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On refusing to consider an inquiry

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 

DECISION

ON REFUSING TO CONSIDER THE INQUIRY SET OUT IN ARTICLE 2 OF THE RESOLUTION OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA (NO. XII-2289) “ON COMMENCING THE IMPEACHMENT OF VYTAUTAS GAPŠYS, A MEMBER OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA, AND ON APPLYING TO THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA” OF 7 APRIL 2016

 

10 May 2016, No. KT13-S6/2016

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Vytautas Greičius, Danutė Jočienė, Pranas Kuconis, Gediminas Mesonis, Vytas Milius, Egidijus Šileikis, Algirdas Taminskas, and Dainius Žalimas

The court reporter – Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, in its procedural sitting, considered the inquiry (No. 1B-10/2016) set out in Article 2 of the Resolution of the Seimas of the Republic of Lithuania (No. XII-2289) “On Commencing the Impeachment of Vytautas Gapšys, a Member of the Seimas of the Republic of Lithuania, and on Applying to the Constitutional Court of the Republic of Lithuania” of 7 April 2016.

The Constitutional Court

has established:

On 7 April 2016, the Seimas, the petitioner, adopted the Resolution (No. XII-2289) “On Commencing the Impeachment of Vytautas Gapšys, a Member of the Seimas of the Republic of Lithuania, and on Applying to the Constitutional Court of the Republic of Lithuania”. Article 2 of the said resolution contains the inquiry whether “the actions of Vytautas Gapšys, a member of the Seimas of the Republic of Lithuania, are in conflict with the Constitution of the Republic of Lithuania and whether he may continue to hold the office of a member of the Seimas after a court judgment convicting him has come into effect”.

The Constitutional Court

holds that:

1. Under Item 4 of Paragraph 3 of Article 105 of the Constitution, the Constitutional Court presents conclusions on whether the concrete actions of the members of the Seimas and state officials against whom an impeachment case has been instituted are in conflict with the Constitution.

According to Paragraph 5 of Article 106 of the Constitution, inter alia, the Seimas may request that the Constitutional Court present a conclusion.

2. It is clear from the resolution (and from the travaux préparatoires thereof) by which the Seimas, the petitioner, has applied to the Constitutional Court that the petitioner requests an investigation into the constitutionality of the actions of Seimas member Vytautas Gapšys that he had performed before he took the oath of a member of the Seimas.

3. The constitutional grounds for impeachment proceedings are consolidated in Article 74 of the Constitution. This article provides that 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 any members of the Seimas, who grossly violate the Constitution or breach their oath, or are found to have committed a crime, may be removed from office or have the mandate of a member of the Seimas revoked by a 3/5 majority vote of all the members of the Seimas; this is performed according to the procedure for impeachment proceedings, which is established by the Statute of the Seimas.

3.1. When forming the official constitutional doctrine of impeachment, inter alia, when revealing the content of the powers of the Constitutional Court in impeachment proceedings, the Constitutional Court has held, among other things, that:

the persons specified in Article 74 of the Constitution may be removed from office (or their mandate of a member of the Seimas may be revoked) for the actions provided for in the Constitution: a gross violation of the Constitution, a breach of the oath, or the commission of a crime (the Constitutional Court’s ruling of 15 April 2004);

not every violation of the Constitution is in itself a gross violation of the Constitution (the Constitutional Court’s conclusions of 31 March 2004 and 27 October 2010); under the Constitution, only the Constitutional Court has the powers to decide whether the persons specified in Article 74 of the Constitution, against whom an impeachment case has been instituted, have grossly violated the Constitution (taking account of the fact that a gross violation of the Constitution is also a breach of the oath, the Constitutional Court also has the powers to decide whether such persons have breached the oath) (inter alia, the Constitutional Court’s conclusion of 27 October 2010);

as such, the commission of a crime does not mean that a person has, at the same time, violated the Constitution, or breached the oath, or that, in his/her activity, the said person has not observed the Constitution, or failed to act in the interests of the Nation and the State of Lithuania, etc.; some crimes may even be unrelated directly either to a breach of the oath provided for in the Constitution or to a gross violation of the Constitution (the Constitutional Court’s rulings of 25 May 2004 and 5 September 2012);

in a democratic state under the rule of law, a person who has grossly violated the Constitution or breached the oath must not escape the constitutional liability – removal from office; therefore, under the Constitution, the Seimas, which decides whether to remove, in accordance with impeachment proceedings, a person from office or to revoke his/her mandate of a member of the Seimas for the commission of a crime, bears the responsibility to ascertain whether the Constitution was grossly violated and the oath was breached as a result of committing such a crime (the Constitutional Court’s ruling of 25 May 2004).

3.2. Thus, the impeachment ground “found to have committed a crime” as provided for in Article 74 of the Constitution constitutes an independent ground for impeachment. As such, this ground does not necessarily mean a gross violation of the Constitution and, consequently, it does not necessarily mean a breach of the oath; where there exists the impeachment ground “found to have committed a crime”, it is only the Constitutional Court that could state in a concrete case whether there was also a gross violation of the Constitution and, consequently, a breach of the oath.

It should be noted that, under the Constitution, the Seimas decides whether to remove, in accordance with impeachment proceedings, a person from office or to revoke his/her mandate of a member of the Seimas for the commission of a crime. By filing with the Constitutional Court an inquiry on the constitutionality of the concrete actions of a person against whom an impeachment case has been instituted, the Seimas implements its responsibility to ascertain whether the Constitution was grossly violated and the oath was breached as a result of committing such a crime.

In the context of the inquiry formulated in the resolution of the Seimas, the petitioner, it should also be noted that the application of the impeachment ground “found to have committed a crime” does not imply that the Seimas has the powers to apply to the Constitutional Court with an inquiry whether the concrete actions of a member of the Seimas against whom an impeachment case has been instituted are in conflict with the Constitution in cases where such actions could not violate the Constitution in a gross manner or breach the oath of the member of the Seimas since these actions had been performed before the said oath was taken. Where the impeachment ground “found to have committed a crime” is applied, the Constitutional Court does not have the powers to assess the constitutionality of any such actions by which the Constitution could not be violated and the oath could not be breached by a member of the Seimas because the said actions had been performed before the member of the Seimas took his/her oath; otherwise, the constitutional concept of impeachment would be disregarded.

4. As mentioned before, when, inter alia, requesting the Constitutional Court to present the conclusion whether the actions of Seimas member Vytautas Gapšys are in conflict with the Constitution, the petitioner requests an investigation into the constitutionality of the actions of Seimas member Vytautas Gapšys that were recorded in the court judgment convicting him and where such actions were performed before he took the oath of a member of the Seimas.

Thus, in its inquiry, the Seimas, the petitioner, requests an investigation into the constitutionality of those actions of Seimas member Vytautas Gapšys the investigation of which is not within the powers of the Constitutional Court.

5. Under Item 3 of Paragraph 1 of Article 80 of the Law on the Constitutional Court, the Constitutional Court refuses to examine an inquiry concerning giving a conclusion in the cases where the consideration of a concrete issue does not fall under the jurisdiction of the Constitutional Court.

Consequently, there are grounds for refusing to consider the inquiry of the Seimas, the petitioner, whether the actions of Seimas member Vytautas Gapšys are in conflict with the Constitution.

6. In this context, attention should also be drawn to the fact that the cause for the preparation of a conclusion of the Constitutional Court is filing the inquiry of an established form with the Constitutional Court under procedure established by the Law on the Constitutional Court (Article 75 of the Constitutional Court).

When interpreting, among other things, the provisions of the Law on the Constitutional Court in which the requirements for the content of inquiries are laid down, the Constitutional Court has noted that the concrete actions, the verification of the constitutionality of which is requested, of those members of the Seimas or state officials against whom an impeachment case has been instituted must be specified either in a resolution of the Seimas or in a separately drafted inquiry approved by means of a resolution of the Seimas; an inquiry for a conclusion on whether the concrete actions of the members of the Seimas or state officials against whom an impeachment case has been instituted are in conflict with the Constitution, inter alia, must specify only the actions the verification of the constitutionality of which is requested; such an inquiry must specify the circumstances in which such actions were performed and the provisions of the Constitution, with which, in the opinion of the petitioner, the specified concrete actions are in conflict; the same inquiry must also contain the arguments that explain the unconstitutionality of the concrete actions of a respective official (the Constitutional Court’s conclusion of 27 October 2010).

It should be noted that an inquiry must specify the concrete actions the verification of the constitutionality of which is requested as well as the circumstances in which such actions were performed and must submit evidence relating to the said actions so that the Constitutional Court would be able to exercise its constitutional powers to present a conclusion on whether the concrete actions of, inter alia, the members of the Seimas against whom an impeachment case has been instituted are in conflict with the Constitution; otherwise, the Constitutional Court would not be able to exercise such its constitutional powers.

7. As mentioned before, the petitioner, among other things, requests a conclusion on whether Vytautas Gapšys may continue to hold the office of a member of the Seimas after a court judgment convicting him has come into effect.

7.1. It has been mentioned that, under Item 4 of Paragraph 3 of Article 105 of the Constitution, the Constitutional Court presents a conclusion on whether the concrete actions of the members of the Seimas against whom an impeachment case has been instituted are in conflict with the Constitution.

Under the Constitution, the Constitutional Court does not present a conclusion on whether the member of the Seimas against whom an impeachment case has been instituted may continue to hold the office of a member of the Seimas after a court judgment convicting him/her has come into effect; the consideration of such an issue does not fall under the jurisdiction of the Constitutional Court.

7.2. Under Item 3 of Paragraph 1 of Article 80 of the Law on the Constitutional Court, the Constitutional Court refuses to examine an inquiry concerning giving a conclusion in the cases where the consideration of a concrete issue does not fall under the jurisdiction of the Constitutional Court.

Consequently, there are grounds for refusing to consider the inquiry of the Seimas, the petitioner, whether Vytautas Gapšys may continue to hold the office of a member of the Seimas after a court judgment convicting him has come into effect.

8. In view of what has been stated above, it should be held that there are grounds for refusing to consider the inquiry of the Seimas, the petitioner, whether the actions of Seimas member Vytautas Gapšys are in conflict with the Constitution and whether he may continue to hold the office of a member of the Seimas after a court judgment convicting him has come into effect.

Conforming to Paragraphs 3 and 4 of Article 22, Article 28, and Item 3 of Paragraph 1 of Article 80 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To refuse to consider the inquiry (No. 1B-10/2016) of the Seimas of the Republic of Lithuania, the petitioner, whether “the actions of Vytautas Gapšys, a member of the Seimas of the Republic of Lithuania, are in conflict with the Constitution of the Republic of Lithuania and whether he may continue to hold the office of a member of the Seimas after a court judgment convicting him has come into effect”.

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

Justices of the Constitutional Court:           Elvyra Baltutytė

                                                                                Vytautas Greičius

                                                                                Danutė Jočienė

                                                                                Pranas Kuconis

                                                                                Gediminas Mesonis

                                                                                Vytas Milius

                                                                                Egidijus Šileikis

                                                                                Algirdas Taminskas

                                                                                Dainius Žalimas