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On the recognition of the results of elections to the Seimas in a single member constituency as invalid

Case No. 14/2012

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 CONCLUSION

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

 26 October 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, 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, and Indrė Pukanasytė, an advisor to the President of the Republic,

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

pursuant to Item 1 of Paragraph 3 of Article 105 of the Constitution of the Republic of Lithuania, Paragraph 2 of Article 1, Item 1 of Article 73 and Article 77 of the Law on the Constitutional Court of the Republic of Lithuania, on 24 October 2012, in the Court’s public hearing considered case No. 14/2012 subsequent to the 23 October 2012 inquiry of the President of the Republic of Lithuania 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 was not violated.

 

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, 67 Members of the Seimas were not elected from the 71 single-member constituencies and, on 28 October 2012, the run-off voting will be carried out (Decision of the Central Electoral Commission No. Sp-308 “On the Results of the 14 October 2012 Elections to the Seimas in Single-member Constituencies and the Multi-member Constituency” of 21 October 2012).
  2. One of the single-member constituencies in which the voting took place on 14 October 2012 is Zarasai–Visaginas constituency No. 52.

On 21 October 2012, the Central Electoral Commission, by its Decision No. Sp-311 “On the Violation of Article 51 of the Law on Elections to the Seimas Committed by the Candidate for a Member of the Seimas of the Republic of Lithuania Rimvydas Podolskis” (hereinafter also referred to as decision of the Central Electoral Commission No. Sp-311 of 21 October 2012) (that decision was published on the Seimas’ internet website), while invoking the Conclusion “On the Alleged Violation of Article 51 of the Republic of Lithuania Law on Elections to the Seimas Committed by the Candidate for a Member of the Seimas of the Republic of Lithuania Rimvydas Podolskis” of 20 October 2012 (the said decision indicates 19 October 2012 as the date of that conclusion) (hereinafter also referred to as the conclusion of the Working Group for Investigation into Briberies) made by the Working Group for Investigation into Briberies of the Central Electoral Commission (hereinafter also referred to as the Working Group for Investigation into Briberies), recognised that the candidate for a Member of the Seimas Rimvydas Podolskis had violated the prohibition consolidated in Article 51 of the Law on Elections to the Seimas to bribe voters and persons eligible to vote and thus grossly violated Article 51 of the Law on Elections to the Seimas.

On 21 October 2012, the Central Electoral Commission, by its Decision No. Sp-313 “On Recognising the Election Results in Zarasai–Visaginas Constituency No. 52 as Invalid” (hereinafter also referred to as decision of the Central Electoral Commission No. Sp-313 of 21 October 2012) and by Item 2 of its Decision No. Sp-308 “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” (hereinafter also referred to as decision of the Central Electoral Commission No. Sp-308 of 21 October 2012), recognised the results of the 14 October 2012 elections in Zarasai–Visaginas single-member constituency No. 52 as invalid due to the established gross violations of Article 51 of the Law on Elections to the Seimas.

  1. On 22 October 2012, the political party “Order and Justice” filed a complaint with the President of the Republic regarding decision of the Central Electoral Commission No. Sp-308 of 21 October 2012 insofar as the said decision recognised the results of the 14 October 2012 elections in Zarasai–Visaginas single-member constituency No. 52 as invalid and decided to carry out the run-off voting in 67 single-member constituencies on 28 October 2012 by excluding Zarasai–Visaginas constituency No. 52, and requested that the President of the Republic apply to the Constitutional Court with an inquiry regarding violation of the Law on Elections to the Seimas.
  2. By her Decree No. 1K-1248 “On the Inquiry to the Constitutional Court of the Republic of Lithuania” of 23 October 2012, 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.

Article 1 of the said decree points out two decisions of the Central Electoral Commission whereby the election results in Zarasai–Visaginas constituency No. 52 were recognised as invalid: decision No. Sp-313 of 21 October 2012 and decision No. Sp-308 of 21 October 2012 (Item 2).

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 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 was seeking to disperse the doubts whether by decision of the Central Electoral Commission No. Sp-313 of 21 October 2012 and Item 2 of its decision No. Sp-308 of 21 October 2012, which recognised the results of the 14 October 2012 elections in Zarasai–Visaginas single-member constituency No. 52 as invalid, one had not violated the Law on Elections to the Seimas.
  2. At the Constitutional Court hearing, Z. Vaigauskas, Chairman of the Central Electoral Commission, and R. Stabingis and J. Udris, members of that commission, explained what facts were investigated and assessed by the Central Electoral Commission and what arguments it followed while adopting its decision No. Sp-313 of 21 October 2012 and Item 2 of its decision No. Sp-308 of 21 October 2012.
  3. At the Constitutional Court hearing, a witness—Daiva Kelečienė, Chairwoman of the Electoral Commission of Zarasai–Visaginas Constituency No. 52—was questioned.

 

The Constitutional Court

holds that:

I

  1. On 14 October 2012, at the elections to the Seimas, voting took place at Zarasai–Visaginas constituency No. 52. Upon counting the votes of the voters, it was established that the following candidates for Members of the Seimas received the most votes of the voters: Algimantas Dumbrava—4,881 (voting in polling districts—4,242, by mail—639), i.e. he received 29.88 percent of valid votes, Rimvydas Podolskis—2,921 (voting in polling districts—2,312, by mail—609), i.e. he received 17.88 percent of valid votes, and Nikolajus Gusevas—2,527 (voting in polling districts—2,142, by mail—385), i.e. he received 15.47 percent of valid votes.
  2. On 21 October 2012, the Central Electoral Commission adopted decision No. Sp-311, wherein, while taking account of the investigation into the actions of R. Podolskis, a candidate nominated by the Labour Party in Zarasai–Visaginas constituency No. 52, by whom violations of the prohibition to bribe voters and persons eligible to vote and violations of Article 51 of the Law on Elections to the Seimas may have been committed, while invoking the conclusion made by the Working Group for Investigation into Briberies and pursuant to Article 51 of the Law on Elections to the Seimas, decided:

“1. To recognise that the candidate for a Member of the Seimas Rimvydas Podolskis has violated the prohibition consolidated in Article 51 of the Republic of Lithuania Law on Elections to the Seimas to bribe voters and persons eligible to vote;

  1. To recognise that the candidate for a Member of the Seimas Rimvydas Podolskis has grossly violated Article 51 of the Republic of Lithuania Law on Elections to the Seimas.”
  2. On the same day, on 21 October 2012, the Central Electoral Commission adopted two decisions whereby the election results in Zarasai–Visaginas constituency No. 52 were recognised as invalid: decision No. Sp-313 of 21 October 2012 and decision No. Sp-308 of 21 October 2012 (Item 2).

It is clear from decision of the Central Electoral Commission No. Sp-313 of 21 October 2012 that the commission that has performed the investigation into the actions of R. Podolskis, a candidate nominated by the Labour Party in Zarasai–Visaginas constituency No. 52, by whom violations of the prohibition to bribe voters and persons eligible to vote and violations of Article 51 of the Law on Elections to the Seimas may have been committed, while invoking the conclusion made by the Working Group for Investigation into Briberies and decision of the Central Electoral Commission No. Sp-313 of 21 October 2012, established that in that Zarasai–Visaginas constituency No. 52 gross violations of Article 51 of the Law on Elections to the Seimas had been committed which were influential upon the establishment the election results in Zarasai–Visaginas constituency No. 52, namely:

1) R. Podolskis received 2,921 votes of the voters in Zarasai–Visaginas constituency No. 52 and in this constituency took the second place in the list of candidates for Members of the Seimas. Nikolajus Gusevas, having received 2,527 votes of the voters, took the third place in this list. Thus, the difference between the candidates who took the second and third places is 394 votes of the voters. This difference is assessed as raising doubts regarding the place in the list of elections;

2) In Zarasai–Visaginas constituency No. 52, R. Podolskis received 605 votes of the voters during the early voting, which constitutes 25 percent of all votes received by mail, even though the average number of votes cast for this candidate is 17.88 percent. Algimantas Dumbrava, the candidate who took the first place, received 639 votes in the early voting, even though the average number of votes cast for him is 29.88 percent. Therefore, while taking account of the material presented in the conclusion made by the Working Group for Investigation into Briberies on buying votes of voters during the early voting, the Central Electoral Commission assessed this discrepancy as unusually big.

In its decision No. Sp-311 of 21 October 2012, the Central Electoral Commission, while taking account of the information collected by the Working Group for Investigation into Briberies that the briberies had been carried out in various places of the Zarasai district during festivities, which attract many residents of the local community, where ice-cream and sweets were being given out on a mass scale in the presence of the candidate for a Member of the Seimas R. Podolskis and his wife O. Podolskienė, the warden of the town of Zarasai, thus inducing the voters to vote for the said candidate, held that the will of more than 394 voters might have been influenced.

  1. The conclusion made by the Working Group for Investigation into Briberies, by invoking which the Central Electoral Commission adopted its decision No. Sp-311 of 21 October 2012 (which inter alia recognised that R. Podolskis had grossly violated Article 51 of the Law on Elections to the Seimas) and by taking account of which the said commission recognised the election results in Zarasai–Visaginas constituency No. 52 as invalid, established the circumstances pointed out below, which show that during the election agitation and early voting, as well as on the day of the voting in polling districts, violations of Article 51 of the Law on Elections to the Seimas were committed.

4.1. The Central Electoral Commission established the following circumstances showing that violations of Article 51 of the Law on Elections to the Seimas were committed during the election agitation.

4.1.1. The candidate for a Member of the Seimas R. Podolskis and persons who have ties with him were giving away ice-cream and sweets free of charge during the festivities that took place in August-September in the Zarasai district. This information was published: in the 11 August 2012 article “The Most Beautiful Festival of the Residents of the Town of Antalieptė is the Porziuncola Indulgence” of the newspaper “Utenis”, which wrote that “everyone was very happy that the businessman Rimvydas Podolskis was giving out ice-cream for refreshment”; in the 8 August 2012 article “The Most Beautiful Festival of the Residents of the Town of Antalieptė is the Porziuncola Indulgence” of the newspaper “Dusetos” which presented the information of the same content; in the 11 September 2012 article “Memorable Festivity Given as a Present” of the newspaper “Zarasų kraštas” which wrote that “the autumn wind that wandered to the spot whispered that not only the Public Council of Communities of the ward that, on one occasion, had adopted a decision favourable to the children, but also the O. and R. Podolskis family who had bought the equipment and cold meals for the entertainment from their own funds, presented a joyful festivity of at least one hour length to the children and adults in the microdistrict”.

This information is supplemented with the 25 September 2012 conclusion made by the Investigation Group of the Electoral Commission of Zarasai–Visaginas Constituency No. 52, as confirmed by Protocol No. 6 of the Electoral Commission of Zarasai–Visaginas Constituency No. 52 of 26 September 2012, the 2 October 2012 complaint with attachments filed by R. Firavičiūtė, the representative of the Homeland Union-Lithuanian Christian Democrats at the Central Electoral Commission, the 26 September 2012 and 13 October 2012 letters of the Zarasai unit of the Lithuanian Social Democratic Party, the 12 October 2012 letter of the State Tax Inspectorate under the Ministry of Finance of the Republic of Lithuania, the 12 October 2012 letter of the Nationalist Union, the 13 October 2012 letter and a copy of the 4 October 2012 letter of the Member of the Seimas R. Žilinskas.

It needs to be noted that, on 26 September 2012, the Electoral Commission of Zarasai–Visaginas Constituency No. 52, having assessed all the said circumstances regarding giving out ice-cream during the events, recognised that R. Podolskis had violated the provisions of Article 51 of the Law on Elections to the Seimas subsequent to Registration Cards Nos. 2 and 3 of the Information on Alleged Bribing of Voters or Persons Eligible to Vote (Protocol No. 6 of the Electoral Commission of Zarasai–Visaginas Constituency No. 52 of 26 September 2012).

4.1.2. On 8 September 2012, during a festivity of the townlet of Turmantas, O. Podolskienė, the wife of the candidate for a Member of the Seimas R. Podolskis from the Labour Party, dressed in a hedgehog’s costume, gave out sweets and other food to members of the community. In the photographs attached to the complaint one can see R. Podolskis, his wife O. Podolskienė dressed in a hedgehog’s costume, and the Member of the Seimas R. Žilinskas (those circumstances are confirmed by the 26 September 2012 letter of the Zarasai unit of the Lithuanian Social Democratic Party, the 2 October 2012 complaint with attachments filed by R. Firavičiūtė, the representative of the Homeland Union-Lithuanian Christian Democrats at the Central Electoral Commission, a copy of the 4 October 2012 letter of the Member of the Seimas R. Žilinskas, and the visual material). In her letter of 5 October 2012, O. Podolskienė admitted that during the said event she, dressed in a hedgehog’s costume, gave out ice-cream and that R. Podolskis also took part in the same event. O. Podolskienė admitted that that she had bought the brushes, gouache, modelling clay and ice-cream on her own initiative. In addition, O. Podolskienė emphasised her status as the warden of the town of Zarasai in organising events.

In the 19 October 2012 sitting of the Central Electoral Commission, R. Podolskis partially confirmed the aforesaid circumstances: “During the festivity in Turmantas sweets (0.5 kg) were given out. Ice-cream was often given out. I supported the events in Antalieptė with my own funds by presents worth LTL 50-100. I own a shop in the village of Imbradas, so I told the kids, ‘Rush there and take some ice-cream’.” In his testimony of 19 October 2012, F. Pužas asserts that “during the Dusetos Harvest and Trades Festivity, which took place on 29 September 2012, the candidate for a Member of the Seimas of the  Republic of Lithuania Rimvydas Podolskis treated residents of the town of Dusetos, 7–8 people, to beer, while prompting them to vote for him during the upcoming elections to the Seimas of the Republic of Lithuania”.

4.1.3. While taking account of the collected information, the Working Group for Investigation into Briberies drew a conclusion that the candidate for a Member of the Seimas R. Podolskis and persons who had ties with him had given out ice-cream and sweets free of charge to the voters and had treated them to beer.

4.1.4. These circumstances were essentially confirmed by the witness D. Kelečienė who was questioned at the Constitutional Court hearing. She testified that investigations had been conducted in the commission headed by her regarding indirect bribery of persons eligible to vote carried out during the election agitation in favour of the candidate for a Member of the Seimas R. Podolskis. According to her, during at least 6 mass events that took place in August–October 2012 in the Zarasai district, their participants were given out sweets and ice-cream free of charge. Those events were supported in one or other way also by R. Podolskis, whilst his wife O. Podolskienė, dressed in a hedgehog’s costume, gave out sweets to children and other participants of those events.

4.2. The Central Electoral Commission established the following circumstances showing that violations of Article 51 of the Law on Elections to the Seimas were committed during the period of early voting and on the day of voting in polling districts.

4.2.1. The candidate for a Member of the Seimas R. Podolskis, possibly together with his alleged accomplice, R. Garbinčius, whose criminal case was tried in the Zarasai District Local Court, indirectly bought votes of some voters. As it is stated in letters Nos. S-18433 and S-18895 of the Utena Local Prosecutor’s Office of the Panevėžys County Prosecutor’s Office, R. Garbinčius, acting with his accomplice R. Podolskis and having received money from the latter, while expecting to receive material award and trying to achieve that as many as possible voters vote for the Labour Party denoted by No. 3 and the candidate for a Member of the Seimas R. Podolskis from the Labour Party, on 10–11 October 2012, in the town of Zarasai, with the purpose to influence the will of voters, promised them verbally to pay LTL 10 to each of them provided that they vote for the Labour Party denoted by No. 3 and the candidate of for a Member of the Seimas R. Podolskis from the Labour Party, while after the said voters had participated in the elections, he gave LTL 10 to each of them.

  1. Garbinčius pointed out that, on 10 October 2012, he bought votes from some voters. In the opinion of the Working Group for Investigation into Briberies, while drawing a conclusion from the testimony of R. Garbinčius, there could be more people whose votes might have been bought. In the 19 October 2012 sitting of the Central Electoral Commission, such information was partially confirmed by the prosecutor G. Jefimovas. In addition, in the opinion of the Working Group for Investigation into Briberies, it is possible to assume from R. Garbinčius’ statement “most of the people I met told me that they had already voted for R. Podolskis and they were paid LTL 10 for the vote” that he had also met more people who had voted for R. Podolskis and had been paid for such voting.

It is clear from the material presented to the Constitutional Court by the representatives of the Central Electoral Commission at the 24 October 2012 court hearing that, by the Statement “On the Consideration of Pre-trial Investigation Case No. 58-1-00311-12 under Speedy Process Procedure” drawn up by the prosecutor G. Jefimovas on 16 October 2012, the pre-trial investigation material regarding the criminal deed, established in Article 172 “Hindering the Exercise of the Right of Elections or Referendums” of the Criminal Code of the Republic of Lithuania, committed by the suspect R. Garbinčius, was referred to a court for trial. The pre-trial investigation regarding R. Podolskis and other persons was separated into an independent investigation.

By its Decision No. Sp-305 “On the Consent that the Candidate for a Member of the Seimas Rimvydas Podolskis Be Held Criminally Liable” of 19 October 2012, the Central Electoral Commission granted the prosecutor’s request wherein it is indicated that there are enough legally obtained data allowing to reasonably believe that R. Podolskis might have committed the criminal deed established in Article 172 of the Criminal Code and gave its consent that the candidate for a Member of the Seimas R. Podolskis, during the election agitation and until taking the oath of a Member of the Seimas, be held criminally liable or that his freedom be restricted otherwise, save the application of the arrest. At the time of the consideration of the constitutional justice case at issue, a pre-trial investigation is being conducted regarding commission of the criminal deed where R. Podolskis is a suspect.

4.2.2. It has been established that E. Šatkus, a resident of the town of Dusetos, collected passports of 3–4 residents so that he “could sort out things of voting”. Some of those residents had been paid for the fact that they would vote for the candidate for a Member of the Seimas R. Podolskis and the Labour Party. On 14 October 2012, while organising the buying of votes for R. Podolskis and the Labour Party, A. Baliukas together with another person took part in the Dusetos ward of the Zarasai district; the money used to be handed over at L. Šatkuvienė’s place, whilst N. Makauskienė used to bring it. The price for one vote ranged from LTL 10 to 15 (the circumstances set forth in the 13 October 2012 complaints Nos. N-8 and N-9 of the Zarasai unit of the Lithuanian Social Democratic Party).

4.2.3. L. Riaubiškienė presented a written testimony that, on 13 October 2012, at the centre of the town of Zarasai, next to “Diana” café, D. Mickevičienė, the owner of the café, informed her that R. Garbinčius together with another person invited an employee of the café to get into their car and they urged that the said employee vote for R. Podolskis and the Labour Party. They paid LTL 10 for this service. The testimony of L. Riaubiškienė is confirmed by the testimony of another person regarding buying of votes. It is specified therein that, on 14 October 2012, A. Baliukas and his sister might have spoken about the payment after the voting upon the alleged bribery of several voters. In his testimony of 19 October 2012, G. Akuntjevas asserted that, on 11 October 2012, he heard an asocial person speaking that further away from the town hall, next to “Ąžuolas” gymnasium, voters were being given LTL 10 for voting for the Labour Party and R. Podolskis.

4.2.4. The 13 October 2012 complaint of the Zarasai unit of the Lithuanian Social Democratic Party and the 13 October 2012 letter of the Member of the Seimas R. Žilinskas indicate the facts, recorded by observers from the Lithuanian Social Democratic Party, of alleged bribing of voters and their transportation to the polling places. According to the assessment made by those persons, during the two days of voting that took place in the municipality of the Zarasai district, R. Podolskis’ team may have transported approximately 350 persons to the polling places.

4.2.5. The conclusion of the Working Group for Investigation into Briberies points out inter alia the following police reports:

– on 13 October 2012, at 17.55 o’clock, a report was received that in the village of Daneikiai of the Zarasai district, people in a car were visiting houses and propose LTL 10 for a vote for the Labour Party;

– on 13 October 2012, around 15–16 o’clock, in the village of Daneikiai of the Degučiai ward of the Zarasai district, allegedly S. Lamanauskas, having visited one voter, asked that the latter voter for the Labour Party and proposed LTL 10 for it;. due to this fact, a pre-trial investigation under Article 172 of the Criminal Code was launched;

– on 10 October 2012, at 9.50 o’clock, a report was received at the police commissioner’s office of the Zarasai district of the Police Chief Commissioner’s Office of the Utena County that in the shops of the villages of Magučiai and Bernotiškės voters might be being bribed for voting, according to the initial data, for the Labour Party.

– on 10 October 2012, at 17.32 o’clock, a report was received at the police commissioner’s office of the Zarasai district of the Police Chief Commissioner’s Office of the Utena County that a car would arrive at a block of flats in the village of Riešutinė of the Zarasai district and would transport the people to the polling place;

– on 14 October 2012, at 9.43 o’clock, in the townlet of Turmantas, the Zarasai district, D. Kelečienė, chairwoman of the constituency, reported that people were being transported, by means of the cars Audi 90 (number plate VKH 796) and Audi 100 Avant (number plate BGS 897), to the Turmantas constituency to vote for the Labour Party.

4.2.6. In the 19 October 2012 testimony of G. Akuntjevas it is asserted that, on 10–11 October 2012, a Citroen car (number plate DRG 501) was constantly moving around the town of Zarasai and transporting people to and from the polling station. In her testimony of 19 October 2012, L. Gudžiukaitė asserts that she noticed that, from 8 to 10 o’clock, in the townlet of Turmantas, the drivers, whose cars’ number plates were VKH 796 and BGS 897, were transporting voters to polling places. The full cars came several times. This testimony coincides with the information indicated in the aforesaid police reports.

4.2.7. From the received information the Working Group for Investigation into Briberies made a conclusion that, during the early voting and on the day of the voting in polling districts, in Zarasai–Visaginas constituency No. 52, organised transportation of voters might have been conducted, also that the candidate for a Member of the Seimas R. Podolskis, in an organised manner, trough persons connected to him, had bought the votes of voters in Zarasai–Visaginas constituency No. 52.

4.2.8. It is also clear from the material submitted to the Constitutional Court by the representatives of the Central Electoral Commission at the 24 October 2012 Court’s hearing that, during the days of the early voting (on 10–12 October 2012), at Zarasai–Visaginas constituency No. 52 (at the premises of the municipality of the Zarasai district) 230-500 voters voted, most of whom were asocial persons with the smell of alcohol. They had come (had been transported) to the polling place in an organised manner (the 12 October 2012 letter of the Nationalist Union for the Central Electoral Commission, the Electoral Commission of Zarasai–Visaginas constituency No. 52, letter No. 3, dated 13 October 2012, of the Zarasai unit of the Lithuanian Social Democratic Party, letter No. SN-S-154, dated 13 July 2012, of the Member of the Seimas R. Žilinskas).

These circumstances were essentially confirmed by the witness D. Kelečienė who was questioned at the Constitutional Court hearing. According to her, the direct bribery of voters was noticed during the early voting on the premises of the municipality of the Zarasai district, since, in comparison with the 2008 elections to the Seimas, an unusually big number of people turned up for the vote, and most of them were asocial and had never voted before. The witness also pointed out that the observers of the elections had found out who might have bribed the voters during the early voting and that they had referred this information to law and order institutions for further investigation. She asserted that she had received information of the observers of elections and from ordinary people that voters were going to be transported to the polling places and that this had been organised by representatives of the Labour Party, however, the law and order institutions that had been given that information had not succeeded in establishing such concrete cases.

4.3. Having conducted the investigation, the Working Group for Investigation into Briberies held that the candidate for a Member of the Seimas R. Podolskis had violated Paragraph 1 of Article 51 of the Law on Elections to the Seimas, since he had not observed the prohibition specified therein to directly or indirectly buy the votes of voters, namely:

4.3.1. on 10 and 11 October 2012, through the intermediary R. Garbinčius (indirectly), he might have bought up to 10 votes of the voters;

4.3.2. in the events that took place in August–September 2012, he gave presents—ice-cream and sweets—to the voters free of charge;

4.3.3. on 10, 13 and 14 October 2012, possibly with his knowledge, transportation of the voters to the polling place was arranged.

  1. On 22 October 2012, the political party “Order and Justice” filed a complaint with the President of the Republic “Regarding Decision of the Central Electoral Commission No. Sp-308 of 21 October 2012”, whereby it contested decision of the Central Electoral Commission No. Sp-308 of 21 October 2012 insofar as by Item 2 of the said decision the results of the 14 October 2012 elections in Zarasai–Visaginas single-member constituency No. 52 had been recognised as invalid, also insofar as by Item 5 of the same decision it was decided to carry out the run-off voting in the rest 67 single-member constituencies on 28 October 2012 by excluding Zarasai–Visaginas constituency No. 52.

5.1. In this complaint of the political party “Order and Justice” it is asserted that the representative of the said party, A. Dumbrava, received the most votes of the voters in Zarasai–Visaginas constituency No. 52 and, having decisively taken the first place among the 15 candidates, secured an opportunity to be elected to the Seimas during the run-off voting. However, after the Central Electoral Commission had decided, by Item 2 of the impugned decision, to recognise the results of the 14 October 2012 elections in Zarasai–Visaginas constituency No. 52 as invalid, he had lost such an opportunity, thus, the principle of democratic and free elections and the constitutional rights of persons to participate in elections had been violated.

5.2. This complaint of the political party “Order and Justice” is substantiated by the arguments related with the legality, reasonableness and justice of Item 2 of decision of the Central Electoral Commission No. Sp-308 of 21 October 2012:

– with reference to the jurisprudence of the Supreme Administrative Court of Lithuania, decisions of the Central Electoral Commission must set forth all legal and factual circumstances significant to the adoption of the decision: the decision must exhaustively describe the concrete established violations of legal acts, must contain the assessment substantiated by concrete factual data, must exhaustively describe other unlawful actions and must present sufficient and exhaustive arguments. Thus, the decisions of the Central Electoral Commission must be substantiated and the content thereof must meet the requirements of legal norms. The contested decision of the Central Electoral Commission No. Sp-308 of 21 October 2012 does not contain a single legal argument why the elections results of the 14 October 2012 elections in Zarasai–Visaginas single-member constituency No. 52 were recognised invalid. The said decision only points out the reason why the election results were recognised invalid, i.e. it was adopted due to the established gross violations of the elections law, however, it did not point out any concrete violations or by what actions those violations were committed. Nor does the contested decision contain any reference to other documents that would explain and establish those gross violations of the elections laws. It is noted that at the time of the drawing up the complaint, the political party “Order and Justice” did not possess any data regarding the substantiation of the gross violations of the elections law established by the Central Electoral Commission in Zarasai–Visaginas constituency No. 52;

– pursuant to Article 91 of the Elections to the Seimas, in order to recognise the election results in Zarasai–Visaginas constituency No. 52 as invalid, the Central Electoral Commission should have established that, during the elections to the Seimas, concrete violations of Paragraph 1 of Article 51 of the Law on Elections to the Seimas or other gross violations were committed, which had an essential influence on the election results, or due to which the essential results of the elections cannot be determined, however, it is not clear from decision of the Central Electoral Commission No. Sp-308 of 21 October 2012 on which of those grounds the election results in Zarasai–Visaginas constituency No. 52 were recognised as invalid. The political party “Order and Justice”, having no information whether one has followed the Procedure for Investigation and Assessment of Facts of Bribery of Voters and Persons Eligible to Vote as approved by decision No. 32 of the Central Electoral Commission of 26 June 2008, inter alia whether the working group has been formed, whether its conclusion has been assented, asserts that in case that has not been done, decision of the Central Electoral Commission No. Sp-308 of 21 October 2012, if one takes account of the said other obscurities, is unlawful;

– decision of the Central Electoral Commission No. Sp-308 of 21 October 2012 adopted groundlessly and without any legal justification, which, however, recognised the election results in entire Zarasai–Visaginas constituency No. 52 as invalid, doubtless to say, violates the constitutional right of the persons that took place in the elections to vote and be elected. If such a decision were adopted only with regard to the illegal deed of a single candidate for a Member of the Seimas during the elections, then only the said candidate must face the legal consequences. While taking account of the fact that it has not been established that A. Dumbrava, the candidate from the political party “Order and Justice”, and the other candidates who participated in the elections honestly have committed any violations of the elections law, the recognition of all results of the elections in that constituency as invalid is not in line with the principles of reasonableness and justice, whereas in case rerun elections are announced, the elected Member of the Seimas will lose an opportunity to represent his voters during the entire term of office of the elected Seimas.

  1. It has been mentioned that, having received the complaint of the political party “Order and Justice” “Regarding Decision of the Central Electoral Commission No. Sp-308 of 21 October 2012” of 22 October 2012, the President of the Republic, by her Decree No. 1K-1248 “On the Inquiry to the Constitutional Court of the Republic of Lithuania” of 23 October 2012, 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. 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 President of the Republic may apply the Constitutional Court with an inquiry concerning possible violations of the laws on elections during the elections of Members of the Seimas elections 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 election laws during the elections of the President of the Republic or 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 laws on elections 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. The inquiry of the President of the Republic for a conclusion whether during the 2012 elections to the Seimas the Law on Elections to the Seimas was not violated is related with two decisions of the Central Electoral Commission, whereby the results of the elections in Zarasai–Visaginas constituency No. 52 were recognised as invalid: decision No. Sp-313 of 21 October 2012 and decision No. Sp-308 of 21 October 2012 (Item 2). This inquiry was received at the Constitutional Court on 23 October 2012.

The said decisions of the Central Electoral Commission whereby the election results in Zarasai–Visaginas constituency No. 52 were recognised as invalid were adopted after the voting in electing the Members of the Seimas was over; on the day of reception of the inquiry of the President of the Republic at the Constitutional Court they had already been published on the Internet website of the Seimas. On the day of reception of the inquiry at the Constitutional Court, decision of the Central Electoral Commission No. Sp-308 of 21 October 2012 had also been published in the official gazette “Valstybės žinios” (2012, No. 123-6230).

The recognition of the election results as invalid by decision No. Sp-313 of 21 October 2012 and Item 2 of decision No. Sp-308 of 21 October 2012 means that during the voting that took place on 14 October 2012 at Zarasai–Visaginas single-member constituency No. 52 the Member of the Seimas was not elected and the run-off voting will not take place in this constituency on 28 October 2012. Thus, while taking account of these decisions, the voting in Zarasai–Visaginas single-member constituency No. 52 is to be regarded as finished, whereas the recognition of the election results is to be regarded as establishment of the final results of the 14 October 2012 elections to the Seimas in Zarasai–Visaginas single-member constituency No. 52.

  1. Decision of the Central Electoral Commission No. Sp-313 of 21 October 2012 and Item 2 of its decision No. Sp-308 of 21 October 2012 are inseparably interrelated. By decision of the Central Electoral Commission No. Sp-313 of 21 October 2012, while invoking Article 91 of the Law on Elections to the Seimas, the elections results in Zarasai–Visaginas single-member constituency No. 52 were recognised as invalid; on 21 October 2012, also decision No. Sp-308 was adopted by Item 2 whereof the elections results in Zarasai–Visaginas constituency No. 52 were also recognised as invalid.
  2. While taking account of the aforesaid, the Constitutional Court will investigate and assess decision of the Central Electoral Commission No. Sp-313 of 21 October 2012 and Item 2 of its decision No. Sp-308 of 21 October 2012, whereby the results of the 14 October 2012 elections to the Seimas in Zarasai–Visaginas single-member constituency No. 52 were recognised as invalid in conjunction with one another.

III

  1. The Constitutional Court has emphasised 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 (Constitutional Court conclusion of 5 November 2004, ruling of 1 October 2008, conclusion of 7 November 2008). 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 (Constitutional Court ruling of 1 October 2008).
  2. Paragraph 3 of Article 55 of the Constitution stipulates that the procedure for election of Members of the Seimas shall be established by law. In its conclusion of 5 November 2004, the Constitutional Court held that 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 of 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 norms and principles of 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.

In its conclusion of 5 November 2004, the Constitutional Court also held that the legislator, under the Constitution, has a duty to establish, by means of a law, the legal regulation which ensures that the voters vote in person and by secret ballot, and that in the course of voting it would be impossible both to influence the will of the voters and to control it. It is 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. It also needs to be emphasised that, under the Constitution, no reasoning may justify direct or indirect buying of votes of voters, also the practice of an election campaign where the voters, by means of presents or other rewards, are induced either to participate in or abstain from elections and/or vote either for or against one or another candidate. This is equivalent to bribery of voters, meaning that citizens of the Republic of Lithuania are deprived of their right to freely express their genuine will on their own in elections of the Seimas, while the Nation is deprived of its right to elect the representation of the Nation which would be able to express its genuine supreme sovereign power.

  1. It needs to be emphasised that a duty of the legislator stems from the Constitution to establish, by means of a law, the legal regulation ensuring honesty and transparency of the 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 (Constitutional Court conclusions of 5 November 2004 and 7 November 2008).
  2. It has been mentioned that, under the Constitution, no reasoning may justify direct or indirect buying of votes of voters, also the practice of an election campaign where the voters, by means of presents or other rewards, are induced either to participate in or abstain from elections and/or vote either for or against one or another candidate; this is equivalent to bribery of voters, meaning that citizens of the Republic of Lithuania are deprived of their right to freely express their genuine will on their own in elections of the Seimas, while the Nation is deprived of its right to elect the representation of the Nation which would be able to express its genuine supreme sovereign power.

In the context of the constitutional justice case at issue it needs to be noted that 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, can limit or deny altogether the expression of the supreme sovereign power of the Nation through the representation of the Nation—the Seimas.

In the context of the constitutional justice case at issue it also needs to be noted 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 rallies or other events 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.

  1. In its conclusion of 23 November 1996, the Constitutional Court emphasised that, when democratic elections are held, the mechanisms of publicity and control are of crucial importance. In this context it needs to be noted that, under Item 13 of Paragraph 1 of Article 67 of the Constitution, the Seimas shall form the Central Electoral Commission and alter its composition. In its decision (No. 5/94) of 11 July 1994, the Constitutional Court held that, under said provision, only one uniform and universal institution for the organisation of elections—the Central Electoral Commission—must be formed; 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. It needs to be 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.

In the context of the constitutional justice case at issue it needs to be 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.

  1. The Constitution consolidates the principle of responsible governance (Constitutional Court ruling of 1 July 2004). In the context of the constitutional justice case at issue it needs to be noted that this principle 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.

IV

  1. As mentioned before, in the constitutional justice case at issue the Constitutional Court will investigate and assess decision of the Central Electoral Commission No. Sp-313 of 21 October 2012 and Item 2 of its decision No. Sp-308 of 21 October 2012, whereby the results of the 14 October 2012 elections to the Seimas in Zarasai–Visaginas single-member constituency No. 52 were recognised as invalid, in conjunction with one another.

In decision of the Central Electoral Commission No. Sp-313 of 21 October 2012 it is pointed out that it is adopted pursuant to Article 91 of the Law on Elections to the Seimas. Thus, in the constitutional justice case at issue first of all those provisions of Article 91 of the Law on Elections to the Seimas are significant, which regulate the recognition of election results as invalid.

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

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. Thus, Paragraph 1 of Article 91 of the Law on Elections to the Seimas established the powers of the Central Electoral Commission to recognise the election results 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.

3.1. Paragraph 1 of Article 51 “Prohibition to Bribe Voters and Persons Eligible to Vote” (wording of 15 April 2008) of the Law on Elections to the Seimas provides:

“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.”

3.2. While construing the provisions of Paragraph 1 of Article 91 of the Law on Elections to the Seimas in conjunction with the provisions of Paragraph 1 of Article 51 of the same law, in the context of the constitutional justice case at issue one needs to note that the Central Electoral Commission has been granted the right to recognise the election results as invalid in cases when gross violations of the prohibition to bribe voters or persons eligible to vote are established, inter alia gross violations of the prohibition 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 candidate, which can be committed during the election agitation campaign, during voting by mail, during early voting, and on the day of elections.

In this conclusion the Constitutional Court has noted that mass and/or systemic bribing of voters and persons eligible to vote, 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 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, can limit or deny altogether the expression of the supreme sovereign power of the Nation through the representation of the Nation—the Seimas.

Consequently, the powers of the Central Electoral Commission to recognise the election results in a constituency as invalid, which are provided for in Paragraph 1 of Article 91 of the Law on Elections to the Seimas, after gross violations of Paragraph 1 of Article 51 of the same law are established, 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. Since, as mentioned before, such violations create preconditions to reasonably doubt the legitimacy and legality of the election results, and can limit or deny altogether the expression of the supreme sovereign power of the Nation through the representation of the Nation—the Seimas, 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 (for example, a too small number of votes received by a political party or a candidate liable for gross violations of Paragraph 1 of Article 51 of the Law on Elections to the Seimas).

3.3. It has been mentioned in this 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 rallies or other events 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.

Thus, under Paragraph 1 of Article 91 of the Law on Elections to the Seimas, the Central Electoral Commission has the powers to recognise the election results as invalid also after it has established a fact of one-time distribution of goods, money or other gifts (save the election agitation material pointed out in Paragraph 2 of Article 51 of the Law on Elections to the Seimas) to a considerable number of voters during a rally or another 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.

3.4. It needs to be noted that it is clear from the formulation “the Central Electoral Commission may recognise the election results in the constituency as invalid” of Paragraph 1 of Article 91 of the Law on Elections to the Seimas that the Central Electoral Commission is granted certain discretion to recognise the election results as invalid in the situations provided for in that paragraph (upon establishment of gross violations of Paragraph 1 of Article 51 of the same law or other gross violations of laws or for falsification of documents or the loss thereof that had an essential influence on the election results or in case it is impossible to determine the essential results of elections from the vote-counting protocols or other election documents.

While taking account of the fact that, 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 adherence to the principles of honesty and transparency of the electoral process would be ensured, also, while taking account of the aforementioned presumption that gross violations of Paragraph 1 of Article 51 of the Law on Elections to the Seimas, in themselves, are to be regarded as having an essential influence on the election results, one is to draw a conclusion that the discretion of the Central Electoral Commission to recognise the election results as invalid is limited: it must recognise the election results in the 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, when 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 when 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.

  1. In this context it needs to be noted that Paragraph 6 (wording of 18 May 2010) of Article 39 “Registration of Candidates for Members of the Seimas” of the Law on Elections to the Seimas inter alia provides that the Central Electoral Commission, having established that a political party or a candidate has grossly violated Paragraph 1 of Article 51 of this law, shall cancel the registration of such a candidate for a Member of the Seimas, revoke the announcement of a joint list of candidates of an appropriate political party or the coalition of parties, provided that not less than 15 days are left until the election.

Thus, under Paragraph 6 of Article 39 of the Law on Members of the Seimas, the Central Electoral Commission, having established that during the election campaign a certain political party or candidate grossly violated the prohibition established in Paragraph 1 of Article 51 of the Law on Elections to the Seimas to bribe voters and persons eligible to vote, i.e. having established a fact of mass and/or systemic bribing of voters, must revoke the announcement of a joint list of candidates of an appropriate political party or the coalition of parties in which the said party participates, or must cancel the registration of such a candidate. Such measures are designated for prevention of distortion of the genuine will of voters which is the essential precondition of the legitimacy and lawfulness of the election results, thus, for guaranteeing the honesty and transparency of elections. However, the Central Electoral Commission is prohibited from using such measures when not less than 15 days are left until the election. Therefore, having established gross violations of Paragraph 1 of Article 51 of the Law on Elections to the Seimas during the period of 15 days before the elections (inter alia during voting by mail and early voting), on the day of voting or while establishing the election results, the Central Electoral Commission, while seeking to secure that the genuine will of voters would not be distorted, may only resort to the strictest measure, which is recognition of the election results as invalid under Paragraph 1 of Article 91 of the Law on Elections to the Seimas.

V

  1. It has been mentioned that decision of the Central Electoral Commission No. Sp-313 of 21 October 2012 and Item 2 of its decision No. Sp-308 of 21 October 2012, regarding which the President of the Republic has applied requesting for a conclusion whether during the 2012 elections to the Seimas the Law on Elections to the Seimas had not been violated, are inseparably interrelated. It has also been mentioned that the Constitutional Court will investigate and assess those decisions of the Central Electoral Commission whereby the results of the 14 October 2012 elections to the Seimas in Zarasai–Visaginas single-member constituency No. 52 were recognised as invalid in conjunction with one another.

It is clear from the text of decision of the Central Electoral Commission No. Sp-313 of 21 October 2012 that it was adopted while invoking the conclusion of the Working Group for Investigation into Briberies and decision of the Central Electoral Commission No. Sp-311 of 21 October 2012 which recognised that the candidate for a Member of the Seimas R. Podolskis had violated the prohibition consolidated in Article 51 of the Law on Elections to the Seimas to bribe voters and persons eligible to vote and had thus grossly violated Article 51 of the Law on Elections to the Seimas.

  1. It is clear from the text of decision of the Central Electoral Commission No. Sp-311 of 21 October 2012 that it was adopted while invoking the conclusion of the Working Group for Investigation into Briberies of the Central Electoral Commission. Thus, the Central Electoral Commission essentially assented to the conclusion of the Working Group for Investigation into Briberies and that conclusion is to be regarded as the grounds for the Central Electoral Commission to confirm the facts of the violations of Paragraph 1 of Article 51 of the Law on Elections to the Seimas and to assess those violations as gross ones.
  2. As mentioned before, in decision of the Central Electoral Commission No. Sp-313 of 21 October 2012 it is pointed out that it is adopted pursuant to Article 91 of the Law on Elections to the Seimas wherein recognition of the election results as invalid is regulated. Thus in the constitutional justice case at issue the Constitutional Court will investigate and assess whether decision of the Central Electoral Commission No. Sp-313 of 21 October 2012 and Item 2 of its decision No. Sp-308 of 21 October 2012, whereby the results of the 14 October 2012 elections to the Seimas in Zarasai–Visaginas single-member constituency No. 52 were recognised as invalid, do not violate Article 91 of the Law on Elections to the Seimas.
  3. It has been mentioned that, under Paragraph 1 of Article 91 of the Law on Elections to the Seimas, inter alia:

– the powers of the Central Electoral Commission to recognise the election results 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 has the powers to recognise the election results as invalid also after it has established a fact of 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 another 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;

– 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, and when 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 when 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;

– having established gross violations of Paragraph 1 of Article 51 of the said law during the period of 15 days before the elections (inter alia during voting by mail and early voting), on the day of voting or while establishing the election results, the Central Electoral Commission, while seeking to secure that the genuine will of voters would not be distorted, may only resort to the strictest measure, which is recognition of the election results as invalid under Paragraph 1 of Article 91 of the Law on Elections to the Seimas.

  1. Thus, while deciding whether decision of the Central Electoral Commission No. Sp-313 of 21 October 2012 and Item 2 of its decision No. Sp-308 of 21 October 2012, which recognised the results of the 14 October 2012 elections in Zarasai–Visaginas single-member constituency No. 52 as invalid, do not violate Article 91 of the Law on Elections to the Seimas, one is to assess whether the Central Electoral Commission reasonably established whether gross violations of Paragraph 1 of Article 51 of the Law on Elections to the Seimas had been committed and whether there are not any circumstances negating the presumption that such gross violations have an essential influence on the election results, also, whether the Central Electoral Commission did not have any other measures to ensure that the genuine will of the voters would not be distorted.

5.1. It has been mentioned that mass and/or systemic bribing of voters and persons eligible to vote, 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 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; one-time distribution of goods, money or other gifts and/or rendition of services free of charge to voters during rallies or other events meant for entire society or only its part at the time of the electoral process, thus inducing 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 is also to be regarded as mass bribing of voters and persons eligible to vote. It needs to be noted that gross violations of democratic, free and fair elections, inter alia of the principles of honesty and transparency of the electoral process are to be regarded ipso facto gross violations of Paragraph 1 of 51 of the Law on Elections to the Seimas.

It has also been mentioned that it is clear from the material of the constitutional justice case at issue that the candidate for a Member of the Seimas R. Podolskis and persons who have ties with him gave out ice-cream and sweets free of charge to the voters and treated them to beer, that during the early voting and on the day of the voting in polling districts, in Zarasai–Visaginas constituency No. 52, organised transportation of voters might have been conducted, also that the candidate for a Member of the Seimas R. Podolskis, in an organised manner, through persons connected to him, bought the votes of voters in Zarasai–Visaginas constituency No. 52 In its decision No. Sp-311 of 21 October 2012, the Central Electoral Commission held that that the briberies had been carried out in various places of the Zarasai district during festivities, which attract many residents of the local community, where ice-cream and sweets were being given out on a mass scale in the presence of the candidate for a Member of the Seimas R. Podolskis and his wife O. Podolskienė, the warden of the town of Zarasai, thus inducing the voters to vote for the said candidate, therefore, the will of more than 394 voters might have been influenced.

Thus, while taking account of the circumstances testifying that the prohibition to bribe voters or persons eligible to vote during the election agitation and on the day of voting was violated on a mass scale and systemically, one needs to hold that the facts of such violations established by the Central Electoral Commission have been reasonably assessed as gross violations of Paragraph 1 of Article 51 of the Law on Elections to the Seimas.

5.2. It has been mentioned that one is to presume that gross violations of Paragraph 1 of Article 51 of the Law on Elections to the Seimas, 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).

It is clear from the material of the case at issue that there are not any such circumstances that would deny the presumption that the gross violations of Paragraph 1 of Article 51 of the Law on Elections to the Seimas established by the Central Electoral Commission had an essential influence on the election results. Quite to the contrary, according to the received votes of the voters, the candidate for a Member of the Seimas R. Podolskis had to continue his participation in the elections together with the candidate that received most of the votes and had an opportunity to be elected to the Seimas during the run-off election; the difference between the candidate R. Podolskis who took the second place and the candidate N. Gusevas who took the third place is small, i.e. 394 votes of the voters, whereas, as mentioned before, by the commission of gross violations of Paragraph 1 of Article 51 of the Law on Elections to the Seimas the will of more than 394 voters might have been influenced; in addition, while taking account of the entirety of the violations of Paragraph 1 of Article 51 of the Law on Elections to the Seimas, one is to draw a conclusion that the Central Electoral Commission reasonably assessed the number of the voters received by R. Podolskis during the voting by mail as unusually big in comparison with the overall average number of votes of the voters that cast their votes for this candidate.

5.3. It has been mentioned that, having established gross violations of Paragraph 1 of Article 51 of the Law on Elections to the Seimas during the period of 15 days before the elections (inter alia during voting by mail and early voting), on the day of voting or while establishing the election results, the Central Electoral Commission, while seeking to secure that the genuine will of voters would not be distorted, may only resort to the strictest measure, which is recognition of the election results as invalid under Paragraph 1 of Article 91 of the Law on Elections to the Seimas.

From the material of the constitutional justice case at issue it is clear that the Central Electoral Commission established the gross violations of Paragraph 1 of Article 91 of the Law on Elections to the Seimas on the same day when the results of elections to the Seimas were being established (21 October 2012). Thus, it did not have any other measure to ensure that during the elections to the Seimas in Zarasai–Visaginas constituency No. 52 the genuine will of the voters would not be distorted.

  1. Taking account of the arguments set forth, one is to hold that, upon assessment of the material of the constitutional justice case at issue, it is clear that decision of the Central Electoral Commission No. Sp-313 of 21 October 2012 and Item 2 of its decision No. Sp-308 of 21 October 2012, whereby the results of the 14 October 2012 elections to the Seimas in Zarasai–Visaginas single-member constituency No. 52 were recognised as invalid, did not violate Article 91 of the Law on Elections to the Seimas.

VI

  1. From the case material it is clear that in the 2012 elections to the Seimas, during the election agitation campaign, during voting by mail and early voting, as well as on the day of voting, in Zarasai–Visaginas single-member constituency No. 52 a considerable number of violations of the Law on Elections to the Seimas were committed—the principles of honesty and transparency of the electoral process were grossly disregarded and the voters were bribed on a mass scale and systemically, thus the genuine will of the voters in Zarasai–Visaginas single-member constituency No. 52 was distorted and preconditions were created for unfair competition in the elections and for diminishing the trust in the representation of the Nation.

It shows that some provisions of the Law on Elections to the Seimas prohibiting to bribe voters and other persons eligible to vote and establishing the powers of the Central Electoral Commission and district electoral commissions to prevent bribing of voters and persons eligible to vote are not efficient enough.

It is clear from the material of the case that the Central Electoral Commission and the Electoral Commission of Zarasai–Visaginas Constituency No. 52 did not use the powers granted to them by the Law on Elections to the Seimas to prevent, efficiently and in time, the bribing of voters and persons eligible to vote in this constituency.

  1. In this Constitutional Court’s conclusion it has been 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 necessary in order to organise elections; 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 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.

In this context it needs to be noted that, upon establishing, in Paragraph 6 of Article 39 of the Law on Elections to the Seimas, the prohibition for the Central Electoral Commission, if less than 15 days are left until the election, to revoke the announcement of a joint list of candidates of an appropriate political party or the coalition of parties which have grossly violated the prohibition established in Paragraph 1 of Article 51 of the Law on Elections to the Seimas to bribe voters or persons eligible to vote, or to cancel the registration of a candidate who has grossly violated the prohibition established in Paragraph 1 of Article 51 of the Law on Elections to the Seimas to bribe voters or persons eligible to vote, no necessary legal preconditions are created for the Central Electoral Commission to efficiently ensure the adherence to those principles, inter alia for prevention of violations thereof.

It is clear from the case material and the explanations given by the representatives of the Central Electoral Commission at the Constitutional Court hearing that, if the Central Electoral Commission enjoyed the powers until the day of voting to cancel the registration of a candidate who has grossly violated the prohibition established in Paragraph 1 of Article 51 of the Law on Elections to the Seimas to bribe voters or persons eligible to vote, legal preconditions would be created to ensure the honesty and transparency of the electoral process without resorting to the strictest measure established in Paragraph 1 of Article 91 of the Law on Elections to the Seimas, which is recognition of the election results in a constituency as invalid.

  1. It needs to be emphasised that the corresponding correction of the legal regulation is a constitutional duty of the legislator. In this respect it needs to be noted that the Seimas has made a commitment to revise election laws and to approve the Electoral Code of the Republic of Lithuania: on 15 March 2012, it adopted the Republic of Lithuania Constitutional Law on the List of Constitutional Laws, Item 6 of Paragraph 1 “The List of Constitutional Laws of the Republic of Lithuania” of Article 2 whereof points out the Republic of Lithuania Constitutional Law on the Approval, Entry into Force and Implementation of the Electoral Code.
  2. It has been noted in this Constitutional Court’s conclusion that inter alia mass bribing of voters and persons eligible to vote, which could be one-time distribution of goods, money or other gifts and/or rendition of services free of charge to a considerable number of voters during rallies or other events 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 violation of the prohibition to bribe voters and persons eligible to vote that is established in Paragraph 1 of Article 51 of the Law on Elections to the Seimas.

In this Constitutional Court’s conclusion it has also been mentioned that the constitutional principle of responsible governance 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.

From the case material and the testimony of the witness given at the Constitutional Court hearing it is clear that the Electoral Commission of Zarasai–Visaginas Constituency No. 52 and the Central Electoral Commission possessed the data as far back as in August–September 2012 about facts of bribing voters and persons eligible to vote, which may have been assessed as a gross violation of the prohibition to bribe voters and persons eligible to vote that is established in Paragraph 1 of Article 51 of the Law on Elections to the Seimas, however, none of those commissions resorted to efficient measures so that those facts could be investigated and assessed in time.

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

conclusion:

Decision of the Central Electoral Commission No. Sp-313 “On Recognising the Election Results in Zarasai–Visaginas Constituency No. 52 as Invalid” of 21 October 2012 and Item 2 of its Decision No. Sp-308 “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, whereby the results of the 14 October 2012 elections to the Seimas of the Republic of Lithuania in Zarasai–Visaginas single-member constituency No. 52 were recognised as invalid, 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

                                                                                                         Egidijus Šileikis

                                                                                                         Algirdas Taminskas

                                                                                                         Romualdas Kęstutis Urbaitis

                                                                                                         Dainius Žalimas