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On the impeachment of the President of the Republic

Case No. 14/04

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

CONCLUSION

ON THE COMPLIANCE OF ACTIONS OF PRESIDENT ROLANDAS PAKSAS OF THE REPUBLIC OF LITHUANIA AGAINST WHOM AN IMPEACHMENT CASE HAS BEEN INSTITUTED WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

31 March 2004

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas

The court reporter—Daiva Pitrėnaitė

Julius Sabatauskas and Raimondas Šukys, members of the Seimas, and Mindaugas Girdauskas and Antanas Jatkevičius, senior consultants of the Legal Department of the Office of the Seimas, acting as the representatives of the Seimas of the Republic of Lithuania, the petitioner

The advocates Gediminas Baublys, Evaldas Rapolas, and Kęstutis Švirinas, acting as the representatives of the President of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 3 of 105 of the Constitution of the Republic of Lithuania and Paragraph 2 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 16–26 March 2004, in its public hearing, considered case No. 14/04 subsequent to the inquiry set forth in the Resolution of the Seimas of the Republic of Lithuania “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004, the petitioner, whether concrete actions of the President of the Republic Rolandas Paksas, which were indicated in the charges formulated in the conclusion of the Special Investigation Commission, are in conflict with the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The Seimas of the Republic of Lithuania, the petitioner, requests the Constitutional Court to present a conclusion whether concrete actions of the President of the Republic Rolandas Paksas, which are indicated in the following charges formulated in the conclusion of the Special Investigation Commission for an investigation into the reasonableness and seriousness of the charges brought against the President of the Republic Rolandas Paksas and for preparation of a conclusion concerning a proposal to institute impeachment proceedings (hereinafter—the Special Investigation Commission), are in conflict with the Constitution:

Charge 1. Rolandas Paksas, while in office of the President of the Republic, having no right to take and have any commitments to private persons, which are incompatible with the interests of the Nation and the State of Lithuania, undertook such commitments to Jurij Borisov, was, while in office of the President of the Republic of Lithuania, influenced by the latter and acted not in the interests of the Nation and the State of Lithuania, but in the interests of the private person, namely: Rolandas Paksas committed to perform, after he becomes the President of the Republic, actions incompatible with the interests of the Nation and the State of Lithuania for the benefit of Jurij Borisov for financial and other notably solid support rendered by the latter, due to which, first, by rewarding him for the said support, he unlawfully granted citizenship of the Republic of Lithuania to this person by the 11 April 2003 decree (No. 40) of the President of the Republic, also, on 17 March 2003, meeting Jurij Borisov, knowingly dropped a hint to him that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations, second, the President of the Republic was and is bound and affected by other commitments taken in regard of Jurij Borisov;

Charge 2. Rolandas Paksas, while in office of the President of the Republic, did not ensure the protection of the state secret, namely: on 17 March 2003, meeting Jurij Borisov, the President of the Republic knowingly dropped a hint to him that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations;

Charge 3. Rolandas Paksas, while in office of the President of the Republic, making use of his status, by giving unlawful orders to his advisors and by other actions exerted unlawful influence on decisions of private persons and private subjects of economy in the area of property relations, namely: in 2003, seeking to implement property interests of private persons close to him, by making use of his status, while in office of the President of the Republic, Rolandas Paksas gave orders to his advisor Visvaldas Račkauskas, to seek to influence, by making use of his official position, through institutions of law and order, decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas, and he was aware that the unlawful influence was being exerted by making use of his name as the President of the Republic, and took no measures to prevent this;

Charge 4. Rolandas Paksas, while in office of the President of the Republic, did not co-ordinate public and private interests in his activities, namely: as compensation for financial and other notably solid support, guided by personal interests but not those of the Nation and the State of Lithuania, he unlawfully granted citizenship of the Republic of Lithuania to Jurij Borisov by the 11 April 2003 decree (No. 40) of the President of the Republic; on 17 March 2003, meeting Jurij Borisov, knowingly dropped a hint to him that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations, also, in 2003, seeking to implement property interests of private persons close to him, by making use of his status, exerted influence on decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas;

Charge 5. Rolandas Paksas, while in office of the President of the Republic, discredited public authority, namely: guided by personal interests but not those of the Nation and the State of Lithuania, he unlawfully granted citizenship of the Republic of Lithuania to Jurij Borisov by the 11 April 2003 decree (No. 40) of the President of the Republic for financial and other notably solid support rendered by the latter, therefore, for unlawful purposes made use of the exclusive right, granted by the Constitution to the President of the Republic, to grant citizenship of the Republic of Lithuania to persons by way of exception and thus discredited the authority of the institution of the President of the Republic, also, by public statements about conclusions of the Provisional Commission of the Seimas of the Republic of Lithuania for Investigation into Possible Threats to Lithuanian National Security and the Constitutional Court’s ruling of 30 December 2003 discredited the authority of the Seimas and the Constitutional Court;

Charge 6. Rolandas Paksas, while in office of the President of the Republic, gave unlawful orders to his advisors and did not take actions to prevent abuses by his particular advisors in the course of discharge of their duties, namely: in 2003, Rolandas Paksas, while in office of the President of the Republic, by not following the procedure and grounds established in laws, gave an unlawful order to his advisor Remigijus Ačas to collect information about the private life of persons, due to this, Remigijus Ačas and Evaldas Vaitkus, advisors to the President of the Republic, gave unlawful instructions to the Special Investigation Service to collect information about the private lives of 44 persons, also, in 2003, Rolandas Paksas, while in office of the President of the Republic, gave orders to his advisor Visvaldas Račkauskas to influence, by making use of his official position, through law and order institutions, decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas.

II

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from President Rolandas Paksas of the Republic of Lithuania, the party concerned (the 12 March 2004 explanations of the President of the Republic concerning case (1 D-499/06) 2 D-1278, received at the Constitutional Court on 15 March 2004, reg. No. 13 B-86).

It is noted in the explanations of the President of the Republic Rolandas Paksas that the Constitutional Court, in presenting a conclusion concerning a Seimas inquiry, considers only legal issues and presents a conclusion by which it answers to the request formulated in the inquiry, i.e. whether concrete actions of a concrete state official are in conflict with the Constitution. In the absence of concrete actions of the state official, or in case they are not pointed out, due to the constitutionality of which a conclusion is requested, there are grounds to dismiss the instituted legal proceedings (Article 80 of the Constitutional Court).

The President of the Republic Rolandas Paksas believes that in his inquiry the petitioner has formulated charges, i.e. its conclusions, by which the President of the Republic is charged with violating the Constitution, and the statements on the grounds of which a respective assessment is made, however, in the said inquiry concrete actions of the President of the Republic are not enumerated, concerning whose constitutionality the law grants the right to apply to the Constitutional Court for a conclusion. In the opinion of the President of the Republic, the petitioner seeks to ensure that the Constitutional Court perform the investigation activity and establish the facts of the presence of respective actions of the President of the Republic, i.e. it is sought to achieve that the Constitutional Court establish and assess factual circumstances, thus, by delegating, in this way, part of its functions in the impeachment proceedings.

The President of the Republic Rolandas Paksas notes that, in the impeachment proceedings laws of the Republic of Lithuania do not provide for delegation of interrogation actions to another branch of state power, the court. In its ruling of 11 May 1999 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, the Constitutional Court held that it is impossible to abstract the application of the constitutional sanction from the establishment of the fact of violation. Thus, in the opinion of the President of the Republic, it is not permitted to assess lawfulness of his actions before the fact of the presence of respective actions is established. The Statute of the Seimas of the Republic of Lithuania provides that the Seimas shall conduct the investigation activity in the establishment of factual circumstances, by forming, prior to this, the Special Investigation Commission (Chapter 38 of the Statute of the Seimas), later interrogation actions are carried out in the Seimas (Chapter 39 of the Statute of the Seimas). In the said ruling the Constitutional Court held that impeachment proceedings are always characteristic of 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. In addition, in the same ruling, the Court stated that the Seimas, from the beginning to the end of impeachment proceedings, becomes an impeachment institution, while impeachment proceedings at the Seimas consist of five constituent phases indicated in Article 247 of the Statute: preparation, interrogation, pleadings, the final word of the impeached person, and the vote on the presented charges. Thus, the Seimas is the only institution of the Republic of Lithuania, which is legislatively commissioned to conduct impeachment proceedings and be responsible for it, i.e. the Seimas is obligated by law to carry out all necessary phases of impeachment (preparation, interrogation, pleadings, the final word of the impeached person, and the vote on the presented charges). The Statute of the Seimas provides for discretion of the Seimas—the institution conducting impeachment—to apply to the Constitutional Court as the supreme judicial institution of constitutional legal proceedings for a legal conclusion whether concrete actions of the impeached person violate the Constitution. Laws do not provide for an opportunity to move the constituent part of impeachment proceedings, i.e. preparation, interrogation, and pleadings to the Constitutional Court and repeat them in it. The President of the Republic Rolandas Paksas believes that a conclusion of the Constitutional Court is possible as legal assessment, from the constitutional standpoint, of part of the conclusions of the preparation phase of the impeachment proceedings, i.e. as a constitutional assessment of the established concrete actions. Otherwise, in case the Constitutional Court undertook the investigation into the aspect of the presence or absence of the actions of the President of the Republic, the impeachment proceedings would be legally disordered, since it is not permitted to perform the interrogation actions in the Constitutional Court—the interrogation phase of the impeachment proceedings (Article 249 of the Statute of the Seimas) has not started yet, as, on 8 March 2004, the Seimas decided to suspend the impeachment proceedings. The President of the Republic Rolandas Paksas maintains that it is not permitted to move the actions of interrogation, i.e. the investigation of the fact of the presence or absence of the actions, to the Constitutional Court legal proceedings dealing with a conclusion on the constitutionality concerning the actions indicated in the inquiry.

It is pointed out in the explanations of the President of the Republic Rolandas Paksas that the Law on the Constitutional Court stipulates that the Seimas inquiry to the Constitutional Court be particularised, i.e. a necessary condition for such an inquiry is the revelation of the concrete actions of the impeached person and indication thereof to the institution, which will perform a legal analysis of these actions from the constitutionality aspect and will present a conclusion to the petitioner. According to the President of the Republic Rolandas Paksas, the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004 does not indicate any concrete actions of the President of the Republic, nor the circumstances (time, place, manner) of the performance of these actions. The content of the inquiry of the petitioner does not meet the requirement established in Item 4 of Paragraph 1 of Article 76 of the Law on the Constitutional Court, i.e. the inquiry does point out any concrete actions, which constitute episodes of the charges, nor does it indicate the circumstances (time, place, manner) of the performance of these actions.

In the opinion of the President of the Republic Rolandas Paksas, the statement “Rolandas Paksas committed to perform, after he becomes the President of the Republic, actions incompatible with the interests of the Nation and the State of Lithuania for the benefit of Jurij Borisov for financial and other notably solid support rendered by the latter” is an evaluative conclusion, but not a concrete action of the person. One does not point out by means of which actions the commitment was realised, nor does it indicate any circumstances (time, place, manner) of the undertaking of this commitment. The President of the Republic Rolandas Paksas notes that there were not, nor could have been any such actions of the President of the Republic, on the grounds of which, either directly or indirectly, it would be possible to make the assessment that has been formulated in the inquiry of the petitioner.

It is also noted in the explanations that after the episode was indicated in the inquiry (in charges 1, 2 and 4) that “on 17 March 2003, meeting Jurij Borisov, the President of the Republic knowingly dropped a hint to him that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations” one did not reveal by what actions (failure to act) the President of the Republic accomplished “dropping a hint knowingly”. According to the President of the Republic Rolandas Paksas, he does not understand what action he made by which it would be possible to ground this accusing provision. The President of the Republic Rolandas Paksas notes that, while executing the powers of the President of the Republic, he did not perform any such action (failure to act).

Concerning the episode indicated in the Seimas inquiry that “in 2003, seeking to implement property interests of private persons close to him, by making use of his status, while in office of the President of the Republic, Rolandas Paksas gave orders to his advisor Visvaldas Račkauskas, to seek to influence, by making use of his official position, through institutions of law and order, decisions of heads and shareholders of the company ‘Žemaitijos keliai’ UAB concerning transfer of shares to persons close to Rolandas Paksas, and he was aware that the unlawful influence was being exerted by making use of his name as the President of the Republic, and took no measures to prevent this”, the President of the Republic Rolandas Paksas notes that, while executing the powers of the President of the Republic, he did not give any orders of such nature, nor any other orders whereby he might have pursued personal interests. Besides, the inquiry of the petitioner does not indicate the private persons whose property interests were sought to be protected by the President of the Republic Rolandas Paksas, nor when and under what circumstances he gave the order mentioned in the charge to his advisor, what is the true (verbatim) content of this order, nor when and under what circumstances the President of the Republic Rolandas Paksas might learn that unlawful influence was exerted to private persons by making use of his name as the President of the Republic. Nor does this episode indicate as to when precisely in 2003 the episodes pointed out in the inquiry of the Seimas took place.

It is also noted in the explanations of the President of the Republic Rolandas Paksas that the Seimas, by indicating in the inquiry (Charge 5) that “Rolandas Paksas <…> by public statements about conclusions of the Provisional Commission of the Seimas of the Republic of Lithuania for Investigation into Possible Threats to Lithuanian National Security and the Constitutional Court’s ruling of 30 December 2003 discredited the authority of the Seimas and the Constitutional Court”, did not present the content of the public statements, nor when and in what manner the said statements were made in public. The President of the Republic Rolandas Paksas asserts that he cannot give an exhaustive explanation concerning this episode, since it is not clear to him as to what concrete statements by the President of the Republic Rolandas Paksas are regarded as discrediting the authority of the Seimas and the Constitutional Court. The President of the Republic Rolandas Paksas notes that he never had a purpose to degrade or otherwise discredit the authority of the Constitutional Court, also, that the statements of the President of the Republic in which he mentioned the Constitutional Court are not and never have been directed against the obligation of the rulings passed by the Constitutional Court, and that he never called for, nor publicly incited non-compliance with the rulings passed by the Constitutional Court. However, the President of the Republic, as any citizen of the Republic of Lithuania, has a constitutional right to have his own convictions and freely express them.

According to the assessment by the President of the Republic Rolandas Paksas, his criticism that was made in public in regard of the Seimas Provisional Commission and the Constitutional Court’s ruling cannot be held to be in contradiction with the Constitution, since this criticism is not directed against the constitutional order of the state, and it is guaranteed by the right of the person to have his own convictions and freely express them. The Constitution (Article 25) guarantees the right of the person, as well as of a state official, to freely express his opinion and convictions: each human being has the right to have his convictions and freely express them. The rights of the President of the Republic are not limited in this case. Paragraph 3 of Article 25 of the Constitution establishes a limitation as to when a public expression of an opinion of persons may be regarded as violation of law: freedom to express convictions may not be limited otherwise than by law, if it is necessary to protect the health, honour and dignity, private life, and morals of a human being, or to defend constitutional order. In a state under the rule of law, a public statement of an opinion concerning decisions of a court or other institution is a constituent part of the constitutional right of citizens, thus, also of officials, to expression and no one can be persecuted for it.

In a democratic society, public assessment of court decisions is a civil control over courts’ activity, which is one of the means for consolidation of the principle of a state under the rule of law (rule of law) in a democratic society.

A publicly expressed opinion by the President of the Republic cannot be legally assessed as discrediting of branches of state power: on the contrary, the absence of public criticism or its groundless limitation may be assessed as contradiction to the principles of the order of a democratic state. Article 84 of the Constitution provides for a duty of the President of the Republic to make annual reports about the situation in Lithuania, the internal and foreign policy of the Republic of Lithuania. The President of the Republic Rolandas Paksas raises a question whether it is possible to hold the criticism stated in the annual reports of Presidents of the Republic, whose term of office has expired, in regard of the activities of the Seimas and the Government as discrediting these branches of power.

It is also maintained in the explanations by the President of the Republic Rolandas Paksas that the petitioner, having indicated in his inquiry (Charge 6) that “Rolandas Paksas <…> gave an unlawful order to his advisor Remigijus Ačas to collect information about the private life of persons, due to this, Remigijus Ačas and Evaldas Vaitkus, advisors to the President of the Republic, gave unlawful orders to the Special Investigation Service to collect information about the private lives of 44 persons”, did not indicate when, in what form and concerning the private lives of what persons the President of the Republic gave his order to collect information, nor what was the content of such an order. It is not clear upon what arguments the unlawfulness of such alleged order is made.

The President of the Republic Rolandas Paksas notes that, when one takes account of the fact that the Seimas inquiry does not indicate any concrete actions nor any circumstances of their performance, the legal proceedings in the Constitutional Court concerning the requested conclusion is not permitted (Item 4 of Paragraph 1 of Article 80 of the Law on the Constitutional Court). In case the requirements established in the Law on the Constitutional Court were not followed, the right of the President of the Republic, as an impeached person, to due and fair proceedings would be infringed, since he, as an impeached person, would not be able to exercise due defence and submit his explanations to the Constitutional Court.

III

1. At the Constitutional Court’s hearing, the member of the Seimas J. Sabatauskas, the member of the Seimas R. Šukys, as well as M. Girdauskas and A. Jatkevičius, grounded their explanations upon the conclusion of the Special Investigation Commission and upheld the charges formulated in the Seimas 19 February 2004 Resolution “On the Application to the Constitutional Court”.

2. At the Constitutional Court’s hearing, the representatives of the President of the Republic Rolandas Paksas, who were G. Baublys, E. Rapolas, and K. Švirinas, upheld the explanations of the President of the Republic Rolandas Paksas concerning the case, which were submitted to the Constitutional Court on 12 March 2004, and additionally gave their arguments as to the explanations.

3. The witnesses were questioned at the Constitutional Court’s hearing: Remigijus Ačas, a former advisor to the President of the Republic on national security issues, the advocate Juozas Gaudutis, and Ona Buišienė, a former advisor to the President of the Republic on legal issues.

The Constitutional Court

holds that:

I

1. On 5 January 2003, R. Paksas was elected President of the Republic of Lithuania.

On 26 February 2003, the elected President of the Republic of Lithuania Rolandas Paksas took an oath to the Nation to be faithful to the Republic of Lithuania and the Constitution, to conscientiously fulfil the duties of his office, and to be equally just to all.

2. On 18 December 2003, 86 members of the Seimas submitted a proposal to the Seimas to institute impeachment proceedings against the President of the Republic Rolandas Paksas.

3. By its 23 December 2003 Resolution “On the Formation of the Special Investigation Commission”, the Seimas formed the Special Investigation Commission in order to investigate the reasonableness and seriousness of the charges brought against the President of the Republic Rolandas Paksas and to draw up a conclusion regarding the proposal to institute the impeachment proceedings.

4. On 19 February 2004, the Special Investigation Commission drew the conclusion that the charges brought against the President of the Republic Rolandas Paksas in the proposal by a group of members of the Seimas are grounded and serious (only in part of the volume of the charges they are not sufficiently grounded and serious) to institute impeachment proceedings, therefore, there are grounds to institute the impeachment proceedings in the Seimas. On 19 February 2004, the Conclusion “On the Proposal to Institute Impeachment Proceedings against the President of the Republic Rolandas Paksas” was submitted to the Seimas.

5. On 19 February 2004, the Seimas adopted the Resolution “On the Beginning of the Impeachment Proceedings Against the President of the Republic Rolandas Paksas” whereby it decided to institute impeachment proceedings against the President of the Republic Rolandas Paksas.

6. On 19 February 2004, the Seimas adopted the Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” whereby it applied to the Constitutional Court for a conclusion whether concrete actions of the President of the Republic Rolandas Paksas, which were indicated in the charges formulated in the conclusion of the Special Investigation Commission, are in conflict with the Constitution.

7. In the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004 the following charges against the President of the Republic Rolandas Paksas were formulated:

Charge 1. Rolandas Paksas, while in office of the President of the Republic, having no right to take and have any commitments to private persons, which are incompatible with the interests of the Nation and the State of Lithuania, undertook such commitments to Jurij Borisov, was, while in office of the President of the Republic of Lithuania, influenced by the latter and acted not in the interests of the Nation and the State of Lithuania, but in the interests of the private person, namely: Rolandas Paksas committed to perform, after he becomes the President of the Republic, actions incompatible with the interests of the Nation and the State of Lithuania for the benefit of Jurij Borisov for financial and other notably solid support rendered by the latter, due to which, first, by rewarding him for the said support, he unlawfully granted citizenship of the Republic of Lithuania to this person by the 11 April 2003 decree (No. 40) of the President of the Republic, also, on 17 March 2003, meeting Jurij Borisov, knowingly dropped a hint to him that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations, second, the President of the Republic was and is bound and affected by other commitments taken in regard to Jurij Borisov;

Charge 2. Rolandas Paksas, while in office of the President of the Republic, did not ensure the protection of the state secret, namely: on 17 March 2003, meeting Jurij Borisov, the President of the Republic knowingly dropped a hint to him that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations;

Charge 3. Rolandas Paksas, while in office of the President of the Republic, making use of his status, by giving unlawful orders to his advisors and by other actions exerted unlawful influence on decisions of private persons and private subjects of economy in the area of property relations, namely: in 2003, seeking to implement property interests of private persons close to him, by making use of his status, while in office of the President of the Republic, Rolandas Paksas gave orders to his advisor Visvaldas Račkauskas, to seek to influence, by making use of his official position, through institutions of law and order, decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas, and he was aware that the unlawful influence was being exerted by making use of his name as the President of the Republic, and took no measures to prevent this;

Charge 4. Rolandas Paksas, while in office of the President of the Republic, did not co-ordinate public and private interests in his activities, namely: as compensation for financial and other notably solid support, guided by personal interests but not those of the Nation and the State of Lithuania, he unlawfully granted citizenship of the Republic of Lithuania to Jurij Borisov by the 11 April 2003 decree (No. 40) of the President of the Republic; on 17 March 2003, meeting Jurij Borisov, knowingly dropped a hint to him that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations, also, in 2003, seeking to implement property interests of private persons close to him, by making use of his status, exerted influence on decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas;

Charge 5. Rolandas Paksas, while in office of the President of the Republic, discredited public authority, namely: guided by personal interests but not those of the Nation and the State of Lithuania, he unlawfully granted citizenship of the Republic of Lithuania to Jurij Borisov by the 11 April 2003 decree (No. 40) of the President of the Republic for financial and other notably solid support rendered by the latter, therefore, for unlawful purposes made use of the exclusive right, granted by the Constitution to the President of the Republic, to grant citizenship of the Republic of Lithuania to persons by way of exception and thus discredited the authority of the institution of the President of the Republic, also, by public statements about conclusions of the Provisional Commission of the Seimas of the Republic of Lithuania for Investigation into Possible Threats to Lithuanian National Security and the Constitutional Court’s ruling of 30 December 2003 discredited the authority of the Seimas and the Constitutional Court;

Charge 6. Rolandas Paksas, while in office of the President of the Republic, gave unlawful orders to his advisors and did not take actions to prevent abuses by his particular advisors in the course of discharge of their duties, namely: in 2003, Rolandas Paksas, while in office of the President of the Republic, by not following the procedure and grounds established in laws, gave an unlawful order to his advisor Remigijus Ačas to collect information about the private life of persons, due to this, Remigijus Ačas and Evaldas Vaitkus, advisors to the President of the Republic, gave unlawful instructions to the Special Investigation Service to collect information about the private lives of 44 persons, also, in 2003, Rolandas Paksas, while in office of the President of the Republic, gave orders to his advisor Visvaldas Račkauskas to influence, by making use of his official position, through law and order institutions, decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas.

8. It is clear from the content of the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004, in which the inquiry to the Constitutional Court is set forth, that the Seimas requests a conclusion whether the following actions of the President of the Republic Rolandas Paksas are in conflict with the Constitution:

1) by the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003, the President of the Republic Rolandas Paksas unlawfully granted citizenship of the Republic of Lithuania to Jurij Borisov for financial and other notably solid support rendered by the latter and thus discredited the authority of the institution of the President of the Republic;

2) the President of the Republic Rolandas Paksas knowingly dropped a hint to Jurij Borisov that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations;

3) the President of the Republic Rolandas Paksas, seeking to implement property interests of private persons close to him, by making use of his status, while in office of the President of the Republic, gave orders to his advisor Visvaldas Račkauskas, to seek to influence, by making use of his official position, through institutions of law and order, decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas;

4) the President of the Republic Rolandas Paksas, seeking to implement property interests of private persons close to him, and making use of his status, exerted influence on decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas;

5) the President of the Republic Rolandas Paksas, knowing that unlawful influence was being exerted on heads and shareholders of the company “Žemaitijos keliai” UAB by making use of his name as the President of the Republic, took no measures to prevent this;

6) the President of the Republic Rolandas Paksas made public statements about conclusions of the Seimas Provisional Commission for Investigation into Possible Threats to Lithuanian National Security and the Constitutional Court’s ruling of 30 December 2003, and by these statements he discredited the authority of the Seimas and the Constitutional Court;

7) the President of the Republic Rolandas Paksas, by not following the procedure and grounds established in laws, gave an unlawful order to his advisor Remigijus Ačas to collect information about the private life of persons, and due to this, Remigijus Ačas and Evaldas Vaitkus, advisors to the President of the Republic, gave unlawful instructions to the Special Investigation Service to collect information about the private lives of 44 persons.

9. The Constitutional Court will investigate the compliance of only the aforesaid actions with the Constitution, and will present a conclusion to the Seimas only in regard of these actions.

Since, under Article 235 of the Statute of the Seimas, the Special Investigation Commission is formed in order to investigate the reasonableness and seriousness of the charges presented by the initiators of the proposal to institute the impeachment, in this case the Constitutional Court will investigate only whether the aforesaid actions of the President of the Republic Rolandas Paksas which were performed prior to the date when the initiators of the impeachment, a group of Seimas members, submitted a proposal to the Seimas to institute impeachment proceedings against the President of the Republic Rolandas Paksas, i.e. prior to 18 December 2003, are in conflict with the Constitution.

II

1. Article 74 of the Constitution provides:

For a gross violation of the Constitution, a breach of the oath, or upon disclosure of the commission of a crime, the Seimas may, by a 3/5 majority vote of all the members of the Seimas, remove from office 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 members of the Seimas, or may revoke the mandate of a member of the Seimas. This shall be performed in accordance with the procedure for impeachment proceedings which shall be established by the Statute of the Seimas.”

Some other articles of the Constitution are also related with the impeachment institute: Item 5 of Article 63, Paragraph 2 of Article 86, Item 5 of Article 88, Paragraph 1 of Article 89, Item 4 of Paragraph 3 of Article 105, Item 5 of Article 108, and Article 116.

2. The Constitution shall be an integral act (Paragraph 1 of Article 6 of the Constitution). The provisions of the Constitution are interrelated not only formally, according to the structure of arrangement of the norms of the Constitution, but also according to their content; the norms and principles of the Constitution constitute a harmonious system, it is not permitted to construe any norm of the Constitution by disregarding other provisions of the Constitution, it is not permitted to construe them so that the content of some other constitutional provision would be distorted or denied, since the essence of the entire constitutional regulation would thus be distorted, and the balance of constitutional values would be disturbed.

It is not permitted to dissociate the striving for an open, just harmonious civil society and a state under the rule of law from the provision of Article 1 of the Constitution that the State of Lithuania shall be an independent democratic republic, from the provision of Article 4 of the Constitution that the Nation shall execute its supreme sovereign power either directly or through its democratically elected representatives, from the provisions of Article 5 of the Constitution that the scope of power shall be limited by the Constitution and that state institutions shall serve the people. The constitutional principle of a state under the rule of law requires that all state institutions and officials act only following the Constitution and law, and in compliance with the Constitution and law.

3. In a democratic state under the rule of law all state institutions and officials must follow the Constitution and law. The responsibility of state power for the public is inseparable from the constitutional principle of a state under the rule of law; the responsibility is constitutionally consolidated by stipulating that state institutions serve the people, that the scope of power is limited by the Constitution, that state officials who violate the Constitution and laws, who raise personal or group interests above the interests of society, by their actions discredit state power, may be removed from office under procedure established in laws.

Impeachment is a special procedure provided for in the Constitution, when the issue of constitutional liability of the officials indicated in Article 74 of the Constitution is decided, i.e. their removal from office for these actions provided for in the Constitution: a gross violation of the Constitution, a breach of the oath, and the commission of a crime.

Under the Constitution, one of state officials who may be removed from office according to the procedure of impeachment proceedings is the President of the Republic.

4. Under Article 77 of the Constitution, the President of the Republic is Head of State, he represents the State of Lithuania and performs everything that he is charged with by the Constitution and laws. While construing Article 77 of the Constitution, in its rulings of 8 May 2000 and 19 June 2002, the Constitutional Court held that only one person acquires the status of the Head of State for the period determined in the Constitution, i.e. the President of the Republic who is elected by citizens of the Republic of Lithuania, that the legal status of the President of the Republic as the Head of State is an individual one, different from that of the rest of state officials and the rest of the citizens.

The exceptional legal status of the President of the Republic, as the Head of the State, is disclosed by various provisions of the Constitution, which establish the inviolability of the person of the President of the Republic, the prohibition on holding the President of the Republic criminally and administratively liable, the oath of the President of the Republic, his powers, the beginning and end of these powers, etc.

5. Under Paragraph 2 of Article 78 of the Constitution, the President of the Republic is elected for a five-year term. The powers of the President of the Republic may expire before the established time only upon the grounds established in the Constitution. One of them is when the Seimas removes the President of the Republic from office in accordance with the procedure for impeachment proceedings (Item 5 of Article 88 of the Constitution).

6. It needs to be noted that the President of the Republic, beginning his office, takes an oath to the Nation to be faithful to the Republic of Lithuania and the Constitution, to conscientiously fulfil the duties of his office, and to be equally just to all (Paragraph 1 of Article 82 of the Constitution). The oath of the elected President of the Republic reflects the main values entrenched in the Constitution, which are linked by the Nation with the office of the President of the Republic; these values are inseparable from one another, the President of the Republic, while in office, cannot deviate from universal constitutional values entrenched in the oath of the President of the Republic, which are the most important to the Nation. In its ruling of 30 December 2003, the Constitutional Court held that from the moment of taking the oath a duty arises to the President of the Republic to act only so as the oath taken to the Nation obligates, and that a breach of the oath is one of the grounds under which the President of the Republic may be removed from office according to the procedure for impeachment proceedings. In the said ruling the Constitutional Court also held that a breach of the oath is, alongside, a gross violation of the Constitution, while a gross violation of the Constitution is, alongside, a breach of the oath.

7. Under Paragraph 2 of Article 77 of the Constitution, the President of the Republic shall represent the State of Lithuania and shall perform everything that he is charged with by the Constitution and laws. The provision of Paragraph 2 of Article 77 of the Constitution that the President of the Republic shall perform everything that he is charged with by the Constitution and laws, when one takes account of the content of the oath of the President of the Republic established in Paragraph 1 of Article 82 of the Constitution, means that the President of the Republic, when implementing the powers established for him in the Constitution and laws, must follow only the Constitution and laws, he cannot violate them, that the President of the Republic must act only in the interests of the Nation and the state, that the President of the Republic may not act with the purposes or in the interests that are incompatible with the Constitution and laws, with the interests of the Nation and the state, with public interests, that the President of the Republic may not raise personal or group interests above those of the society and the state, that he may not act so that state power would be discredited.

It needs to be noted that the opportunity consolidated in the Constitution to remove the President of the Republic from office in accordance with the procedure for impeachment proceedings is a form of public, democratic control over the activities of the President of the Republic, a manner of the constitutional liability of the President of the Republic before the Nation, one of the means of self-defence of the democratic civil society against abuses by the President of the Republic within the sphere of powers established for him. Under Article 74 of the Constitution, it is permitted to institute impeachment proceedings against the President of the Republic only for a gross violation of the Constitution, a breach of the oath, or upon disclosure of the commission of a crime; only the Seimas may remove the President of the Republic from office, when this is done in accordance with the procedure established in the Statute of the Seimas; the President of the Republic is removed from office only in case not less than 3/5 of all members of the Seimas vote for this.

III

1. Under Item 4 of Paragraph 3 of Article 105 of the Constitution, the Constitutional Court shall present conclusions whether concrete actions of members of the Seimas and State officials against whom an impeachment case has been instituted are in conflict with the Constitution. As mentioned before, under Article 74 of the Constitution, one of the state officials who may be removed from office in accordance with impeachment proceedings is the President of the Republic.

Paragraph 3 of Article 107 of the Constitution provides that on the basis of the conclusions of the Constitutional Court, the Seimas shall take a final decision on the issues set forth in Paragraph 3 of Article 105 of the Constitution.

2. While disclosing the content of the legal regulation established in Item 4 of Paragraph 3 of Article 105 and Paragraph 3 of Article 107 of the Constitution, one must take account of the provisions of Article 74 of the Constitution, the provisions of Paragraph 2 of Article 5 of the Constitution, and the constitutional principles of the separation of powers and of a state under the rule of law.

3. It has been mentioned that the Constitution is an integral act, that all provisions of the Constitution are interrelated and constitute a harmonious whole, and that it is not permitted to construe any norm of the Constitution by disregarding other provisions of the Constitution. While construing the Constitution, the linguistic method of construction alone may not be applied: it is necessary to make use of the systemic, logical, teleological, as well as other methods of construction of law.

4. It has also been mentioned that under Item 4 of Paragraph 3 of Article 105 of the Constitution, the Constitutional Court presents a conclusion whether concrete actions of the President of the Republic against whom an impeachment case has been instituted are in conflict with the Constitution; Paragraph 3 of Article 107 of the Constitution provides that on the basis of the conclusions of the Constitutional Court, the Seimas shall take a final decision on the issues set forth in Paragraph 3 of Article 105 of the Constitution.

When construing the said provisions of the Constitution only linguistically, in separation from other provisions of the Constitution that consolidate the institute of impeachment, the powers of the Seimas and the Constitutional Court in impeachment proceedings, it might appear that it is possible to assert that, purportedly, the Constitution provides for the legal regulation whereby the Constitutional Court presents a conclusion whether concrete actions of the President of the Republic against whom an impeachment case has been instituted are in conflict with the Constitution, while the Seimas takes a final decision whether the actions of the President of the Republic are in conflict with the Constitution.

However, such construction of the aforesaid provisions of the Constitution would be constitutionally groundless.

It needs to be noted that the principle of the separation of powers that is entrenched in the Constitution means, inter alia, that after the Constitution has directly established the powers of a concrete state institution, one state institution may not take over such powers from the other, nor transfer or waive them, and that such powers may not be changed or limited by means of a law.

Under Item 4 of Paragraph 3 of Article 105 of the Constitution, the Constitutional Court presents a conclusion whether concrete actions of the President of the Republic against whom an impeachment case has been instituted are in conflict with the Constitution. Paragraph 2 of Article 107 of the Constitution provides that the decisions of the Constitutional Court on issues within its competence according to the Constitution shall be final and not subject to appeal. The presentation of the conclusion specified in Item 4 of Paragraph 3 of Article 105 of the Constitution is one of the issues that are assigned only to the competence of the Constitutional Court by the Constitution. Thus, under the Constitution, a conclusion whether concrete actions of the President of the Republic against whom an impeachment case has been instituted are in conflict with the Constitution is final and not subject to appeal.

5. It has been mentioned that, under Paragraph 3 of Article 107 of the Constitution, on the basis of the conclusions of the Constitutional Court, the Seimas shall take a final decision on the issues set forth in Paragraph 3 of Article 105 of the Constitution. While assessing the interrelation of the provisions of Item 4 of Paragraph 3 of Article 105 and Paragraph 3 of Article 107 of the Constitution, it is impossible to disregard the provisions of Article 74 of the Constitution, under which, for a gross violation of the Constitution, a breach of the oath, or upon disclosure of the commission of a crime, the Seimas may, by a 3/5 majority vote of all the members of the Seimas, remove the President of the Republic from office.

6. The provision of Paragraph 3 of Article 107 of the Constitution that, on the basis of the conclusions of the Constitutional Court, the Seimas shall take a final decision on the issues set forth in Paragraph 3 of Article 105 of the Constitution, means that in cases when impeachment proceedings are instituted against the President of the Republic for a gross violation of the Constitution, the Seimas has a duty to apply to the Constitutional Court, requesting a conclusion whether the actions of the President of the Republic are in conflict with the Constitution. It has been mentioned that a breach of the oath is, alongside, a gross violation of the Constitution, while a gross violation of the Constitution is, alongside, a breach of the oath.

The provision of Paragraph 2 of Article 107 of the Constitution whereby decisions of the Constitutional Court on issues within its competence are final and not subject to appeal also means that when deciding whether or not to remove the President of the Republic from office, the Seimas may not reject, change or question the Constitutional Court’s conclusion that concrete actions of the President of the Republic are (or are not) in conflict with the Constitution. No such powers are assigned to the Seimas by the Constitution. The conclusion of the Constitutional Court that concrete actions of the President of the Republic are in conflict (or are not in conflict) with the Constitution are binding on the Seimas insofar as the Constitution does not empower it to decide whether the Constitutional Court’s conclusions are well-founded and lawful—only the Constitutional Court can establish the legal fact that the actions of the President of the Republic are (or are not) in conflict with the Constitution.

Under Article 74 of the Constitution, only the Seimas may remove the President of the Republic from office for a gross violation of the Constitution.

Thus, the Constitution provides for different functions of the Seimas and the Constitutional Court in impeachment proceedings, and establishes respective powers necessary to implement these functions: the Constitutional Court decides whether concrete actions of the President of the Republic are in conflict with the Constitution and presents a conclusion to the Seimas (Item 4 of Paragraph 3 of Article 105 of the Constitution), while the Seimas, if the President of the Republic grossly violated the Constitution, decides whether to remove the President of the Republic from office (Article 74 of the Constitution). Thus, the provision of Paragraph 3 of Article 107 of the Constitution that the Seimas shall take a final decision on the issues set forth in the Paragraph 3 of Article 105 of the Constitution, by relating it with the provision of Article 74 of the Constitution that only the Seimas decides the issue of removal of the President of the Republic in accordance with the procedure for impeachment proceedings, and with the provision of Paragraph 2 of Article 107 of the Constitution that the conclusion of the Constitutional Court is final and not subject of appeal, means that, under Paragraph 3 of Article 107 of the Constitution, the Seimas enjoys powers to decide whether to remove the President of the Republic from office, but not whether concrete actions of the President of the Republic are in conflict with the Constitution.

It should be noted that this constitutional provision whereby only the Constitutional Court is empowered to decide (through its conclusions on the matter) whether concrete actions of the President of the Republic are in conflict with the Constitution represents a further guarantee for the President of the Republic that his constitutional liability will not be incurred unreasonably. Thus, if the Constitutional Court reaches the conclusion that the actions of the President of the Republic are not in conflict with the Constitution, the Seimas may not remove the President of the Republic from office for a gross violation of the Constitution.

7. As mentioned before, under the Constitution the Constitutional Court presents a conclusion whether concrete actions of the President of the Republic are in conflict with the Constitution. The statement that the actions of the President of the Republic are in conflict with the Constitution also means that the President of the Republic violated the Constitution. However, not every violation of the Constitution is, in itself, a gross violation of the Constitution.

It needs to be emphasised that while deciding whether the actions of the President of the Republic grossly violated the Constitution, one must assess in each case the content of concrete actions of the President of the Republic as well as the circumstances of their performance.

8. In its ruling of 30 December 2003, the Constitutional Court held that the Constitution is grossly violated in all cases when the President of the Republic breaches the oath.

By the actions of the President of the Republic the Constitution would be violated grossly in cases when the President of the Republic held its office in bad faith, acted not in the interests of the Nation and the state but his personal interests, those of individual persons or their groups, acted with purposes and in the interests that are incompatible with the Constitution and laws, with public interests, knowingly failed to discharge the duties established for the President of the Republic in the Constitution and laws.

9. As mentioned before, under the Constitution only the Constitutional Court enjoys the powers to decide whether concrete actions of the President of the Republic are in conflict with the Constitution, thus, whether the President of the Republic violated the Constitution; the Constitution does not provide for such powers for the Seimas. The Seimas, having no powers to adopt a decision whether the President of the Republic violated the Constitution, does not have constitutional powers to decide whether the President of the Republic grossly violated the Constitution. The establishment of a violation of the Constitution is a matter of a legal but not political assessment, therefore, legal issues, the fact of violation of the Constitution, thus, also that of a gross violation of the Constitution, can only be established by an institution of judicial power, the Constitutional Court. The interpretation that, purportedly, the Seimas might establish the fact of a gross violation of the Constitution, would constitutionally be groundless, since this would mean that the legal issue whether the President of the Republic violated the Constitution, whether the Constitution has been violated grossly, might be decided not by an institution of judicial power, the Constitutional Court, which, as all other courts, is formed on professional basis, but by the Seimas, an institution of state power, which in its nature and essence is an institution of a political character, in whose decisions the political will of the majority of Seimas members is reflected, whose decisions are based on political agreements, various political compromises etc. It is evident that the Seimas, an institution of a political character, may not decide whether the President of the Republic violated the Constitution, whether the violation of the Constitution is a gross one, i.e. it may not decide an issue of law. Otherwise, the statement of the fact of violation of the Constitution as well as that of a gross violation of the Constitution might be grounded upon political arguments, while the constitutional liability of the President of the Republic might arise from the statement that the Constitution has grossly been violated, which would be based upon political arguments. The Constitution contains only the legal regulation whereby it is only the Constitutional Court that has the powers to decide whether the President of the Republic violated the Constitution, whether the violation of the Constitution is a gross one. The Constitution provides for such powers for neither the Seimas, nor any other state institution, nor any state official.

It needs to be noted that the constitutional regulation under which only the Constitutional Court enjoys the powers to decide whether the President of the Republic grossly violated the Constitution is a constitutional guarantee for the President of the Republic that the constitutional liability, removal from office for a gross violation of the Constitution, will not be applied against him unreasonably.

10. As mentioned before, under Article 74 of the Constitution, it is only the Seimas that decides whether to remove the President of the Republic from office for a gross violation of the Constitution, a breach of the oath or upon disclosure of the commission of a crime. If the grounds for impeachment are a gross violation of the Constitution, the Seimas may decide the issue of removal of the President of the Republic from office only upon receiving a conclusion from the Constitutional Court that the President of the Republic grossly violated the Constitution. This is a constitutional guarantee to the President of the Republic that the constitutional liability will not be applied against him unreasonably.

It needs to be noted that, under the Constitution, in the impeachment proceedings at the Seimas one does not decide the fact whether actions of the President of the Republic are in conflict with the Constitution, nor the fact whether the President of the Republic grossly violated the Constitution. Under the Constitution, this is decided by the Constitutional Court. In the impeachment proceedings at the Seimas one decides only the question of the constitutional liability of the President of the Republic. i.e. one decides only whether to remove the President of the Republic from office for a gross violation of the Constitution. The removal of the President of the Republic from office is a constitutional sanction for a gross violation of the Constitution. It has been mentioned that, under Article 74 of the Constitution, it is only the Seimas that may adopt a decision on the application of the constitutional sanction, i.e. on the removal of the President of the Republic from office.

IV

1. Under Article 74 of the Constitution, the procedure for impeachment proceedings is established by the Statute of the Seimas. Article 76 of the Constitution provides that the Statute of the Seimas shall have the power of law.

2. It needs to be noted that the Seimas enjoys discretion in implementing the procedure for impeachment proceedings, however, it is bound by the constitutional concept of impeachment (the Constitutional Court’s ruling of 11 May 1999). Therefore, the procedure of impeachment proceedings established in the Statute of the Seimas must be such so that fair legal proceedings would be ensured, that one could properly investigate the circumstances of the impeachment case and adopt a just decision on the constitutional liability of the person. The norms regulating impeachment must not only create an opportunity to remove the person from office, but also to ensure the rights of the impeached person.

3. The Statute of the Seimas was adopted on 17 February 1994.

On 19 February 2004, when the Seimas was adopting the Resolution “On the Application to the Constitutional Court of the Republic of Lithuania”, the Statute of the Seimas of the 22 December 1998 wording (with subsequent amendments and supplements) was in force.

4. The impeachment proceedings are regulated by Part VIII of the Statute of the Seimas, covering Articles 227–260 of the Statute of the Seimas.

It needs to be noted that the norms of the Statute of the Seimas set forth in the Part “Impeachment Proceedings” regulate the relations that appear in the course of deciding whether to remove from office not only the President of the Republic, but also the other persons specified in Article 74 of the Constitution, as well as the relations that appear in the course of the application of constitutional liability not only for a gross violation of the Constitution, a breach of the oath, but also upon disclosure of the commission of a crime. Therefore, the Statute of the Seimas contains the provision that “impeachment proceedings in the Seimas shall be comprised of the following major parts: preparation, interrogation, pleadings, the final word of the impeached person, and the vote on the presented charges” (Article 247 of the Statute of the Seimas). Due to the fact that the Statute of the Seimas establishes the said main parts of impeachment proceedings, one cannot interpret that, purportedly, the Statute of the Seimas establishes the legal regulation whereby any impeachment proceedings must contain all the aforementioned parts, without taking into consideration the grounds for impeachment.

It has been mentioned that, under the Constitution, it is only the Constitutional Court that decides whether the President of the Republic violated the Constitution, whether the violation of the Constitution is a gross one. The Constitution does not provide for Seimas’ powers to deny, change or question the conclusion of the Constitutional Court that concrete actions of the President of the Republic are in conflict (or are not in conflict) with the Constitution, that by actions of the President of the Republic the Constitution was grossly (or not grossly) violated. Under Paragraph 2 of Article 107 of the Constitution, a conclusion of the Constitutional Court is final and not subject to appeal, therefore, it is evident that the part of impeachment proceedings indicated in Article 247 of the Statute of the Seimas, i.e. interrogation, as well as the legal norms set forth in Article 249 regulating interrogation, may be applied only when the grounds for impeachment are not a gross violation of the Constitution or a breach of the oath, but when the grounds for impeachment are “upon disclosure of the commission of a crime”, and if in regard of the impeached person there is no effective court judgment of conviction. Taking account of the fact that, under Paragraph 1 of Article 86 of the Constitution, the President of the Republic, while in office, may neither be arrested nor be held criminally or administratively liable, the conclusion should be drawn that interrogation as a part of impeachment proceedings is possible only when the President of the Republic is held constitutionally responsible upon the basis established in Article 74 of the Constitution, i.e. upon disclosure of the commission of a crime, also, when, upon the same basis, i.e. upon disclosure of the commission of a crime, other subjects specified in Article 74 of the Constitution are held constitutionally responsible, in case in their regard there is no effective court judgment of conviction. A different construction of Articles 247 and 249 of the Statute of the Seimas would not be in line with the constitutional concept of impeachment proceedings, would not conform to the constitutionally established powers of the Constitutional Court and the Seimas in impeachment proceedings, nor the interrelation of the said powers.

In its ruling of 11 May 1999, the Constitutional Court held that the constitutional concept of impeachment 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 the 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 the state under the rule of law the right of an individual to defend his rights is unquestionable. As the Seimas, deciding the question of removal of the person from office or that of revocation of his mandate, acts as a jurisdictional institution, the same requirements are applied to impeachment proceedings. In the same ruling the Constitutional Court noted that when the question of constitutional or any other liability is decided, the aforesaid principles of the 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. Recognition of the rights of an individual is a necessary element of the rule of law. 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).

Taking account of the fact that in the course of impeachment proceedings in the Seimas one does not decide whether concrete actions of the President of the Republic are in conflict with the Constitution, nor whether the President of the Republic violated the Constitution grossly—under the Constitution it can be decided only by the Constitutional Court—but only whether to remove the President of the Republic from office for a gross violation of the Constitution, the conclusion should be drawn that in the course of impeachment proceedings in the Seimas one does not investigate the evidence which either confirms or denies the fact that the President of the Republic performed the actions by which he grossly violated the Constitution, but only the evidence which either confirms or denies the necessity to remove the President of the Republic from office for a gross violation of the Constitution. The pleadings provided for in Article 250 of the Statute of the Seimas also take place as regards not whether the President of the Republic performed the actions by which he grossly violated the Constitution, but only whether to remove (not to remove) the President of the Republic from office for a gross violation of the Constitution, which has been stated by the Constitutional Court.

5. The Constitutional Court underlines that the right of the President of the Republic, the issue of whose constitutional liability is decided in accordance of impeachment proceedings in the Seimas, to participate in the proceedings, to give explanations and defend himself may not be restricted. This right must be guaranteed.

V

1. Under the Constitution, it is only the Constitutional Court that has the powers to decide whether concrete actions of the President of the Republic, against whom an impeachment case has been instituted, violated the Constitution, whether the President of the Republic grossly violated the Constitution. Thus, a constitutional duty is established for the Constitutional Court to investigate whether the President of the Republic performed concrete actions pointed out in the charge brought against him, and assess whether these actions are in conflict with the Constitution, whether the Constitution was grossly violated. In the course of the investigation whether concrete actions of the President of the Republic are in conflict with the Constitution, whether the Constitution was grossly violated, the Constitutional Court investigates and assesses both the evidence presented together with the inquiry to the Constitutional Court, but all the evidence received in the course of the investigation of the case in the Constitutional Court, either confirming or denying that the President of the Republic performed the concrete actions indicated in the inquiry, either confirming or denying that these actions are in conflict with the Constitution, that the Constitution was grossly violated.

2. Together with its inquiry to the Constitutional Court, the Seimas submitted protocols and audio recordings acquired by using technical equipment in the course of operational actions by the State Security Department, in which conversations of persons, whose telephone conversations were being tapped, including their conversations with the President of the Republic Rolandas Paksas, were traced.

At the Constitutional Court’s hearing, the representatives of the President of the Republic Rolandas Paksas doubted the possibility of basing oneself upon the protocols and audio recordings acquired by using technical equipment in the course of operational actions by the State Security Department, in which telephone conversations of other persons with the President of the Republic Rolandas Paksas were traced.

The Constitutional Court notes that if operational actions were being conducted in regard of the persons who spoke to the President of the Republic over the telephone, the tapping of such telephone conversations is not operative actions conducted against the President of the Republic. The recordings of such lawfully recorded telephone conversations and protocols of the use of technical equipment in the course of operational actions may be used as evidence in deciding whether concrete actions of the President of the Republic are in conflict with the Constitution.

In this case the evidence was presented to the Constitutional Court—protocols and audio recordings acquired by using technical equipment in the course of operational actions by the State Security Department, in which conversations of persons, whose telephone conversations were being lawfully tapped, were traced, including their conversations with the President of the Republic Rolandas Paksas; in this case this evidence will be investigated and assessed.

VI

On the presentation of the conclusion, requested in the inquiry set forth in the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004, whether the actions of the President of the Republic Rolandas Paksas, when he, by decree No. 40 of 11 April 2003, unlawfully granted citizenship of the Republic of Lithuania to Jurij Borisov for financial and other notably solid support rendered by the latter are in conflict with the Constitution.

1. In its 19 February 2004 Resolution “On the Application to the Constitutional Court of the Republic of Lithuania”, in the inquiry set forth the Seimas requests a conclusion whether the actions of the President of the Republic Rolandas Paksas, when he, by decree No. 40 of 11 April 2003, unlawfully granted citizenship of the Republic of Lithuania to Jurij Borisov for financial and other notably solid support rendered by the latter are in conflict with the Constitution.

2. In the Conclusion of the Special Investigation Commission “On the Proposal to Institute Impeachment Proceedings against the President of the Republic Rolandas Paksas” of 19 February 2004, which was received together with the inquiry of the petitioner, the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004, one invokes the factual circumstances indicated in the Constitutional Court’s Ruling “On the Compliance of the Decree of the President of the Republic of Lithuania (No. 40) ‘On Granting Citizenship of the Republic Lithuania By Way of Exception’ of 11 April 2003 to the Extent That It Provides That Citizenship of the Republic Lithuania is Granted to Jurij Borisov by Way of Exception with the Constitution of the Republic of Lithuania and Paragraph 1 of Article 16 of the Republic of Lithuania’s Law on Citizenship” of 30 December 2003 (Special Investigation Commission material, c. 8.39/11-202, the Conclusion of the Special Investigation Commission “On the Proposal to Institute Impeachment Proceedings against the President of the Republic Rolandas Paksas” of 19 February 2004, Items 1.6–1.7, pp. 54–58).

3. In the 10 February 2004 explanations of the President of the Republic Rolandas Paksas to the Special Investigation Commission it is maintained that the decision to grant citizenship of the Republic of Lithuania to Jurij Borisov by way of exception was adopted by following the Constitution and laws, by taking account of the recommendations unanimously adopted by the Citizenship Commission and the practice of granting citizenship that had been established in the course of the decade by previous Presidents of the Republic. The President of the Republic Rolandas Paksas also explained that he, making use of the right of discretion, sought to preserve the balance between the interests of the individual and the state. The President of the Republic Rolandas Paksas emphasised that the composition of the Citizenship Commission, its long-term experience, competence and the unanimously adopted proposal to grant citizenship of the Republic of Lithuania to Jurij Borisov reasonably permitted one to believe that the legal acts contained no circumstances due to which citizenship might not be granted to Jurij Borisov (Special Investigation Commission material, c. 16.77/23-202, the 10 February 2004 written explanations of the President of the Republic R. Paksas, p. 40).

In the 12 March 2004 explanations of the President of the Republic Rolandas Paksas to the Constitutional Court no explanations are given as for the granting of citizenship of the Republic of Lithuania to Jurij Borisov.

At the Constitutional Court’s hearing, the representatives of the President of the Republic Rolandas Paksas maintained that the Special Investigation Commission had not investigated the circumstances at all, whether the concrete actions of the President of the Republic in the granting of citizenship of the Republic of Lithuania to Jurij Borisov are in conflict with the Constitution, but had based itself on the circumstances stated by the Constitutional Court in the course of the investigation of case No. 40/03 on the compliance of the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to Jurij Borisov by way of exception with the Constitution and the Law on Citizenship. Meanwhile, according to the representatives of the President of the Republic Rolandas Paksas, in case No. 40/03 the Constitutional Court did not investigate whether the actions of the President of the Republic in granting citizenship of the Republic of Lithuania to Jurij Borisov were in conflict with the Constitution. They made such a conclusion on the grounds of the 1 March 2004 reference of justices of the Constitutional Court, in which it was stated that the issue raised in the Seimas inquiry was not investigated in the Constitutional Court. In the opinion of the representatives of the President of the Republic Rolandas Paksas, in this part of the case the legal proceedings must be dismissed.

4. On 30 December 2003, the Constitutional Court adopted the Ruling “On the Compliance of the Decree of the President of the Republic of Lithuania (No. 40) ‘On Granting Citizenship of the Republic Lithuania By Way of Exception’ of 11 April 2003 to the Extent That It Provides That Citizenship of the Republic Lithuania is Granted to Jurij Borisov by Way of Exception with the Constitution of the Republic of Lithuania and Paragraph 1 of Article 16 of the Republic of Lithuania’s Law on Citizenship”. The said ruling recognised that the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception is in conflict with Paragraph 1 of Article 29, the provision “the elected President of the Republic <…> shall take an oath <…> to be equally just to all” of Paragraph 1 of Article 82, Item 21 of Article 84 of the Constitution of the Republic of Lithuania, the constitutional principle of a state under the rule of law, and Paragraph 1 of Article 16 the Republic of Lithuania’s Law on Citizenship.

It was held in the same Constitutional Court ruling that “it follows neither from the Constitution, nor the Law on Citizenship, nor other laws that citizenship of the Republic of Lithuania can be acquired for financial, material or any other support, i.e. bought”, that “the decision of the President of the Republic R. Paksas to grant citizenship of the Republic of Lithuania to J. Borisov by way of exception was determined not by certain merits of J. Borisov to the State of Lithuania, but his notable financial and other support rendered to R. Paksas in the 2002 election of the President of the Republic. Thus, the granting of citizenship to J. Borisov by way of exception was but a reward by the President of the Republic R. Paksas to J. Borisov for the aforesaid support”, that “the President of the Republic R. Paksas, when issuing the Decree (No. 40) ‘On Granting Citizenship of the Republic Lithuania by Way of Exception’ of 11 April 2003 whereby citizenship of the Republic Lithuania was granted to J. Borisov by way of exception, was following neither the Constitution of the Republic of Lithuania, nor the laws, nor the interests of the Nation and the State of Lithuania, but his personal interests”, that “in granting citizenship of the Republic Lithuania to J. Borisov by way of exception by the Decree (No. 40) ‘On Granting Citizenship of the Republic Lithuania by Way of Exception’ of 11 April 2003, the President of the Republic R. Paksas treated this person, as a person who sought to acquire citizenship of the Republic of Lithuania, in an exceptional manner and knowingly disregarded the requirement consolidated in Paragraph 1 of Article 29 of the Constitution that all persons shall be equal before state institutions and officials, and the requirement consolidated in Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all”.

5. It needs to be noted that the assessment of the 1 March 2004 reference of justices of the Constitutional Court, in which it was held, inter alia, that the issue raised in the inquiry of the Seimas of the Republic of Lithuania, the petitioner, had not been investigated in the Constitutional Court, that, allegedly, it shows that the Constitutional Court had not investigated the actions of the President of the Republic related with the granting of citizenship of the Republic of Lithuania by the President of the Republic Rolandas Paksas, is legally absolutely groundless, as the said reference is a procedural document of the Constitutional Court, merely giving information about the conducted investigation and other preparatory actions, and is necessary in deciding whether to accept the inquiry set forth in the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004; the aforesaid reference merely means that it was stated that there exist no grounds in Article 80 of the Law on the Constitutional Court to refuse to investigate the inquiry for a conclusion whether the concrete actions of the President of the Republic against whom an impeachment case has been instituted, also that there are no legal grounds established in Article 81 of the Law on the Constitutional Court for referring the inquiry back to the petitioner.

6. One should also note the fact that in case No. 40/03 of the Constitutional Court, pursuant to Paragraph 1 of Article 102 and Item 1 of Paragraph 2 of Article 105 of the Constitution, one decided the issue of the compliance of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provided that citizenship of the Republic Lithuania should be granted to Jurij Borisov by way of exception with the Constitution and the Law on Citizenship, but not presented a conclusion provided for in Item 4 of Paragraph 3 of Article 105 of the Constitution whether concrete actions of a state official against whom an impeachment case has been instituted are in conflict with the Constitution. According to their nature, a ruling of the Constitutional Court by which a legal act (part thereof) is recognised to be in conflict or not in conflict with the Constitution, and a conclusion of the Constitutional Court are different legal acts.

In its ruling of 30 December 2003, the Constitutional Court held that “in case the Constitution or laws provide for respective requirements that must be followed (that must be fulfilled) in the course of issuance of an act of the President of the Republic, the Constitutional Court, when deciding whether the act of the President of the Republic is not in conflict with the Constitution and laws, must also investigate whether one has followed (fulfilled) these requirements, since in case these factual circumstances were not established, it would not be possible to investigate also into the compliance of the act of the President of the Republic with the Constitution and laws”.

In case No. 40/03 of the Constitutional Court one established and in the Constitutional Court’s ruling of 30 December 2003 indicated the factual circumstances due to which the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provided that citizenship of the Republic Lithuania should be granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception was recognised to be in conflict with Paragraph 1 of Article 29, the provision “the elected President of the Republic <…> shall take an oath <…> to be equally just to all” of Paragraph 1 of Article 82, Item 21 of Article 84 of the Constitution, the constitutional principle of a state under the rule of law, and Paragraph 1 of Article 16 the Law on Citizenship.

7. Under the Constitution, rulings of the Constitutional Court are final and not subject to appeal, they are obligatory to everyone, while under Paragraph 7 of Article 34 of the Law on the Constitutional Court, facts which were established by means of a ruling of the Constitutional Court in one case shall not be proved again in the consideration of other cases.

The factual circumstances established in case No. 40/03 of the Constitutional Court are res iudicata. These factual circumstances are not established and proven anew in new cases. The Constitutional Court’s Ruling “On the Compliance of the Decree of the President of the Republic of Lithuania (No. 40) ‘On Granting Citizenship of the Republic Lithuania By Way of Exception’ of 11 April 2003 to the Extent That It Provides That Citizenship of the Republic Lithuania is Granted to Jurij Borisov by Way of Exception with the Constitution of the Republic of Lithuania and Paragraph 1 of Article 16 of the Republic of Lithuania’s Law on Citizenship” of 30 December 2003 has pre-judicial power.

8. It has been mentioned that in its ruling of 30 December 2003 the Constitutional Court held that the President of the Republic, by issuing the Decree (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003, knowingly disregarded the requirement consolidated in Paragraph 1 of Article 29 of the Constitution that all persons shall be equal before state institutions and officials, and the requirement consolidated in Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all. Having held this, one is also to hold that the President of the Republic Rolandas Paksas, in granting citizenship of the Republic Lithuania to J. Borisov by way of exception by Decree No. 40 of 11 April 2003 for financial and other notably solid support rendered by the latter, breached the oath given to the Nation and grossly violated the Constitution.

9. Taking account of the aforementioned arguments, it should be concluded that the actions of President Rolandas Paksas of the Republic of Lithuania, when he, by Decree No. 40 “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003, unlawfully granted citizenship of the Republic of Lithuania to Jurij Borisov for financial and other notably solid support rendered by the latter are in conflict with the Constitution of the Republic of Lithuania. By the said actions, President Rolandas Paksas of the Republic of Lithuania grossly violated the Constitution.

VII

On the presentation of the conclusion, requested in the inquiry set forth in the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004, whether the actions of the President of the Republic Rolandas Paksas by which he knowingly dropped a hint to Jurij Borisov that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations are in conflict with the Constitution.

1. In the inquiry set forth in its 19 February 2004 Resolution “On the Application to the Constitutional Court of the Republic of Lithuania”, the Seimas requests a conclusion whether the actions of the President of the Republic Rolandas Paksas by which he knowingly dropped a hint to Jurij Borisov that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations are in conflict with the Constitution.

2. In the Conclusion of the Special Investigation Commission “On the Proposal to Institute Impeachment Proceedings against the President of the Republic Rolandas Paksas” of 19 February 2004, which was received together with the inquiry of the petitioner, the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004, it is pointed out that, on 16 March 2003, M. Laurinkus, Director General of the State Security Department, submitted to the President of the Republic Rolandas Paksas transcripts and audio recordings of telephone conversations between Jurij Borisov and A. Zatonskaya as well as A. Potnin, employees of the Russian Federation company Almax. The transcripts were marked by marking “Secret”. M. Laurinkus informed the President of the Republic Rolandas Paksas that the State Security Department was conducting investigation in regard of the company “Avia Baltika” which was headed by Jurij Borisov. From the transcripts of telephone conversations submitted by M. Laurinkus to the President of the Republic Rolandas Paksas it was clear that Jurij Borisov’s telephone conversations were being tapped. On 17 March 2003, N. Laurinkus again met the President of the Republic Rolandas Paksas, and familiarised him with a transcript of a telephone conversation between Jurij Borisov and A. Drakšas, Director of the company “Restako” UAB, which had taken place on 16 March 2003. In the opinion of the Seimas, on 17 March 2003, the President of the Republic Rolandas Paksas, meeting Jurij Borisov, knowingly dropped a hint to him that institutions of law and order were tapping his telephone conversations and in his regard were conducting investigation; by such actions the President of the Republic Rolandas Paksas violated the principle of protection of state secrets established in the Republic of Lithuania’s Law on State and Official Secrets, breached his oath and violated Paragraph 2 of Article 77 and Paragraph 1 of Article 82 of the Constitution (Special Investigation Commission material, c. 8.39/11-202, the Conclusion of the Special Investigation Commission “On the Proposal to Institute Impeachment Proceedings against the President of the Republic Rolandas Paksas” of 19 February 2004, Items 2.3, 2.4, pp. 59–61).

3. In the 10 February 2004 explanations of the President of the Republic Rolandas Paksas to the Special Investigation Commission it is maintained that he, in the capacity of the President of the Republic, had not revealed any information comprising a state secret, nor had he created any preconditions for making use of the state secret for the third party. The President of the Republic Rolandas Paksas also indicated that since 1998 Jurij Borisov had been aware of the fact that operational actions were being conducted against him.

In the 12 March 2004 explanations of the President of the Republic Rolandas Paksas to the Constitutional Court it is maintained that the President of the Republic Rolandas Paksas, while discharging his powers, did not perform any action or failure to act, by which “dropping a hint knowingly” could have been accomplished.

At the Constitutional Court’s hearing, the advocate G. Baublys, a representative of the President of the Republic Rolandas Paksas, explained that the President of the Republic Rolandas Paksas did not give grounds, by any actions, for Jurij Borisov to understand that his telephone conversations were being tapped.

4. The following has been established in the case:

4.1. On 16 March 2003, at 15.12 hours, A. Drakšas, Director of the company “Restako” UAB and a close friend of the President of the Republic Rolandas Paksas, made a telephone call to Jurij Borisov and told him that the President of the Republic Rolandas Paksas mentioned to him that he (the President of the Republic) had to meet Jurij Borisov. Jurij Borisov confirmed to A. Drakšas that he together with the President of the Republic Rolandas Paksas were planning to meet on the same day, i.e. on 16 March 2003. A. Drakšas proposed that they postpone the said meeting for a day or two (Special Investigation Commission material, c. 16.77/18/ITT-202, 12 November 2003 State Security Department Protocol No. 03-19-1029/03 concerning use of technical equipment in operational actions, p. 167; telephone conversation No. 1 (in Russian), pp. 167–172; translation into Lithuanian, pp. 56–60).

4.2. On 16 March 2003, at around 16.00 hours, the President of the Republic Rolandas Paksas made a telephone call to Jurij Borisov and told him that he had found a missed call from Jurij Borisov. The President of the Republic Rolandas Paksas said that he was by the sea and asked to postpone their meeting till the next day. Jurij Borisov said to the President of the Republic Rolandas Paksas, “Rolandas, you are making a mistake again.” The President of the Republic Rolandas Paksas replied that he would solve everything the next day, that on the next day there would be a serious talk between them. Jurij Borisov said, “Rolandas, you will have to take the decision all the same.” After that, the President of the Republic Rolandas Paksas discontinued the conversation. Jurij Borisov tried to make a telephone call to the President of the Republic Rolandas Paksas again, however, the latter did not answer the call (protocol of the questioning of the witness M. Pabedinskas at the Office of the Prosecutor General on 6 February 2004, received at the Constitutional Court on 12 March 2004, reg. No. 13B-84).

4.3. On 16 March 2003, at 17.55 hours, J. Borisov made a telephone call to A. Drakšas and informed him that the President of the Republic Rolandas Paksas had postponed the meeting with Jurij Borisov until 17 March 2003, 19.00 hours, and that their meeting would take place at the place of the President of the Republic Rolandas Paksas. Jurij Borisov also told A. Drakšas that he had “plunked down” millions to the President of the Republic Rolandas Paksas, and the latter had promised, sworn to Jurij Borisov that on 17 March 2003 he would appoint him advisor to the President of the Republic, therefore, in case the President of the Republic Rolandas Paksas failed to do so on 17 March 2003, Jurij Borisov would have to act on 17 March 2003, or on 18 March 2003 at the latest, so that he might retrieve his money back. Jurij Borisov stated to A. Drakšas that if the President of the Republic Rolandas Paksas uttered a single word that, purportedly, he did not know Jurij Borisov, that, purportedly, Jurij Borisov had merely given money to him, then this would be the “end” to the career of the President of the Republic Rolandas Paksas, and that if, on the next day, i.e. on 17 March 2003, the President of the Republic Rolandas Paksas made “some stupidity”, then it would be the “end”, “death” to him as the President of the Republic. Jurij Borisov arranged to meet A. Drakšas on 17 March 2003, at 09.00 hours (Special Investigation Commission material, c. 16.77/18/ITT-202, 12 November 2003 State Security Department Protocol No. 03-19-1029/03 concerning use of technical equipment in operational actions, p. 167; telephone conversation No. 2 (in Russian), pp. 172–180; translation into Lithuanian, pp. 60–67).

4.4. On 16 March 2003, at 18.12 hours, Jurij Borisov made a telephone call to V. Sirvydis, a lawyer that was giving him advice. V. Sirvydis informed Jurij Borisov that the President of the Republic Rolandas Paksas had recently announced, while giving a TV interview, that Jurij Borisov was absent on the list of advisors to the President of the Republic, and that Jurij Borisov is not an advisor to the President of the Republic Rolandas Paksas. Jurij Borisov said that it meant that the President of the Republic Rolandas Paksas had betrayed him and stated to V. Sirvydis that if, on 17 March 2003, the President of the Republic Rolandas Paksas did not fulfil at least one of his promises, Jurij Borisov would start to retrieve his money back. Jurij Borisov also stated that he could reveal everything, since he had all his recordings in a cassette. Jurij Borisov said that he simply must, on the next day, make the information about the President of the Republic Rolandas Paksas public, that the President of the Republic Rolandas Paksas was no longer the President of the Republic, but a “cadaver”, and that one had to take measures to remove from office Dalia Kutraitė-Giedraitienė. Jurij Borisov also said that on the next day, i.e. on 17 March 2003, he would meet the President of the Republic Rolandas Paksas (Special Investigation Commission material, c. 16.77/20/ITT-202, 14 February 2004 State Security Department Protocol No. 03-19-46/04 concerning use of technical equipment in operational actions, p. 337; telephone conversation No. 2 (in Russian), pp. 340–349; translation—Special Investigation Commission material, c. 16.77/18/ITT-202, pp. 107–115).

4.5. On 16 March 2003, at 18.55 hours, Jurij Borisov made a telephone call to A. Drakšas and retold him the information received from V. Sirvydis that the President of the Republic Rolandas Paksas, while giving a TV interview, had stated the Jurij Borisov was not, nor would ever be his advisor. Jurij Borisov also said to A. Drakšas that the President of the Republic Rolandas Paksas had betrayed him, and also that he (Jurij Borisov) had told the President of the Republic Rolandas Paksas that in case of failure to fulfil at least one promise on Monday, then Jurij Borisov might reveal everything on the next day, that he would start to retrieve his money back, that there was an agreement between Jurij Borisov and the President of the Republic Rolandas Paksas with the signature of Rolandas Paksas, and that Jurij Borisov could show this agreement to A. Drakšas. Jurij Borisov stated to A. Drakšas that the President of the Republic Rolandas Paksas was no longer the President of the Republic, but a “cadaver” (Special Investigation Commission material, c. 16.77/18/ITT-202, 2 November 2003 State Security Department Protocol No. 03-19-999/03 concerning use of technical equipment in operational actions, p. 126; telephone conversation No. 1 (in Russian), pp. 126–128; translation into Lithuanian, pp. 18–20).

4.6. On 16 March 2003, at 19.01 hours, Jurij Borisov made a telephone call to V. Sirvydis and told him that he was disturbed by a statement made by the President of the Republic Rolandas Paksas in a TV interview that Jurij Borisov would not be appointed advisor to the President of the Republic (Special Investigation Commission material, c. 16.77/20/ITT-202, 14 January 2004 State Security Department Protocol No. 03-19-46/04 concerning use of technical equipment in operational actions, p. 337; telephone conversation No. 3 (in Russian), pp. 349–352; translation into Lithuanian, ibid., c. 16.77/18/ITT-202, pp. 115–118).

4.7. On 16 March 2003, at 19.09 hours, Jurij Borisov made a telephone call to A. Zatonskaya. He informed her about the TV interview of the President of the Republic Rolandas Paksas and told her that the President of the Republic Rolandas Paksas had promised him to appoint Jurij Borisov advisor to the President of the Republic on 17 March 2003, but he (President of the Republic) had betrayed him. Jurij Borisov also said to A. Zatonskaya that he had spoken to A. Drakšas and that he would take all the notes that he had given to the President of the Republic Rolandas Paksas from the computer and would show them to A. Drakšas on 17 March 2003, in the morning (Special Investigation Commission material, c. 16.77/18/ITT-202, 12 November 2003 State Security Department Protocol No. 03-19-1029/03 concerning use of technical equipment in operational actions, p. 131; telephone conversation No. 8 (in Russian), pp. 156–165; translation into Lithuanian, pp. 46–55).

4.8. On 16 March 2003, in the evening, M. Laurinkus visited the President of the Republic Rolandas Paksas at home. M. Laurinkus brought along transcripts of five telephone conversations between Jurij Borisov and A. Zatonskaya, as well as A. Potnin, together with the audio recordings of these conversations and technical equipment enabling to listen to them. All transcripts of the conversations were marked “Secret” (Special Investigation Commission material, c. 16.77/19/ITT-202, protocol of the questioning of the witness M. Laurinkus at the Office of the Prosecutor General on 16 December 2003, pp. 112-114; protocol of the questioning of the witness M. Pabedinskas at the Office of the Prosecutor General on 6 February 2004, received at the Constitutional Court on 12 March 2004, reg. No. 13B-84).

M. Laurinkus submitted the transcripts and audio recordings of the following telephone conversations to the President of the Republic Rolandas Paksas (Special Investigation Commission material, c. 16.77/19/ITT-202, State Security Department Note No. (03)-18-414-766 of 3 December 2003 to A. Kliunka, Chief Prosecutor of the Office of the Prosecutor General of the Republic of Lithuania, p. 115):

1) the conversation of Jurij Borisov with A. Zatonskaya, which took place on 1 March 2003, at 08.17 hours. During this conversation, Jurij Borisov made arrangements with A. Zatonskaya concerning the prospective visit of Jurij Borisov to Moscow at A. Zatonskaya’s place on 3 March 2003 (Special Investigation Commission material, c. 16.77/18/ITT-202, 12 November 2003 State Security Department Protocol No. 03-19-1029/03 concerning use of technical equipment in operational actions, p. 131; telephone conversation No. 3 (in Russian), pp. 139–141; translation into Lithuanian, pp. 30–31);

2) the conversation of Jurij Borisov with A. Zatonskaya, which took place on 4 March 2003, at 10.43 hours. During this conversation Jurij Borisov informed A. Zatonskaya that half an hour before the President of the Republic Rolandas Paksas, very agitated, had made him a telephone call and proposed that they not “stall it” till Saturday, and decide it earlier, on Wednesday. The President of the Republic Rolandas Paksas had said to Borisov, “Everything’s OK, calm down, we will settle everything.” (Special Investigation Commission material, c. 16.77/18/ITT-202, 12 November 2003 State Security Department Protocol No. 03-19-1029/03 concerning use of technical equipment in operational actions, p. 131; telephone conversation No. 4 (in Russian), pp. 141–142; translation into Lithuanian, p. 32);

3) the conversation of Jurij Borisov with A. Zatonskaya, which took place on 5 March 2003, at 10.17 hours. During this conversation Jurij Borisov advised A. Zatonskaya on how she must answer to questions of Lithuanian journalists. Jurij Borisov also informed A. Zatonskaya that the day before, i.e. on 4 March 2003 he had visited the Office of the President, while on the day of the conversation, i.e. on 5 March 2003, he would meet the President of the Republic Rolandas Paksas, “but not there, but at his place now. Since now he is visibly afraid to come to my place.” (Special Investigation Commission material, c. 16.77/18/ITT-202, 12 November 2003 State Security Department Protocol No. 03-19-1029/03 concerning use of technical equipment in operational actions, p. 131; telephone conversation No. 5 (in Russian), pp. 142–149; translation into Lithuanian, pp. 33–39);

4) the conversation of Jurij Borisov with A. Potnin and A. Zatonskaya, which took place on 5 March 2003, at 10.51 hours. During this conversation they spoke on how it would be possible to discredit Dalia Kutraitė-Giedraitienė, to diminish her influence on the President of the Republic Rolandas Paksas, also, on how it would be possible to maintain and strengthen the influence of Jurij Borisov on the President of the Republic Rolandas Paksas. Jurij Borisov also said that the President of the Republic Rolandas Paksas “got scared again: we arranged to meet at my place, and now he’s calling <…> and says, at my place <…>; this means, we’re meeting at seven, and at eight thirty we’re playing tennis. I tell him, you think we’re going to settle all the questions in an hour and a half?” (Special Investigation Commission material, c. 16.77/18/ITT-202, 12 November 2003 State Security Department Protocol No. 03-19-1028/03 concerning use of technical equipment in operational actions, p. 131; telephone conversation No. 6 (in Russian), pp. 149–152; translation into Lithuanian, pp. 39–42);

5) the conversation of Jurij Borisov with A. Zatonskaya, which took place on 8 March 2003, at 10.44 hours. During this conversation Jurij Borisov arranged with A. Zatonskaya to meet at her place on 11 March 2003. They also spoke on how it would be possible to discredit Dalia Kutraitė-Giedraitienė and increase the influence of Jurij Borisov on the President of the Republic Rolandas Paksas. Jurij Borisov said, “If now he tells, Jurij, you know <…>, wait a bit, a month perhaps <…>, I’ll tell him, go to hell.” Jurij Borisov also told A. Zatonskaya that the President of the Republic Rolandas Paksas “asked to postpone it for a week. OK, I gave him a week” (Special Investigation Commission material, c. 16.77/18/ITT-202, 12 November 2003 State Security Department Protocol No. 03-19-1029/03 concerning use of technical equipment in operational actions, p. 131; telephone conversation No. 7 (in Russian), pp. 152–156; translation into Lithuanian, pp. 42–46).

On 16 March 2003, during the meeting between the President of the Republic Rolandas Paksas and M. Laurinkus, the President of the Republic Rolandas Paksas read the transcripts of telephone conversations submitted to him (Special Investigation Commission material, c. 16.77/19/ITT-202, protocol of the questioning of the witness the President of the Republic Rolandas Paksas carried out by a judge of pre-trial investigation on 17 November 2003, pp. 71–93). The President of the Republic Rolandas Paksas did not comment on the content of the transcripts to M. Laurinkus, while he did not listen to the audio recordings. M. Laurinkus informed the President of the Republic Rolandas Paksas orally that the State Security Department was conducting operational investigation in regard of the aviation company “Avia Baltika” UAB, which was headed by Jurij Borisov. At the request of the President of the Republic Rolandas Paksas, M. Laurinkus left him the transcripts of telephone conversations between Jurij Borisov with A. Zatonskaya as well as A. Potnin, from which it was clear that Jurij Borisov’s telephone conversations were being tapped. The President of the Republic Rolandas Paksas proposed that he and M. Laurinkus meet on 17 March 2003 (Special Investigation Commission material, c. 16.77/19/ITT-202, protocol of the questioning of the witness M. Laurinkus at the Office of the Prosecutor General on 16 December 2003, pp. 112–114).

According to the President of the Republic Rolandas Paksas, in the spring of 2003 M. Laurinkus visited him at his home and submitted to him recordings and transcripts of several telephone conversations between Jurij Borisov and A. Zatonskaya and A. Drakšas; the President of the Republic Rolandas Paksas read them (Special Investigation Commission material, c. 16.77/19/ITT-202, protocol of the questioning of the witness R. Paksas performed by a judge of pre-trial investigation on 17 November 2003, pp. 71–93).

4.9. On 17 March 2003, at 08.08 hours A. Zatonskaya phoned Jurij Borisov. She said that “several right words” had come to her mind, and that she wished to call the President of the Republic Rolandas Paksas directly. Jurij Borisov told the mobile telephone number of the President of the Republic Rolandas Paksas to A. Zatonskaya. A. Zatonskaya said, “I’m going to try, well, but if something goes wrong, then I’ll ask your favour, so that it might be easier to get through.” Jurij Borisov replied, “<…> if you’re willing to talk to him, so I’ll be at his place at seven o’clock, I’ll be able to give you a ring.” (Special Investigation Commission material, c. 16.77/18/ITT-202, 17 November 2003 State Security Department Protocol No. 03-19-1050/03 concerning use of technical equipment in operational actions, p. 181; telephone conversation No. 1 (in Russian), pp. 181–183; translation into Lithuanian, pp. 68–69.)

4.10. On 17 March 2003, at 11.50 hours Jurij Borisov made a telephone call to Remigijus Ačas, the then advisor to the President of the Republic on national security issues. The interlocutors agreed to meet on the same day, at 14.30 hours, in the flat of Remigijus Ačas in Vilnius; Remigijus Ačas promised Jurij Borisov to explain everything (Special Investigation Commission material, c. 16.77/18/ITT-202, 2 November 2003 State Security Department Protocol No. 03-19-999/03 concerning use of technical equipment in operational actions, p. 126; telephone conversation No. 2 (in Russian), pp. 128–129; translation into Lithuanian, pp. 20–21).

4.11. On 17 March 2003, at 11.55 hours, A. Zatonskaya made a telephone call to Jurij Borisov. Jurij Borisov informed her that he had spoken to A. Drakšas, gave him to read the documents and told him about the “Almax” chart, and also that there were 20 sheets in addition, and that Jurij Borisov would not show the agreement to A. Drakšas. A. Zatonskaya asked were Jurij Borisov had shown the last chart (agreement) to A. Drakšas, which had been drawn up by Jurij Borisov. Jurij Borisov replied that he had not shown the chart to A. Drakšas, however, he had told him that there existed an agreement between Jurij Borisov and the President of the Republic Rolandas Paksas; according to Jurij Borisov, he had spoken very little about the content of the agreement to A. Drakšas—he had pointed out only the general sum of money, which was huge (“they don’t have nor will ever have such a sum”). Jurij Borisov also said to A. Zatonskaya that A. Drakšas understood that the agreement must be observed, it must be followed. Jurij Borisov also stated that everyone thought that that evening the President of the Republic Rolandas Paksas would ask Jurij Borisov for pardon and that the latter be patient, that he wait. In addition, Jurij Borisov told A. Zatonskaya that on that day A. Drakšas would meet the President of the Republic Rolandas Paksas. Jurij Borisov said, “I’ve told Algis <…> I will give all this material to an intelligent service <…>, the hostile one.” Jurij Borisov also told A. Zatonskaya that on that day he would meet Remigijus Ačas, who had invited him for a talk (Special Investigation Commission material, c. 16.77/18/ITT-202, 2 November 2003 State Security Department Protocol No. 03-19-998/03 concerning use of technical equipment in operational actions, p. 121; telephone conversation No. 1 (in Russian), pp. 121–125; translation into Lithuanian, pp. 12–17).

4.12. On 17 March 2003, at around 12.00 hours, M. Laurinkus met the President of the Republic Rolandas Paksas at the Office of the President of the Republic. During this meeting, the President of the Republic Rolandas Paksas returned the transcripts of telephone conversations that had been left to him the day before to M. Laurinkus, however, they did not speak on this topic. M. Laurinkus informed the President of the Republic Rolandas Paksas about two additional telephone conversations—one of them was between Jurij Borisov and A. Drakšas, which took place on 16 March 2003, at 18.15 hours, during which Jurij Borisov told A. Drakšas that on the next day Jurij Borisov would make the material compromising the President of the Republic Rolandas Paksas public, and also referred to the President of the Republic Rolandas Paksas as “political cadaver”, “traitor” (Special Investigation Commission material, c. 16.77/19/ITT-202, protocol of the questioning of the witness M. Laurinkus at the Office of the Prosecutor General on 16 December 2003, pp. 112–114; ibid. c. 8.39/05-202, testimony of the witness M. Laurinkus on 23 January 2004, pp. 39–40).

4.13. On 17 March 2003, at 13.12 hours, Jurij Borisov made a telephone call to A. Drakšas and told him that the President of the Republic Rolandas Paksas had sent a man to talk to him, and he had threatened Jurij Borisov and said to him, “You be quiet, then you’ll have protection <…>, if not, then <…>” (Special Investigation Commission material, c. 16.77/18/ITT-202, 2 November 2003 State Security Department Protocol No. 03-19-999/03 concerning use of technical equipment in operational actions, p. 126; telephone conversation No. 3 (in Russian), pp. 129–30; translation into Lithuanian, pp. 21–22).

4.14. On 17 March 2003, at 17.02 hours, V. Sirvydis made a telephone call to Jurij Borisov. Jurij Borisov told V. Sirvydis that on that day he would meet the President of the Republic Rolandas Paksas, and that on that day he would learn whether all his telephone conversations were being tapped (Special Investigation Commission material, c. 16.77/18/ITT-202, 2 December 2003 State Security Department Protocol No. 03-19-1111/03 concerning use of technical equipment in operational actions, p. 209; telephone conversation No. 1 (in Russian), pp. 209–210; translation into Lithuanian, pp. 54–55).

4.15. On 17 March 2003, the President of the Republic Rolandas Paksas finished his work at the Office of the President and left the Office of the President at 19.30 hours (Note No. (20/1.15)-7S-356 of the Front Office Security Department, received at the Constitutional Court on 23 March 2004, reg. No. 13B-97).

4.16. On 17 March 2003, in the evening Jurij Borisov met the President of the Republic Rolandas Paksas (Special Investigation Commission material, c. 16.77/19/ITT-202, protocol of the questioning of the suspect J. Borisov at the Office of the Prosecutor General on 1 December 2003, pp. 41–47; ibid. c. 8.39/04-202, testimony of the witness J. Borisov on 14 January 2004, pp. 154–155, 165).

On 3 November 2003, when being questioned at the Office of the Prosecutor General, Jurij Borisov testified that during the meeting with the President of the Republic Rolandas Paksas he understood that the President of the Republic Rolandas Paksas had received the recordings of Jurij Borisov’s conversations from the State Security Department. Jurij Borisov testified: “After several days had passed from may conversation with A. Drakšas, R. Paksas summoned me and we talked with him about this. I understood that he had received the recordings of my conversations from the State Security Department. We chattered in a friendly manner with R. Paksas, I told him that I had been wrong, had gone off the deep end, and so all problems were settled, there were no more misunderstandings.” (Special Investigation Commission material, c. 16.77/18/ITT-202, protocol of the questioning of the suspect J. Borisov at the Office of the Prosecutor General on 3 November 2003, pp. 237–240.)

The President of the Republic Rolandas Paksas does not deny that on 17 March 2003 he met Jurij Borisov (explanations of the advocate G. Baublys, a representative of the President of the Republic Rolandas Paksas, at the Constitutional Court’s hearing on 24 March 2004). On 17 November 2003, the President of the Republic Rolandas Paksas answered to the question of the judge of pre-trial investigation whether the President of the Republic Rolandas Paksas read the transcripts of telephone conversations submitted to him by M. Laurinkus as follows: “Without doubt. I negatively assess transcripts, I reacted in a simple manner, and pushed the emotions aside. I talked to J. Borisov and we pushed emotions aside.” The President of the Republic Rolandas Paksas answered to the question of the judge of pre-trial investigation whether he had spoken to A. Drakšas about the content of the transcripts of telephone conversations submitted to him by M. Laurinkus as follows: “I don’t remember. We talked about many things.” To the question of the judge of pre-trial investigation whether Jurij Borisov had commented upon his conversation with A. Zatonskaya, the President of the Republic Rolandas Paksas replied that he thought that it had been emotional excitement, and that neither he nor Jurij Borisov regarded that as significant (Special Investigation Commission material, c. 16.77/19/ITT-202, protocol of the questioning of the witness, the President of the Republic R. Paksas by a judge of pre-trial investigation on 17 November 2003, pp. 71–93).

4.17. On 18 March 2003, at 11.50 hours, Jurij Borisov made a telephone call to A. Zatonskaya. Jurij Borisov said, “All our conversations are being recorded, including this one, do you understand? Now, all of them are being interpreted, that’s to say, put upside down. <…> Everything, so to speak, right? That you and I are the main enemies, so, like, only excerpts are put on his table, so to speak. You know, those that are expedient, so to speak, you know who benefits from it.” “All our conversations, all these my emotions, all this afflux of feelings, about which I had no one to talk to but you, only you, are, so to speak, recorded, taken out, like, a phrase, well, everything.” “<…> and now, so to speak, that conversation is being interpreted, when we spoke to each other, this means, let Dalia has it out there… a pot-shot at Dalia.” Jurij Borisov also said that he understood that the President of the Republic Rolandas Paksas might turn away from him, that he had gone to the embassy and managed “to get Russian citizenship”, also, that the President of the Republic Rolandas Paksas had promised to retain citizenship of the Republic of Lithuania to him “sort of for my merits for Lithuania, not only for my help to him during the election” (Special Investigation Commission material, c. 16.77/18/ITT-202, 2 December 2003 State Security Department Protocol No. 03-19-1113/03 concerning use of technical equipment in operational actions, p. 211; telephone conversation No. 1 (in Russian), pp. 211–219; translation into Lithuanian, pp. 92–99).

4.18. On 1 December 2003, Jurij Borisov, when questioned at the Office of the Prosecutor General, responded to the question whether the President of the Republic Rolandas Paksas had told him that his telephone conversations were being tapped as follows: “This question is incorrect, it concerns the President of the Republic and I will not answer to it. It think that you have already understood from my two previous answers that I have known that my conversations are tapped for a very long time <…>.” (Special Investigation Commission material, c. 16.77/19/ITT-202, protocol of the questioning of the suspect J. Borisov at the Office of the Prosecutor General on 1 December 2003, pp. 41–47.)

4.19. On 4 December 2003, V. Sirvydis, when questioned at the Office of the Prosecutor General, replied to the question “Did J. Borisov tell you that his telephone conversations were being tapped?” as follows: “J. Borisov told me this several times, also on the phone. We spoke about it also in February and March. Perhaps, the telephone conversation took place in the middle of March, this year after he had learned that his telephone conversations were being tapped. He mentioned that he had seen transcribed transcripts of the conversations. He also mentioned the name of R. Ačas, but I don’t remember in what connection it was, maybe, R. Ačas had asked him to come to the Office of the President, or invited him to his home, and there Borisov learned about the tapping of his conversations.” (Special Investigation Commission material, c. 16.77/19/ITT-202, protocol of the questioning of the witness V. Sirvydis at the Office of the Prosecutor General on 4 December 2003, pp. 105–111.)

On 18 March 2004, at the Constitutional Court’s hearing Remigijus Ačas replied to the question presented by R. Šukys, a representative of the petitioner, whether he informed Jurij Borisov or other persons that telephone conversations of Jurij Borisov were being tapped, as follows: “I did not inform Mr. Borisov about this.”

When replying to the question, presented at the 22 January 2004 closed sitting of the Special Investigation Commission, whether he knew that M. Laurinkus had submitted information to the President of the Republic Rolandas Paksas about the tapping of telephone conversations of Jurij Borisov and the transcripts of these conversations, Remigijus Ačas said, “No, I have never spoken with the President on this topic.” (Special Investigation Commission material, c. 8.39/10-202, testimony of the witness R. Ačas on 22 January 2004, pp. 136–137.)

5. On the basis of what has been established in the case, it should be held that:

1) the testimony by Jurij Borisov, given on 3 November 2003 during the questioning at the Office of the Prosecutor General, in which he stated, “after several days had passed from may conversation with A. Drakšas, R. Paksas summoned me and we talked with him about this. I understood that he had received the recordings of my conversations from the State Security Department”, as well as the content of his conversations with A. Zatonskaya, confirms that during his meeting with the President of the Republic Rolandas Paksas on 17 March 2003, Jurij Borisov learned from the President of the Republic Rolandas Paksas that his telephone conversations were being tapped.

2) the statements “all our conversations are being recorded”, “only excerpts are put on his table”, “all our conversations, all these my emotions, all this afflux of feelings, about which I had no one to talk to but you, only you, is, so to speak, recorded, taken out, like, a phrase, well, everything”, “<…> and now <…> that conversation is being interpreted, when we spoke to each other, this means, let Dalia has it out there… a pot-shot at Dalia” made by Jurij Borisov during his telephone conversation with A. Zatonskaya on 18 March 2003 indicate that during the aforesaid meeting with the President of the Republic Rolandas Paksas on 17 March 2003, Jurij Borisov learned from the President of the Republic Rolandas Paksas not only that his telephone conversations were being tapped, but also the content of its separate telephone conversations, which had been recorded, as well as the details of these conversations.

3) the fact that during the meeting with the President of the Republic Rolandas Paksas on 17 March 2003 Jurij Borisov learned the content of his telephone conversations, which had been recorded, as well as the details of these conversations, proves that the President of the Republic Rolandas Paksas during the meeting with Jurij Borisov on 17 March 2003 knowingly dropped a hint to Jurij Borisov that institutions of law and order were tapping Jurij Borisov’s telephone conversations.

4) the President of the Republic Rolandas Paksas, during the meeting with Jurij Borisov on 17 March 2003, having knowingly dropped a hint to him that Jurij Borisov’s telephone conversations were being tapped, alongside, knowingly dropped a hint to Jurij Borisov that in regard of Jurij Borisov institutions of law and order were conducting operational investigation.

6. The 10 February 2004 explanations of the President of the Republic Rolandas Paksas to the Special Investigation Commission that he, in the capacity of the President of the Republic, had not revealed any information comprising a state secret, nor had he created any preconditions for making use of the state secret for a third party, the 12 March 2004 explanations of the President of the Republic Rolandas Paksas to the Constitutional Court that he, while discharging his powers, did not perform any action or failure to act, by which “dropping a hint to one knowingly” could have been accomplished, also the explanations of the advocate G. Baublys, a representative of the President of the Republic Rolandas Paksas, at the Constitutional Court’s hearing that the President of the Republic Rolandas Paksas did not give grounds, by any actions, for Jurij Borisov to understand that his telephone conversations were being tapped, should be assessed critically. These explanations are denied by the content of the 17 March 2003 telephone conversation between Jurij Borisov and V. Sirvydis, the testimony of Jurij Borisov during his questioning at the Office of the Prosecutor General on 3 November 2003, the content of the telephone conversation between Jurij Borisov and A. Zatonskaya on 18 March 2003.

7. During his questioning at the Office of the Prosecutor General on 1 December 2003, Jurij Borisov testified that he had known for approximately two years that his telephone conversations were being tapped (Special Investigation Commission material, c. 16.77/19/ITT-202, protocol of the questioning of the suspect J. Borisov at the Office of the Prosecutor General on 1 December 2003, p. 46). During his questioning at the Special Investigation Commission on 14 January 2004, Jurij Borisov asserted that he had known since 1998 that the State Security Department was conducting operational activities against him and the company headed by him, thus, he saw no sense to apply to the President of the Republic with the question whether he was being tapped or not (Special Investigation Commission material, c. 8.39/04-202, testimony of the witness J. Borisov on 14 January 2004, p. 156). In his 10 February 2004 explanations to the Special Investigation Commission, the President of the Republic Rolandas Paksas also maintained that Jurij Borisov had known since 1998 that his conversations were being tapped and that in his regard operational actions were performed (Special Investigation Commission material, c. 16.77/23-202, the 10 February 2004 written explanations by the President of the republic R. Paksas, p. 40). During his questioning at the Office of the Prosecutor General on 4 December 2003, V. Sirvydis testified that Jurij Borisov had told him for several times, as well as in February 2003, that his conversations were being tapped (Special Investigation Commission material, c. 16.77/19/ITT-202, protocol of the questioning of the witness V. Sirvydis at the Office of the Prosecutor General on 4 December 2003, pp. 105–111). At the 18 March 2004 Constitutional Court’s hearing, Remigijus Ačas testified that Jurij Borisov was taking precautions in order to avoid the tapping of his conversations as far back as December 2002.

It should be emphasised that the aforesaid explanations of the President of the Republic Rolandas Paksas, as well as the testimonies of Jurij Borisov, V. Sirvydis, and Remigijus Ačas, do not deny the fact that the President of the Republic Rolandas Paksas, during his meeting with Jurij Borisov on 17 March 2003 knowingly dropped a hint to Jurij Borisov that institutions of law and order were tapping Jurij Borisov’s telephone conversations and that in regard of Jurij Borisov institutions of law and order were conducting operational investigation.

It needs to be noted that even if Jurij Borisov knew, prior to his meeting with the President of the Republic Rolandas Paksas on 17 March 2003, that his telephone conversations were being tapped, also, even if the President of the Republic Rolandas Paksas knew, prior to the said meeting with Jurij Borisov when he knowingly dropped a hint to Jurij Borisov that Jurij Borisov’s telephone conversations were being tapped, that Jurij Borisov knew about it, all the same the President of the Republic Rolandas Paksas had a duty to safeguard the information, that Jurij Borisov’s telephone conversations were being tapped, which comprised a state secret, and not to reveal this information to Jurij Borisov.

8. The classification, keeping, use, declassification, co-ordination of protection and control of information comprising a state and official secret are regulated by the Republic of Lithuania’s Law on State Secrets and Official Secrets, adopted by the Seimas on 25 November 1999 (with subsequent amendments and supplements).

Under Paragraph 7 of Article 3 of the Law on State Secrets and Official Secrets, information marked by security classifications “Top Secret” or “Secret,” shall not be passed to third parties or disseminated in any other way without the written consent of the owner of such information.

Under Item 20 of Paragraph 1 of Article 5 (wording of 26 March 2002) of the same law, information on operative performance of the subject of operative activities, usage of means and methods, as well as information obtained in the course of operative activities can comprise a state secret.

Paragraph 1 of Article 9 of the Law on State Secrets and Official Secrets provides, inter alia, that the right ex officio to become familiarised oneself with and use information considered a state secret is granted to the President of the Republic; Paragraph 2 of the same article provides that only persons having special permits may become familiarised themselves with information comprising a state secret.

Under Paragraph 1 of Article 14 of the Law on State Secrets and Official Secrets, a person shall be obliged to keep the classified information entrusted to him or learnt by him in the course of his service throughout the entire term that the information is deemed classified.

9. As mentioned before, the transcripts of telephone conversations between Jurij Borisov and A. Zatonskaya as well as A. Potnin which were submitted to the President of the Republic Rolandas Paksas by M. Laurinkus on 16 March 2003 contained classification marking “Secret”.

10. Under Paragraph 1 of Article 14 of the Law on State Secrets and Official Secrets, the President of the Republic Rolandas Paksas was obliged to keep the classified information entrusted to him throughout the entire term that the information was deemed classified, thus, also the information about the fact that institutions of law and order were tapping Jurij Borisov’s telephone conversations, and that in regard of Jurij Borisov institutions of law and order were performing operational investigation.

11. Under Paragraph 7 of Article 3 of the Law on State Secrets and Official Secrets, the information about the fact that institutions of law and order were tapping Jurij Borisov‘s telephone conversations, that in regard of Jurij Borisov institutions of law and order were performing operational investigation could not be passed to third parties or disseminated in any other way without the written consent of the owner of such information. Without the State Security Department’s consent, the President of the Republic Rolandas Paksas was not permitted to pass this information to Jurij Borisov.

12. It was held in this Conclusion of the Constitutional Court that the President of the Republic Rolandas Paksas during the meeting with Jurij Borisov on 17 March 2003 knowingly dropped a hint to Jurij Borisov that institutions of law and order were tapping Jurij Borisov’s telephone conversations and that in regard of Jurij Borisov institutions of law and order were conducting operational investigation.

Thus, the President of the Republic Rolandas Paksas during the meeting with Jurij Borisov on 17 March 2003 revealed information to him, which comprised a state secret, and did not guarantee protection of the state secret.

Such actions of the President of the Republic Rolandas Paksas are in conflict with the provisions of Paragraph 7 of Article 3, Paragraph 2 of Article 9, Paragraph 1 of Article 14 of the Law on State Secrets and Official Secrets.

13. Under Paragraph 1 of Article 82 of the Constitution, the elected President of the Republic will take an oath to the Nation to be faithful to the Republic of Lithuania and the Constitution, to conscientiously fulfil the duties of his office, and to be equally just to all.

Under Paragraph 2 of Article 77 of the Constitution, the President of the Republic shall represent the State of Lithuania and shall perform everything that he is charged with by the Constitution and laws.

14. Having held that actions of President Rolandas Paksas of the Republic of Lithuania by which the President of the Republic Rolandas Paksas during the meeting with Jurij Borisov on 17 March 2003 revealed information to him, which comprised a state secret, and did not guarantee protection of the state secret are in conflict with the provisions of Paragraph 7 of Article 3, Paragraph 2 of Article 9, Paragraph 1 of Article 14 of the Law on State Secrets and Official Secrets, it should be held, alongside, that the actions of President Rolandas Paksas of the Republic of Lithuania by which he knowingly dropped a hint to Jurij Borisov that in his regard institutions of law and order were conducting operational investigation and tapping his telephone conversations are in conflict with the provision of Paragraph 2 of Article 77 of the Constitution that the President of the Republic shall represent the State of Lithuania and shall perform everything that he is charged with by the Constitution and laws, and the provision of Paragraph 1 of Article 82 of the Constitution, that the elected President of the Republic will take an oath to the Nation to be faithful to the Republic of Lithuania and the Constitution, to conscientiously fulfil the duties of his office, and to be equally just to all. By the said actions President Rolandas Paksas of the Republic of Lithuania grossly violated the Constitution of the Republic of Lithuania and breached his oath.

VIII

On the presentation of the conclusion, requested in the inquiry set forth in the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004, whether the actions of the President of the Republic Rolandas Paksas by which he, seeking to implement property interests of private persons close to him, by making use of his status, gave orders to his advisor Visvaldas Račkauskas to seek to influence, and by making use of his official position, through institutions of law and order, decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas, as well as his actions by which he, in 2003, seeking to implement property interests of private persons close to him, by making use of his status, exerted influence on decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas, as well as his actions by which he, knowing that the unlawful influence was being exerted on heads and shareholders of the company “Žemaitijos keliai” UAB by making use of his name as the President of the Republic, took no measures to prevent this, are in conflict with the Constitution.

1. In the inquiry set forth in its 19 February 2004 Resolution “On the Application to the Constitutional Court of the Republic of Lithuania”, the Seimas requests a conclusion whether the following actions of the President of the Republic Rolandas Paksas are in conflict with the Constitution:

1) the President of the Republic Rolandas Paksas, seeking to implement property interests of private persons close to him, by making use of his status, gave orders to his advisor Visvaldas Račkauskas to seek to influence, by making use of his official position, through institutions of law and order, decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas;

2) in 2003, the President of the Republic Rolandas Paksas, seeking to implement property interests of private persons close to him and by making use of his status exerted influence on decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas;

3) the President of the Republic Rolandas Paksas, knowing that the unlawful influence was being exerted on heads and shareholders of the company “Žemaitijos keliai” UAB by making use of his name as the President of the Republic, took no measures to prevent this.

2. It is clear from the content of the inquiry that the said three actions of the President of the Republic Rolandas Paksas are linked, in the opinion of the petitioner, with the influence exerted on heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas.

3. In the Conclusion of the Special Investigation Commission “On the Proposal to Institute Impeachment Proceedings against the President of the Republic Rolandas Paksas” of 19 February 2004, which was received together with the inquiry of the petitioner—the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004, as well as in the explanations of the representatives of the Seimas at the Constitutional Court’s hearing it is maintained that the President of the Republic Rolandas Paksas, by making use of his status, sought to influence decisions of the heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas. According to the petitioner and its representatives, the President of the Republic Rolandas Paksas commissioned the member of the Seimas D. A. Barakauskas to elucidate the situation in the company “Šiaulių plentas” AB and seek to ensure that one settled on transfer of shares of the company “Žemaitijos keliai” UAB to persons close to him; in the summer of 2003, the President of the Republic Rolandas Paksas made a telephone call to A. M. Steponavičienė, a shareholder of the company “Žemaitijos keliai” UAB and asked her not to sell the shares of the company “Žemaitijos keliai” UAB held by her to the company “Šiaulių plentas” AB; A. Drakšas, Director of the company “Restako” UAB and a close friend of the President of the Republic Rolandas Paksas, requested that the President of the Republic Rolandas Paksas help to exert influence, through his advisor Visvaldas Račkauskas, on the heads of the company “Šiaulių plentas” AB, which is the holder of controlling block of shares of the company “Žemaitijos keliai” UAB, and the heads and shareholders of the company “Žemaitijos keliai” UAB; the President of the Republic Rolandas Paksas gave instructions to his advisor Visvaldas Račkauskas to exert pressure on heads of the company “Šiaulių plentas” AB—to initiate, via the Office of the Commissioner General of the Town of Šiauliai, the check-up of the activities of the company “Šiaulių plentas” AB; in view of prolonged disputes concerning the acquisition of the shares of the company “Žemaitijos keliai” UAB, the President of the Republic Rolandas Paksas together with A. Drakšas were making plans as to what actions to take so that the shares of the company “Žemaitijos keliai” UAB be transferred, proposed to resort to “unconventional measures”, to “press to the end” the heads of the company “Šiaulių plentas” AB, so that they transfer the shares to other persons. The petitioner and its representatives believe that the President of the Republic Rolandas Paksas was also aware of the fact that the unlawful influence on the heads and shareholders of the company “Žemaitijos keliai” UAB was being made while making use of his name as the President of the Republic and took no measures to prevent this.

4. In the 12 March 2004 explanations of the President of the Republic Rolandas Paksas to the Constitutional Court concerning the charge indicated in the Seimas resolution, that he, allegedly, in 2003, seeking to implement property interests of private persons close to him, by making use of his status, while in office of the President of the Republic, gave orders to his advisor Visvaldas Račkauskas to seek to influence, by making use of his official position, through institutions of law and order, decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to him, and that, allegedly, he knew that the unlawful influence was being exerted by making use of his name as the President of the Republic and took no measures to prevent this, it is maintained that he has never given instructions of the kind by which he would have sought to attain personal interests while discharging the powers of the President of the Republic.

In the 10 February 2004 explanations of the President of the Republic Rolandas Paksas to the Special Investigation Commission, it is maintained that the President of the Republic Rolandas Paksas has never exerted any unlawful influence on shareholders of the company “Šiaulių plentas” AB, nor has he given such an instruction to his advisors.

5. The following has been established in the case:

5.1. Since 1999, the controlling block of shares of the company “Žemaitijos keliai” UAB has belonged to the company “Šiaulių plentas” AB (Special Investigation Commission material, c. 8.39/05-202, testimony of the witness A. Mikšys on 29 January 2004, p. 85; ibid., c. 8.39/10-202, testimony of the witness G. Striaukas on 22 January 2004, p. 95; ibid., c. 8.39/05-202, testimony of the witness V. Vičkačka on 29 January 2004, p. 110; ibid., c. 16.39/22-202, protocol of the questioning of the witness A. Armalas at the Office of the Prosecutor General on 22 December 2003, p. 138; ibid., c. 16.77/22-202, protocol of the questioning of the witness A. Mikšys at the Office of the Prosecutor General on 6 January 2004, p. 142; ibid., c. 16.77-202, State Security Department Note No. (03)-18-440-809 of 16 December 2003, p. 117).

5.2. G. Striaukas, former Minister of Transport in the Government headed by the Prime Minister Rolandas Paksas (2000–2001), at the end of 2002 or at the beginning of 2003 (exact date has not been established) introduced A. Armalas, Director General of the company “Šiaulių plentas “ AB, to A. Gumbys, Director of the company “Moteris” UAB (the controlling block of shares of this company belongs to E. Striaukienė, the wife of G. Striaukas). A. Gumbys began negotiations with A. Armalas on the acquisition of shares of the company “Žemaitijos keliai” UAB from the company “Šiaulių plentas” AB and other shareholders of the company “Žemaitijos keliai” UAB (Special Investigation Commission material, c. 8.39/06-202, testimony of the witness G. Striaukas on 22 January 2004, p. 114; ibid., c. 8.39/05-202, testimony of the witness A. Gumbys on 29 January 2004, p. 116; ibid., c. 16.77/22-202, protocol of the questioning of the witness A. Armalas at the Office of the Prosecutor General on 22 December 2003, p. 138; ibid., c. 16.77/22-202, State Security Department Note No. (03)-18-440-809 of 16 December 2003, p. 118).

5.3. The member of the Seimas D. A. Barakauskas, former Minister of Transport in the Government headed by the Prime Minister Rolandas Paksas (2001), in the spring of 2003 (exact date has not been established) went to Šiauliai and met A. Armalas. The member of the Seimas D. A. Barakauskas told A. Armalas that A. Drakšas, Director of the company “Restako” UAB, was interested in shares of the company “Žemaitijos keliai” UAB. The member of the Seimas D. A. Barakauskas also explained to A. Armalas that he had come to elucidate the situation upon the instruction by the President of the Republic Rolandas Paksas. The member of the Seimas D. A. Barakauskas also stated that he met A. Armalas upon the instruction by the President of the Republic Rolandas Paksas in the programme “Spaudos klubas” of the Lithuanian Television on 2 December 2003: the member of the Seimas D. A. Barakauskas said that two economic subjects, the companies “Žemaitijos keliai” UAB and “Restako” UAB, had argued with each other, while the President of the Republic Rolandas Paksas asked him to ask A. Armalas and A. Drakšas to sit at the table and discuss the affairs of both companies (Special Investigation Commission material, c. 8.39/05-202, testimony of the witness A. Armalas on 23 January 2004, p. 12; ibid., c. 16.77/22-202, report of the BNS agency of 3 December 2003, p. 170, a digital data retention item attached to the case).

5.4. On 4 May 2003, A. Karkauskas, a shareholder of the company “Žemaitijos keliai” UAB, gave A. Gumbys 10 shares of the company “Žemaitijos keliai” UAB, the nominal value of which was LTL 50, as a present. On 19 May 2003, A. Karkauskas and I. Karkauskienė, shareholders of the company “Žemaitijos keliai” UAB, sold 116,737 shares of the company “Žemaitijos keliai” UAB, the nominal value of which was LTL 583,685, to A. Gumbys for LTL 10,000. On the same day, A. Karkauskas, I. Karkauskienė and A. Gumbys agreed to recognise the agreements of giving as a present and of sale and purchase of the shares of the company “Žemaitijos keliai” UAB as invalid. On 4 June 2003, V. Zambacevičius and A. Zambacevičienė, shareholders of the company “Žemaitijos keliai” UAB, gave A. Gumbys 10 shares of the company “Žemaitijos keliai” UAB, the nominal value of which was LTL 50, as a present. On 11 June 2003, shareholders of the company “Žemaitijos keliai” UAB, sold 116,737 shares of the company “Žemaitijos keliai” UAB, the nominal value of which was LTL 583,685, to A. Gumbys for LTL 10,000. On 11 June 2003, V. Zambacevičius and A. Zambacevičienė, shareholders of the company “Žemaitijos keliai” UAB, repeatedly sold 116,737 shares of the company “Žemaitijos keliai” UAB, the nominal value of which was LTL 583,685, to A. Gumbys for LTL 10,000 (Special Investigation Commission material, c. 16.77/24-202, the 4 May 2003 present giving agreement, p. 81; ibid., c. 16.77/24-202, the 19 May 2003 agreement, pp. 82-84; ibid. c. 16.77/24-202, the 19 May 2003 recognition of the agreements as invalid, p. 80; ibid., c. 16.77/24-202, the 7 June 2003 present giving agreement, p. 74; ibid., c. 16.77/24-202, the 11 June 2003 agreement of sale and purchase of shares, p. 75; ibid., c. 16.77/24-202, the 11 June 2003 agreement of sale and purchase of shares, p. 77).

5.5. On 13 June 2003, A. Gumbys together with his lawyer J. Gaudutis met A. Armalas and R. Matiukas, Deputy Director of the financial broker company “Finasta”, in Šiauliai. During the meeting they discussed the sale of the shares of the company “Žemaitijos keliai” UAB held by A. Armalas to A. Gumbys, also that the company “Šiaulių plentas” AB commission to issue a letter of attorney to A. Gumbys empowering him to represent 3 percent of votes in the general meeting of shareholders of the company “Žemaitijos keliai” UAB. On the same day, A. Armalas and I. Armalienė, shareholders of the company “Žemaitijos keliai” UAB, sold 116,727 shares of the company “Žemaitijos keliai” UAB, the nominal value of which was LTL 583,635, to A. Gumbys for LTL 10,000. Thus, A. Gumbys acquired 17.52 percent of shares of the company “Žemaitijos keliai” UAB, the nominal value of which was LTL 1,750,905, for LTL 30,000. Subsequently, part of the transactions whereby A. Gumbys had acquired the shares of the company “Žemaitijos keliai” UAB were challenged in court. The judicial investigation concerning the acquisition of these shares has not been completed yet (Special Investigation Commission material, c. 16.77/24-202, the 11 June 2003 agreement of sale and purchase of shares, p. 75; ibid., c. 16.77/24-202, the 13 June 2003 agreement of sale and purchase of shares, p. 76; ibid., c. 16.77/24-202, the 11 June 2003 agreement of sale and purchase of shares, p. 77; ibid., c. 16.77/24-202, the 21 July 2003 bill of particulars, pp. 174–176; ibid., c. 8.39/05-202, testimony of the witness A. Gumbys on 29 January 2004, pp. 115–116; ibid., c. 8.39/05-202, testimony of the witness A. Armalas on 23 January 2004, p. 9).

5.6. In the summer of 2003 (exact date has not been established) in Telšiai, A. Drakšas. G. Striaukas and A. Gumbys met S. Paukštė, Director General of the company “Žemaitijos keliai” UAB, and V. Vičkačka, Technical Director of the same company. In the office of V. Vičkačka, A. Drakšas said that “top persons” desire that the shares of the company “Žemaitijos keliai” UAB be transferred. After that A. Drakšas, G. Striaukas, A. Gumbys, S. Paukštė and V. Vičkačka went to Tausalo lake, where they talked about the company “Žemaitijos keliai” UAB. A. Drakšas maintained that if the shares of the company “Žemaitijos keliai” UAB were transferred, then contracts in Russia “of millions of hundreds of dollars in value” would be awaiting for this company, therefore, the court disputes concerning the transfer of shares of the company “Žemaitijos keliai” UAB must be settled as soon as possible. In addition, A. Drakšas said that the transfer of shares is only a matter of time, which, “if the process goes of its own accord”, will take up to one year, and “in case of an atomic explosion—up to two or three weeks” (A. Drakšas did not explain what he meant by “atomic explosion”). A. Drakšas stated that “in four years’ time, ‘Žemaitijos keliai’ will become a strong firm”. When S. Paukštė expressed his doubts that this would happen not in four but nine years’ time perhaps, A. Drakšas replied that “they must arrange everything during the presidency of Paksas”. A. Drakšas stated to V. Vičkačka that “they have the President, with his help they will take the economy, will possess much money, then the state government will be favourable to them, and they will have the government they want” (Special Investigation Commission material, c. 16.77/22-202, protocol of the questioning of the witness S. Paukštė on 30 December 2003, pp. 147–148; ibid., c. 16.77/22-202, protocol of the questioning of the witness V. Vičkačka at the Office of the Prosecutor General on 12 January 2004, p. 150; ibid., c. 8.39/05-202, protocol of the questioning of the witness S. Paukštė at the Office of the Prosecutor General on 23 January 2004, pp. 27–29; ibid., c., 8.39/05-202, protocol of the questioning of the witness V. Vičkačka on 29 January 2004, pp. 110–111).

5.7. In the summer of 2003 (exact date has not been established), A. Drakšas. G. Striaukas and A. Gumbys met in Aukštadvaris. They spoke about that “there is a problem” with the company “Žemaitijos keliai” UAB. A. Drakšas said, “Gumbys bought shares of this company, they were registered, but on the next day their registering was revoked. Besides, the company isn’t permitted to take part in public tenders, and it receives orders under subcontract via ‘Šiaulių plentas’; ‘Šiaulių plentas’ is owning about 2,000,000 litas to ‘Žemaitijos keliai’, plainly speaking, after Gumbys had acquired the shares, someone was clearly attempting to wreck this company. There were some talks what could be done in this situation. I said that perhaps we must apply to the people who could give advice what to do in such a situation. Then we started thinking who such people might be. During the conversation with Striaukas we found a common acquaintance, who was Visvaldas Račkauskas. I told Striaukas that I must have his phone number somewhere. I remember that at that time I did not give him V. Račkauskas’ phone number, since I had not entered it into my phone. I gave it to him some time later.” (Special Investigation Commission material, c. 16.77/22-202, protocol of the questioning of the witness A. Drakšas at the Office of the Prosecutor General on 9 January 2003, pp. 158–161; ibid., c. 16.77/22-202, protocol of the questioning of the witness G. Striaukas at the Office of the Prosecutor General on 8 January 2004, pp. 162–166).

5.8. In the summer of 2003 (exact date has not been established), in Vilnius G. Striaukas met Visvaldas Račkauskas, advisor to the President of the Republic Rolandas Paksas on legal issues, and requested him to attend to the company “Šiaulių plentas” UAB, reasoning his request that allegedly there had been certain abuses in the said company. Visvaldas Račkauskas promised to think what could be done. Meeting G. Striaukas again (exact date has not been established), Visvaldas Račkauskas said that he had no idea of what could be done and that he could not be of any help (Special Investigation Commission material, c. 16.77/22-202, protocol of the questioning of the witness G. Striaukas at the Office of the Prosecutor General on 8 January 2004, p. 163; ibid., c. 16.77/22-202, protocol of the questioning of the witness V. Račkauskas at the Office of the Prosecutor General on 15 January 2004, pp. 168).

5.9. In October 2003 (exact date has not been established) G. Striaukas met A. Armalas. G. Striaukas suggested that he and Armalas go to the seat of the company “Restako” UAB. There they were met by A. Drakšas. G. Striaukas explained to A. Armalas that the building they were in had been the election headquarters of Rolandas Paksas, a candidate to the President of the Republic. G. Striaukas introduced A. Drakšas to A. Armalas and said that it was A. Drakšas who would decide all questions related with the transfer of shares, while he could not be of any help on this issue. A. Armalas said that he felt the turn of things. He said, “I knew that big forces are at play here”, since G. Striaukas and A. Drakšas were friends. G. Striaukas and A. Drakšas had a talk with A. Armalas concerning transfer of shares of the company “Žemaitijos keliai” UAB with A. Gumbys. A. Drakšas told A. Armalas that one has to speed up the transfer of shares, since one was planning to work in Russia, therefore, one had to take over the control of the company “Žemaitijos keliai” UAB. A. Armalas responded that he could decide the question of the transfer of shares only with A. Mikšys (Production Director of the company “Šiaulių plentas” AB), and proposed that after some time they meet to discuss this issue in Kaunas (Special Investigation Commission material, c. 16.77/22-202, protocol of the questioning of the witness A. Armalas at the Office of the Prosecutor General on 22 December 2003, p. 139; ibid., c. 16.77/22-202, protocol of the questioning of the witness A. Drakšas at the Office of the Prosecutor General on 9 January 2004, pp. 159, 160; ibid., c. 8.39/05-202, testimony of the witness A. Armalas on 23 January 2004, p. 15).

5.10. On 9 October 2003, A. Drakšas, G. Striaukas and A. Gumbys met with A. Armalas and A. Mikšys in Kaunas. A. Drakšas suggested that they end their dispute in court and that shares of the company “Žemaitijos keliai” UAB be transferred to the company “Restako” UAB. A. Drakšas also said that he had plans to build roads in Russia, therefore, a Lithuanian company, which had experience in Russia and had a good name there, was needed. Such a company was “Žemaitijos keliai” UAB, which operated in the Kaliningrad (Karaliaučius) region (Special Investigation Commission material, c. 16.77/22-202, protocol of the questioning of the witness A. Armalas at the Office of the Prosecutor General on 22 December 2003, p. 139; ibid., c. 16.77/22-202, protocol of the questioning of the witness A. Mikšys at the Office of the Prosecutor General on 6 January 2004, p. 143; ibid., c. 8.39/05-202, testimony of the witness A. Armalas on 23 January 2004, pp. 7–8; c. 8.39/05-202, testimony of the witness A. Mikšys on 29 January 2004, p. 89).

5.11. A. Armalas later told R. Matiukas about his meeting with A. Drakšas, G. Striaukas and A. Gumbys that had taken place on 9 October 2003, and he complained that G. Striaukas, while urging him to transfer the shares of the company “Žemaitijos keliai” UAB, threatened him that inspectors would be sent. A. Armalas also told A. Mikšys that in case of failure to reach an agreement on transfer of shares of the company “Žemaitijos keliai” UAB, the “structures of power” would be used against the company “Šiaulių plentas” AB (Special Investigation Commission material, c. 8.39/07-202, testimony of the witness A. Mikšys on 29 January 2004, p. 44; ibid., c. 16.77/22-202, protocol of the questioning of the witness R. Matiukas at the Office of the Prosecutor General on 29 January 2004, pp. 154–155).

5.12. On 10 October 2003, in the morning (from 09.23 hours till 11.15 hours) A. Drakšas spoke with G. Striaukas on the telephone seven times. After that, at 11.20 hours, A. Drakšas made a telephone call to A. Mikšys, while at 11.20 hours he again made a telephone call to G. Striaukas (Special Investigation Commission material, c. 16.77/22-202, transcript of A. Drakšas’ calls made by mobile telephone No.*, p. 321).

At 11.55 hours, the President of the Republic Rolandas Paksas made a telephone call to A. Drakšas. A. Drakšas said to the President of the Republic Rolandas Paksas, “Well, actually the help of Visvaldas is needed. <…> There’s nothing new in that matter, I’m waiting in that matter. <…> If you could, it would be excellent.” The President of the Republic Rolandas Paksas replied, “So I tell you, I’ve already arranged it. I did it on the same day when we were speaking. I’ll do it again.” The President of the Republic Rolandas Paksas warned A. Drakšas that one should not “create more trouble than good” (Special Investigation Commission material, c. 16.77/22-202, 16 December 2003 State Security Department Protocol No. 03-19-1154/03 concerning use of technical equipment in operational actions, p. 124; telephone conversation No. 1, pp. 124–125; ibid., c. 16.77/22-202, transcript of A. Drakšas’ calls made by mobile telephone No.*, p. 321).

After the conversation with the President of the Republic Rolandas Paksas (11.58 hours), A. Drakšas again made a telephone call to G. Striaukas. On that day they spoke three times in addition (from 12.08 till 12.43 hours) (Special Investigation Commission material, c. 16.77/22-202, transcript of A. Drakšas’ calls made by mobile telephone No.*, p. 321).

On the same day, i.e. on 10 October 2003, at 21.19 hours, the President of the Republic Rolandas Paksas made a telephone call to A. Drakšas once again. The President of the Republic Rolandas Paksas said to A. Drakšas, “Well, I once again had some conversations on what you said. I had some talks, I’ll see what to do <…>.” A. Drakšas thanked, “Well, thank you very much.” Rolandas Paksas said, “Now, now. Perhaps in that matter certain extraordinary actions are needed, I’ll have to think what, like, you know, what we can do. I think so. <…> Like, extraordinary, like something smart, to do something like that. <…> If we chew it over, take it in a different angle, you know, I think it’d be like smarter, you know.” A. Drakšas inquired whom he could consult with. The President of the Republic Rolandas Paksas replied that “there’s nobody to consult with. We, you know, so far we’ve been doing it in one direction, like, to try, so to speak, to pin down. Or, perhaps someone could tempt him with something. Perhaps one could look through a different front”. A. Drakšas said that the “tempting” had taken place, there had been good commercial proposals, but “nothing works”. The President of the Republic Rolandas Paksas said, “Well, perhaps it has been of the wrong kind. Perhaps it should’ve been different. Well, I don’t know, don’t know, don’t know. But with so much efforts, and they do it… Indeed, we’ll see what’ll be after that. After the last talk. But I feel it inside, though I don’t know everything, that somehow the methods must be changed.” A. Drakšas inquired the President of the Republic Rolandas Paksas whether he would take it up. The President of the Republic replied, “Er, no, er. Yes. Yes. Yes.” (Special Investigation Commission material, c. 16.77/22-202, 16 December 2003 State Security Department Protocol No. 03-19-1154/03 concerning use of technical equipment in operational actions, p. 12,; telephone conversation No. 2, pp. 125–126; ibid., c. 16.77/22-202, transcript of A. Drakšas’ calls made by mobile telephone No.*, p. 321).

5.13. On 10 August–30 October 2003, G. Striaukas spoke with Visvaldas Račkauskas on the telephone forty three times. They met each other more than once. During one of the meetings A. Drakšas also participated. G. Striaukas was asserting to Visvaldas Račkauskas that the company “Šiaulių plentas” UAB is “one of problematic objects in Lithuania, where abuses of various kinds are possible” and that the company “Šiaulių plentas” AB is wrecking the company “Žemaitijos keliai” UAB (Special Investigation Commission material, c. 8.39/09-202, testimony of the witness V. Račkauskas on 19 January 2004, pp. 96–97; ibid., c. 8.39/10-202, testimony of the witness G. Striaukas on 22 January 2004, pp. 97–98; ibid., c. 16.77/22-202, protocol of the questioning of the witness G. Striaukas at the Office of the Prosecutor General on 8 January 2004, p. 163; ibid., c. 16.77/22-202, transcript of V. Račkauskas’ calls made by mobile telephone No.*, pp. 242–333).

5.14. On 11 August–30 October 2003, Visvaldas Račkauskas, advisor to the President of the Republic Rolandas Paksas, spoke on the telephone with V. Maigys, Chief Police Commissioner of the town of Šiauliai twenty four times. At the same time period, Visvaldas Račkauskas also used to visit Šiauliai and meet V. Maigys; during their meetings, they would discuss the issues that Visvaldas Račkauskas was interested in. Visvaldas Račkauskas was especially interested in the activities of the company “Šiaulių plentas” AB. He dropped a hint to V. Maigys that he had certain information related to links of the company “Šiaulių plentas” AB with organised criminal structures of Šiauliai. V. Maigys talked with Visvaldas Račkauskas as with a representative of the Office of the President. In the practice of V. Maigys, this was the first time when a person, who was an advisor to the President of the Republic, had so much interest in the activities of a particular private enterprise (Special Investigation Commission material, c. 8.39/09-202, testimony of the witness V. Maigys on 20 January 2004, pp. 146, 147, 151, 155; ibid., c. 8.39/09-202, testimony of the witness V. Račkauskas on 19 January 2004, p. 100; ibid., c. 16.77/22-202, transcript of V. Račkauskas’ calls made by mobile telephone No.*, pp. 242–333).

5.15. On 20, 21, 23 October 2003, officers of the Economic Crimes Division of the Criminal Police Crimes Investigation Service at the Chief Police Commissioner’s Office of the town of Šiauliai conducted inspection at the company “Šiaulių plentas” AB. According to V. Maigys, the inspection was determined by the special interested of Visvaldas Račkauskas in this enterprise: if it were not for the hints made by Visvaldas Račkauskas about the links of the company “Šiaulių plentas” AB with the criminal world, the inspection of this company would definitely not have been conducted on those days (Special Investigation Commission material, c. 8.39/09-202, testimony of the witness V. Maigys on 20 January 2004, pp. 146, 147, 151, 155).

V. Maigys, after he had received a summons to appear before the Seimas Provisional Investigation Commission, informed V. Grigaravičius, Lithuanian Police General Commissioner, about the telephone calls of Visvaldas Račkauskas and meetings with him (Special Investigation Commission material, c. 8.39/09-202, testimony of the witness V. Maigys on 20 January 2004, pp. 146, 147, 151, 155; ibid., c. 16.77/22-202, inspection documents of the company “Šiaulių plentas” AB, pp. 211-215; ibid., c. 8.39/09-202, testimony of the witness V. Račkauskas on 19 January 2004, p. 100; ibid., c. 8.39/09-202, testimony of the witness V. Grigaravičius on 19 January 2004, pp. 118–119).

It was held in Reference No. 35-11-106 “On the Inspection within the Service” of 17 February 2004, issued by the Interior Investigation Board of the Police Department under the Ministry of the Interior of the Republic of Lithuania, that upon the inspection within the service it was established that the inspection of the company “Šiaulių plentas” AB on 20, 21, 23 October 2003 had been conducted without valid reasons. In the course of the inspection of the company “Šiaulių plentas” AB no violations were found (Note No. 55-11-106 “On the Inspection within the Service” of 17 February 2004 issued by the Interior Investigation Board of the Police Department under the Ministry of the Interior of the Republic of Lithuania, received at the Constitutional Court on 15 March 2004, reg. No. 13B-90).

5.16. On 27 October 2003, the Financial Crimes Investigation Service under the Ministry of the Interior received an anonymous complaint addressed to the head of this service. The complaint noted that “big money is being laundered” via the company “Šiaulių plentas” AB, and contained accusations in regard of the Director General of the said company. This anonymous complaint was sent over to the Šiauliai Regional Division of the Financial Crimes Investigation Service under the Ministry of the Interior, which received it on 30 October 2003 (Special Investigation Commission material, c. 16.77/24-202, anonymous complaint to the head of the Financial Crimes Investigation Service, p. 57).

5.17. On 30 October 2003, A. Drakšas made a telephone call to G. Striaukas. G. Striaukas said to A. Drakšas that “Visvaldas made a phone call” to him (G. Striaukas) and told him that “hell, on my word, everything’s going to be done” (Special Investigation Commission material, c. 16.77/22-202, 16 December 2003 State Security Department Protocol No. 03-19-1154-103 concerning use of technical equipment in operational actions, p. 124, telephone conversation No. 7, pp. 132–134).

5.18. On 4 November 2003, the Šiauliai Regional Division of the Financial Crimes Investigation Service under the Ministry of the Interior launched an inspection of the company “Šiaulių plentas” AB subsequent to the above-mentioned anonymous complaint received at the Financial Crimes Investigation Service under the Ministry of the Interior on 27 October 2003. On 7 January 2004 the inspection act was drawn up and decision was taken to refuse to institute pre-trial investigation in regard of the activities of the company “Šiaulių plentas” AB for the reason of “absence of elements of crime or misdemeanour”. According to R. Boreika, Director of the Financial Crimes Investigation Service under the Ministry of the Interior, “no one was interested in the inspection” (Special Investigation Commission material, c. 8.39/09-202, testimony of the witness R. Boreika on 19 January 2004, pp. 88-89; ibid., c. 16.77/24-202, material submitted by the Financial Crimes Investigation Service, pp. 57–62).

5.19. From 13 May 2003 till 12 November 2003, eighty three calls between the mobile telephone used by A. Drakšas and the mobile telephone used by the President of the Republic Rolandas Paksas were traced. During the same period six hundred and thirty calls between the mobile telephone used by A. Drakšas and the mobile telephone used by G. Striaukas were traced (Special Investigation Commission material, c. 16.77/22-202, transcript of A. Drakšas’ calls made by mobile telephone No.*, pp. 276–333).

5.20. A. Drakšas spoke to the President of the Republic Rolandas Paksas about the company “Žemaitijos keliai” UAB more than once. A. Drakšas used to retell the President of the Republic Rolandas Paksas the information about the company “Žemaitijos keliai” UAB, which the former used to receive from G. Striaukas (Special Investigation Commission material, c. 16.77/22-202, protocol of the questioning of the witness A. Drakšas at the Office of the Prosecutor General on 9 January 2004, pp. 158-161).

5.21. During his interrogation at the Special Investigation Commission on 23 January 2004, to the question “Did Mr. G. Striaukas, during all this story, brag about that he knew the President of the Republic?” A. Armalas replied, “There was such a conversation, but there it was related with the tender, since the Turks had got the gravel road programmes in the tender, and everything. We were told: if you give your shares voluntarily, there won’t be the Turks there. But I think it didn’t reach the President. For all I know, there was such a conversation.” To the question “With whom did you converse?”, A. Armalas replied, “With G. Striaukas.” To the question “Was or was not the President mentioned in that conversation?” A. Armalas replied, “He said he could do that there wouldn’t be the Turks there, that he would go to the President and there wouldn’t be the Turks there. Yes, he said such a phrase.”

During the same interrogation, to the question “Could you describe more precisely, in what words G. Striaukas used to speak about problems in the tenders?”, A. Armalas replied, “He used to say that top people were interested in the shares. He did not say, though, who the top people were. I only found it out later, when I met A. Drakšas, then everything became clear.” To the question “Did he mention from which structure these top people were?”, A. Armalas replied, “No. But I understood later, that they were from the Office of the President.” To the question “From what year G. Striaukas began to talk that top persons are interested in the shares?”, A. Armalas replied, “He began it in 2002, but, it’s possible to say, within the limits of decency, but later there was big pressure.” (Special Investigation Commission material, c. 8.39/05-202, protocol of the questioning of the witness A. Armalas on 23 January 2004, pp. 3–23.)

6. It has been mentioned that in the 10 February 2004 explanations to the Special Investigation Commission, the President of the Republic Rolandas Paksas maintained that he did not exert any unlawful influence on the shareholders of the company “Šiaulių plentas” AB, nor did he authorise his advisors to do so (Special Investigation Commission material, c. 8.39/07-202, the 10 February 2004 explanations of the President of the Republic Rolandas Paksas, p. 41). These explanations of the President of the Republic Rolandas Paksas should be assessed critically. They are denied by the telephone conversations between the President of the Republic Rolandas Paksas himself and A. Drakšas, the statement of the member of the Seimas D. A. Barakauskas in the programme “Spaudos klubas” of the Lithuanian Television, the testimony of the witnesses A. Armalas, V. Maigys, V. Mikšys, V. Vičkačka, actions of Visvaldas Račkauskas, also the inspections carried out by institutions of law and order at the company “Šiaulių plentas” AB.

Attention must also be paid to the fact that on 15 January 2004 the witness, member of the Seimas D. A. Barakauskas asserted in the Office of the Prosecutor General that the President of the Republic Rolandas Paksas had not given him any instruction as regards transfer of shares of the company “Žemaitijos keliai” UAB, while on 20 January 2004, at the Special Investigation Commission—that the President of the Republic Rolandas Paksas had not spoken to him on the fact that A. Armalas and A. Drakšas ought to sit at the table and discuss the affairs of both companies (Special Investigation Commission material, c. 16.77/22-202, protocol of the questioning of the witness D. A. Barakauskas on 15 January 2004, pp. 171-172; ibid., c. 8.39/09-202, testimony of the witness D. A. Barakauskas on 20 January 2004, pp. 5–6). These statements of the member of the Seimas D. A. Barakauskas should be assessed critically. They are denied by the statement of the member of the Seimas D. A. Barakauskas in the programme “Spaudos klubas” of the Lithuanian Television, as well as the testimony of the witness A. Armalas.

Attention should also be paid to the fact that, on 15 January 2004, the witness Visvaldas Račkauskas, advisor to the President of the Republic on legal issues, gave testimony in the Office of the Prosecutor General that the President of the Republic Rolandas Paksas had not given him any instructions in regard of the company “Šiaulių plentas” AB (Special Investigation Commission material, c. 16.77/22-202, protocol of the questioning of the witness V. Račkauskas at the Office of the Prosecutor General on 15 January 2004, pp. 167–169). This testimony of the witness Visvaldas Račkauskas should be assessed critically. It is denied by the actions of Visvaldas Račkauskas himself, telephone conversations between the President of the Republic Rolandas Paksas and A. Drakšas, the testimony of the witnesses V. Grigaravičius and V. Maigys, as well as the inspections carried out at the company “Šiaulių plentas” AB.

7. On 23 January 2004, the witnesses A. Armalas and S. Paukštė maintained before the Special Investigation Commission that A. M. Steponavičienė, a shareholder of the company “Žemaitijos keliai” AB, said to them in the summer of 2003 that the President of the Republic Rolandas Paksas had made a telephone call to her and asked her not to sell her shares of the company “Žemaitijos keliai” UAB to the company “Šiaulių plentas” AB (Special Investigation Commission material, c. 8.39/05-202, testimony of the witness A. Armalas on 23 January 2004, p. 16; ibid., c. 8.39/05-202, testimony of the witness S. Paukštė on 23 January 2004, p. 27).

On 29 January 2004, the witness A. M. Steponavičienė asserted before the Special Investigation Commission that the President of the Republic Rolandas Paksas had made no telephone call to her (Special Investigation Commission material, c. 8.39/07-202, testimony of the witness A. M. Steponavičienė on 29 January 2004, pp. 51–59).

In the case at issue, the Constitutional Court will not base itself on the said testimonies of the witnesses A. Armalas, S. Paukštė, nor that of A. M. Steponavičienė concerning the telephone call by the President of the Republic Rolandas Paksas to A. M. Steponavičienė.

8. On the grounds of what has been established in the case, it should be held that, in 2003, A. Drakšas, Director of the company “Restako” UAB and a close friend of the President of the Republic Rolandas Paksas, together with G. Striaukas and A. Gumbys attempted to take over the shares of the company “Žemaitijos keliai” AB from the company “Šiaulių plentas” AB and other shareholders of the company “Žemaitijos keliai” UAB. While doing so, A. Drakšas and G. Striaukas gave a hint to the heads and shareholders of the company “Žemaitijos keliai” UAB that the President of the Republic Rolandas Paksas was interested in such transfer of shares. In the spring of 2003, the President of the Republic Rolandas Paksas asked the member of the Seimas D. A. Barakauskas to mediate between A. Armalas and A. Drakšas so that they would agree on the transfer of shares of the company “Žemaitijos keliai” UAB; the member of the Seimas D. A. Barakauskas accomplished this request of the President of the Republic Rolandas Paksas. For the purpose that the shareholders of the company “Žemaitijos keliai” UAB transfer their shares, A. Drakšas applied to the President of the Republic Rolandas Paksas for help, while the President of the Republic Rolandas Paksas rendered such help. Upon the request of A. Drakšas, the President of the Republic Rolandas Paksas instructed his advisor on legal issues Visvaldas Račkauskas to perform actions whereby the shareholders of the company “Žemaitijos keliai” UAB (“Šiaulių plentas AB, etc.) might be influenced so that the question of the transfer of shares of the company “Žemaitijos keliai” UAB could be decided in favour of A. Gumbys, G. Striaukas and A. Drakšas; Visvaldas Račkauskas accomplished this instruction of the President of the Republic Rolandas Paksas.

9. Having held this, one is also to hold that the President of the Republic Rolandas Paksas, seeking to implement property interests of private persons close to him, by making use of his status, gave orders to his advisor Visvaldas Račkauskas, to seek to influence, by making use of his official position, through institutions of law and order, decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas, also that, in 2003, the President of the Republic Rolandas Paksas, seeking to implement property interests of private persons close to him, by making use of his status, exerted influence on decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas.

10. Under Paragraph 1 of Article 82 of the Constitution, the elected President of the Republic will take an oath to the Nation to be faithful to the Republic of Lithuania and the Constitution, to conscientiously fulfil the duties of his office, and to be equally just to all.

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.

From these provisions of the Constitution, as well as other principles and norms of the Constitution follows a duty of the President of the Republic to avoid the conflict of public and private interests in his activity, not to bring about such a conflict, not to make use of his status in order to gain private profit either for himself or persons close to him. Decisions of the President of the Republic must be based upon the Constitution and law.

11. The President of the Republic, as any other state official, is prohibited from bringing about the conflict of public and private interests by the Republic of Lithuania’s Law on the Adjustment of Private and Public Interests in the Public Service. Under this law, private interests of persons employed in the public service and public interests of the community must be adjusted, it must be ensured that in making decisions priority must be given to public interests, the impartiality of the taken decisions must be secured and the emergence and spread of corruption in the public service must be prevented (Article 1). According to Article 3 of the same law, in order to ensure the supremacy of public interest, persons in public service must discharge their official duties impartially, honestly and competently; avoid conflict of interest pursuant to law and by legal means; refrain from using official position for personal gains; in the process of decision-making be guided by law and the principle of the equality of all persons; refrain from using and prevent others from using, in a manner other than that laid down by law or to the extent not prescribed by law, official or other information acquired in the course of their official duties; not use and prevent others from using state-owned property, also any property leased by the state, for purposes other than those related to the exercise of their official duties.

12. It has been held in this Conclusion of the Constitutional Court that the President of the Republic Rolandas Paksas, seeking to implement property interests of private persons close to him, by making use of his status, gave orders to his advisor Visvaldas Račkauskas, to seek to influence, by making use of his official position, through institutions of law and order, decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas, also that, in 2003, the President of the Republic Rolandas Paksas, seeking to implement property interests of private persons close to him, by making use of his status, exerted influence on decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas.

By these actions the President of the Republic Rolandas Paksas interfered with relations between private subjects of economy and natural persons and, making use of his status as the President of the Republic, together with other persons performed actions by which shareholders of the company “Žemaitijos keliai” UAB (“Šiaulių plentas” AB etc.) were being influenced so that the question of transfer of the shares might be decided in favour of the persons close to Rolandas Paksas.

By such actions the President of the Republic Rolandas Paksas grossly violated Paragraph 1 of Article 82, Paragraph 1 of Article 29, and Paragraph 2 of Article 77 of the Constitution. By these actions the President of the Republic Rolandas Paksas also violated the requirements of Article 3 of the Law on the Adjustment of Private and Public Interests in the Public Service.

13. Taking account of the arguments set forth, it should be held that the actions of President Rolandas Paksas of the Republic of Lithuania, by which he, seeking to implement property interests of private persons close to him, by making use of his status, gave orders to his advisor Visvaldas Račkauskas to seek to influence, by making use of his official position, through institutions of law and order, decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas, also the actions of President Rolandas Paksas of the Republic of Lithuania, by which he, in 2003, seeking to implement property interests of private persons close to him and by making use of his status, exerted influence on decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas, are in conflict with the Constitution of the Republic of Lithuania. By these actions President Rolandas Paksas of the Republic of Lithuania breached the oath given to the Nation and grossly violated the Constitution of the Republic of Lithuania.

14. Having held that the actions of the President of the Republic Rolandas Paksas, by which he, seeking to implement property interests of private persons close to him, by making use of his status, gave orders to his advisor Visvaldas Račkauskas, to seek to influence, by making use of his official position, through institutions of law and order, decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas, also the actions of the President of the Republic Rolandas Paksas, by which he, in 2003, seeking to implement property interests of private persons close to him and by making use of his status, exerted influence on decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas, grossly violated the Constitution, and having taken account of the evidence that is in this case, one is also to hold that it is impossible to separate the actions indicated in the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004 that the President of the Republic Rolandas Paksas, being aware that unlawful influence was being exerted on the heads and shareholders of the company “Žemaitijos keliai” UAB by making use of his name as the President of the Republic, took no measures to prevent this, from the other two actions of the President of the Republic Rolandas Paksas by which influence was exerted on the heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas, which have been established by the Constitutional Court. There are no grounds to maintain that the actions of the President of the Republic Rolandas Paksas by which influence was exerted on the heads and shareholders of the company “Žemaitijos keliai” UAB were, alongside, actions by which the President of the Republic Rolandas Paksas, being aware that unlawful influence was being exerted on the heads and shareholders of the company “Žemaitijos keliai” UAB by making use of his name as the President of the Republic, took no measures to prevent this. In this respect the actions indicated in the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004 that the President of the Republic Rolandas Paksas, being aware that unlawful influence was being exerted on the heads and shareholders of the company “Žemaitijos keliai” UAB by making use of his name as the President of the Republic, took no measures to prevent this, are not independent actions.

15. Taking account of this, it should be held that the President of the Republic Rolandas Paksas did not perform the actions indicated in the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004, by which he, being aware that unlawful influence was being exerted on the heads and shareholders of the company “Žemaitijos keliai” UAB by making use of his name as the President of the Republic, took no measures to prevent this.

Thus, it should be held that in this case there are no actions of the President of the Republic Rolandas Paksas the compliance of which with the Constitution ought to be investigated.

16. Under Item 4 of Paragraph 1 of Article 80 of the Law on the Constitutional Court, the Constitutional Court shall refuse to examine an inquiry concerning the presentation of a conclusion in the absence of an action or decision whose compliance with the Constitution must be verified.

Paragraph 2 of Article 80 of the Law on the Constitutional Court provides that if in the course of the consideration of the inquiry the matter under consideration ceases to exist, the Constitutional Court shall dismiss the initiated legal proceedings on the grounds thereof.

Under Paragraph 3 of Article 69 of the Law on the Constitutional Court, in the event that the grounds for refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

Pursuant to Paragraph 3 of Article 69 and Article 80 of the Law on the Constitutional Court, the part of the case concerning the inquiry set forth in the Seimas 19 February 2004 Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” requesting a conclusion whether the actions of the President of the Republic Rolandas Paksas by which the President of the Republic Rolandas Paksas, being aware that unlawful influence was being exerted on the heads and shareholders of the company “Žemaitijos keliai” UAB by making use of his name as the President of the Republic, took no measures to prevent this, were in conflict with the Constitution, must be dismissed.

17. Conforming to Paragraph 3 of Article 69 and Article 80 of the Law on the Constitutional Court, the Constitutional Court dismisses the part of the case concerning the inquiry set forth in the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004 requesting a conclusion whether the actions of the President of the Republic Rolandas Paksas by which the President of the Republic Rolandas Paksas, being aware that unlawful influence was being exerted on the heads and shareholders of the company “Žemaitijos keliai” UAB by making use of his name as the President of the Republic, took no measures to prevent this, were in conflict with the Constitution.

IX

On the presentation of the conclusion, requested in the inquiry set forth in the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004, whether the public statements of the President of the Republic Rolandas Paksas about conclusions of the Provisional Commission of the Seimas of the Republic of Lithuania for Investigation into Possible Threats to Lithuanian National Security and the Constitutional Court ruling of 30 December 2003, by which he discredited the authority of the Seimas and the Constitutional Court, are in conflict with the Constitution.

1. In its 19 February 2004 Resolution “On the Application to the Constitutional Court of the Republic of Lithuania”, in the inquiry set forth the Seimas requests a conclusion whether the public statements of the President of the Republic Rolandas Paksas about conclusions of the Provisional Commission of the Seimas of the Republic of Lithuania for Investigation into Possible Threats to Lithuanian National Security and the Constitutional Court ruling of 30 December 2003, by which he discredited the authority of the Seimas and the Constitutional Court, are in conflict with the Constitution.

2. In the Conclusion of the Special Investigation Commission “On the Proposal to Institute Impeachment Proceedings against the President of the Republic Rolandas Paksas” of 19 February 2004, which was received together with the inquiry of the petitioner—the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004, it is indicated that one of the main functions of the President of the Republic is to ensure harmony of activities and co-operation of all state institutions, their unity in the implementation of common tasks and functions of the state. While implementing the powers established to him in the Constitution and laws, the President of the Republic follows only the Constitution and laws, he may not violate them, may not act for the sake of different purposes and interests that are incompatible with the Constitution and laws, as well as with public interests. The conclusion of the said commission points out (quotes) the public statements of the President of the Republic Rolandas Paksas made on 30 October 2003 in the programme “Panorama” of the Lithuanian Television, on 24 November 2003 in Širvintos during his meeting with residents, on 26 November 2003 in Kretinga during his meeting with residents, on 1 December 2003 in Alytus during his meeting with residents, on 15 December 2003 in Telšiai during his meeting with residents, on 31 December 2003 during his speech on television, on 6 January 2004 in Vilkavškis during his meeting with residents, on 9 January 2004 in Jonava during his meeting with residents. In the opinion of the commission, the public accusations and statements by the President of the Republic Rolandas Paksas in regard of the Seimas Provisional Investigation Commission and the Constitutional Court are ruining the authority of the State of Lithuania and its state institutions, violate co-operation and harmony of the activities of state institutions, are in conflict with the requirements of Articles 5, 76, 77 Paragraph 1 of Article 82, Article 84 of the Constitution, Article 3 of the Law on the President of the Republic of Lithuania and are a gross violation of the duty of the President of the Republic to follow only the interests of the Nation and the State of Lithuania (Special Investigation Commission material, c. 8.39/11-202, Items 5.3-5.5 of the 19 February 2004 conclusion of the Special Investigation Commission, pp. 102–105).

3. As mentioned before, the Constitutional Court will investigate only the actions of the President of the Republic that were performed prior to 18 December 2003, i.e. until the day when a proposal was submitted to the Seimas by a group of members of the Seimas to institute impeachment proceedings against the President of the Republic Rolandas Paksas.

4. The following actions-public statements by the President of the Republic Rolandas Paksas are pointed out in the Conclusion of the Special Investigation Commission “On the Proposal to Institute Impeachment Proceedings against the President of the Republic Rolandas Paksas” of 19 February 2004.

4.1. On 30 October 2003, in the programme “Panorama” of the Lithuanian Television the President of the Republic Rolandas Paksas stated, “Good evening, dear people of Lithuania! Today someone has tried to convince you that allegedly the President elected by you has certain unspecified ties, is linked with criminal groups. I am stupefied and shocked that in order to defend certain lobby groups and because of fear of any changes the authority of the state, security of people and your future are put on the table of the political game. I categorically deny and reject any fabrications. I have no doubt that responsible officials of our state will be able to establish what is the truth, and what is political games, which have overstepped the limits of common sense. Having familiarised myself with the reference from the state Security Department, which I have received only this evening, I suspended the powers of my advisor on national security issues Remigijus Ačas, and he will apply to institutions of law and order, under procedure established by laws, as to the accusations in his regard. Someone has resorted to such actions on the eve of visits to the European Parliament, Berlin, Washington and Brussels. This shows that it might be actions well planned in advance, in an attempt to lessen the authority of the President, without regard to the consequences to the state and its citizens. The fact when references are made public, by not submitting them to the President, may be named as a plot. I once again distance myself from all today’s attempts to associate me with the criminal world. I am certain that soon the authors of this story will be named. I wish you good night.” (Special Investigation Commission material, c. 8.39/11-202, the 30 October 2003 video recording, internet page http://www.president.lt/one.phtml?id=4433; Special Investigation Commission material, c. 8.39/11-202, Item 5.3.2 of the 19 February 2004 conclusion of the Special Investigation Commission, pp. 102103).

4.2. On 24 November 2003, in Širvintos during his meeting with residents, to the question “Tell the people that there has never been any agreement, either oral, or written, between you and Borisov” the President of the Republic Rolandas Paksas replied, “No, there isn’t. Never been.” (Special Investigation Commission material, c. 8.39/11-202, the 24 November 2003 video recording, video cassette No. 202-VĮ-03; ibid., c. 8.39/11-202, Item 5.3.3 of the 19 February 2004 conclusion of the Special Investigation Commission, p. 103.)

4.3. On 26 November 2003, in Kretinga during his meeting with residents, the President of the Republic Rolandas Paksas said, “I speak to you. I came here for this purpose. Yesterday I was in one place, the day before yesterday I was in another one, I will go tomorrow, I will go the day after tomorrow. And so every evening. Since I have no opportunity to appear on newspaper pages. I have no opportunity to go to the TV screen. What remains to me is to meet you and tell you about what I think, and listen precisely to what you say. <…> With my hand on my heart, as I was asked in one place, with my hand on my heart I can tell you: I have never had, I don’t have nor am I about to have any agreements, any contracts, any obligations.”

The President of the Republic Rolandas Paksas also said at the same meeting, “Lately, the Seimas, the Seimas commission, certain officials, certain means of information have indeed infringed the law several times. Actually, the legal defence, not only political defence, such as it is at present, is necessary, and because of this I have invited experienced lawyers so that it could be proven what has been infringed, and that the people who did all this thing, who weakened your trust, who weakened the image of the state abroad, that they would really be held responsible as it is required. There are two cases in the Constitution when the President may dissolve the Seimas. You know perfectly well them and the Constitution… But I think that I will have enough strength and opportunities to work, together with you, with this Constitution.” (Special Investigation Commission material, c. 8.39/11-202, the 26 November 2003 video recording, video cassette No. 202-VĮ-03, 202-VĮ-08; Special Investigation Commission material, c. 8.39/11-202, Item 5.3.4 of the 19 February 2004 conclusion of the Special Investigation Commission, p. 103.)

4.4. On 1 December 2003, in Alytus during his meeting with residents to the question submitted in writing “What do you think about the Commission’s conclusions unfavourable to the President?” the President of the Republic Rolandas Paksas replied, “The Commission will submit its conclusions to the Seimas tomorrow, and, for all I know, the Seimas will vote on the conclusions of the Commission: ‘to approve’ or ‘not to approve’. If they approve or something like that, the impeachment proceedings will start. Then lawyers will join this process, this means that every conclusion will be evaluated from the legal standpoint. So far I have seen only political evaluations, decided beforehand, and, perhaps, I’d say, rather tendentious.” At the same meeting the President of the Republic Rolandas Paksas also said, “I want to answer, to ask and answer three questions myself. The first thing: is Paksas indebted to Borisov? The answer is no. The second question, the second question is: Are there any written agreements or contracts, whether oral, in writing, or of any other kind? The answer is no. And the third thing, so that it might be clear to everyone that I respond very precisely and to the point: Will Rolandas Paksas resign? The answer is no.” (Special Investigation Commission material, c. 8.39/11-202, the 1 December 2003 video recording, video cassette No. 202-VĮ-03; Special Investigation Commission material, c. 8.39/11-202, Item 5.3.5 of the 19 February 2004 conclusion of the Special Investigation Commission, p. 103.)

4.5. On 15 December 2003 in Telšiai during his meeting with residents, the President of the Republic Rolandas Paksas said, “I have breached neither the Constitution, nor my oath, nor laws. And everything that now is written by the Provisional Commission, headed by Sakalas, its conclusions are rumours, assumptions and fabrications. I state this to you firmly. I think that the lawyers as well as other people will have enough wit to separate the wheat from the chaff.” (Special Investigation Commission material, c. 8.39/11-202, the 15 December 2003 video recording, video cassette No. 202-VĮ-03; Special Investigation Commission material, c. 8.39/11-202, Item 5.3.6 of the 19 February 2004 conclusion of the Special Investigation Commission, p. 104.)

5. The Constitutional Court ruling of 30 December 2003 is not mentioned in any of the above six statements. The Seimas Provisional Commission for Investigation into Possible Threats to Lithuanian National Security and/or its conclusions were mentioned in these public statements made by the President of the Republic Rolandas Paksas:

1) “Lately, the Seimas, the Seimas commission, certain officials, certain means of information have indeed infringed the law several times. Actually, the legal defence, not only political defence, such as it is at present, is necessary, and because of this I have invited experienced lawyers so that it could be proven what has been infringed, and that the people who did all this thing, who weakened your trust, who weakened the image of the state abroad, that they would really be held responsible as it is required.” (26 November 2003, Kretinga);

2) The Commission will submit its conclusions to the Seimas tomorrow, and, for all I know, the Seimas will vote on the conclusions of the Commission: ‘to approve’ or ‘not to approve’. If they approve or something like that, the impeachment proceedings will start. Then lawyers will join this process, this means that every conclusion will be evaluated from the legal standpoint. So far I have seen only political evaluations, decided beforehand, and, perhaps, I’d say, rather tendentious.” (1 December 2003, Alytus);

3) “I have breached neither the Constitution, nor my oath, nor laws. And everything that now is written by the Provisional Commission, headed by Sakalas, its conclusions are rumours, assumptions and fabrications. I state this to you firmly. I think that the lawyers as well as other people will have enough wit to separate the wheat from the chaff.” (15 December 2003, Telšiai).

6. Thus, in this case the Constitutional Court will investigate whether the aforesaid public statements made by the President of the Republic Rolandas Paksas, which are indicated in the inquiry set forth in the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004 requesting a conclusion, which are about conclusions of the Seimas Provisional Commission for Investigation into Possible Threats to Lithuanian National Security, by which he discredited the authority of the Seimas, are in conflict with the Constitution.

7. In his 10 February 2004 explanations to the Special Investigation Commission, the President of the Republic Rolandas Paksas maintains that his public statements about the assessment of the situation related with the sources and process of the impeachment proceedings, including the criticism with regard to the activities and conclusions of the Seimas Provisional Commission for Investigation into Possible Threats to Lithuanian National Security, should not be evaluated as those clearly violating the harmony of branches of state power and discrediting state power—they may and should be regarded as an expression of an opinion by a person against whom impeachment may be instituted (Seimas Investigation Commission material, c. 16.77/23-202, the 10 February 2004 explanations by the President of the Republic R. Paksas, p. 42).

In the 12 March 2004 explanations of the President of the Republic Rolandas Paksas to the Constitutional Court, it is maintained that the publicly made criticism with regard to the Seimas Provisional Investigation Commission may not be held as being in conflict with the Constitution, as this criticism is not directed against the constitutional order of the state; it is guaranteed by the right of the person to have his own convictions and freely express them (Article 25 of the Constitution); the freedom to express convictions, as well as to obtain and impart information, may not be limited otherwise than by law, if it is necessary to protect the health, honour and dignity, private life, and morals of a human being, or to defend constitutional order (Paragraph 3 of Article 25 of the Constitution); an opinion stated in public by the President of the Republic may not be legally regarded as discrediting the branches of state power.

8. In the statements publicly made by the President of the Republic Rolandas Paksas during his meetings with residents on 26 November 2003 in Kretinga, on 1 December 2003 in Alytus and on 15 December 2003 in Telšiai the Seimas Provisional Commission for Investigation into Possible Threats to Lithuanian National Security and/or its conclusions were assessed in a negative manner.

9. Paragraph 2 of Article 33 of the Constitution provides that citizens shall be guaranteed the right to criticise the work of state institutions or their officials, and to appeal against their decisions, and that persecution for criticism shall be prohibited. This constitutional civil right is inseparable from the human right to have his own convictions and freely express them, from his right to impart information as well as ideas, which are enshrined in Article 25 of the Constitution. It needs to be noted that the freedom to express convictions and impart information is incompatible with criminal actions—the instigation of national, racial, religious, or social hatred, violence and discrimination, slander and disinformation.

10. The right to criticise state institutions or officials is a right of every citizen of the Republic of Lithuania, including state officials or politicians. It is clear that the President of the Republic also enjoys this constitutional right.

It should be noted that publicly stated criticism by the President of the Republic in regard of state institutions or officials, a negative assessment of their decisions in themselves should not be treated as the discrediting of the authority of corresponding state institutions or officials. While assessing whether publicly stated criticism by the President of the Republic in regard of state institutions or officials, a negative assessment of their decisions does not discredit these institutions or officials, one has to take account of the content of this criticism (negative assessment), also of all circumstances under which this criticism (negative assessment) was made public.

Alongside, it needs to be noted that the President of the Republic is the Head of State, he represents the State of Lithuania. The President of the Republic is one of the institutions of state power. All activities of the President of the Republic must be based on the respect towards the state, its all institutions of power. The constitutional status of the President of the Republic implies his duty to evade the conflict of branches of power, by his public criticism of other state institutions or their officials, as well as unreasonable belittling, non-reasoned denial of their decisions. The exceptional constitutional status of the President of the Republic and his role in the state obligate him to choose proper, correct forms of expression of criticism. In case these requirements were disregarded, the trust of the Nation in the institution of the President of the Republic itself would be degraded, and the authority of this institution would be diminished.

11. It should be held that the negative assessment of the Seimas Provisional Commission for Investigation into Possible Threats to Lithuanian National Security and/or its conclusions in the statements publicly made by the President of the Republic Rolandas Paksas during his meetings with residents on 26 November 2003 in Kretinga, on 1 December 2003 in Alytus and on 15 December 2003 in Telšiai was incorrect, improper for the Head of State.

Alongside, it should be noted that the aforesaid statements publicly made by the President of the Republic Rolandas Paksas during his meetings with residents on 26 November 2003 in Kretinga, on 1 December 2003 in Alytus and on 15 December 2003 in Telšiai are not, in themselves, sufficient grounds to recognise that by these public statements the President of the Republic discredited the authority of the Seimas, the representation of the Nation, and that the President of the Republic violated the Constitution.

12. Taking account of the arguments set forth, it should be held that the statements publicly made by President Rolandas Paksas of the Republic of Lithuania during his meetings with residents on 26 November 2003 in Kretinga, on 1 December 2003 in Alytus and on 15 December 2003 in Telšiai concerning conclusions of the Seimas Provisional Commission for Investigation into Possible Threats to Lithuanian National Security are not in conflict with the Constitution of the Republic of Lithuania.

X

On the presentation of the conclusion, requested in the inquiry set forth in the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004 whether the actions of the President of the Republic Rolandas Paksas by which the President of the Republic Rolandas Paksas, by not following the procedure and grounds established in laws, gave an unlawful order to his advisor Remigijus Ačas to collect information about the private life of persons, and due to this, Remigijus Ačas and Evaldas Vaitkus, advisors to the President of the Republic, gave unlawful instructions to the Special Investigation Service to collect information about the private lives of 44 persons, are in conflict with the Constitution.

1. In its 19 February 2004 Resolution “On the Application to the Constitutional Court of the Republic of Lithuania”, in the inquiry set forth the Seimas requests a conclusion whether the actions of the President of the Republic Rolandas Paksas by which the President of the Republic Rolandas Paksas, by not following the procedure and grounds established in laws, gave an unlawful order to his advisor Remigijus Ačas to collect information about the private life of persons, and due to this, Remigijus Ačas and Evaldas Vaitkus, advisors to the President of the Republic, gave unlawful instructions to the Special Investigation Service to collect information about the private lives of 44 persons, are in conflict with the Constitution.

2. In the Conclusion of the Special Investigation Commission “On the Proposal to Institute Impeachment Proceedings against the President of the Republic Rolandas Paksas” of 19 February 2004 it is pointed out that Remigijus Ačas and Evaldas Vaitkus, advisors to the President of the Republic, while implementing the instruction of the President of the Republic Rolandas Paksas, unlawfully, shielding themselves with Article 9 of the Republic of Lithuania’s Law on Prevention of Corruption, collected information for the purposes not provided for in the said law, i.e., in 44 cases they unreasonably collected information about the persons who did not seek to enter an office in a state institution, nor were they holding an office in a state institution to which the President of the Republic appoints. In the opinion of the Seimas, by these actions Paragraph 3 of Article 22 of the Constitution, which prohibits collecting information about the private life of a person on the grounds other than by law, and Paragraph 10 of Article 9 of the Law on Prevention of Corruption, which prohibits using the data of the person for the purposes other than the taking of a decision on the trust regarding the person, were violated. The conclusion of the Special Investigation Commission also indicates that in most cases Remigijus Ačas and Evaldas Vaitkus, advisors to the President of the Republic, while implementing instructions of the President of the Republic Rolandas Paksas, by violating Paragraph 2 of Article 2 of the Law on Prevention of Corruption, used not to submit requests to the Special Investigation Service for information about persons seeking to hold an office in a state institution, although, according to the law, they ought to have been submitted, and used to submit requests for information about the persons seeking to hold an office in a state institution, when the law would not grant such a right. The Seimas also is of the opinion that the President of the Republic Rolandas Paksas not only gave the unlawful instruction, but that he also did not verify how his instruction was being carried out, nor did he take measures to discontinue the violations of the law. In the opinion of the Seimas, even though the advisors of the President of the Republic used to submit unlawful requests to the Special Investigation Service, however, they were executing a direct order of the President of the Republic Rolandas Paksas, therefore, the President of the Republic Rolandas Paksas is directly responsible for the fact that by the said requests of his advisors the right of a human being to private life was violated, in particular, Paragraph 3 of Article 22 of the Constitution (Special Investigation Commission material, c. 8.39/11-202, the Conclusion of the Special Investigation Commission “On the Proposal to Institute Impeachment Proceedings against the President of the Republic Rolandas Paksas” of 19 February 2004, Item 6.10, pp. 125–126).

3. In the 12 March 2004 explanations of the President of the Republic Rolandas Paksas to the Constitutional Court it is stated that the petitioner does not point out as to when, in what form the President of the Republic Rolandas Paksas gave the instruction to collect the information, what the content of the instruction was, and who were the persons about whose private life the President of the Republic Rolandas Paksas gave an instruction to collect information. In the opinion of the President of the Republic Rolandas Paksas, it is not clear upon what arguments the unlawfulness of such alleged instruction is grounded.

At the Constitutional Court’s hearing, the advocate G. Baublys, a representative of the President of the Republic, explained that the President of the Republic Rolandas Paksas was not aware that applications were being made to the Special Investigation Service concerning certain private persons, and that the content of respective papers was not, indeed, co-ordinated with the President of the Republic Rolandas Paksas. According to the advocate G. Baublys, the Head of State gave only one instruction to his advisors—to ensure that no persons of doubtful reputation would find their place in the Office of the President.

4. The following has been established in the case:

4.1. During one of the morning counsels of the President of the Republic Rolandas Paksas with his advisors, which was held in the spring of 2003 (exact date has not been established), when discussion began regarding the formation of public councils under the President of the Republic and the procedure of selection of public consultants, the President of the Republic Rolandas Paksas said that his advisors had to ensure that no persons of doubtful reputation would find their way into positions at the Office of the President, nor that such persons would become members of public councils (Special Investigation Commission material, c. 8.39/10-202, testimony of the witness R. Ačas on 22 January 2002, p. 167; testimonies of the witnesses O. Buišienė and R. Ačas at the Constitutional Court’s hearing on 18 March 2004).

4.2. From 20 March 2003 till 29 October 2003, Remigijus Ačas and Evaldas Vaitkus submitted 19 requests to the Special Investigation Service for information about 71 private persons (Special Investigation Commission material, c. 16.77/17-202, Note No. 104-S-262 of 24 December 2003 (with annexes) of the Committee on National Security and Defence of the Seimas of the Republic of Lithuania, pp. 3–95).

The said requests were signed by the advisors of the President of the Republic who were Remigijus Ačas and Evaldas Vaitkus; the President of the Republic Rolandas Paksas did not sign any of these requests (Special Investigation Commission material, c. 16.77/17-202, Note No. 104-S-262 of 24 December 2003 (with annexes) of the Committee on National Security and Defence of the Seimas of the Republic of Lithuania, pp. 3–95).

4.3. The requests of Remigijus Ačas and Evaldas Vaitkus, advisors to the President of the Republic Rolandas Paksas, for information about private persons were regarded in the Special Investigation Service as inquiries of the advisors empowered by the President of the Republic Rolandas Paksas (Special Investigation Commission material, c. 8.39/10-20, testimony of the witness V. Junokas on 20 January 2004, p. 12).

4.4. Evaldas Vaitkus, advisor to the President of the Republic Rolandas Paksas, used to receive instructions to apply to the Special Investigation Service for information about private persons from individual advisors of the President of the Republic Rolandas Paksas (Special Investigation Commission material, c. 8.39/10-20, testimony of the witness E. Vaitkus on 20 January 2004, pp. 29, 34–35; ibid., 8.39/10-202, testimony of the witness R. Ačas on 22 January 2004, p. 168).

5. Attention should be paid to the fact that the mere existence of written requests of Remigijus Ačas and Evaldas Vaitkus, advisors to the President of the Republic Rolandas Paksas, to the Special Investigation Service for information about private persons, also the fact that at the Special Investigation Service the said requests used to be regarded as inquiries by the advisors empowered by the President of the Republic Rolandas Paksas, of their own accord cannot serve as sufficient grounds to recognise that the President of the Republic Rolandas Paksas gave an instruction to his advisor Remigijus Ačas to collect information about private lives of certain persons.

6. On the grounds of what has been established in the case, it should be held that there is not any evidence in the case that would permit asserting that the President of the Republic Rolandas Paksas gave an instruction to his advisor Remigijus Ačas to collect information about private lives of certain persons.

7. Taking account of this, it should be held that the President of the Republic Rolandas Paksas did not perform the actions indicated in the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004, by which he by not following the procedure and grounds established in laws, gave an unlawful order to his advisor Remigijus Ačas to collect information about the private life of persons, and due to this, Remigijus Ačas and Evaldas Vaitkus, advisors to the President of the Republic, gave unlawful instructions to the Special Investigation Service to collect information about the private lives of 44 persons.

Therefore, it should be held that in this case the actions of the President of the Republic Rolandas Paksas, the compliance of which with the Constitution ought to be investigated, are absent.

8. As mentioned before, under Item 4 of Paragraph 1 of Article 80 of the Law on the Constitutional Court, the Constitutional Court shall refuse to examine an inquiry concerning the presentation of a conclusion in the absence of an action or decision whose compliance with the Constitution must be verified; Paragraph 2 of Article 80 of the Law on the Constitutional Court provides that if in the course of the consideration of the inquiry the matter under consideration ceases to exist, the Constitutional Court shall dismiss the initiated legal proceedings on the grounds thereof; Under Paragraph 3 of Article 69 of the Law on the Constitutional Court, in the event that the grounds for refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

Pursuant to Paragraph 3 of Article 69 and Article 80 of the Law on the Constitutional Court, the part of the case concerning the inquiry set forth in the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004 requesting a conclusion whether the actions of the President of the Republic Rolandas Paksas by which the President of the Republic Rolandas Paksas, by not following the procedure and grounds established in laws, gave an unlawful order to his advisor Remigijus Ačas to collect information about the private life of persons, and due to this, Remigijus Ačas and Evaldas Vaitkus, advisors to the President of the Republic, gave unlawful instructions to the Special Investigation Service to collect information about the private lives of 44 persons, are in conflict with the Constitution, must be dismissed.

9. Pursuant to Paragraph 3 of Article 69 and Article 80 of the Law on the Constitutional Court, the Constitutional Court dismisses the part of the case concerning the inquiry set forth in the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania” of 19 February 2004 requesting a conclusion whether the actions of President Rolandas Paksas of the Republic of Lithuania by which the President of the Republic Rolandas Paksas, by not following the procedure and grounds established in laws, gave an unlawful order to his advisor Remigijus Ačas to collect information about the private life of persons, and due to this, Remigijus Ačas and Evaldas Vaitkus, advisors to the President of the Republic, gave unlawful instructions to the Special Investigation Service to collect information about the private lives of 44 persons, are in conflict with the Constitution of the Republic of Lithuania.

Conforming to Paragraph 3 of Article 105 of the Constitution of the Republic of Lithuania and Articles 73 and 83 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

conclusion:

1. The actions of President Rolandas Paksas of the Republic of Lithuania, when he, by decree No. 40 of 11 April 2003, unlawfully granted citizenship of the Republic of Lithuania to Jurij Borisov for financial and other notably solid support rendered by the latter are in conflict with the Constitution of the Republic of Lithuania. By the said actions President Rolandas Paksas of the Republic of Lithuania grossly violated the Constitution of the Republic of Lithuania.

2. The actions of President Rolandas Paksas of the Republic of Lithuania by which he knowingly dropped a hint to Jurij Borisov that in his regard institutions of law and order were conducting operational investigation and tapping his telephone conversations are in conflict with the Constitution of the Republic of Lithuania. By the said actions President Rolandas Paksas of the Republic of Lithuania grossly violated the Constitution of the Republic of Lithuania.

3. The actions of President Rolandas Paksas of the Republic of Lithuania, by which he, seeking to implement property interests of private persons close to him, by making use of his status, gave orders to his advisor Visvaldas Račkauskas, to seek to influence, by making use of his official position, through institutions of law and order, decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas, also the actions of President Rolandas Paksas of the Republic of Lithuania, by which he, in 2003, seeking to implement property interests of private persons close to him and by making use of his status, exerted influence on decisions of heads and shareholders of the company “Žemaitijos keliai” UAB concerning transfer of shares to persons close to Rolandas Paksas, are in conflict with the Constitution of the Republic of Lithuania. By the said actions President Rolandas Paksas of the Republic of Lithuania grossly violated the Constitution of the Republic of Lithuania.

4. The statements publicly made by President Rolandas Paksas of the Republic of Lithuania during his meetings with residents on 26 November 2003 in Kretinga, on 1 December 2003 in Alytus and on 15 December 2003 in Telšiai concerning conclusions of the Seimas Provisional Commission for Investigation into Possible Threats to Lithuanian National Security are not in conflict with the Constitution of the Republic of Lithuania.

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

Justices of the Constitutional Court:                                                  Armanas Abramavičius

Egidijus Jarašiūnas

Egidijus Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Augustinas Normantas

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas