimas B. Pauža and R. R. Išganaitis is big (2,578 votes), such a violation of the Law on Elections to the Seimas in Jurbarkas single-member constituency No. 62 could not have had an essential influence on the results of the elections to the Seimas in this constituency.

8.4. Taking account of the arguments set forth and having assessed the material in the constitutional justice case at issue, one is to make a conclusion that Items 1, 3 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as it established the final results in the 28 October 2012 run-off voting in the elections to the Seimas in Jurbarkas single-member constituency No. 62 and, according to the election results, established the person who had been elected to the Seimas, did not violate the Law on Elections to the Seimas.

  1. Thus, one is to make a conclusion that neither Items 1, 3 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as they established the final results in the 28 October 2012 run-off voting in the elections to the Seimas in the single member constituencies—Pajūris (No. 22), Šilutė–Pagėgiai (No. 32), Širvintos–Vilnius (No. 55), Vilnius–Trakai (No. 57), Kaišiadorys–Elektrėnai (No. 59), Jurbarkas (No. 62)—and, according to the election results, established the persons who had been elected to the Seimas, nor the 4 November 2012 decision (No. Sp-324) of Central Electoral Commission violated the Law on Elections to the Seimas.

VI

On the Decision (No. Sp-321) of the Central Electoral Commission “On the Final Results of the 14 October 2012 Elections to the Seimas of the Republic of Lithuania” of 4 November 2012 insofar as it established the final election results in the 2012 elections to the Seimas in Biržai–Kupiškis single-member constituency No. 48.

  1. In the constitutional justice case at issue, subsequent to the inquiries of the petitioners, the Constitutional Court will investigate and assess whether the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission, insofar as it approved the final election results in the 14 October 2012 elections to the Seimas inter alia in Biržai–Kupiškis single-member constituency No. 48, did not violate the norms of the Law on Elections to the Seimas inter alia in the aspect impugned by the petitioners that the Central Electoral Commission inappropriately assessed the established violations of the Law on Elections to the Seimas and erroneously established the final results of elections to the Seimas.
  2. It needs to be noted that the arguments of the President of the Republic, a petitioner, regarding the lawfulness of 4 November 2012 decision of the Central Electoral Commission, insofar as it approved the final election results in the 2012 elections to the Seimas inter alia in Biržai–Kupiškis single-member constituency No. 48, are related inter alia to the fact whether the Central Electoral Commission correctly established the results of the elections to the Seimas in Biržai–Kupiškis single-member constituency No. 48 after the first round of voting and whether, while approving the final results of the 2012 elections to the Seimas the said commission was not supposed to recognise the election results in the said constituency as invalid.
  3. It has been mentioned that the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission inter alia decided the following:

“1. To establish the results in the 28 October 2012 run-off voting in the Seimas elections in 67 single-member constituencies (Annex 1).

  1. To establish the final sequence of the lists of candidates for Members of the Seimas in the 14 October 2012 elections to the Seimas in the multi-member constituency (Annex 2).
  2. According to the results of the elections in the multi-member and single-member constituencies, to establish the persons who have been elected to the Seimas of the Republic of Lithuania (Annex 3). On 7 November 2012, at 11 o’clock, at the conference hall of the Seimas of the Republic of Lithuania, to hand in the cards of Members of the Seimas to the elected Members of the Seimas.”

Thus, Item 1 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission approved the final results of the 14 October 2012 elections to the Seimas in single-member constituencies, inter alia in Biržai–Kupiškis single-member constituency No. 48, whereas Item 3 thereof established the persons who had been elected to the Seimas inter alia in Biržai–Kupiškis single-member constituency No. 48.

  1. It needs to be noted that, while adopting this decision, the Central Electoral Commission was supposed to follow inter alia Paragraph 1 of Article 88 “The Establishment of Election Results in Single-member Constituencies” (wording of 20 August 2004) of the Law on Elections to the Seimas.

Article 88 (wording of 20 August 2004) of the Law on Elections to the Seimas prescribes:

“1. The election results shall be established by the Central Electoral Commission after having investigated all complaints and established all election results in this constituency, including of the votes cast by the voters who have voted on ships and abroad.

  1. A candidate shall be considered elected in a single-member constituency, if not less than 40 percent of the voters from the electoral roll of that constituency have participated in the elections, and the said candidate has received more than half of votes cast by the voters who have participated in the elections. If less than 40 percent of the voters from the electoral roll of that constituency have participated in the elections, the candidate who have received the majority, but not less than one-fifth of the votes of all the voters from the electoral roll of that constituency, shall be considered to have been elected.
  2. If more than two candidates have participated in the elections and a Seimas member has not been elected pursuant to Paragraph 2 of this Article, run-off voting shall be held after two weeks, in which two candidates who have received the majority of votes shall participate in the said poll. A date of the run-off voting shall be announced by the Central Electoral Commission together with the election results. A candidate who has received more votes, regardless of the number of voters who participated in the elections, shall be considered to have been elected at the run-off voting. If both candidates received an equal amount of votes, a candidate who received more votes during the initial poll shall be elected Seimas member. If both candidates received an equal amount of votes during the initial poll, a candidate shall become Seimas member by drawing lots.
  3. If one or two candidates participated in the elections and a Seimas member has not been elected pursuant to Paragraph 2 of this Article, the elections shall be considered not to have been held and rerun elections shall be held.”

Thus, while construing the provisions of Paragraph 1 of Article 88 (wording of 20 August 2004) of the Law on Elections to the Seimas, one needs to note that the Central Electoral Commission can establish the election results in a single-member constituency only after having investigated all complaints filed in this constituency during the elections and established the genuine election results in the same constituency. It means that, under Paragraph 1 of Article 88 (wording of 20 August 2004) of the Law on Elections to the Seimas, the Central Electoral Commission, while seeking to establish the genuine and correct election results of a single-member constituency, must ascertain that, upon adopting a decision by the electoral commission of the constituency on vote counting in the constituency, there arise no doubts as regards the honesty and transparency of the electoral process that had taken place in that constituency and that no gross violations of the Law on Elections to the Seimas had been committed.

  1. It needs to be noted that, when the Central Electoral Commission establishes the final results of elections to the Seimas in a single-member constituency, it must assess whether the decision of the electoral commission of that constituency was adopted in compliance with the requirements of the Law on Elections to the Seimas.

5.1. Article 16 “Powers of the Constituency Electoral Commission” (wording of 29 March 2012) of the Law on Elections to the Seimas prescribes:

“The constituency electoral commission shall:

1) inform, in the manner established by the Central Electoral Commission, the voters who reside in the constituency about the boundaries of the polling districts, their offices, their working hours and polling stations;

2) supervise the implementation of this Law in the constituency;

3) form polling district commissions;

4) without exceeding the constituency electoral commission’s estimate approved by the Central Electoral Commission, approve the estimate of expenditure of polling district commissions and control how these funds, provided for in the estimates, are used;

5) register election observers and issue certificates to them;

6) monitor voting by post in the territory of the constituency;

7) make up a list of healthcare (with the exception of outpatient health care institutions), social care and guardianship institutions, military units, arrest houses, remand prisons (detention facilities) and penal institutions situated in the territory of the constituency, and together with the head of the post office make arrangements to organise voting by post in those institutions as well as organise early voting;

8) draw up the vote-counting protocol of the constituency;

9) monitor political advertising within a constituency during the election campaign and submit monitoring data to the Central Electoral Commission in a manner prescribed by it;

10) consider complaints against decisions and actions of the polling district commissions and adopt decisions, as well as repeal decisions which contravene the requirements of laws and other legal acts;

11) exercise other powers prescribed by this Law.”

Thus, in the context of the constitutional justice case at issue it needs to be noted that Article 16 of the Law on Elections to the Seimas, which establishes the powers of the electoral commission of a constituency, does not provide that the electoral commission of a constituency has the powers to count the ballot papers of a polling district after the voting is over. Under Items 5 and 6 of Article 18 of the Law on Elections to the Seimas, the electoral commission of a polling district enjoys such powers.

5.2. Article 18 (wording of 29 March 2012) of the Law on Elections to the Seimas inter alia prescribes:

“The polling district electoral commission shall: <...>

5) organise voting in the polling district on the election day;

6) count votes and draw up the vote counting record of the polling district and transmit the data of this counting record via electronic means of communication in accordance with the procedure laid down by the Central Electoral Commission <...>.”

In the context of the constitutional justice case at issue it needs to be noted that, under Article 88 (wording of 20 August 2004) of the Law on Elections to the Seimas, the Central Electoral Commission, while establishing the final results of elections to the Seimas in Biržai–Kupiškis single-member constituency No. 48, was supposed to ascertain that the procedure for counting of votes established in the Law on Elections to the Seimas had been followed, i.e. that, after the voting had ended, the ballot papers of the polling district were counted at the polling district electoral commission.

  1. Thus, while deciding whether Item 1 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission, insofar as the Central Electoral Commission, while establishing the results of the 28 October 2012 run-off voting in the elections to the Seimas, established such results also in Biržai–Kupiškis single-member constituency No. 48, also whether Item 3 of the same decision, insofar as, subsequent to the results of elections to the Seimas in Biržai–Kupiškis single-member constituency No. 48, one established the person considered to be elected to the Seimas, did not violate Paragraph 1 of Article 88 (wording of 20 August 2004) of the Law on Elections to the Seimas, it needs to be noted that, the Central Electoral Commission, while establishing the final results of elections to the Seimas, must ascertain whether there are no doubts regarding the honesty and transparency of the electoral process that took place in that constituency and whether gross violations of the Law on Elections to the Seimas were not committed.
  2. It has been mentioned that in a constitutional democracy special requirements are raised to the formation of representative political 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 representative political institutions. Elections may not be regarded as democratic, nor their results as legitimate and legal, if elections are held by trampling on the principles of democratic elections established in the Constitution and by violating democratic electoral procedures.

It has also been mentioned that the constitutional purpose of the Central Electoral Commission to organise elections also implies its powers to exercise control and resort to measures so that the observance of the principles of democratic, free and fair elections would be efficiently ensured, inter alia that the principles of honesty and transparency of the electoral process would be ensured.

  1. It has been mentioned that it is clear from the material of the constitutional justice case at issue that, after the 14 October 2012 elections to the Seimas had taken place and after the voting had ended, the votes of the voters of Kaštonai polling district No. 5 situated in Biržai–Kupiškis single-member constituency No. 48 were counted, due to unknown reasons, not by the electoral commission of the said polling district, but by the electoral commission of the constituency which had taken over the ballot papers from the former.

The representatives of the Electoral Commission of Biržai–Kupiškis single-member constituency No. 48 took the ballot papers of Kaštonai polling district No. 5 to their premises in order to count them, wherein the constituency electoral commission subsequently counted more ballot papers than it had taken over from the electoral commission of Kaštonai polling district No. 5 (all in all, in comparison with the number of the ballot papers taken over, the counted number thereof was bigger by 452 ballot papers, and, from among them, in comparison with the number of the ballot papers taken over regarding the single-member constituency, the counted number thereof was bigger by 198 ballot papers). One also established other inconsistencies and imprecisions in counting the ballot papers of the said polling district (the numbers of invalid and lost ballot papers do not coincide). When the constituency electoral commission was counting the ballot papers Kaštonai polling district No. 5 and was establishing the election results, no opportunity was created for representatives of parties and observers, since, according to J. Valčiukienė, a witness who spoke at the Constitutional Court hearing of 8 November 2012, the representatives of her party had not been aware of the location at which the counting of the election results of the said polling district had been taking place.

It has been mentioned that namely after the voting results had been established in this polling district, the results of the Seimas elections changed in essence in entire Biržai–Kupiškis single-member constituency No. 48 regarding the three places in the list of candidates of the single-member constituency.

It has also been mentioned that, after the Central Electoral Commission had recounted the ballot papers of the voters of Kaštonai polling district No. 5, the election results of that polling district were established which were different from those established by the constituency electoral commission that had counted the ballot papers of Kaštonai polling district No. 5. Due to this the election results in entire Biržai–Kupiškis single-member constituency No. 48 changed in the way where the difference of votes between the first and the second candidate diminished down to 5 votes, whereas between the second and third candidates—increased up to 24 votes.

It needs to be noted that the factual circumstances related to the organisation of the electoral process of the elections to the Seimas, inter alia those related to the counting of votes in Biržai–Kupiškis single-member constituency No. 48, are set forth in more detail in Item 5 of Chapter I of the reasoning part of this conclusion.

Thus, the factual circumstances set forth in in the constitutional justice case at issue confirm the following:

– when the results of elections to the Seimas were being established in Biržai–Kupiškis single-member constituency No. 48, the electoral commission of this constituency, having taken over the function vested in the polling district electoral commission to count the ballot papers of Kaštonai polling district No. 5, counted them itself thus violating the provisions of inter alia Articles 16, 18 of the Law on Elections to the Seimas, which clearly establish the powers of the polling districts’ and constituencies’ electoral commissions;

– the established inconsistencies recorded in the course of accounting of election documents inter alia regarding the number of the ballot papers taken over from the Electoral Commission of Kaštonai Polling District No. 5 and counted at the constituency electoral commission (in the single-member constituency one counted at least 45 ballot papers more than the ballot papers that had been taken over) do not allow to negate the presumption that part of the ballot papers might have been spoiled or falsified, due to this fact a reasonable doubt arises that the election results in Kaštonai polling district No. 5 do not reflect the genuine will of the voters and that they distort it;

– no opportunity was created for party representatives and observers to participate when the constituency electoral commission was counting the ballot papers of Kaštonai polling district No. 5.

  1. Thus, it needs to be held that during the 14 October 2012 elections to the Seimas in Biržai–Kupiškis single-member constituency No. 48, inter alia in Kaštonai polling district No. 5, one was not following the procedure for counting votes established in the Law on Elections to the Seimas, inter alia one violated the principle of publicity of sittings of electoral commissions inter alia by failing to create an opportunity to observe them for representatives of political parties and those of candidates for Members of the Seimas as well as for other observers who meet the requirements established by law (Paragraph 2 (wording of 15 April 2008) of Article 7, Paragraph 3 of Article 61 (wording of 15 April 2008) and Paragraph 2 of Article 77 of the Law on Elections to the Seimas), and one committed gross violations of the Law on Elections to the Seimas.
  2. In this context it needs to be noted that, as mentioned before, also the Special Working Group of the Central Electoral Commission, having investigated the election results in Biržai–Kupiškis single-member constituency No. 48, established that the votes of the voters of Kaštonai polling district No. 5 are influential in essence on the possibility to the establish the election results in Biržai–Kupiškis single-member constituency No. 48, and submitted a proposal that the Central Electoral Commission recognise the election results in this single-member constituency as invalid. It has also been mentioned that the Central Electoral Commission, having considered the said conclusion in its 20 October 2012 sitting (minutes No. P-37), decided to recount the ballot papers of Kaštonai polling district No. 5, however, it neither investigated nor considered any other circumstances pointed out in the same conclusion and did not assent to the proposal to abolish the election results in Biržai–Kupiškis single-member constituency No. 48.
  3. As mentioned before, the constitutional purpose of the Central Electoral Commission to organise elections implies its powers to exercise control and resort to measures so that the observance of the principles of democratic, free and fair elections would be efficiently ensured, inter alia that the principles of honesty and transparency of the electoral process would be ensured.

It has also been mentioned that, under Paragraph 1 of Article 88 (wording of 20 August 2004) of the Law on Elections to the Seimas, the Central Electoral Commission, while seeking to establish the genuine and correct election results of a single-member constituency, must inter alia ascertain that there are no doubts as regards the honesty and transparency of the electoral process that had taken place in that constituency and that no gross violations of the Law on Elections to the Seimas had been committed.

The Central Electoral Commission has not properly investigated and assessed the gross violations of the Law on Elections to the Seimas—such violations might have had an essential influence on the establishment of the genuine and correct results in Biržai–Kupiškis single-member constituency No. 48. The said violations were inter alia pointed out in the conclusion of the Special Working Group as well.

  1. It has been mentioned that, under the Constitution, in case one does not negate the presumption that the established gross violations of the principles of democratic, free and fair elections, inter alia the honesty and transparency of the electoral process, are to be regarded, in themselves, as having an essential influence on the election results, i.e. if one does not negate the fact that by the said violations the genuine will of the voters, which is the essential precondition of the legitimacy and lawfulness of the election results, might have been distorted, the correct election results cannot be established, either.

It needs to be noted that it is clear from the facts pointed out in the constitutional justice case at issue that there are not any circumstances negating the presumption that the gross violations of the Law on Elections to the Seimas during the 2012 elections to the Seimas in Biržai–Kupiškis single-member constituency No. 48 had an essential influence on the establishment of the genuine and correct results of the elections to the Seimas in the said constituency.

Thus, under Paragraph 1 of Article 88 (wording of 20 August 2004) of the Law on Elections to the Seimas, the Central Electoral Commission was not allowed to establish the final election results in Biržai–Kupiškis single-member constituency No. 48 without ascertaining first that there were no doubts as regards the honesty and transparency of the electoral process that had taken place in that constituency and that no gross violations of the Law on Elections to the Seimas, which might have had influence on the establishment of the final election results, had been committed.

  1. Consequently, the Central Electoral Commission, while approving the final results of the 14 October 2012 elections to the Seimas in Biržai–Kupiškis single-member constituency No. 48 by its 4 November 2012 decision (No. Sp-321) and while establishing the candidate who was elected to the Seimas in that single-member constituency, did not follow the requirements established in Paragraph 1 of Article 88 (wording of 20 August 2004) of the Law on Elections to the Seimas to establish the genuine and correct results of the elections to the Seimas.
  2. It needs to be noted that Article 91 “The Declaration of the Election Invalid” (wording of 15 April 2008) of the Law on Elections to the Seimas prescribes:

“1. The Central Electoral Commission may recognise the election results in the constituency as invalid, if it has established that gross violations of Paragraph 1 of Article 51 of this Law or other laws which were committed in the polling district or constituency, or 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 protocols or other election documents:

1) in a single-member constituency—the candidate who gets a mandate or the candidates who participate in the run-off voting;

2) in the multi-member constituency—the 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.

  1. The election cannot be declared invalid if the indisputably determined election results allow to determine essential election results.”

Thus, Article 91 (wording of 15 April 2008) of the Law on Elections to the Seimas establishes the powers of the Central Electoral Commission to recognise the election results in a single-member constituency as invalid inter alia when gross violations of laws committed in a polling district or in a constituency had an essential influence on the election results with the exception of the cases where there is a possibility unquestionably to determine essential election results.

  1. In the case at issue it has been held that during the 14 October 2012 elections to the Seimas gross violations of the Law on Elections to the Seimas were committed in Biržai–Kupiškis single-mandate constituency No. 48. These violations had an essential influence on the establishment of the election results in Biržai–Kupiškis single-mandate constituency No. 48. It has also been held that there are not any circumstances negating the presumption that the gross violations of the Law on Elections to the Seimas during the elections to the Seimas in Biržai–Kupiškis single-member constituency No. 48 had an essential influence on the establishment of the genuine and correct results of the elections to the Seimas in the said constituency.

Consequently, the Central Electoral Commission, having assessed the fact that gross violations of the Law on Elections to the Seimas had been committed in the course of establishing the election results in Biržai–Kupiškis single-member constituency No. 48, which might have had an essential influence on the election results of that constituency, should have followed the provisions of Item 1 of Paragraph 1 and Paragraph 2 of Article 91 (wording of 15 April 2008) of the Law on Elections to the Seimas and should have recognised the election results in Biržai–Kupiškis single-member constituency No. 48 as invalid.

  1. Taking account of the arguments set forth, one is to draw a conclusion that Items 1, 3 of the 4 November 2012 decision (No. Sp-321) of the Central Electoral Commission insofar as it established the final results in the 28 October 2012 run-off voting in the elections to the Seimas Biržai–Kupiškis single-member constituency No. 48 and, according to the election results, established the person who had been elected to the Seimas, violated Paragraph 1 of Article 88 (wording of 15 April 2008) and Item 1 of Paragraph 1 and Paragraph 2 of Article 91 (wording of 15 April 2008) of the Law on Elections to the Seimas.

 

Conforming to Item 1 of Paragraph 3 of Article 105 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 2, Item 1 of Article 73, Articles 77 and 83 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has presented the following

conclusion:

  1. Item 2 of the Decision (No. Sp-321) of the Central Electoral Commission of the Republic of Lithuania “On the Final Results of the 14 October 2012 Elections to the Seimas of the Republic of Lithuania” of 4 November 2012, insofar as it was decided, in the course of establishing the final sequence of the lists of candidates for Members of the Seimas of the Republic of Lithuania in the multi-member constituency, to inscribe Živilė Pinskuvienė (No. 10), Jolanta Gaudutienė (No. 17), Jonas Pinskus (No. 22), Vytautas Gricius (No. 35), Viačeslav Ždanovič (No. 48) in the final sequence of candidates for Members of the Seimas in the list of the Labour Party in the multi-member constituency, violated Paragraph 1 (wording of 15 April 2008) of Article 51 and Article 90 (wording of 15 April 2008) of the Republic of Lithuania Law on Elections to the Seimas.
  2. Item 3 of the Decision (No. Sp-321) of the Central Electoral Commission of the Republic of Lithuania “On the Final Results of the 14 October 2012 Elections to the Seimas of the Republic of Lithuania” of 4 November 2012, insofar as it established that Jolanta Gaudutienė, Jonas Pinskus, Živilė Pinskuvienė had been elected to the Seimas of the Republic of Lithuania in the multi-member constituency according to the list of the Labour Party, violated Paragraph 1 (wording of 15 April 2008) of Article 51 and Article 90 (wording of 15 April 2008) of the Republic of Lithuania Law on Elections.
  3. Items 1, 3 of the Decision (No. Sp-321) of the Central Electoral Commission of the Republic of Lithuania “On the Final Results of the 14 October 2012 Elections to the Seimas of the Republic of Lithuania” of 4 November 2012, insofar as they established the final results in the 28 October 2012 run-off voting in the elections to the Seimas of the Republic of Lithuania in Biržai–Kupiškis single-member constituency No. 48 and, according to the election results, established the person who had been elected to the Seimas of the Republic of Lithuania, violated Paragraph 1 of Article 88 (wording of 15 April 2008) and Item 1 of Paragraph 1 and Paragraph 2 of Article 91 (wording of 15 April 2008) of the Republic of Lithuania Law on Elections to the Seimas.
  4. Items 1, 3 of the Decision (No. Sp-321) of the Central Electoral Commission of the Republic of Lithuania “On the Final Results of the 14 October 2012 Elections to the Seimas of the Republic of Lithuania” of 4 November 2012, insofar as they established the final results in the 28 October 2012 run-off voting in the elections to the Seimas in the single member constituencies—Pajūris (No. 22), Šilutė–Pagėgiai (No. 32), Širvintos–Vilnius (No. 55), Vilnius–Trakai (No. 57), Kaišiadorys–Elektrėnai (No. 59), Jurbarkas (No. 62)—and, according to the election results, established the persons who had been elected to the Seimas of the Republic of Lithuania, as well as the Decision (No. Sp-324) of the Central Electoral Commission of the Republic of Lithuania “On Approving the Final Results of Voting in Šilutė–Pagėgiai Single-member Constituency No. 32” of 4 November 2012, did not violate the Republic of Lithuania Law on Elections to the Seimas.

This conclusion of the Constitutional Court of the Republic of Lithuania shall be final and not subject to appeal.

Justices of the Constitutional Court:                                     Egidijus Bieliūnas

                                                                                                         Toma Birmontienė

                                                                                                         Pranas Kuconis

                                                                                                         Gediminas Mesonis

                                                                                                         Ramutė Ruškytė

                                                                                                         Egidijus Šileikis

                                                                                                         Algirdas Taminskas

                                                                                                         Romualdas Kęstutis Urbaitis

                                                                                                         Dainius Žalimas