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On violations of the Law on Elections to the Seimas

Case No. 42/04

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

CONCLUSION

ON THE INQUIRY OF THE PRESIDENT OF THE REPUBLIC WHETHER THE REPUBLIC OF LITHUANIA’S LAW ON ELECTIONS TO THE SEIMAS WAS NOT VIOLATED DURING THE 2004 ELECTION TO THE SEIMAS OF THE REPUBLIC OF LITHUANIA

 

5 November 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

Toma Birmontienė, a consultant to the President of the Republic on legal issues, Head of the Law Department, acting as the representative of the President of the Republic of Lithuania, the petitioner

Zenonas Vaigauskas, Chairman of the Central Electoral Commission of the Republic of Lithuania, and Julius Jasaitis, a member of this commission

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 3 of Article 105 of the Constitution of the Republic of Lithuania and Paragraph 2 of Article 1, Item 1 of Article 73 and Article 77 of the Law on the Constitutional Court of the Republic of Lithuania, on 4 November 2004, in its public hearing, considered case No. 42/04 subsequent to the 3 November 2004 inquiry of the President of the Republic requesting the conclusion whether the Republic of Lithuania’s Law on Elections to the Seimas was not violated during the 2004 election to the Seimas of the Republic of Lithuania.

The Constitutional Court

has established:

I

1. On 10 October 2004, an election to the Seimas took place. The members of the Seimas were not elected in 66 single-member constituencies from total number of 71. On 24 October 2004, a repeat vote took place in these constituencies.

2. On 31 October 2004, the Central Electoral Commission confirmed the final results of the 2004 election to the Seimas by its Decision (No. 406) “On the Final Results of the 24 October 2004 Repeat Vote of the Election to the Seimas of the Republic of Lithuania and the Members of the Seimas Elected in the Multi-member Constituency” (Official Gazette Valstybės žinios, 2004, No. 159-5845).

3. On 1 November 2004, Kęstutis Skamarakas, a candidate to the members of the Seimas in Raseiniai Single-member Constituency No. 42, lodged a complaint with the President of the Republic against the Decision of the Central Electoral Commission (No. 403) “On the Request by the Candidate to the Members of the Seimas K. Skamarakas for Recognising the Election Results in Raseiniai Single-Member Constituency No. 42 as Invalid” of 30 October 2004 and requested him to apply to the Constitutional Court with an inquiry concerning violation of the Law on Elections to the Seimas.

4. By his Decree (No. 116) “On the Inquiry to the Constitutional Court of the Republic of Lithuania” of 3 November 2004, the President of the Republic applied to the Constitutional Court with the inquiry requesting for the conclusion whether the Law on Elections to the Seimas was not violated during the 2004 election to the Seimas.

II

1. At the Constitutional Court’s hearing, T. Birmontienė, the representative of the President of the Republic, the petitioner, explained that the application by means of inquiry to the Constitutional Court by the President of the Republic whether the Law on Elections to the Seimas was not violated during the 2004 election to the Seimas was determined by the concern of the Head of State whether secret ballot was ensured in the repeat vote of the 2004 election to the Seimas where the voters voted by mail, which is protected by the Constitution and the Law on Elections to the Seimas (inter alia, Article 5, Paragraphs 1, 4, and 6 of Article 67 thereof).

2. At the Constitutional Court’s hearing, Zenonas Vaigauskas, Chairman of the Central Electoral Commission, and Julius Jasaitis, a member of this commission, explained as to what facts had been considered and assessed by the Central Electoral Commission by adopting its Decision (No. 403) “On the Request by the Candidate to the Members of the Seimas K. Skamarakas for Recognising the Election Results in Raseiniai Single-Member Constituency No. 42 as Invalid” of 30 October 2004.

The Constitutional Court

holds that:

I

1. On 10 October 2004, an election to the Seimas took place. The members of the Seimas were not elected in 66 single-member constituencies from total number of 71. On 24 October 2004 a repeat vote took place in these constituencies.

Under Paragraph 1 of Article 67 of the Law on Elections to the Seimas, it is permitted to vote by mail at post offices during their business hours beginning 5 days before the election and ending 1 day before the election, provided the voter is entered into the voter list of the constituency, which is in the town or district in question, and ending 2 days before the election, provided the voter is not entered into the voter list of the constituency, which is in the town or district in question.

In the single-member constituencies in which members of the Seimas were not elected during the election to the Seimas that took place on 10 October 2004, the voters who were entered into the voter list of the constituency, which is in the town or district in question, were able to vote repeatedly on 19–22 October 2004.

2. In Raseiniai Single-member Constituency No. 42 the repeat vote took place as regards two candidates to members of the Seimas, who had received most votes during the first election round, and who were G. Mikolaitis and K. Skamarakas.

3. After the repeat vote was over and upon calculation of the votes, on 24 October 2004 at 23.10 hours the protocol of the Electoral Commission of Raseiniai Single-member Constituency No. 42 was signed. 15705 ballot-papers were recognised to be valid, while from among them the votes went to the candidates as follows: 7883 votes for G. Mikolaitis and 7822 votes for K. Skamarakas (from among them 4180 ballot-papers cast by mail were recognised to be valid, while from among the latter the votes went to the candidates as follows: 2057 votes for G. Mikolaitis and 2123 votes for K. Skamarakas). Thus, the difference between the votes cast for the candidates is 61 votes in favour of G. Mikolaitis.

4. On 24 October 2004, right after the protocol of the Electoral Commission of Raseiniai Single-member Constituency No. 42 had been signed, K. Skamarakas lodged a complaint with the Central Electoral Commission and the Electoral Commission of Raseiniai Single-member Constituency No. 42. By this complaint it was asked to recount the ballot-papers in Raseiniai Single-member Constituency No. 42, to give them over to the Central Electoral Commission and to formulate a request to recognise the results in this constituency as invalid.

5. On 25 October 2004, the Central Electoral Commission received a complaint from K. Skamarakas, by which he supplemented his complaint of 24 October 2004.

6. In its 26 October 2004 sitting (Protocol No. 9), the Electoral Commission of Raseiniai Single-member Constituency No. 42, in the presence of representatives of the candidates K. Skamarakas and G. Mikolaitis, considered the issue of handing the results of the election to the Seimas over to the Central Electoral Commission and the request of the representatives of K. Skamarakas to recount the ballot-papers. The commission unanimously decided to confirm the protocols of vote counting of polling-stations’ commissions and to propose that the Central Electoral Commission not recount the ballot-papers, since no substantial violations of the Law on Elections to the Seimas had been established.

7. On 27 October 2004, K. Skamarakas lodged a complaint with the Central Electoral Commission, in which it was requested to recount the ballot papers of Raseiniai Single-member Constituency No. 42, and to apply to the President of the Republic and the Seimas, so that they in their turn apply to the Constitutional Court for a conclusion whether the Law on Elections to the Seimas had not been grossly violated.

Having considered the aforesaid complaint, the Central Electoral Commission adopted the Decision “On the 26 October 2004 Protocol of the Commission of Raseiniai Single-member Constituency No. 42 and a gross Violation of the Law on Elections to the Seimas”, whereby (1) it refused to satisfy the complaint of K. Skamarakas to the Central Electoral Commission concerning the 26 October 2004 decision (Protocol No. 9) of the Commission of Raseiniai Single-member Constituency No. 42 and decided to confirm the protocols of vote counting of polling-stations’ commissions and not to recount the ballot papers of the said constituency; (2) it refused to consider the request of K. Skamarakas to apply to the President of the Republic and the Seimas, so that they in their turn apply to the Constitutional Court for a conclusion whether the Law on Elections to the Seimas had not been grossly violated.

8. On 28 October 2004, the advocate V. Sviderskis, the representative of the candidate to members of the Seimas K. Skamarakas, lodged a complaint with the Central Electoral Commission. By the said complaint it was asked to recognise the results of the election to the Seimas in Raseiniai Single-member Constituency No. 42 as invalid.

9. On 29 October 2004, the Central Electoral Commission received a complaint (with annexes) of K. Skamarakas who was a candidate to members of the Seimas in Raseiniai Single-member Constituency No. 42 concerning a gross violation of the Law on Elections to the Seimas. By this complaint it was asked to recognise the results of the election to the Seimas in Raseiniai Single-member Constituency No. 42 as invalid.

It was maintained in the said complaint that in Raseiniai Single-member Constituency No. 42 voter certificates had been subject to buying, that the ballot-papers had been counted improperly, and that the procedure of voting by mail had been violated. In the opinion of K. Skamarakas, due to this the Law on Elections to the Seimas had been grossly violated and substantial impact had been made on the results of elections to the Seimas in the said constituency. Therefore, K. Skamarakas requested the Central Electoral Commission to thoroughly check and analyse the documents of voting by mail in Raseiniai Single-member Constituency No. 42, to demand and receive the material of pre-trial investigation from the local prosecutor’s office of the Raseiniai district and to consider it in a sitting of the Central Electoral Commission, to recount the results of voting in Raseiniai Single-member Constituency No. 42, and to recognise the election results in the aforementioned constituency as invalid.

10. Having investigated the 29 October 2004 complaint of K. Skamarakas, on 30 October 2004, the Central Electoral Commission adopted the Decision (No. 403) “On the Request by the Candidate to the Members of the Seimas K. Skamarakas for Recognising the Election Results in Raseiniai Single-Member Constituency No. 42 as Invalid”.

10.1. In the aforesaid decision, the Central Electoral Commission held that the voting results in Raseiniai Single-member Constituency No. 42 had been confirmed by vote counting protocols of electoral commissions of polling-stations, which had been signed by the chairmen and members of the electoral commissions, as well as by observers of the election. The Central Electoral Commission also held that no complaints had been received concerning incorrect counting of votes or drawing up vote counting protocols of polling-stations, and no facts had been established concerning forging of voters’ signatures or any other attempt to influence the results of the election in the Raseiniai district. The Central Electoral Commission also held that under Paragraph 6 of Article 82 of the Law on Elections to the Seimas, the constituency commission must adopt a decision to recount all ballot-papers of the single-member constituency when, prior to the signing of the vote counting protocol, the representative of a candidate demands it, and when the difference of the votes in this constituency between the candidates that have taken the first and second places is, according to preliminary election results, less than 50. The decision whether or not there have been gross violation of the law must be adopted by the Central Electoral Commission after it takes account of all circumstances of arrangement and execution of the election, after it assess the arrangement and execution of the election as a whole, as well as the damage inflicted on the election by established unlawful or criminal actions.

The Central Electoral Commission also held that on the day of the consideration of K. Skamarakas’ complaint two pre-trial investigations were started.

For instance, S. Saročka was presented a suspicion that he, with the purpose of influencing the results of the elections, during the repeat vote by mail by means of bribery or deception, had bought voter certificates from 62 citizens and thus hindered them to make use of their electoral right. The Central Electoral Commission held that on the day of the election voters had the right to vote at polling-stations even if they did not have a voter certificate, therefore, a loss of this certificate does not mean that the voter cannot make use of his right to vote, besides, institutions of pre-trial investigation barred the way to unlawful use the aforesaid voter certificates in time. In the opinion of the Central Electoral Commission, the said activity of S. Saročka was not influential on the results of the election. It also should be mentioned that after A. Banys, the chief of K. Skamarakas’ election headquarters, had reported that N. Melešius, Linkus and Bagdonas bought voter certificates from the residents, pre-trial investigation was started on 25 October 2004. The Central Electoral Commission held that “both pre-trial investigations have not been completed, all procedural opportunities to collect evidence and establish the circumstances have not been used, therefore, it is impossible to assert that the unlawful activities of S. Saročka and other unknown persons were influential on the results of the election.”

On 29 October 2004, I. P., an employee of the Raseiniai district post office, was presented a suspicion that she, with the purpose of influencing the results of the election, had unlawfully issued 15 ballot-papers to two unidentified persons and in the part “c” of voting by mail checks forged signatures of 15 voters, confirming the receipt of the ballot-papers. In the opinion of the Central Electoral Commission, due to its scale this fact could not have any substantial influence on the results in Raseiniai Single-member Constituency No. 42.

The Central Electoral Commission, having analysed and assessed the data presented by K. Skamarakas about buying up of voter certificates, noted that all written data about possible violations that might unlawfully influence the results of the election were submitted on 24 October 2004 and later, i.e. after K. Skamarakas had learned about the preliminary election results that were unfavourable to him. In addition, the persons who testified in writing concerning protection of their violated rights did not apply to corresponding institutions by themselves, but, upon the expiration of the term of lodging of complaints, reported about that to K. Skamarakas or lodged complaints with the Central Electoral Commission.

K. Skamarakas also had presented data to the Central Electoral Commission about the fact that in the course of issuance of ballot-papers in a special post office designated for voting by mail in the Blinstrubiškiai Foster Home for the Elderly, where three social workers unlawfully signed for 78 voters. Members of the Central Electoral Commission went to the Blinstrubiškiai Foster Home for the Elderly together with an investigator of the pre-trial institution and, having questioned 15 residents (at choice) who had the electoral right as well as the said three social workers, established that the voting in the aforementioned foster home had taken place in the presence of election observers, including election observers of K. Skamarakas, who did not express any remarks concerning the voting, in addition, not a single one from the questioned residents articulated any complaints regarding the restriction on the expression of their will. In the opinion of the Central Electoral Commission, the said violation was formal and procedural, since it was committed due to the old age and bad health of the residents.

K. Skamarakas also maintained that R. Ulinskienė, a member of the election commission of one polling-station, bought voter certificates from three persons. The Central Electoral Commission stated that R. Ulinskienė categorically denied these accusations.

10.2. In its decision, the Central Electoral Commission held that it agreed with the arguments of K. Skamarakas that the statement of the presence of the already known criminal deed permits drawing the conclusion that the Law on Elections to the Seimas was violated. Under Paragraph 1 of Article 91 of the same law, if the Central Electoral Commission establishes that gross violations of the law were substantially influential on the election results, the election results may be recognised as invalid. However, in the opinion of the Central Electoral Commission, what was known about the committed violations of the Law on Elections to the Seimas at the time of the adoption of the said decision was not sufficient in order to recognise the election results in Raseiniai Single-member Constituency No. 42 as invalid. Therefore, the Central Electoral Commission refused to grant the complaint of K. Skamarakas.

11. On 1 November 2004, K. Skamarakas lodged a complaint against the Decision of the Central Electoral Commission (No. 403) “On the Request by the Candidate to the Members of the Seimas K. Skamarakas for Recognising the Election Results in Raseiniai Single-Member Constituency No. 42 as Invalid” of 30 October 2004 with the Seimas and the President of the Republic, requesting them apply to the Constitutional Court with an inquiry concerning violation of the Law on Elections to the Seimas.

12. On 2 November 2004, the Seimas adopted the Resolution (No. IX-2533) “On the Application to the Constitutional Court with an Inquiry Concerning Violation of the Law on Elections to the Seimas in Raseiniai Single-member Constituency No. 42” whereby it decided not to apply to the Constitutional Court with an inquiry concerning violation of the Law on Elections to the Seimas in Raseiniai Single-member Constituency No. 42. At the time of the consideration of this case at the Constitutional Court the said resolution of the Seimas was not officially published.

II

1. By his Decree (No. 116) “On the Inquiry to the Constitutional Court of the Republic of Lithuania” of 3 November 2004, the President of the Republic applied to the Constitutional Court with the inquiry requesting the conclusion whether the Law on Elections to the Seimas was not violated during the 2004 election to the Seimas. The 3 November 2004 inquiry of the President of the Republic was attached to the said decree of the President of the Republic. It was written in the inquiry that on 1 November 2004 the candidate to members of the Seimas K. Skamarakas applied to the President of the Republic concerning violations of the Law on Elections to the Seimas, whose complaint indicated that by its Decision (No. 403) “On the Request by the Candidate to the Members of the Seimas K. Skamarakas for Recognising the Election Results in Raseiniai Single-Member Constituency No. 42 as Invalid” of 30 October 2004, the Central Electoral Commission refused to grant the request of K. Skamarakas to recognise the election results in Raseiniai Single-member Constituency No. 42 as invalid; the inquiry of the President of the Republic points out that the complaint is grounded on the fact that during the election to the Seimas the provisions of the Law on Elections to the Seimas related with voting by mail had been violated, and this was substantially influential on the establishment of the election results.

2. The President of the Republic requests the Constitutional Court to present the conclusion whether the provisions of Article 5 and Paragraphs 1, 4, and 6 of Article 67 of the Law on Elections to the Seimas which guarantee secret ballot and prohibit controlling the will of voters in election in cases when the voters vote by mail were not violated.

3. The 1 November 2004 complaint of the candidate to members of the Seimas K. Skamarakas and the Decision of the Central Electoral Commission (No. 403) “On the Request by the Candidate to the Members of the Seimas K. Skamarakas for Recognising the Election Results in Raseiniai Single-Member Constituency No. 42 as Invalid” of 30 October 2004 were attached to the 3 November 2004 inquiry of the President of the Republic.

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

It is stipulated in Paragraph 2 of Article 102 of the Constitution that the status of the Constitutional Court and the procedure for the execution of powers thereof shall be established by the Law on the Constitutional Court of the Republic of Lithuania.

Under Article 77 of Law on the Constitutional Court, while investigating an inquiry on violation of election laws during an election of the President of the Republic or members of the Seimas, the Constitutional Court shall examine and assess only the decisions made by the Central Electoral Commission or the refusal thereof to examine complaints concerning the violation of laws on elections in cases when such decisions were adopted or other deeds were carried out by the said commission after the termination of voting in an election of members of the Seimas or the President of the Republic.

5. The 3 November 2004 inquiry of the President of the Republic requesting the conclusion whether the provisions of Article 5 and Paragraphs 1, 4, and 6 of Article 67 of the Law on Elections to the Seimas which guarantee secret ballot and prohibit controlling the will of voters in elections in cases when the voters vote by mail were not violated is linked with the said 1 November 2004 complaint of K. Skamarakas and the Decision of the Central Electoral Commission (No. 403) “On the Request by the Candidate to the Members of the Seimas K. Skamarakas for Recognising the Election Results in Raseiniai Single-Member Constituency No. 42 as Invalid” of 30 October 2004 whereby it was decided to refuse to grant the 29 October 2004 complaint of K. Skamarakas to the Central Electoral Commission requesting recognising the election results in Raseiniai Single-member Constituency No. 42 as invalid.

6. As mentioned before, under Article 77 of Law on the Constitutional Court, the Constitutional Court shall examine and assess only the decisions made by the Central Electoral Commission or the refusal thereof to examine complaints concerning the violation of laws on elections in cases when such decisions were adopted or other deeds were carried out by the said commission after the termination of voting in an election of members of the Seimas or the President of the Republic.

Taking account of the fact that in his 3 November 2004 inquiry the President of the Republic requests the conclusion whether the provisions of Article 5 and Paragraphs 1, 4, and 6 of Article 67 of the Law on Elections to the Seimas which guarantee secret ballot and prohibit controlling the will of voters in elections in cases when the voters vote by mail were not violated during the election to the Seimas, and of the fact that the said inquiry of the President of the Republic is linked with the 1 November 2004 complaint of K. Skamarakas and the Decision of the Central Electoral Commission (No. 403) “On the Request by the Candidate to the Members of the Seimas K. Skamarakas for Recognising the Election Results in Raseiniai Single-Member Constituency No. 42 as Invalid” of 30 October 2004 whereby it was decided to refuse to grant the 29 October 2004 complaint of K. Skamarakas to the Central Electoral Commission requesting recognising the election results in Raseiniai Single-member Constituency No. 42 as invalid, it should be held that the President of the Republic requests the conclusion whether the Central Electoral Commission lawfully refused to grant the 29 October 2004 complaint of K. Skamarakas to the Central Electoral Commission requesting recognising the election results in Raseiniai Single-member Constituency No. 42 as invalid by its Decision (No. 403) “On the Request by the Candidate to the Members of the Seimas K. Skamarakas for Recognising the Election Results in Raseiniai Single-Member Constituency No. 42 as Invalid” of 30 October 2004.

7. Subsequent to the 3 November 2004 inquiry of the President of the Republic, the Constitutional Court will investigate and assess in this case whether the 29 October 2004 complaint of K. Skamarakas to the Central Electoral Commission requesting recognising the election results in Raseiniai Single-member Constituency No. 42 as invalid was lawfully refused to be granted by the Decision of the Central Electoral Commission (No. 403) “On the Request by the Candidate to the Members of the Seimas K. Skamarakas for Recognising the Election Results in Raseiniai Single-Member Constituency No. 42 as Invalid” of 30 October 2004.

III

1. Article 1 of the Constitution provides: “The State of Lithuania shall be an independent democratic republic.” It is stipulated in Article 1 of the Constitutional Law of the Republic of Lithuania “On the Lithuanian State” that the statement “The State of Lithuania shall be an independent democratic republic” is a constitutional norm of the Republic of Lithuania and a fundamental principle of the State. While construing this provision of Article 1 of the Constitution, the Constitutional Court has held that in this article the fundamental principles of the Lithuanian State are established: the Lithuanian State is a free and independent state; the republic is the form of governance of the Lithuanian State; state power must be organised in a democratic way, and there must be a democratic political regime in this country (the Constitutional Court’s rulings of 23 February 2000, 18 October 2000, 25 January 2001, and 19 September 2002).

Under Article 2 of the Constitution, sovereignty shall belong to the Nation. The Nation shall execute its supreme sovereign power either directly or through its democratically elected representatives (Article 4 of the Constitution). Paragraph 1 of Article 33 of the Constitution provides, inter alia, that citizens shall have the right to participate in the government of the State both directly and through their democratically elected representatives.

The constitutional requirement that state power in the State of Lithuania must be organised in a democratic way, and that there must be a democratic political regime in this country, as well as the provision of Paragraph 1 of Article 33 of the Constitution that citizens shall have the right to participate in the government of the state both directly and through their democratically elected representatives, is inseparable from the provision of Paragraph 3 of Article 5 of the Constitution that state institutions shall serve the people, and from the provision of Paragraph 2 of the same article that the scope of power shall be limited by the Constitution. In its ruling of 1 July 2004, the Constitutional Court held that the Constitution consolidates the principle of responsible governing. The Constitutional Court has also held that the responsibility of state power to society is a principle of the state under the rule of law which is established by the Constitution by providing that state institutions will serve the people, while the citizens shall have the right to run the country either directly or through democratically elected representatives, to criticise the work of state institutions or that of their officials, to lodge complaints against their decisions, as well as by guaranteeing an opportunity for citizens to defend their rights in court, the right of petition, by regulating the procedure for investigation of appeals and complaints of citizens etc. (the Constitutional Court’s ruling of 11 May 1999).

2. In a constitutional democracy, special requirements are raised to the formation of political representative institutions. These institutions may not be formed in a way so that there might arise doubts as to their legitimacy and legality, inter alia, as to the fact whether the principles of a democratic state under the rule of law were not violated in the course of election of persons to political representative institutions. Otherwise, people’s trust in the representative democracy, state institutions, and the state itself, would be undermined.

3. In the context of the case at issue, it needs to be emphasised that democratic elections are an important form of citizens’ participation in governing of the state, as well as it is a necessary element of the formation of state political representative institutions. Elections may not be regarded as democratic, nor their results as legitimate and legal, if they are held by trampling on the principles of democratic elections established in the Constitution, and by violating democratic electoral procedures.

4. It needs to be noted that the principles of elections to the Seimas, the representation of the Nation, are established in the Constitution, it is not permitted to deny, distort or limit them by means of any legal act of lower legal force. Under Paragraph 1 of Article 55 of the Constitution, members of the Seimas are elected on the basis of universal, equal, and direct electoral right by secret ballot.

Paragraph 3 of Article 55 of the Constitution provides that the procedure for election of members of the Seimas shall be established by law. This constitutional provision means that the legislature has a duty to consolidate, by means of a law, a system of election of members of the Seimas, to establish the grounds and procedure of arrangement of elections, inter alia, including the nomination of candidates to members of the Seimas, electoral campaigning, the procedure of voting, the establishment of the results of election, the procedures of settling electoral disputes, as well as the regulation of other relations of election of members of the Seimas. While doing so, the legislature must pay heed to the Constitution; it may neither itself deny, distort or restrict the universal, equal and direct electoral right and secret ballot, nor create any legal preconditions for other subjects to do so, as, otherwise, this would mean that the supreme sovereign power of the Nation through the representation of the Nation, the Seimas, is denied altogether.

In the context of the case at issue it needs to be noted that the legislature, under the Constitution, has a duty to establish, by means of a law, the legal regulation which ensures that the voters vote in person and by secret ballot, and that in the course of voting it would be impossible both to influence the will of the voters and to control it. It is impermissible in particular that the financing of elections is non-transparent or uncontrollable, that in the election campaign the election techniques are used which are contrary to the morals, justice and the harmony of society. It also must be underlined that, under the Constitution, no reasoning may justify direct or indirect buying of votes of voters, also the practice of an election campaign where the voters, by means of presents or other rewards, are induced either to participate in or abstain from elections and/or vote either for or against one or another candidate. This is equivalent to bribery of voters, meaning that citizens of the Republic of Lithuania are deprived of their right to freely express their genuine will on their own in elections of the Seimas, while the Nation is deprived of its right to elect the representation of the Nation which would be able to express its genuine supreme sovereign power.

It needs to be emphasised that a duty of the legislature stems from the Constitution to establish, by means of a law, the legal regulation ensuring honesty and transparency of the election process to the Seimas, i.e. necessary preconditions for the trust in the representation of the Nation.

In case the legislature disregards the said requirements arising out of the Constitution, if it does not establish a mechanism ensuring democratic, free and honest elections, then there always might arise certain doubts as for the legality of election of members of the Seimas.

5. According to Paragraph 2 of Article 34 of the Constitution, the right to stand for election shall be established by the Constitution and by the election laws. As mentioned before, the legislature has a constitutional duty to consolidate, by means of a law, a system of election of members of the Seimas, to establish the grounds and procedure of arrangement of elections, however, it must pay heed to the Constitution.

In the context of the case at issue, it needs to be noted that the legislature, while regulating electoral relations, may not establish any such legal regulation which would create preconditions so that a different person votes for the voter (except when the voter is unable to implement his such constitutional right by himself due to the state of his health).

Personal (direct) voting is one of crucial guarantees of free, thus, democratic, expression of the will of voters. The constitutional imperative of democratic elections requires that the voters who, on the set day, are unable to appear at the polling-station due to illness, disability, imprisonment, performance of official tasks, as also due to a journey or other personal reasons be granted an opportunity to express their will in elections. The legislature has a constitutional duty to establish the legal regulation ensuring that the citizens who are unable to vote on the day of election would have an opportunity to implement their constitutional right at some other time. While regulating the relations related with absentee voting, the legislature enjoys discretion, however, it may not violate the principles of democratic elections that are consolidated in the Constitution.

One of common forms of absentee voting in democratic states is voting by mail. The legislature, while deciding whether to opt for this form of absentee voting, also by regulating the relations linked with voting by mail, must take into consideration not only the legal factors, but also peculiarities of the political culture of society, the level of civil maturity, public mentality, other social factors, for they also determine the fact whether voting by mail would not be abused, whether the institute of voting by mail would not become a means of distortion of the real will of voters and whether it would not deny the right of the Nation to elect such its representation which would express its real supreme sovereign power.

6. It has been mentioned that, in his inquiry of 3 November 2004, the President of the Republic requests the conclusion whether the provisions of Article 5, Paragraphs 1, 4 and 6 of Article 67 of the Law on Elections to the Seimas, which guarantee secret ballot and prohibit controlling the will of voters in the case when the voters vote by mail, were not violated during the election to the Seimas.

6.1. Article 5 of the Law on Elections to the Seimas provides:

1. Voters shall vote in person and by secret ballot. It shall be prohibited for a person to vote instead of another person or to vote by proxy. A voter who because of his physical disability cannot cast a ballot himself, may vote with the assistance of another person whom he trusts as laid down in Paragraph 6 of Article 66 of this Law. If the secret of another person’s voting has come to the knowledge of anyone, it shall be prohibited to disclose it.

2. Controlling the will of the voters in elections shall be prohibited. It shall be prohibited to control the will of the voters during an election. It shall be prohibited during the voting to influence the will of a voter to vote for or against any candidate or a list of candidates. A voter must have adequate conditions for marking his ballot in privacy and without interference. It shall be prohibited to handle the ballot in such a way that the secret of voting might be disclosed.”

6.2. Article 67 of the Law on Elections to the Seimas provides:

1. Voting by mail grants an opportunity to participate in elections to the citizens who due to the state of their health or because of other reasons are unable to come to the polling-station to cast their votes. Voting by mail shall be available at post offices during their business hours beginning 5 days before the election and ending 1 day before the election, provided the voter is entered into the voter list of the constituency, which is in the town or district in question, and ending 2 days before the election, provided the voter is not entered into the voter list of the constituency, which is in the town or district in question. Expenses related to voting by mail shall be covered by the funds of the State Budget. <…>

4. In post offices there must be premises (place) where the voter can, without interference and in secrecy, mark their ballot papers and put them into voucher envelopes. The voting may be observed by observers of parties and political organisations, who have certificates permitting them to observe the election at any polling-station. <…>

6. The voter shall vote by secret ballot:

1) he shall mark ballot-papers;

2) he shall put the marked ballot-papers into the voucher envelope;

3) he shall seal the voucher envelope;

4) he shall put the voucher envelope and his voter certificate into the outer envelope;

5) he shall seal the outer envelope. <…>”

6.3. It needs to be noted that Article 5, Paragraphs 1, 4 and 6 of Article 67 of the Law on Elections to the Seimas, which are indicated in the inquiry of the President of the Republic, are some of the provisions of the law, in which voting by mail is consolidated as one of the forms of absentee voting in the course of election of the Seimas. In the context of the case at issue it needs to be noted that, under election laws of Lithuania, inter alia, the Law on Elections to the Seimas, secret ballot must be ensured both when voters vote at polling-stations and when they vote by mail.

IV

1. It was held in the 30 October 2004 decision of the Central Electoral Commission that in the case instituted by the Police Commissioner’s Office of the Raseiniai District subsequent to Article 172 of the Criminal Code of the Republic of Lithuania pre-trial investigation had been started in the course of which it was established that at the time of the repeat vote by mail S. Saročka, with the purpose of influencing the results of the election, by means of bribery or deception, had bought voter certificates from 62 citizens and thus hindered them to make use of their electoral right. During a search, from S. Saročka 62 voter certificates were seized at the back of which the personal data of the voter to whom the voter certificate belonged were written in pencil. The questioned 34 witnesses testified that they, being aware that unlawful voting by mail will be carried out in their name, sold for LTL 5–10 or gave without any payment their voter certificates to S. Saročka.

It is written in the 30 October 2004 decision of the Central Electoral Commission that, while assessing the said violation of the Law on Elections to the Seimas, one should take account of the fact that loss of a voter certificate “is not regarded as an absolute restriction on the right of the voter to vote”, and that form among the said 62 persons 4 persons appeared on polling-stations on the day of election, in which they were issued voter certificates and were able to implement their electoral right, that the voter has an opportunity to vote on the day of election at the polling-station even if he does not have his voter certificate, that institutions of pre-trial investigation barred the way to unlawful use the aforesaid 62 voter certificates in time, therefore, the aforementioned violation of the Law on Elections to the Seimas was not substantially influential on the election results.

While deciding whether the 30 October 2004 decision of the Central Electoral Commission lawfully held that the buying or other unlawful acquisition of the 62 voter certificates is not a violation of the Law on Elections to the Seimas which was substantially influential on the election results in Raseiniai Single-member Constituency No. 42, it is important to take account of the fact that the case material does not contain any data about the fact that the said 62 voter certificates were used in the voting during the repeat vote. It is clear from the case material that the said 62 voter certificates which S. Saročka had bought or otherwise unlawfully acquired, were seized from him during the search and are kept at the Police Commissioner’s Office of the Raseiniai District.

Therefore, it should be held that the Central Electoral Commission lawfully decided that the violation of the Law on Election to the Seimas where S. Saročka bought or otherwise unlawfully acquired 62 voter certificates was not substantially influential on the election results in Raseiniai Single-member Constituency No. 42 and that there were no grounds to recognise the election results in the said district as invalid.

2. It was held in the 30 October 2004 decision of the Central Electoral Commission that pre-trial investigation had been started in the Police Commissioner’s Office of the Raseiniai District due to the fact that N. Melešius, Linkus and Bagdonas bought certain voter certificates from residents. The material of the case does not contain any data as to how many voter certificates had been bought.

It is written in the aforesaid decision of the Central Electoral Commission that, while assessing these facts, one should take account of that fact that the pre-trial investigation regarding the actions of these persons is not over yet, as well as that all procedural opportunities to collect evidence and establish the circumstances have not been used, therefore, “it is impossible to assert that the unlawful activities of these persons were influential on the results of the election”.

While deciding whether in the 30 October 2004 decision of the Central Electoral Commission it was lawfully held that the actions of N. Melešius, Linkus and Bagdonas are not the violation of the Law on Elections to the Seimas which was substantially influential on the election results in Raseiniai Single-member Constituency No. 42, one must take account of the fact that the material of the case does not contain any evidence confirming that the said persons had bought or otherwise unlawfully acquired voter certificates and used them during the repeat vote in Raseiniai Single-member Constituency No. 42, thus, there is not any evidence that the said persons violated the Law on Elections to the Seimas.

Therefore, it should be held that the Central Electoral Commission lawfully decided that the deeds of the said persons had not been substantially influential on the election results in Raseiniai Single-member Constituency No. 42, and that due to this there were not any grounds to recognise the election results in the said district as invalid.

3. It is held in the 30 October 2004 decision of the Central Electoral Commission that I. P., an employee of the Raseiniai district post office, was presented a suspicion that she, with the purpose of influencing the results of the election, had unlawfully issued 15 ballot-papers to two unidentified persons and in the part “c” of voting by mail checks forged signatures of 15 voters, confirming the receipt of the ballot-papers.

It is written in the decision of the Central Electoral Commission that due to its scale this fact could not have any substantial influence on the results in Raseiniai Single-member Constituency No. 42 and that due to this there were not any grounds to recognise the election results in the said district as invalid.

While deciding whether in the 30 October 2004 decision of the Central Electoral Commission it was lawfully held that this violation could not have any substantial influence on the results in Raseiniai Single-member Constituency No. 42, one must take account of the fact that according to the vote counting protocol of the aforesaid constituency, the difference in the votes cast for the candidates is 61 votes in favour of G. Mikolaitis. Even if all the said 15 ballot-papers had been used to vote for K. Skamarakas, this would not have changed the final election results in the said constituency in essence.

Therefore, it must be held that the Central Electoral Commission lawfully decided that the violation of the Law on Elections to the Seimas where I. P. unlawfully issued 15 ballot-papers could not have any substantial influence on the election results in Raseiniai Single-member Constituency No. 42.

4. It is indicated in the 30 October 2004 decision of the Central Electoral Commission that three social workers signed for 78 voters in the Blinstrubiškiai Foster Home for the Elderly in the course of issuance of ballot-papers in a special post office designated for voting by mail.

While assessing this fact, the Central Electoral Commission noted in the said decision that members of the Central Electoral Commission had gone to the Blinstrubiškiai Foster Home for the Elderly together with an investigator of the pre-trial institution and questioned 15 residents (at choice) who had the electoral right as well as the said three social workers. It was established that the aforementioned violation was committed due to the old age and bad health of the residents, that it was a formal and procedural violation, that the voting in the aforementioned foster home had taken place in the presence of election observers, including election observers of K. Skamarakas, who did not express any remarks concerning the voting, in addition, not a single one from the questioned residents articulated any complaints regarding the restriction on the expression of their will.

While deciding whether in the 30 October 2004 decision of the Central Electoral Commission it was lawfully held that the signing by the three social workers for 78 voters in the course of issuance of ballot-papers in a special post office designated for voting by mail is not a violation of the Law on Elections to the Seimas, which was substantially influential on the election results in Raseiniai Single-member Constituency No. 42, one must take account of the fact that the case does not contain any evidence that the said three social workers did not hand over the issued ballot-papers to the voters, for whom they had signed, and that these voters did not have an opportunity to freely express their will and to vote in the election by secret ballot.

Therefore, it should be held that the Central Electoral Commission lawfully decided that the aforesaid violation committed by the three social workers was not substantially influential on the election results in Raseiniai Single-member Constituency No. 42 and that due to this there were not any grounds to recognise the election results in the said constituency as invalid.

5. It is written in the 30 October 2004 decision of the Central Electoral Commission that the statement of K. Skamarakas’ complaint had been verified that R. Ulinskienė, a member of the election commission of one polling-station, bought voter certificates from three persons. The Central Electoral Commission stated that R. Ulinskienė categorically denied these accusations.

It is clear from the material of the case that the fact that R. Ulinskienė had bought voter certificates from three persons was not proved, thus, there are not any grounds to state that the Law on Elections to the Seimas was violated.

Therefore, it should be held that the Central Electoral Commission lawfully decided that due to the said reason the election results in Raseiniai Single-member Constituency No. 42 were not to be recognised as invalid.

6. Taking account of the arguments set forth, it should be held that the violations mentioned in the Decision of the Central Electoral Commission (No. 403) “On the Request by the Candidate to the Members of the Seimas K. Skamarakas for Recognising the Election Results in Raseiniai Single-Member Constituency No. 42 as Invalid” of 30 October 2004, while assessing each of them both separately and as a whole, do not give grounds to conclude that the said decision of the Central Electoral Commission violated the Law on Elections to the Seimas.

V

1. It is clear from the material of the case that in the 2004 election to the Seimas during the repeat vote by mail there were a number of violations of the Law on Elections to the Seimas in Raseiniai Single-member Constituency No. 42, where the requirements of secret ballot and personal (direct) voting were disregarded. At the hearing of the Constitutional Court it came to light that similar violations of the Law on the Election to the Seimas took place in other constituencies as well. In the election practice direct and indirect buying of voters’ votes has taken to spreading, while this distorts the real will of the voters, it creates preconditions for competing in elections dishonestly, and decreases the trust in the representation of the Nation.

2. This shows that the provisions of the Law on Elections to the Seimas that regulate voting by mail are not effective enough. Neither the Law on Elections to the Seimas, nor any other laws contain an effective mechanism, which would ensure that voting by mail be not abused, and that the institute of voting by mail itself not create preconditions for distorting the real will of the voters.

It needs to be emphasised that respective correction of the legal regulation is a constitutional duty of the legislature.

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

conclusion:

The Decision of the Central Electoral Commission of the Republic of Lithuania (No. 403) “On the Request by the Candidate to the Members of the Seimas K. Skamarakas for Recognising the Election Results in Raseiniai Single-Member Constituency No. 42 as Invalid” of 30 October 2004 whereby it was refused to grant the 29 October 2004 complaint of K. Skamarakas to the Central Electoral Commission concerning the recognition of the election results in Raseiniai Single-member Constituency No. 42 as invalid did not violate the Republic of Lithuania’s Law on Elections to the Seimas.

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

Justices of the Constitutional Court:                                                  Armanas Abramavičius

Egidijus Jarašiūnas

Egidijus Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Augustinas Normantas

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas