Lt

On impeachment proceedings provided for in the Statute of the Seimas

Case No. 3/99-5/99

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Article 259 of the Statute of the Seimas of the Republic of Lithuania with the Constitution of the Republic of Lithuania

Vilnius, 11 May 1999

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

Gintaras Goda, a senior consultant at the Law Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, a petitioner

Seimas members Juozas Bernatonis and Česlovas Juršėnas, acting as the representatives of a group of Seimas members, a petitioner

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 21 April 1999, in its public hearing, considered case No. 3/99-5/99 subsequent to the petitions submitted to the Court by the petitioners—the Seimas of the Republic of Lithuania and a group of Seimas members—requesting an investigation into whether Article 259 of the Statute of the Seimas of the Republic of Lithuania was in compliance with Article 74 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 22 December 1998, the Seimas of the Republic of Lithuania set forth its Statute “On the Amendment to the Statute” (Official Gazette Valstybės žinios, 1999, No. 5-97) in its new wording.

Part VIII Impeachment Proceedings (Articles 227–260) of the Statute of the Seimas in its new wording regulates the bases and procedure for carrying out impeachment proceedings at the Seimas. Along with the other amendments, the procedure for impeachment proceedings was changed as well. The Statute of the Seimas was supplemented by Chapter 40 Procedure for Impeachment at the Seimas Following a Received Copy of a Judgment of Conviction by a Court (Articles 259 and 260). Article 259 of the Statute regulates peculiarities of the procedure for impeachment at the Seimas following a received copy of a judgment of conviction by a court except the issues linked with the vote on the decision to remove a person from office (this is dealt with by Article 260).

II

A group of Seimas members have applied to the Constitutional Court with a petition requesting an investigation into whether certain norms of the Statute of the Seimas in its new wording were in compliance with the Constitution of the Republic of Lithuania. One of the petitions requests an investigation into whether the provision of Article 259 of the Statue by which the Seimas shall adopt the decision on the revocation of the mandate of a Seimas member after it has received a copy of an effective judgment of conviction by a court is in compliance with Article 74 of the Constitution.

The request of the group of Seimas members is based on the following arguments.

Article 259 of the Statute provides that the Seimas shall adopt the decision on the revocation of the mandate of a Seimas member after it has received a copy of an effective judgment of conviction by a court, however, Article 74 of the Constitution provides that the mandate of a Seimas member is revoked in accordance with the procedure for impeachment proceedings. Article 63 of the Constitution gives an exhaustive list of circumstances when the powers of a Seimas member are terminated. This article of the Constitution does not provide that his powers are terminated after a judgment of conviction in a criminal case becomes effective. In addition, the Statute of the Seimas provides that after notification of the commencement of impeachment proceedings, during the sittings wherein the said proceedings take place, the Seimas becomes an impeachment institution and in its sittings the impeached person shall participate. Meanwhile, it is provided for by Article 259 of the Statute of the Seimas that the decision on the revocation of the mandate of a Seimas member is adopted at a routine sitting of the Seimas in the absence of the Seimas member whose mandate is being revoked. Such a decision is signed by the Speaker of the Seimas, and in the course of carrying out the impeachment proceedings it is signed by the chairperson of the sitting (the President of the Supreme Court or any other justice of the said court, the President of the Constitutional Court or any other justice of the said court). Thus, Article 259 of the Statute of the Seimas is not in line with the provisions of Article 74 of the Constitution and the common norms of Part VIII Impeachment Proceedings of the Statute which regulate the procedure for impeachment.

III

By its resolution of 16 March 1999, the Seimas requests an investigation into whether Article 259 of the Statute is in compliance with Article 74 of the Constitution.

The resolution is based on the fact that “upon the approval of the Statute of the Seimas in its new wording and its coming into force some members of the Seimas expressed doubts, as in the instance of the petition of a group of Seimas members to the Constitutional Court, whether the norms of Article 259 of the Statute of the Seimas in its new wording were in compliance with the provisions of Article 74 of the Constitution of the Republic of Lithuania”.

IV

By its decision of 13 April 1999, the Constitutional Court joined the petitions of the Seimas and a group of Seimas members requesting an investigation into the conformity of Article 259 of the Statute of the Seimas with the Constitution into one case.

V

In the course of the preparation of the case for the Constitutional Court hearing, an explanation of G. Goda, a senior consultant at the Law Department of the Office of the Seimas, was received.

It is maintained in the explanation that under Article 74 of the Constitution, the procedure for impeachment proceedings shall be established by the Statute of the Seimas. The latter provides for two possible forms of impeachment proceedings in cases when the mandate of a Seimas member may be revoked because of the commission of a crime.

One form of impeachment consists of two phases: a certain preliminary investigation and impeachment proceedings at the Seimas upon its becoming an impeachment institution (Paragraph 3 of Article 246 of the Statute). In such a form the impeachment proceedings may be conducted only in cases when they are initiated because of a gross violation of the Constitution or a breach of the oath.

The second form of impeachment is possible in cases when a Seimas member is suspected of the commission of a crime. Under Paragraph 3 of Article 231 of the Statute, upon hearing the report of the Prosecutor General, the Seimas may decide not to begin the preparatory actions for impeachment proceedings but give its consent so that the Seimas member may be brought to criminal liability. If, after this, the Seimas receives a copy of a judgment of conviction by a court, impeachment procedure is carried out as provided for by Chapter 40 of the Statute. In such a case the actual aspect of the crime is not considered nor is it deliberated anew whether the Seimas member is guilty of the commission of a crime—the Seimas merely votes for the revocation of the mandate of a Seimas member.

Denying the arguments of the group of Seimas members, the representative of the Seimas contends that, elucidating Item 5 of Article 63 of the Constitution, one has to investigate the content of Article 74 of the Constitution. In the latter article it is provided that the commission of a crime is one of the bases due to which the procedure for impeachment on the revocation of the mandate of a Seimas member is commenced.

Neither Article 63 nor Article 74 of the Constitution provides for the rules of impeachment proceedings. The Constitution does not contain any restrictions due to which impeachment proceedings should be carried out by one way only. Therefore, the said two opportunities of the manner of Seimas behaviour after it becomes clear that a Seimas member is suspected of the commission of a crime, as provided for by the Statute, may not be regarded as contradicting the Constitution.

Article 259 of the Statute does not mention the fact that the Seimas, voting on the revocation of the mandate, becomes an impeachment institution. In cases when impeachment proceedings are conducted under the rules set down by Chapter 39 of the Statute, the Seimas becomes an impeachment institution (Paragraph 3 of Article 246 of the Statute), therefore, the Seimas member suspected of the commission of a crime has an opportunity to participate in the sitting (Article 250 of the Statute). In the course of such impeachment it is attempted to clarify in essence the actual circumstances and establish if the Seimas member is guilty of the commission of the deed. Virtually the structure of such impeachment proceedings corresponds to that of judicial process.

It was held in the effective judgment of conviction by a court, a copy of which was received by the Seimas, that a Seimas member had committed a criminal deed and was guilty of it. The Seimas may not hold contrarily as under Article 109 of the Constitution, in the Republic of Lithuania the courts shall have the exclusive right to administer justice. Therefore, simplified impeachment proceedings are carried out—the Seimas members are given an opportunity to decide if the mandate of a Seimas member should be revoked because of the crime committed. To become effective, such a decision must be adopted by not less than 3/5 of Seimas members.

VI

During the judicial investigation, Seimas member J. Bernatonis, the representative of a group of Seimas members, a petitioner, explained that the procedure established by Article 259 of the Statute of the Seimas is not to be considered impeachment proceedings also due to the fact that it virtually deviates from the common norms of Part VIII of the Statute which regulate the impeachment institution: it is established in Paragraph 1 of Article 230 of the Statute of the Seimas that a group comprising not less than 1/4 of all Seimas members is entitled to propose that impeachment proceedings be initiated, meanwhile under Article 259 of the Statute, either the Speaker or Deputy Speaker of the Seimas, i.e. one Seimas member, may initiate impeachment proceedings; by Article 235, in order to investigate the validity and seriousness of the charges and to prepare a conclusion on the proposal to institute impeachment proceedings, the Seimas shall form a special investigatory commission, and, in addition, under Paragraph 1 of Article 244 of the Statute the Seimas shall decide whether to institute impeachment proceedings, meanwhile Article 259 of the Statute does not provide for the determination of the Seimas whether to institute impeachment proceedings or not; in the course of carrying out impeachment under Article 259, the sitting of the Seimas is not presided over by a judge (the President of the Supreme Court or a justice of the said court, or the President of the Constitutional Court or a justice of the said court), as is stipulated by the common rules of impeachment proceedings (Paragraph 1 of Article 246 of the Statute) but the Speaker of the Seimas, which is a violation of the principle of openness; under Paragraph 3 of Article 246 of the Statute of the Seimas, during a sitting of impeachment proceedings the Seimas shall become an impeachment institution, while by Article 259 the decision on the revocation of the mandate is adopted by a non-impeachment institution; under Article 247 of the Statute, impeachment proceedings at the Seimas consist of five constituent phases: preparation, interrogation, pleadings, the final word of the impeached person, and the vote on the presented charges, meanwhile Article 259 does not provide for impeachment proceedings at all; by the norms of Chapter 39 of the Statute of the Seimas, the impeached person has the right to be heard; having received particularised formulations of the charge, he may demand that the interrogation be continued; he is entitled to participate in the pleadings with the prosecutor; he also enjoys other procedural rights. Meanwhile, under Article 259, not only is the impeached person prohibited from speaking, but he is even not allowed to participate at the sitting of the Seimas.

In the opinion of J. Bernatonis, the conclusion that the procedure for the revocation of the mandate as provided for by Article 259 of the Statute of the Seimas is not regarded as impeachment proceedings is confirmed by the fact that that the said article does not use the notion of impeachment: Paragraph 1 of the said article obligates the Speaker (Deputy Speaker) of the Seimas to acquaint Seimas members with the received judgment of conviction; under Paragraph 2 thereof the date is established for the Seimas sitting during which the issue of the revocation will be discussed, however, the impeachment proceedings are not mentioned therein; Paragraph 3 thereof provides that the question of removing a person from office or that of the revocation of the mandate shall be decided by means of a resolution adopted by the Seimas; Paragraph 4 thereof presents the content of such a resolution; Paragraph 5 thereof presents a redundant norm by which in the course of submission of the draft resolution, deliberation on it and its adoption, the judgment of conviction by a court shall not be discussed, nor its validity nor lawfulness be disputed; Paragraph 6 thereof prohibits the impeached person from participating in the Seimas sitting. The only place where the procedure for impeachment is mentioned in this article is the wording of the draft resolution of the Seimas given by Paragraph 4 by which the mandate shall be revoked (one shall be removed from office) in accordance with the procedure for impeachment, in fact, however, impeachment proceedings are not carried out.

J. Bernatonis maintained that Paragraph 6 of Article 259 prohibiting a person who is serving his sentence in confinement from participating in the sitting of the Seimas wherein the question of the revocation of his mandate (his removal from office) is decided is incompatible with the standards of a democratic state nor those of a democratic legal system. Thus, this norm also contradicts Article 1 of the Constitution by which the State of Lithuania shall be a democratic republic, as well as the international commitments of the State deriving from the Universal Declaration of Human Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms.

According to J. Bernatonis, the resolution of the Seimas and the procedure for its adoption as provided for by Article 259 of the Statute of the Seimas contradict Article 74 of the Constitution not only by its content but also by its form. The Constitution provides for situations when the Seimas adopts decisions (Paragraph 4 of Article 58 establishing that an early election to the Seimas may be held on the decision of the Seimas; Paragraph 3 of Article 59 providing that Seimas members who either do not take an oath in the manner prescribed by law, or who take a conditional oath, shall lose the mandate of a Seimas member and the Seimas shall adopt a corresponding resolution thereon; Item 3 of Article 67 providing that the Seimas shall adopt resolutions for the organisation of referendums; Item 2 of Article 94 providing that the Government shall implement laws and resolutions of the Seimas concerning the implementation of laws). The Constitution, however, does not provide for an opportunity to revoke the mandate of a Seimas member nor to remove a person from office by means of a Seimas resolution.

The impugned article is tightly connected with Paragraph 3 of Article 231 of the Statute, which is impugned by the petition, by which the Seimas, upon hearing the report of the Prosecutor General on the crime committed by the Seimas member, may adopt only one of the two decisions: either to form a special investigatory commission empowered to present a recommendation whether to give the consent to bring the Seimas member to criminal liability or to commence the preparatory actions for impeachment proceedings. Under Articles 23 and 231 in their new wording, the Seimas may no longer freely decide on this issue (this was possible under the norms of the Statute which were in effect earlier).

In the course of the judicial investigation, the representative of the group of Seimas members Č. Juršėnas set forth the following arguments.

In Lithuania the legal institution of impeachment was established only after the present Constitution had been adopted, however, in fact, it has never been applied. Impeachment presumably is a decision of the question of constitutional liability under parliamentary procedures, therefore, it should be considered an expression of democracy. They are not judicial but parliamentary proceedings. Article 74 of the Constitution provides that only such persons may be impeached who enjoy particular powers and this may only be done for particular deeds. Due to the fact that some of these officials (the President of the Republic and Seimas members) are granted their mandate in the election by the nation, it is possible to revoke such a mandate only by following a special procedure. This statement is based on the formulations of the Constitution: in all cases when an impeachment institution is established in the Constitution, the wording “in accordance with the procedure for impeachment proceedings” is employed (Item 5 of Article 63, Article 74, Paragraph 2 of Article 86, Item 5 of Paragraph 1 of Article 88, Paragraph 1 of Article 89, Item 5 of Article 108, Article 116). Therefore, it is not permissible to revoke a mandate or to remove from office without carrying out the proceedings: the Constitution empowers the Seimas to establish the procedure for impeachment proceedings but never to abolish impeachment proceedings themselves which in all cases, regardless of the reason for the impeachment, must remain of a full value. This requirement is determined by the need to ensure not only the convenience of the Seimas’ work but also the rights of the persons the question of whose mandate is decided in accordance with the procedure for impeachment proceedings. Meanwhile Article 259 of the Statute provides for a simplified impeachment proceedings. Therefore, the revocation of the mandate of a Seimas member under the procedure set down by Article 259 of the Statute of the Seimas is, presumably, not impeachment but pseudo- or ersatz impeachment.

This provision of Article 74 of the Constitution may not be interpreted as entitling the Seimas to establish several procedures, by singling out those Seimas members who due to serving their sentence in confinement do not take part in the Seimas sitting. This violates the principle of the equality of Seimas members which is also established in the jurisprudence of the Constitutional Court (the Constitutional Court’s ruling of 26 November 1993). It is not the right of the Seimas to establish the procedure for impeachment proceedings which is being questioned but the fact as to how this right is actualised in Article 259 of the Statute.

Č. Juršėnas is of the opinion that the impugned article contradicts the Constitution from additional aspect. Article 74 of the Constitution provides that impeachment may be applied “if it transpires that a crime has been committed”. The formula “if it transpires” may be interpreted in various ways, therefore, in establishing as to what meaning is attached to it by Article 74 of the Constitution, one has to take account of the whole text of the Constitution. In some cases the Constitution directly links the impossibility for a person to hold office or his removal from office with the effective judgment of conviction by a court (Paragraph 2 of Article 56 of the Constitution providing that a person who have not served his court-imposed sentence may not stand for election as a member of the Seimas; Item 6 of Article 115 thereof providing that judges shall be dismissed from office when judgment imposed on them by a court comes into force), and in such cases impeachment proceedings are not carried out. Presumably, the wording “if it transpires that a crime has been committed” ought to be interpreted as not denying the right of the Seimas to decide in every particular case whether the judgment by a court provides sufficient grounds for the commencement of impeachment proceedings.

In the opinion of Č. Juršėnas, a simplified procedure for impeachment also violates the rights of the impeached Seimas member. For instance, under the regulations for the activities of the Seimas Commission for Ethics and Procedures which were approved by the Seimas on 17 January 1995, the Seimas member who has broken ethics is asked to come to the sittings of this commission. Neither are there any other parliamentary procedures prohibiting the person the issue of whose liability is being decided from participating in a respective Seimas sitting, nor those forbidding him from speaking. Meanwhile, when the procedure as provided for by Article 259 of the Statute of the Seimas is conducted, the Seimas member is not asked to take part in the sitting: in the case that he is convicted for imprisonment the question of the revocation of his mandate is decided in his absence. Still, in cases when the impeached Seimas member is not sentenced to imprisonment and can participate in the Seimas sitting, a simplified procedure for impeachment does not provide the Seimas member with an opportunity to say as to what his position is as impeachment proceedings are identified with the adoption of the resolution on the revocation of the mandate.

In the opinion of Č. Juršėnas, the necessity of carrying out impeachment proceedings to their full value is also motivated by a possibility of the judicial error. As for this issue, there exists jurisprudence of the Constitutional Court (the 9 December 1998 Constitutional Court ruling “On the compliance of the death penalty provided for by the sanction of Article 105 of the Criminal Code of the Republic of Lithuania with the Constitution of the Republic of Lithuania”). It is because of the possibility of a court’s error that the full-extent impeachment proceedings must be conducted at the Seimas before the mandate of a Seimas member is revoked.

VII

During the judicial investigation, the representative of the Seimas G. Goda supplemented his position set forth in writing with these arguments.

In the Statute of the Seimas one has chosen a way of regulating impeachment proceedings which is rational and in compliance with the Constitution. Under Item 5 of Article 63 of the Constitution, the powers of a Seimas member shall be terminated when the Seimas revokes his or her mandate in accordance with the procedure for impeachment proceedings. The cases when impeachment proceedings are possible are regulated by Article 74 of the Constitution. One of such cases is the commission of a crime. Therefore, the commission of a crime, unlike than the other bases established by Article 63 of the Constitution, does not provide any basis for an automatic revocation of the mandate of a Seimas member. If this basis were entered into Article 63 of the Constitution, the impeachment proceedings would not be conducted: in such a case the decision would be adopted by the Central Electoral Committee, or this question would be decided by other ways. Meanwhile, Article 74 of the Constitution provides that because of the commission of a crime a Seimas member may lose his mandate only in accordance with the procedure for impeachment proceedings, i.e. the revocation of the mandate is the consequence of impeachment. The Constitution leaves the Seimas to establish by its Statute as to how one has to conduct impeachment proceedings, as it does not contain any formal requirements for these proceedings. Impeachment proceedings are regulated by Part VIII of the Statute of the Seimas by which impeachment proceedings may proceed in two ways: either in pursuance of the longer procedure which includes the preparatory investigation and impeachment proceedings at the Seimas or the shorter one established by Article 259 of the Statute which does not provide for the investigation of actual circumstances and which virtually identifies impeachment with the vote on the revocation of the mandate of a Seimas member. The fact that the Constitution does not establish any formal requirements for impeachment proceedings means that it permits a variety of impeachment proceedings. Therefore, the Statute of the Seimas, based on the Constitution, may establish several variants of impeachment proceedings. Regulating impeachment in various ways, it is important that in all cases of impeachment there should be an essential element of impeachment—the decision adopted by the 3/5 majority vote of Seimas members as to whether there are grounds to revoke the mandate of a Seimas member; however, the fact as to what procedures are conducted prior to this decision are not of crucial importance.

The constitutional bases for impeachment are varied. In cases of violations of the Constitution or a breach of the oath one has to establish whether this took place. In such cases the voting at the Seimas on the revocation of the mandate is not permissible until the factual circumstances of the offence are found out. Meanwhile, in every case of the commission of a crime the State must carry out criminal prosecution in the course of which it is established whether the Seimas member actually performed the criminal deed which could give grounds to impeachment proceedings and because of which his mandate of a Seimas member may be revoked. This is not so in cases of gross violations of the Constitution or a breach of the oath, unless these bases would also include the commission of a crime. Therefore, the procedure established by Article 259 of the Statute of the Seimas is reasonable as the actual circumstances are found out by means of criminal procedure. In case one conducted the investigation at the Seimas (impeachment proceedings with in their phases) and, on the other hand, the investigation of the criminal case in accordance with criminal procedure at the same time, both these investigations would interfere with each other. While after the case has been investigated and the judgment passed, to conduct impeachment proceedings at the Seimas to their full extent, including preparatory actions as well, would not be rational, as the object of both investigations is the same, which is the essential investigation in both cases whether the member of the Seimas committed the crime (e.g., Paragraph 1 of Article 258 of the Statute provides that a person is recognised guilty in accordance with the procedure for impeachment proceedings). Only the purposes (aims) of these two processes are different: both in criminal process and parliamentary impeachment process the same question of culpability is decided, however, the wording contained in the Seimas vote paper expressing that the member of the Seimas is accused of the commission of a crime means that the mandate of the member of the Seimas must be revoked. In case impeachment proceedings to their full extent were conducted at the Seimas after the judgment of conviction has been passed by a court and after the judgment has become effective, all the same the Seimas would not be capable of adoption of the decision stating that the member of the Seimas did not commit the crime as the Seimas is not empowered to deny the court’s judgment. Therefore, Article 259 of the Statute providing for a different procedure for impeachment merely releases the Seimas from the necessity to elucidate the actual circumstances of the case, to find evidence etc. for the second time. Because of this it is not necessary for the member of the Seimas in whose regard the effective judgment of conviction by a court has been passed to take part in the Seimas sitting: in the said judgment the actual circumstances are assessed, while it is not permitted to discuss its lawfulness nor its validity at the Seimas. Besides the convicted member of the Seimas has an opportunity to express his position (e.g. in writing) to the other Seimas members even without taking part in the Seimas sitting.

G. Goda maintained that the Constitution does not require that impeachment be conducted on the Seimas becoming an impeachment institution. Acting in pursuance of Article 259 of the Statute, the Seimas is not an impeachment institution in the sense when it is an impeachment institution in the course of carrying out impeachment under Chapter 39 of the Statute. But because of the fact that the essential element of impeachment remains, which is the decision on whether there are grounds to revoke the mandate of a Seimas member passed by the 3/5 majority vote of Seimas members, the Seimas in this case is also to be held an impeachment institution, only in another sense: it is an impeachment institution carrying out “simplified” impeachment proceedings.

Due to the fact that a different procedure for impeachment is established, the principle of the equality of Seimas members is not violated. However, their status at the procedures of impeachment is different: there is an effective judgment of conviction by a court regarding the impeached Seimas member, while concerning the other Seimas members there is not any such judgment. As not only the punishment of conviction but also other punishment may be given for crimes, the status of convicted persons may be different in the course of procedures of impeachment as well. This is taken account of by Paragraph 6 of Article 259 of the Statute which regulates the actions that may be performed when the impeached person is serving his sentence in confinement. Besides Article 259 contains special norms which must only be applied in the situations strictly provided for, therefore, there are no grounds to maintain that the rights of the Seimas member provided for by Article 9 of the Statute are violated.

According to G. Goda, it is possible to ground a possibility of simplified impeachment proceedings on an analogy from the sphere of criminal process. The criminal process laws of many democratic states provide for various variants of simplified (summary) judicial proceedings, when one abandons the judicial investigation of the evidence, while the decision is adopted on the basis of the collected material. Even though in this case one refers to procedures of different nature, still it proves that there is a possibility of lawful simplified proceedings.

The Constitutional Court

holds that:

I

1. On 22 December 1998, the Seimas by the Statute of the Seimas “On the Amendment to the Statute” adopted the Statute of the Seimas in its new wording. The procedure for impeachment proceedings was also amended thereby. The Statute was supplemented by Chapter 40 Impeachment Procedure at the Seimas Following a Received Copy of a Judgment of Conviction by a Court (Articles 259 and 260). Article 259 of the Statute entitled Impeachment Procedure at the Seimas Following a Received Copy of a Judgment of Conviction by a Court provides:

1. Upon reception of a copy of the effective judgment of conviction by a court, the Speaker (Deputy Speaker) of the Seimas shall promptly acquaint the other Seimas members with it.

2. In its nearest sitting the Seimas shall fix the date of the Seimas sitting during which the issue of the dismissal of the person from office or that of the revocation of the mandate of a Seimas member must be considered.

3. The Seimas shall adopt a resolution on the dismissal from office or the revocation of the mandate of a Seimas member. The draft resolution shall be submitted by the Speaker or the Deputy Speaker of the Seimas at the sitting of the Seimas.

4. The draft resolution of the Seimas shall be of the following content:

The Seimas of the Republic of Lithuania

Resolution

On the dismissal of _______________ from the office of________________

(name, family name)

(or On the revocation of the mandate of a Seimas member from _____________)

(name, family name)

(Date, No.)

Vilnius

The Seimas of the Republic of Lithuania, taking account of the fact that

regarding __________________ there is an effective judgment of conviction

(name, family name)

passed by _____________________________________________________

(title of the court, date of the passing of the judgment of conviction)

under which ________________ is sentenced to ____________ under Article

(name, family name) (punishment)

______ of the Republic of Lithuania Criminal Code,

has adopted this resolution:

Article 1

To remove ________________ from the office of _____________

(name, family name) (name of office)

(or To revoke the mandate of a Seimas member from ___________________)

(name, family name)

in accordance with the procedure for impeachment proceedings.

Article 2

This resolution shall become effective following its adoption.’

5. In the course of the submission, consideration and adoption of the draft resolution of the Seimas, the court’s judgment shall not be deliberated, neither its lawfulness nor its validity shall be disputed.

6. The person concerning whom the draft resolution of the Seimas is being submitted, has the right to resign from office and refuse the mandate of a Seimas member prior to the beginning of the vote by presenting his written application. The person serving the sentence in confinement shall present his application either by post or through his authorised representative, and shall not take part in the Seimas sitting in person. Such an application must be satisfied, while the deliberation at the Seimas must be ceased and this is officially registered by means of a Seimas resolution.”

The petitioners—the Seimas and the group of Seimas members—request an investigation into whether Article 259 of the Statute is in compliance with the Constitution, while the group of Seimas members in addition requests an investigation into whether the said article is in conformity with the common norms of Part VIII of the Statute regulating impeachment proceedings. As under Article 102 of the Constitution the Constitutional Court shall not decide the question of compatibility of the norms of the same act, the common norms of the Statute regulating impeachment will only be investigated to the extent necessary to disclose the notion of the impeachment institution in the Lithuanian constitutional doctrine and legal system.

2. By the latitude of the questions which are attempted to be elucidated, the petition of the Seimas includes the request of the group of Seimas members, as the group of Seimas members impugns the conformity of Article 259 of the Statute with the Constitution only in the view that it contains the established procedure for impeachment by which the mandate of the Seimas may be revoked. The Constitutional Court has taken into consideration the fact that the Seimas did not point out any other reasons for which the constitutionality of Article 259 of the Statute is impugned save those presented by the group of Seimas members.

3. In the Lithuanian constitutional system, the institution of impeachment proceedings should be linked with the striving for an open, just, and harmonious civil society and a State under the rule of law which is declared in the preamble of the Constitution, as well as the constitutional principles of the rights of individuals and protection of freedoms.

The compliance of every institution of law to the Constitution must be assessed on the grounds whether it is in conformity to the constitutional principles of a state under the rule of law. The function of the constitutional doctrine is to disclose the content of the concept of a state under the rule of law.

As the Constitution is an integral act, the Constitutional Court, investigating the compliance of Article 259 of the Statute of the Seimas with the Constitution and taking account of the requirements which are raised for impeachment by the principles of a state under the rule of law, those of the protection of the rights and freedoms of individuals which are established by the Constitution, must assess whether the procedure for the removal of a person from office or the revocation of his mandate of a Seimas member as established by the impugned article is in line with the concept of impeachment proceedings established by Article 74 of the Constitution.

II

1. As a matter of fact, the principles of a state under the rule of law in the sphere of the legal regulation of the activities of state institutions and officials are implemented by co-ordinating confidence in state officials with the public control over them and their responsibility to society.

In a democratic state the officials and institutions must follow law. Carrying out the functions important to society and the state, the officials must not face any threat if they fulfil their duties without violations of law. Various legal mechanisms help to ensure this: legal regulation of the competence of state officials and institutions, their social and material guarantees, absence of the imperative mandate for the members of elective institutions etc.

On the other hand, in the legal system an opportunity must be provided for to dismiss those state officials who violate laws, who place their individual or group interests higher than those of society, and who discredit by their actions the authority of the state. The responsibility of authority to society is a principle of a state under the rule of law which is established by the Constitution by providing that state institutions will serve the people, while the citizens shall have the right to run the country either directly or through democratically elected representatives, as well as by guaranteeing an opportunity for citizens to defend their rights in court, and also the right to criticise, the right of petition, by regulating the procedure for investigation of appeals and complaints of citizens etc.

Impeachment is one of self-protection means of a civic society. In the constitutions of democratic states impeachment is treated as a special procedure when the question of the constitutional liability of an official is decided. Providing for a special procedure for the dismissal of the highest officials from office or that for the revocation of their mandate, one ensures public and democratic control over their activities, alongside, these officials are granted additional guarantees so that they can fulfil their duties on the basis of law.

2. Impeachment is linked with strict requirements. First, it may only be applied to certain officials who are, as a rule, listed in the Constitution (Head of State, the highest officials of executive and judicial powers, while in some states also members of the parliament). Second, impeachment is permissible only in case there exist specially established bases for it. As a rule, such bases are a breach of the oath, violation of the Constitution, treason, as well as crimes of various degree of gravity. Third, in most cases impeachment proceedings take place in the parliament pursuant to the rules characteristic of a judicial investigation, while a qualified majority of votes is necessary to adopt the decision. Fourth, the effect of successful impeachment proceedings is a specific constitutional sanction: the removal of a person from office or the revocation of his mandate. Thus, impeachment is not application of criminal liability even though a crime may constitute its basis.

Special requirements for impeachment are determined by the status of impeached officials. As a rule, they are empowered not by the parliament, nor are they accountable to the latter. The parliament is entitled to remove from office those officials who are responsible and accountable to it in accordance with some other procedure but not impeachment. Meanwhile, impeachment proceedings are always characteristic of the judicial procedures permitting substantiating the decision concerning the application of the constitutional sanction by a thorough, objective and public investigation of the circumstances of the case. As a rule, the parliament which is conducting impeachment is presided over not by its Speaker nor by its any other member. The necessity of procedures of judicial nature is also grounded on the fact that the constitutional sanction applied in accordance with the procedure for impeachment is of irreversible nature.

The parliament carrying out impeachment does not cease functioning as the supreme representative legislative institution, in this case it merely performs a particular function. By way of procedures characteristic of fair judicial process it is attempted not to take the place of the court but to ensure that after the circumstances of the impeachable case are properly investigated, a just decision will be adopted concerning the constitutional liability of respective officials.

In various states the constitutional regulation of impeachment is different, however, in a democratic state under the rule of law the impeachment institution encompasses the said elements. This determines the essential difference of impeachment from other ways of the removal of persons from office or the revocation of their mandates.

3. It is impossible to abstract the application of the constitutional sanction from the establishment of the fact of violation. Sometimes the same unlawful acts may incur not only constitutional but other legal liability, e.g. criminal liability for a committed crime. The fact whether they, along with the constitutional liability, incur other legal liability, depends on whether the legal system recognises that by the same unlawful actions not only constitutional but also other legal relations may be violated. On the other hand, the constitutional sanction is, first of all, applied for the fact that that in the course of the commission of the violation the person discredited state authority, therefore, it is necessary to remove him from office or to revoke his mandate, otherwise the confidence of the public in state authority, its institutions and officials would not be guaranteed. The question whether to apply the constitutional sanction is decided by the parliament.

4. One of the essential features of a state under the rule of law is the protection of the rights and freedoms of individuals. The norms regulating impeachment must not only create an opportunity to remove a person from office or to revoke his mandate but also to ensure the rights of the impeached persons. It is possible to recognise impeachment proceedings to be in line with the principles of a state under the rule of law when they are fair. This means that the individuals must be equal before both the law and the institutions carrying out impeachment, they must have the right to be heard and a legally guaranteed opportunity to defend their rights. In case one did not follow the principles of fair judicial process in the course of impeachment, it would indicate that one is acting against the requirements of a state under the rule of law.

III

1. In the Lithuanian legal system impeachment is a constitutional institution. Article 74 of the Constitution provides: “The President of the Republic, the President and justices of the Constitutional Court, the President and justices of the Supreme Court, the President and judges of the Court of Appeal as well as the Members of the Seimas who have grossly violated the Constitution or breached their oath, or if it transpires that a crime has been committed, may by a 3/5 majority vote of all the Members of the Seimas be removed from office or their mandate of a Member of the Seimas may be revoked. This shall be performed according to the procedure for impeachment proceedings which shall be established by the Statute of the Seimas.”

Some other articles of the Constitution are also important to the impeachment institution: Item 5 of Article 63, Paragraph 2 of Article 86, Item 5 of Article 88, Paragraph 1 of Article 89, Article 105, Item 5 of Article 108, and Article 116. The norms of these articles are the constitutional basis for the impeachment institution.

2. The following elements of impeachment are established in Article 74 of the Constitution: (1) impeachment as a parliamentary procedure may be applied only to the President of the Republic, the President and justices of the Constitutional Court, the President and justices of the Supreme Court, the President and judges of the Court of Appeal, as well as Seimas members; (2) impeachment proceedings may be instituted only for gross violations of the Constitution, breach of oath or if it transpires that a crime has been committed; (3) the objective of impeachment proceedings is to decide the question of the constitutional liability of the said persons; (4) impeachment is carried out by the Seimas; (5) to remove a person from office or to revoke his mandate of a Seimas member, three-fifths majority vote of all the Seimas members is necessary.

Under Article 74 of the Constitution, establishment of the procedure for impeachment proceedings is also within the competence of the Seimas: the latter must define it in the Statute of the Seimas. Assessing whether the impugned article of the Statute of the Seimas is in compliance with the Constitution, one must, first of all, pay attention to the fact as to whether the procedure established therein encompasses all constitutional elements of impeachment, and conform to the requirements which are raised to impeachment by the principles of a state under the rule of law enshrined in the Constitution.

3. Paragraph 1 of Article 227 of the Statute of the Seimas defines impeachment proceedings as a parliamentary procedure which is applied by the Seimas to persons listed in Article 74 of the Constitution because of the actions performed by them discrediting the reputation of authorities, by attempting to decide the question of liability of such persons. Impeachment proceedings are regulated by Part VIII Impeachment Proceedings of the Statute of the Seimas. The said part consists of three chapters: Chapter 38 Proposal Regarding Commencement of Impeachment Proceedings and Preparatory Investigation, Chapter 39 Impeachment Proceedings at the Seimas, and Chapter 40 Impeachment Proceedings at the Seimas Following a Received Copy of a Judgment of Conviction by a Court. The norms of Chapters 38 and 39 are common norms regulating implementation of impeachment proceedings from the moment of their initiation until the resolution on the removal of the person from office or the revocation of his mandate of a Seimas member. The said norms also single out the proposal to commence impeachment proceedings and the preparatory investigation on the one hand, and impeachment proceedings at the Seimas on the other hand, as two phases of impeachment (as a whole).

The norms of Chapter 40 (Articles 259 and 260) regulate a specific case, which is procedures for impeachment which must be fulfilled after the Seimas receives a copy of a judgment of conviction by a court. As the actual circumstances of the commission of a crime as well as the fact that the person is guilty of the commission of a crime have been established by a court, the Seimas only decides the question of the constitutional liability of the said person. Paragraph 3 of Article 229 of the Statute provides that in cases when it becomes clear that the persons listed in Article 74 of the Constitution have committed a crime and there is an effective judgment of conviction by a court, the impeachment proceedings are carried out without applying Articles 233–242 as well as the norms of Chapter 39 of the Statute when the question of the removal the persons from office or that of the revocation of the mandate of a Seimas member is decided. This means that in such a case a special investigatory commission is not formed, nor Seimas members-prosecutors are appointed, while the impeachment proceedings at the Seimas do not include the main phases provided for by Article 247 of the Statute, which are the preparatory phase, interrogation, pleadings, the final word of the impeached person, and the vote on the presented accusations. In the course of the submission of the draft resolution of the Seimas, deliberation upon it and its adoption, the judgment by a court shall not be deliberated upon, neither the lawfulness nor the validity of the judgment shall be discussed (Paragraph 5 of Article 259 of the Statute). The substitute for the charge is the reception of the effective judgment of conviction by a court at the Seimas. It is provided for by Paragraph 1 of Article 259 of the Statute that upon reception of a copy of the judgment at the Seimas, the Speaker (Deputy Speaker) of the Seimas must promptly acquaint the other Seimas members with it.

Thus, under Article 259 of the Statute of the Seimas, impeachment proceedings at the Seimas are virtually restricted to the vote on the adoption of the resolution by which the person is removed from office or his mandate of a Seimas member is revoked.

4. The provision “in accordance with the procedure for impeachment proceedings which shall be established by the Statute of the Seimas” presumes the discretion of the Seimas in this sphere. Several bases for impeachment are established in Article 74 of the Constitution, therefore, in the Statute of the Seimas such a procedure for impeachment may be established so that one might take account of the differences of the constitutional bases of impeachment. The conformity of the procedure for impeachment to the Constitution depends on whether the Seimas, establishing peculiarities of impeachment proceedings, has not diverged from its constitutional concept.

The norms of Chapters 38 and 39 of the Statute of the Seimas provide for such a procedure for impeachment by which the Seimas from the beginning of impeachment proceedings until their end acts as an institution of impeachment, while impeachment proceedings at the Seimas consist of the constituent phases pointed out by Article 247 of the Statute, which are the preparatory phase, interrogation, pleadings, the final word of the impeached person, and the vote on the presented accusations. However, from this one is not to conclude that this procedure is the only one allowed by Article 74 of the Constitution. The provision “impeachment proceedings which shall be established by the Statute of the Seimas” may be particularised in the Statute by various ways without overstepping the limits determined by the constitutional concept of impeachment. Under Article 259 of the Statute of the Seimas, impeachment proceedings are carried out without applying Articles 233–242 as well as the norms of Chapter 39 of the Statute (Paragraph 3 of Article 229 of the Statute). Such legal regulation of impeachment as established by Article 259 of the Statute differs from impeachment proceedings regulated by the norms of Chapters 38 and 39 of the Statute of the Seimas. However, as such, it does not mean that in such a case the Constitution is violated as the Constitution does not obligate the Seimas to design every particular procedure for impeachment under the only model: other procedures for impeachment may also be established in the Statute of the Seimas which are to be applied in specific cases, including those when the actual circumstances of the case are already established by a court.

It needs to be noted that a possibility of regulation of peculiarities of impeachment proceedings is also determined by the provision of Paragraph 2 of Article 62 of the Constitution by which Seimas members may not be brought to criminal liability without the consent of the Seimas. In the Constitution, analogous guarantees are provided for regarding the President of the Constitutional Court and its justices, the President of the Supreme Court and its justices, and the President of the Court of Appeal and its judges.

5. Impeachment as a parliamentary procedure is only applied to the persons listed in Article 74 of the Constitution. Article 259 of the Statute of the Seimas does not expand this list.

6. Under Article 74 of the Constitution, one of the bases for impeachment is “if it transpires that a crime has been committed”. The formula “if it transpires that a crime has been committed” of Article 74 of the Constitution presumes that not only is the fact of the establishment of the crime but also the official who committed the crime is found out. Article 229 of the Statute of the Seimas provides that an impeachable official against whom may be brought to constitutional liability in accordance with the procedure for impeachment proceedings provided he “is suspected of the commission of a crime”. Under Paragraph 1 of Article 231 of the Statute of the Seimas, the Prosecutor General, upon establishment that the person is suspected of the commission of a crime, is obligated to inform the Seimas about this without delay, and to present respective documentation. Paragraph 3 of Article 231 of the Statute provides that upon hearing the report of the Prosecutor General on the crime committed, the Seimas shall decide whether to give its consent that a particular person be brought to criminal liability, and whether to commence preparatory actions for impeachment proceedings. It is also provided in the same part of the said article that in the case that the Seimas decides to give its consent to bring the person to criminal liability, neither the preparatory actions for impeachment proceedings nor the procedure for impeachment proceedings at the Seimas may be commenced until the question of criminal liability is decided. Thus, in the procedure for impeachment for the commission of a crime as established by the Statute the provision is set down that there may be two ways of establishment of the commission of a crime and the guilt of the person: (1) by carrying out the full impeachment procedure at the Seimas itself; such a procedure is finished by voting on the removal the person from office or the revocation of his mandate provided the Seimas confirms the conclusion of the special investigatory commission; (2) by entrusting the establishment of the actual circumstances of the case to interrogative bodies and the court, however, by leaving an opportunity for the Seimas to decide the question of the removal of the person from office or that of the revocation of his mandate of a Seimas member.

As mentioned, one of the bases for constitutional impeachment is “if it transpires that a crime has been committed”. It is provided in Article 259 of the Statute that the procedure for impeachment is commenced at the Seimas “following a copy of the effective judgment of conviction by a court”. The comparison of these two wordings leads to the conclusion that the basis “if it transpires that a crime has been committed” as pointed out by Article 74 of the Constitution by its content encompasses the said wording of Article 259 of the Statute.

7. In disclosing the content of Article 259 of the Statute the fact is of importance that the question of the culpability of the person of the commission of a crime has been decided by a court. In a state under the rule of law every branch of power (legislative, executive or judicial) fulfils the functions that are categorised as belonging to it and carries out its competence. Paragraph 1 of Article 109 of the Constitution provides that in Lithuania the courts shall have the exclusive right to administer justice, while under Article 74 of the Constitution the Seimas is commissioned to carry out impeachment. When in the Seimas voting on impeachment takes place, the question of the constitutional but not that of criminal liability of the person is being decided. The removal of the person from office or the revocation of his mandate of a Seimas member in accordance with the procedure for impeachment proceedings because of the suspicion of the commission of a crime is not binding on the court. In its turn, the independence of legislative and judicial powers established by the Constitution determines the fact that a judgment by a court is not binding on the Seimas that adopts a decision on the constitutional liability of the person. Otherwise, the constitutional principle of the separation of powers would be violated.

8. Such regulation of the procedure for impeachment in the Statute of the Seimas shows that a formal statement of the charge as presented by Seimas members themselves is not the only form possible for initiating impeachment proceedings. Giving its consent to bring the person to criminal liability, the Seimas also decides that the actual circumstances of the case will be investigated by judicial institutions—the interrogation and the court—but not any special commission formed by the Seimas. This means that in case the Court recognises that the person is guilty of the commission of a crime, one will not have to submit a special proposal to institute impeachment because of the commission of a crime later. It needs to be noted that a formal statement of the charges as an independent action, when this is done by Seimas members themselves, is not, in this case, a necessary element of impeachment proceedings, however, this would be in line with the constitutional practice of many states.

9. The constitutional concept of impeachment presupposes that the objective of impeachment proceedings is a decision of the question of constitutional liability of the persons listed in Article 74 of the Constitution. It is the Seimas that decides on the constitutional sanction no matter whether it conducts the full impeachment proceedings or entrusts the interrogation and the court with establishment of the actual circumstances of the case. Even in cases when the court has passed the judgment of conviction, the constitutional sanction, i.e. the removal of the person from office or the revocation of his mandate of a Seimas member, is not applied of its own accord. The person is removed from office or his mandate of a Seimas member is revoked when the qualified majority, i.e. 3/5 of all Seimas members, vote for this. This is also established by Article 260 of the Statute of the Seimas. It is within the competence of the Seimas itself to establish as to by which legal act one must officially register this decision of the Seimas.

10. As noted above, the Seimas, implementing its discretion to establish a differentiated procedure for impeachment proceedings, is bound by the constitutional concept of impeachment. This concept presupposes fair judicial proceedings in which priority is given to the protection of the rights of individuals. Guaranteeing the protection of the rights of individuals, one has to pay heed to the fundamental principles of a state under the rule of law which require that jurisdictional and other law applying institutions be unbiased and independent, that they attempt to establish the objective truth and that they pass their decisions on the basis of law only. This is only possible when the proceedings are public, the parties to the proceedings enjoy equal rights, while the pleadings in court, especially those regarding the rights of individuals, are decided by insuring that the said person should have the right and opportunity to defend his rights. In a state under the rule of law, the right of an individual to defend his rights is unquestionable. As the Seimas, deciding the question of the removal of the person from office or that of the revocation of his mandate, acts as a jurisdictional institution, the same requirements are applied to impeachment proceedings.

11. When the question of constitutional or any other liability is decided, the aforesaid principles of a state under the rule of law are implemented through the procedural rights of the person against whom this sanction is applied as well as the guarantees of these rights. The recognition of the rights of an individual is a necessary element of the rule of law.

Assessing the procedure for impeachment proceedings established by the Statute of the Seimas, one has to note that the necessity to ensure the procedural rights of individuals does not have to be dependent on the fact whether in the Seimas common or special impeachment proceedings are carried out. Even though the procedure for constitutional liability impeachment and the basis for criminal liability are the same (the commission of a crime in this case), different institutions apply the constitutional and other sanctions, which do not bind each other by their decisions. Therefore, the procedural rights must be ensured when one decides the question of criminal as well as that of constitutional liability. In the course of impeachment at the Seimas the right of the person the question of whose constitutional liability is decided to take part in the proceedings and defend himself must be ensured. Prior to adoption of its decision, the Seimas must also hear the other party (audi alteram partem).

Paragraph 1 of Article 29 of the Constitution provides that all persons shall be equal before the law, the court, and other State institutions and officials, meanwhile, Article 259 of the Statute of the Seimas does not provide that the impeached person is entitled to take part in the proceedings as the accused subject and to defend himself. In this case the absence of the provision for such rights in the Statute means that they are limited. For the impeached person no right is ensured to be acquainted with the charge due to which the question of his removal from office or the revocation of his mandate of a Seimas member is decided, no right is guaranteed to become acquainted with the procedure for deliberation of this question at the Seimas, no right to counsel nor that to have other representatives is ensured, nor that to present evidence having importance for the decision of the question of his constitutional liability, nor that to take part in the pleadings, nor that of the last replication, nor that of the final word. Such proceedings wherein the aforementioned rights are not guaranteed are not in line with the constitutional concept of impeachment.

The enjoyment of the right to defence in impeachment proceedings does not and may not depend on the type of punishment imposed by a court. The person may himself refuse to take advantage of his rights but it is not permissible that the Statute of the Seimas would not provide for the right to defence nor regulate the procedure for the implementation of this right. In this view Article 259 of the Statute should be regarded as violating the rights of the convicted person the question of whose constitutional liability is decided, and, therefore, as conflicting the Constitution.

12. Taking account of the arguments set forth, the conclusion should be drawn that Article 259 of the Statute of the Seimas, to the extent that the right of the convicted person to take part in the impeachment proceedings as the impeached subject and his right to defence are limited, contradicts Article 74 of the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that Article 259 of the Statute of the Seimas of the Republic of Lithuania, to the extent that the right of the convicted person to take part in the impeachment proceedings as the impeached subject and his right to defence are limited, contradicts Article 74 of the Constitution of the Republic of Lithuania.

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

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

Egidijus Jarašiūnas      Egidijus Kūris     Zigmas Levickis

Augustinas Normantas      Vladas Pavilonis      Jonas Prapiestis

Vytautas Sinkevičius     Stasys Stačiokas      Teodora Staugaitienė