Lt

On the actions of Seimas member Kęstutis Pūkas

The conclusion of the Constitutional Court of the Republic of Lithuania of 19 December 2017

ON THE ACTIONS OF SEIMAS MEMBER KĘSTUTIS PŪKAS

Summary

In this case, subsequent to an inquiry submitted by the Seimas, the Constitutional Court assessed the constitutionality of the actions of Seimas member Kęstutis Pūkas against whom an impeachment case had been instituted. The Constitutional Court examined and evaluated the actions of Seimas member Kęstutis Pūkas specified in the conclusion of the Special Investigation Commission of the Seimas, by which Seimas member Kęstutis Pūkas had degraded the dignity of the persons holding the positions of his secretaries assistants and that of the persons applying for these positions, interfered with their private life, and discriminated them. In this conclusion, the Constitutional Court held that, by these actions, Seimas member Kęstutis Pūkas had grossly violated the Constitution and breached the oath.

The Constitutional Court recalled the fact that, in a democratic state under the rule of law, all state institutions and officials must follow the Constitution and law. In order that the citizens – the national community – could reasonably trust state officials so that it would be possible to ascertain that all state institutions and all state officials follow the Constitution and law and obey them, and that those who do not obey the Constitution and law would not hold the office for which the confidence of the citizens – the national community – is needed, it is necessary to ensure a public democratic control over the activity of the state officials and their accountability to society. One of the forms of such public democratic control is the constitutional institute of impeachment. Under the Constitution, the Seimas may, by at least a 3/5 majority vote of all the members of the Seimas, remove from office the President of the Republic, justices of the Constitutional Court, justices of the Supreme Court, and judges of the Court of Appeal, as well as have the mandate of a member of the Seimas revoked if the Constitutional Court presents the conclusion that the person against whom an impeachment case has been instituted has grossly violated the Constitution and breached his/her oath, or if he/she is found to have committed a crime.

The duty of a member of the Seimas to respect constitutional human rights

In this conclusion, the Constitutional Court held that the requirements, arising from the oath of a member of the Seimas and the constitutional status of a member of the Seimas, to respect and uphold the Constitution and laws, to perform honestly the duties of a representative of the Nation, to act in the interests of the Nation and the State of Lithuania, and to refrain from conduct degrading the reputation and authority of the Seimas also determine the duty to respect the human rights entrenched in, and protected by, the Constitution and not to use the constitutional status of a member of the Seimas as a representative of the Nation to violate the constitutional rights and freedoms of other persons. The constitutional nature of the Seimas as the state institution through which the Nation exercises the supreme sovereign power and the peculiarities of the constitutional status of a member of the Seimas as a representative of the Nation determine the fact that the actions of a member of the Seimas that violate the constitutional rights or freedoms of other persons, especially if they are carried out using the constitutional status of a member of the Seimas, regardless of whether such conduct of a member of the Seimas is related to his/her parliamentary activities, can grossly violate the Constitution and breach the oath of a member of the Seimas, as well as degrade the reputation and authority of the Seimas – the representation of the Nation.

The Constitution, inter alia, Article 21 thereof, contains the prohibition on humiliating human dignity, as well as the duty of the state to ensure the protection and defence of human dignity. Dignity is an inalienable characteristic of a human being as the greatest social value. Every member of society has innate dignity. Only such a state that has respect for the dignity of every human being can be considered to be truly democratic. State institutions and officials have the duty to respect human dignity as a special value.

The dignity of a human being as a free personality is inseparable from the inviolability of his/her person, which is a necessary prerequisite for the expression of his/her freedom of physical activity, of his/her intellectual and creative freedoms, thus, also the expression of his/her free personality. An encroachment on the inviolability of the human person disturbs his/her physical, mental, or spiritual state; thus, human dignity as a special constitutional value is also violated.

Under the Constitution, the protection of human dignity is inseparable from the protection of the private life of a person; the guarantee of the inviolability of a person’s private life must be regarded as one of the elements of the constitutional protection of human dignity.

The prohibition, arising from Article 29 of the Constitution, on discrimination against persons on the grounds of gender, race, nationality, language, origin, social status, belief, convictions, or views should also be considered to be an element of the constitutional protection of human dignity. If human rights are restricted on the aforementioned grounds, the dignity of a discriminated individual is degraded at the same time.

Harassment is one of the forms of discrimination

One of the forms of discrimination (including the degrading of human dignity), prohibited under Article 29 of the Constitution, is harassment, which is understood as offensive, unacceptable, or unwanted conduct that has the purpose or effect of violating a person’s dignity, or of creating an intimidating, hostile, humiliating, or offensive environment for him/her on the grounds of gender, race, nationality, language, origin, social status, belief, convictions, or views, as well as other attributes such as disability, age, or sexual orientation. Harassment encroaches on a person’s physical or psychological integrity, among other things, disturbs his/her physical, mental, or spiritual state, restricts the expression of his/her freedom of physical activity, of his/her intellectual and creative freedoms, thus, also the expression of his/her free personality, and can make his/her relations with other persons more complicated. Harassment can lead to long-term or even permanent consequences that adversely affect a person’s private and social life. Thus, harassment violates the human rights to the protection of dignity and to the inviolability of the human person and of private life, as well as the right not to be discriminated against, which are protected under Paragraphs 1, 2, and 3 of Article 21, Paragraphs 1 and 4 of Article 22, and Article 29 of the Constitution.

Harassment based on gender is understood as unacceptable or unwanted conduct related to a person’s gender, which is expressed by physical, verbal, or non-verbal actions (by means of touch or gestures, verbally, in writing, or by means of pictures) and which, among other things, has the purpose or effect of violating a person’s dignity, or of creating an intimidating, hostile, humiliating, or offensive environment for him/her. The characteristic feature of sexual harassment, which is one of the forms of harassment based on gender, is conduct of a sexual nature seen as unwanted by a harassed person.

In order to identify sexual harassment, it is not necessary that a harassed person should clearly and categorically oppose such conduct where it is clear that this person found it unwelcome and objectively offensive; assessing whether certain conduct is to be considered harassment, as well as harassment based on gender (including sexual harassment), consideration must be given to the fact how the harassed person perceived such conduct (it is not necessary to establish that an individual who allegedly committed harassment did so with the purpose of violating a person’s dignity or of creating an intimidating, hostile, humiliating, or offensive environment for him/her). In the light of the said nature and consequences of harassment, including harassment based on gender and sexual harassment, and in view of the fact that, under Paragraph 4 of Article 22 of the Constitution, courts protect everyone from arbitrary or unlawful interference with his/her private and family life, as well as from encroachment on his/her honour and dignity, committed harassment may not be denied simply because it is denied by a person who allegedly committed it, but it is necessary to take into account all relevant circumstances in order to identify committed harassment.

In this conclusion, it was emphasised that, due to the discriminatory nature of harassment, which brings about the degradation of human dignity, as well as because of the consequences of harassment, such conduct of a member of the Seimas that may be considered to be harassment inevitably undermines the reputation and authority of the Seimas – the representation of the Nation – and discredits state authority irrespective of whether the said conduct of a member of the Seimas is related to his/her parliamentary activity or the use of his/her constitutional status. Such conduct of a member of the Seimas that is discriminatory, degrades human dignity, and can also be regarded as harassment based on gender, as well as sexual harassment, should be considered to be a gross violation of the Constitution (that of the provisions of Paragraphs 1, 2, and 3 of Article 21, Paragraphs 1 and 4 of Article 22, and Article 29 thereof), as well as a breach of the oath of a member of the Seimas.

The assessment of the constitutionality of the actions of Seimas member Kęstutis Pūkas

Having evaluated the evidence collected and examined in this case, the Constitutional Court held that Seimas member Kęstutis Pūkas interacted in an uncivil and disrespectful manner with his female secretaries assistants at work and with the persons applying for these positions during job interviews; when talking to them, he did not refrain himself from picking intimate, disturbing, sex-related, and other exclusively personal topics, which were not related with the responsibilities of a secretary assistant of a member of the Seimas, but were connected, among other things, with the private life of these persons; he commented on their appearance and physical characteristics, he emphasised that his own social status was higher compared to the other employees or the women applying for the positions of his secretaries assistants, he made comments humiliating and degrading the women; he gave his secretaries assistants tasks of a personal nature, which were not related to parliamentary activities and direct responsibilities of a secretary assistant of a member of the Seimas; he invited only young women (girls) for job interviews for the position of a secretary assistant of a member of the Seimas, he gave preference to unmarried female candidates who did not maintain personal relations with anyone at the time, he made no attempt to find out whether the female candidates met the requirements set out in the job description for the position of a secretary assistant of a member of the Seimas, but only gave them disturbing and ambiguous proposals that were incompatible with job interview ethics; he met with the candidates applying for the position of his secretary assistant not only at his workplace, but also in his living quarters at the hotel of the Seimas. The testimony of the witnesses given in the case shows that the conduct of Seimas member Kęstutis Pūkas was seen by his secretaries assistants and the female candidates applying for this position as unwanted, unpleasant, and humiliating; such conduct was systematic and continuous.

According to the Constitutional Court, such actions of Seimas member Kęstutis Pūkas virtually correspond to the characteristics of harassment based on gender and sexual harassment and thus can be regarded as harassment based on gender and as sexual harassment. Even though Seimas member Kęstutis Pūkas asserted that he had not humiliated the above-mentioned persons, that he had not treated them in a disrespectful manner, and had not harassed them, the collected evidence did not confirm these statements of Seimas member Kęstutis Pūkas.

In view of this fact, in this conclusion, the Constitutional Court held that Seimas member Kęstutis Pūkas had disregarded the requirements, arising from the oath of a member of the Seimas and the constitutional status of a member of the Seimas, to respect and uphold the Constitution and laws, to refrain from conduct degrading the reputation and authority of the Seimas – the representation of the Nation, as well as not to violate the constitutional human rights and freedoms; in addition, Seimas member Kęstutis Pūkas had not followed the Constitution and the values protected by it, and had violated the laws. Thus, he had failed to act in the way that the oath taken by a member of the Seimas obliged and had discredited the reputation and authority of the Seimas as the representation of the Nation. The Constitutional Court recognised that Seimas member Kęstutis Pūkas had grossly violated the Constitution (the provisions of Paragraphs 1, 2, and 3 of Article 21, Paragraphs 1 and 4 of Article 22, and Article 29 thereof) and had violated the provisions of the Statute of the Seimas and the laws.

In view of the fact that, under the Constitution, impeachment does not constitute the application of criminal liability (although sometimes the same unlawful actions may incur both constitutional and other legal liability), this conclusion of the Constitutional Court results in the application of constitutional liability to Seimas member Kęstutis Pūkas, however, does not imply, ipso facto, the application of other liability to him.

The requirements of fair legal proceedings applicable in impeachment proceedings

The constitutional concept of impeachment implies fair legal proceedings, in which the priority is given to the protection of the rights of a person, which is guaranteed only if the proceedings are public, the parties to the proceedings enjoy equal rights, and the legal disputes, in particular, those regarding the rights of a person, are decided by ensuring that the person has the right and opportunity to defend these rights; in order that impeachment proceedings could be recognised to be in compliance with the principles of a state under the rule of law, these proceedings must be fair, which means that individuals must be equal both before the law and before the institutions carrying out impeachment, they must have both the right to be heard and a legally guaranteed opportunity enabling them to defend their rights; in a state under the rule of law, the right of persons to defend their rights is unquestionable; if the principles of fair legal proceedings were not observed in the course of impeachment, this would indicate the failure to meet the requirements of a state under the rule of law. The requirement for fair legal proceedings gives rise to the duty of the legislature to establish a legal regulation that would create the preconditions for a member of the Seimas or a state official against whom impeachment is, or has been, instituted to defend his/her rights at all stages of impeachment proceedings.

However, these requirements for fair legal proceedings applicable to impeachment, under the Constitution, are not absolute.

Limiting the publicity of impeachment proceedings

In view of the fact that the values enshrined in the Constitution form a harmonious system and that neither of them can be denied or unreasonably restricted, the requirement for the publicity of impeachment proceedings that is aimed at ensuring the rights of an impeached person must be interpreted in the context of other constitutional values. For the protection of the private or public interest, among other things, in order to protect human dignity and the inviolability of private life, certain elements of proceedings before the Constitutional Court in the course of considering a case on the constitutionality of the actions of an impeached person (including the hearing of the Constitutional Court in which evidence is examined, witnesses are questioned, and court pleadings take place) may be not open to the public by a decision of the Constitutional Court. This is applicable mutatis mutandis at the beginning of, and in the course of carrying out, impeachment proceedings at the Seimas.

Ensuring the rights of persons before the beginning of, and during, impeachment proceedings

The requirement to enable a member of the Seimas or a public official against whom impeachment is about to be, or has been, instituted to defend his/her rights at all stages of the impeachment proceedings should also be interpreted in the context of other provisions of the official constitutional doctrine.

Under the Constitution, impeachment proceedings begin only after the Seimas adopts a resolution on the beginning in the Seimas of impeachment proceedings against a concrete person. Thus, actions preceding the beginning of impeachment, i.e. before the Seimas adopts such a resolution (where such actions include, for instance, the initiative of members of the Seimas to begin impeachment or the investigation of the reasonableness of the charges brought by them in the Special Investigation Commission formed by the Seimas or in another structural unit of the Seimas), do not constitute a stage of impeachment proceedings; therefore, in the course of such actions, a person against whom impeachment has not been instituted yet need not be given the same conditions for the protection of his/her rights as a person against whom impeachment has been instituted and is under way. Giving a person against whom impeachment may be instituted other conditions for the protection of his/her rights may also be based on the purpose of protecting the private or public interest, among other things, on the objective to protect human dignity and the inviolability of private life.

In its nature and essence, the Seimas is a political institution, whose decisions reflect the political will of the majority of the members of the Seimas and are based on political agreements and various political compromises. Therefore, the actions preceding the beginning of impeachment is a parliamentary procedure that cannot be regarded as a legal process stricto sensu: in the course of such a parliamentary procedure, the Seimas does not decide on the application of constitutional liability of a person, but only whether there is a basis for impeachment. This parliamentary procedure must be regulated in such a way that would ensure due process, which means, among other things, that a person against whom impeachment may be instituted must have a real opportunity to know what he/she is being accused of, to submit his/her explanations to the Seimas, or to a commission formed by the Seimas or another structural unit of the Seimas that investigates the reasonableness of the charges brought against the said person, or, at the sitting of the Seimas in which it is decided on whether to begin impeachment, to respond to the arguments on which the charges against this person are based.

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; therefore, when ensuring that impeachment proceedings as a whole comply with the requirements of fair legal proceedings, the proceedings before the Constitutional Court become particularly significant. The rights of an impeached person are properly ensured in such a hearing of the Constitutional Court that is held in compliance with the principles of the right to defence, adversarial argument, and the equality of the rights of the parties, by giving a person against whom impeachment has been instituted and/or his/her representatives an opportunity to put forward their arguments concerning the evaluation of all significant evidence in deciding the issue of constitutional liability and by enabling the person concerned and/or his/her representatives to use other rights that are envisaged for the person concerned and/or his/her representatives.

Thus, under the Constitution, impeachment proceedings as a whole should be considered fair and appropriate if, in compliance with the requirements of due process, a member of the Seimas the issue of whose constitutional liability is being decided and/or his/her representatives are given an opportunity to defend their interests both at the hearing of the Constitutional Court and at the Seimas where, following the entry into force of the conclusion of the Constitutional Court that the concrete actions of the person against whom the impeachment case was instituted are in conflict with the Constitution, impeachment proceedings are continued in accordance with the procedure established by the Statute of the Seimas.

Ensuring the requirements for fair legal proceedings in the impeachment proceedings against Seimas member Kęstutis Pūkas

In this conclusion, the Constitutional Court held that, before the Seimas adopted a decision to begin impeachment proceedings, Seimas member Kęstutis Pūkas had had an opportunity to know, at the Seimas, what he had been accused of, and had been able to provide his explanations and respond to the arguments on which the accusations against him had been based.

When considering this case at the Constitutional Court, a closed hearing of the Constitutional Court was held in order to protect the dignity and inviolability of the private life of the persons who gave testimony at the same hearing, the rights of Seimas member Kęstutis Pūkas to defend his rights in the court were ensured by allowing him and his representatives access to the case material, giving him the right to be heard, either by himself or his representatives, and present explanations in the case, as well as the rights to submit requests, to make disqualification motions, to put questions to witnesses, to participate in court pleadings, and to have the last word.

In view of the fact that there was no violation of the requirement to ensure due process in the course of performing corresponding actions at the Seimas before the adoption of the resolution of the Seimas to begin impeachment, as well as the fact that the rights of Seimas member Kęstutis Pūkas to defence were ensured at the hearing of the Constitutional Court, the impeachment proceedings as a whole concerning the compliance of the actions of Seimas member Kęstutis Pūkas with the Constitution were fair and appropriate.