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On the concept of impeachment proceedings that is entrenched in the Statute of the Seimas

The ruling of the Constitutional Court of the Republic of Lithuania of 24 February 2017

ON THE CONCEPT OF IMPEACHMENT PROCEEDINGS THAT IS ENTRENCHED IN THE STATUTE OF THE SEIMAS

Summary

In this ruling, having considered the case subsequent to a petition of a group of members of the Seimas, the Constitutional Court declared Article 227 (wording of 9 November 2004) of the Statute of the Seimas, which consolidated the concept of impeachment proceedings, in conflict with Article 74 of the Constitution, insofar as it provided for the application of impeachment only in cases where it transpired that a crime had been committed while holding office specified in Article 74 of the Constitution.

The Constitutional Court noted that impeachment is a special procedure provided for in the Constitution, which is applied when the issue concerning the constitutional liability of the highest state officials indicated in Article 74 of the Constitution is decided. Under Article 74 of the Constitution, constitutional liability can be applied to the highest state officials specified in this article for committing a crime. It was emphasised in this context that impeachment is not the application of criminal liability even if its ground is a crime; when voting on impeachment takes place at the Seimas, the question of the constitutional liability rather than criminal liability of a person is decided.

The constitutional purpose of impeachment, as one of the measures for the self-protection of civil society, is public democratic scrutiny over the activity of the highest state officials, which creates the preconditions for imposing constitutional liability on them: removing from office those officials or revoking the mandate of those members of the Seimas who discredit state power by their actions and, consequently, lose the trust of citizens. The purpose of the constitutional institute of impeachment should be taken into account when the provisions of Article 74 of the Constitution are interpreted and consideration is given to cases where certain actions can create the preconditions for applying impeachment for committing a crime.

While revealing which actions give the grounds for applying impeachment for committing a crime, the Constitutional Court noted that the concept “crime” used in the wording “found to have committed a crime” of Article 74 of the Constitution is not directly linked in the Constitution to any specific acts incompatible with law. Thus, under Article 74 of the Constitution, impeachment can be applied for various crimes found to have been committed. However, this in itself does not mean that persons when found to have committed a crime should be removed from office (or have their mandates of a member of the Seimas revoked) in all cases for having committed any possible crime: a decision on the application of impeachment on the indicated grounds and the ensuing removal of the person from office (the revocation of his/her mandate of a member of the Seimas) may be taken exclusively by an institution vested with relevant powers in the impeachment process, i.e. by the Seimas (in the cases provided for in the Constitution and upon receiving a relevant conclusion of the Constitutional Court) in the course of impeachment proceedings by a 3/5 majority vote of all the members of the Seimas.

In addition, the impeachment grounds of being “found to have committed a crime”, as specified in Article 74 of the Constitution, are not linked to the time when a crime was committed. Specifically, it is only the fact of having committed a crime that must be found while a person indicated in Article 74 of the Constitution is in office. In this context, the Constitutional Court emphasised that the special status of officials (highest state officials) whose constitutional liability is decided in the impeachment process, including the powers vested in them, implies that the preconditions for discrediting state power can be created not only in cases where the persons specified in Article 74 of the Constitution are found to have committed a crime while holding their respective office, but also where state power is exercised while implementing certain functions by persons who had committed a crime before taking up office and these circumstances transpire while they are in office. A different interpretation of the provisions of Article 74 of the Constitution would be incompatible with the constitutional purpose of impeachment, since it would provide the preconditions for holding office by those highest state officials who, once they are found to have committed a crime before taking up office, would discredit state power and, consequently, lose the trust of citizens. In view of the constitutional purpose of impeachment, under Article 74 of the Constitution, impeachment may be applied both for a crime committed by a person before taking up office specified in this article and for a crime committed by a person while already holding office. However, the circumstance that the actions creating the preconditions for applying impeachment on the above-mentioned grounds had been committed by a person before taking up office implies the particularities of the impeachment process itself.

The Constitutional Court noted that the application of a constitutional sanction may not be dissociated from the establishment of the fact of a violation. The wording “found to have committed a crime” of Article 74 of the Constitution presumes that both the fact of a crime and the official having committed it have been established. When impeachment as a form of constitutional liability is applied and, among other things, when the fact of committing a crime and the official having committed it are established, consideration should be given to the relevant requirements implied by the constitutional principle of the presumption of innocence.

The Constitutional Court emphasised that, under the Constitution, it is exclusively the Seimas who, while implementing its constitutional powers to carry out impeachment, is allowed to adopt a decision on instituting impeachment proceedings against a particular person. Therefore, impeachment proceedings against a particular person for committing a crime are instituted only upon a decision of the Seimas after the members of the Seimas formally bring charges against a particular person or after an effective judgment of conviction is received from a court. In this context, the Constitutional Court noted that, when giving its consent to hold a person criminally liable, the Seimas takes the sole decision that the circumstances important for applying impeachment for committing a crime will be established by judicial institutions; taking such a decision does not in itself constitute the institution of impeachment proceedings.

The Constitutional Court held that the Seimas may by itself establish the circumstances important for impeachment for committing a crime only in cases where the fact of committing a crime (and the official having committed it) is obvious, as well as where an impeachment of the President of the Republic is carried out (the special constitutional status of the President of the Republic determines that the circumstances important for the application of his/her impeachment for having committed a crime may be established by the Seimas alone).

The fact of committing a crime (and the official having committed it) can be considered obvious only where there is reliable information (submitted by the authorised institution to the Seimas) that a particular person indicated in Article 74 of the Constitution was found in the act of committing a crime, and, in order to state the circumstances important for applying impeachment on the constitutional grounds “found to have committed a crime”, i.e. to state the fact of committing a crime and the official having committed it, the participation of judicial institutions carrying out pretrial investigation and considering criminal cases is not required. In other cases, among other things, where a crime is committed by a person before taking up office, the fact of committing a crime cannot be considered obvious. Therefore, in these cases (except where impeachment is applied to the President of the Republic), the circumstances important for the application of impeachment, i.e. the fact of committing a crime (and the official having committed it), must be established by authorised judicial institutions after the Seimas gives its consent to hold a particular person indicated in Article 74 of the Constitution criminally liable.

Even in the above-mentioned exceptional case where the fact of committing a crime is obvious and can be established by the Seimas itself, the Seimas may decide according to the procedure provided for in the Statute of the Seimas whether to give its consent to hold a particular person indicated in Article 74 of the Constitution (except the President of the Republic) criminally liable. After the Seimas gives its consent to hold a person criminally liable, the impeachment proceedings may be continued in the Seimas against the person for having committed a crime the fact of committing which is obvious, while judicial institutions may decide concerning the criminal liability of this person. A different interpretation of the provisions of the Constitution (that, purportedly, after the Seimas decides to carry out impeachment for a crime the fact of committing which is obvious, the Seimas may not give its consent to hold a person having committed this crime criminally liable) would make it complicated to hold the said person criminally liable or would even create the preconditions for a person against whom impeachment is applied for a crime the fact of committing which is obvious to avoid criminal liability.

In all other cases, impeachment for committing a crime, after the Seimas gives its consent to hold a particular person indicated in Article 74 of the Constitution criminally liable, may be carried out only following the establishment by authorised judicial institutions of the circumstances important for the application of impeachment on the constitutional grounds “found to have committed a crime”, i.e. following the establishment of the fact of committing a crime and the official having committed the crime by an effective judgment of conviction by a court. The Constitutional Court emphasised that impeachment on the above-mentioned grounds (except where the fact of committing a crime is obvious) is possible in cases where the circumstances important for the application of impeachment are established by an effective judgment of conviction by a court conclusively, i.e. finally (in view of the powers of the courts of general competence).

It was also noted in the ruling that, under the Constitution, in the event of the application of impeachment against a person indicated in Article 74 of the Constitution for a crime committed by this person before taking an oath (i.e. before taking up office), no inquiry must be filed with the Constitutional Court asking whether the concrete actions of a person against whom an impeachment case has been instituted are in conflict with the Constitution.

Assessing the constitutionality of the legal regulation established in Article 227 of the Statute of the Seimas regarding impeachment proceedings, the Constitutional Court held that, since this legal regulation provided for the possibility of applying impeachment on the constitutional grounds “found to have committed a crime” only in cases where the actions were committed by a person while in office, this legal regulation disregarded the fact that, under the Constitution, impeachment on the said grounds could be applied irrespective of whether a crime found to have been committed had been committed before taking up office or while holding office; thus, the legal regulation in question narrowed the possibility consolidated in Article 74 of the Constitution for applying impeachment for committing a crime and disregarded the constitutional concept of impeachment.