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On the actions of Seimas member Mindaugas Bastys

The conclusion of the Constitutional Court of the Republic of Lithuania of 22 December 2017

ON THE ACTIONS OF sEIMAS MEMBER MINDAUGAS BASTYS

Summary

In this case, subsequent to an inquiry submitted by the Seimas, the Constitutional Court assessed the constitutionality of the actions of Seimas member Mindaugas Bastys, against whom impeachment proceedings had been instituted. The Constitutional Court held that Seimas member Mindaugas Bastys had grossly violated the Constitution and breached his oath insofar as, in providing answers to the Questionnaire for persons who are candidates to obtain authorisation to handle or access classified information, specifically in replying to the question “Do you know (did you know) any persons who are working (worked) in the intelligence or security services or related institutions of other states? If so, provide information in this regard”, Mindaugas Bastys had concealed his relationships with former KGB official Piotr Voyeyko; in this way, having violated the requirement laid down in the Law on State Secrets and Official Secrets to provide information about relationships affecting the decision to grant authorisation to handle or access classified information, and acting in bad faith, he had sought to obtain authorisation to handle or access classified information; upon obtaining this authorisation, due to his relationships, he could pose a threat to the protection of state secrets.

Other specific actions of Seimas member Mindaugas Bastys that were specified in the inquiry by the Seimas were not investigated by the Constitutional Court, as they did not fall under its jurisdiction.

The Constitutional Court recalled that, in order that the citizens – the national community – could reasonably trust state officials and it would be possible to ascertain that all state institutions and all state officials follow the Constitution and law and obey them, while those who do not obey the Constitution and law would not hold any office for which the confidence of the citizens – the national community – is needed, it is necessary to ensure public democratic control over the activity of state officials and their accountability to society. One of the forms of such public democratic control is the constitutional institution of impeachment. Under the Constitution, by not less than a 3/5 majority vote of all its members, the Seimas may remove the President of the Republic, a justice of the Constitutional Court, a justice of the Supreme Court, and a judge of the Court of Appeal from office, also revoke the mandate of a member of the Seimas, if the Constitutional Court has given a conclusion that the person concerned against whom impeachment proceedings have been instituted has grossly violated the Constitution and breached his/her oath, or that the person concerned is found to have committed a crime.

The duty of a member of the Seimas to provide all the required information in a fair manner for the state institutions that make a decision regarding the right to handle or access classified information; assessment on the constitutionality of the action of Seimas member Mindaugas Bastys insofar as he concealed his relationships with Piotr Voyeyko while seeking in bad faith to obtain authorisation to handle or access classified information

The Constitutional Court held in its conclusion that the oath and constitutional status of a member of the Seimas give rise to the duties of a member of the Seimas to be loyal to the Republic of Lithuania, respect and observe its Constitution and laws, conscientiously perform the duties of a representative of the Nation, and act in the interests of the Nation and the State of Lithuania. These constitutional duties of a member of the Seimas also lead to the duty to protect state secrets that become known to a member of the Seimas in the course of performing his/her duties of a representative of the Nation. This duty, as well as the requirement for a member of the Seimas to act in good faith, gives rise to the duty to provide, in a fair manner, the state institutions that make a decision regarding the right to handle or access information constituting a state secret (or other classified information) with all the required information, including information about relationships with other persons with whom communication can affect the protection of state interests and the protection of state secrets. Failure to fulfil this duty can give grounds for doubting the integrity of the member of the Seimas (including his/her fulfilment of other duties of a representative of the Nation), his/her acting in the interests of the Nation and the State of Lithuania, his/her respect for the Constitution and laws, and thus his/her loyalty to the Republic of Lithuania. The unfair provision of information for the state institutions that make a decision regarding the right to handle or access information constituting a state secret (or other classified information) can also lead to a situation where a person who is not reliable and loyal to the State of Lithuania will be able to access a state secret and, thereby, pose a threat to the protection of state secrets and, thus, also to the values consolidated and protected under the Constitution.

In this constitutional justice case the following was established:

– by the resolution of the Seimas of 13 December 2016, Seimas member Mindaugas Bastys was elected a Deputy Speaker of the Seimas;

– according to the ordinance of the Speaker of the Seimas of 13 May 2015, a person holding the office of a Deputy Speaker of the Seimas must have authorisation to handle or access information classified as “Top Secret”;

– from 14 December 2016 until 5 January 2017, Seimas member Mindaugas Bastys was completing and, on 5 January 2017, signed the Questionnaire for persons who are candidates to obtain authorisation to handle or access classified information (hereinafter referred to as the Questionnaire); in reply to the question “Do you know (did you know) any persons who are working (worked) in the intelligence or security services or related institutions of other states? If so, provide information in this regard” in Item 55 of this Questionnaire, he answered “no”; thus, Mindaugas Bastys did not indicate that he knew persons who worked (had worked) in the intelligence or security services or related institutions of other states;

– on 15 February 2017, while being questioned by the officials of the State Security Department (Valstybės saugumo departamentas (VSD), hereinafter referred to as the VSD), Seimas member Mindaugas Bastys testified that he knew former KGB official Piotr Voyeyko and was definitely aware that Piotr Voyeyko had been a KGB officer, but had forgotten to indicate this;

– the nature of the personal relationships of Seimas member Mindaugas Bastys with Piotr Voyeyko was defined by the VSD as “rather close communication”;

– in the information provided by the VSD for the Speaker of the Seimas, it was indicated that Piotr Voyeyko had worked in the Lithuanian SSR KGB and USSR KGB units that had conducted intelligence and that he had maintained contact with former Lithuanian SSR KGB and USSR KGB staff members residing in Lithuania and Russia;

– having carried out the security screening of Seimas member Mindaugas Bastys, the VSD informed the Speaker of the Seimas about its objection to grant Seimas member Mindaugas Bastys authorisation to handle or access information classified as “Top Secret”, because the relationships of Mindaugas Bastys with the persons indicated in the notification, who were connected with the implementation of the interests of the Russian Federation that were contrary to the interests of the Republic of Lithuania, among them with former KGB official Piotr Voyeyko, as well as other circumstances, provided the grounds for doubting the reliability of Seimas member Mindaugas Bastys, also made him vulnerable, and would endanger the protection of information constituting a state secret if it were entrusted to him; the VSD also notified that Seimas member Mindaugas Bastys had taken part in the international art festival “Open Sea”, which had been held annually in Lithuania and which is regarded as a project of Russian soft power;

– it was not the first time that Seimas member Mindaugas Bastys had completed the Questionnaire for persons who are candidates to obtain authorisation to handle or access classified information; however, in the Questionnaire filled in on 4 September 2006, he similarly did not indicate his personal relationships with Russian diplomats.

Assessing the explanation provided by Seimas member Mindaugas Bastys that, purportedly, while completing the Questionnaire, he had forgotten to indicate former KGB official Piotr Voyeyko, the Constitutional Court drew attention to the fact that Mindaugas Bastys knew Piotr Voyeyko rather well (according to Mindaugas Bastys, they had been acquainted for sixteen years), had maintained rather close communication with him (they had asked each other for support, Mindaugas Bastys had visited Piotr Voyeyko’s home on several occasions, and knew his family members), and had been aware of his activities in the KGB (Piotr Voyeyko had told him about this himself and had mentioned that their communication might be unfavourable to Seimas member Mindaugas Bastys); Mindaugas Bastys himself stated in his explanations that he had understood that communication with Piotr Voyeyko might cause him inconveniences.

Considering the explanation provided by Seimas member Mindaugas Bastys that, purportedly, he had not understood the content of the question contained in Item 55 of the Questionnaire, attention was paid to the fact that he had been elected a member of the Seimas more than once, has higher education, and holds a PhD degree. Given the above, Seimas member Mindaugas Bastys must have understood that Item 55 of the Questionnaire refers to persons having ever worked in the intelligence or security services or related institutions of any other states (including the USSR); he should also have been aware of the activities carried out by the repressive internal affairs and security structures of the USSR in Lithuania, as well as of the historical and political circumstances of these activities; therefore, he could not have had any doubts that the relationships of a person with former officials of USSR security services could be of relevance in screening that person to verify his/her reliability as a candidate to obtain authorisation to handle or access classified information.

It is noted in the conclusion that, for completing the Questionnaire, Seimas member Mindaugas Bastys had enough time to go into the detail of the questions set out in the Questionnaire. He did not address the officials of the VSD to explain to him the question concerning acquaintances with the representatives of the intelligence or security services of other states; nor did he make use of the provided additional opportunities to put down answers to the Questionnaire on a separate sheet and submit them along with the Questionnaire to a person responsible for the protection of classified information in a sealed envelope or, not later than within 20 working days, to send them by post, or to submit them personally to the institution carrying out his screening. In addition, neither during his first or repeated questioning at the VSD, did Seimas member Mindaugas Bastys state that he had not understood the content of the question at issue; this argument was put forward later; therefore, it should be seen as a defensive position of Seimas member Mindaugas Bastys.

The Constitutional Court noted that it was not the first time that Mindaugas Bastys had completed the Questionnaire for persons who are candidates to obtain authorisation to handle or access classified information, and it was not the first time that he had not indicated all his personal relationships affecting the decision to grant authorisation to handle or access classified information.

If the officials of the VSD had not had information about the relationships between Mindaugas Bastys and Piotr Voyeyko and had not asked Seimas member Mindaugas Bastys about these relationships, but had relied solely on the information provided in the Questionnaire by Mindaugas Bastys himself, these relationships would not have transpired. As it was clear from the material of the case, the said relationships had been disclosed not by Seimas member Mindaugas Bastys, but on the initiative of the officials of the VSD, who had relied on the data available to them.

In view of all the above circumstances, the Constitutional Court held in its conclusion that Seimas member Mindaugas Bastys, in replying to the question in Item 55 of the Questionnaire, had concealed his relationships with Piotr Voyeyko while seeking in bad faith to obtain authorisation to handle or access information classified as “Top Secret”. Thereby, he violated the requirement laid down in Item 11 of Paragraph 2 of Article 17 of the Law on State Secrets and Official Secrets not to conceal any information about relationships affecting the decision to grant authorisation to handle or access classified information. Thus, Mindaugas Bastys did not fulfil the duty, stemming from the oath of a member of the Seimas, to respect and observe the laws of the Republic of Lithuania.

By such his action, Mindaugas Bastys failed in the duty of a member of the Seimas to provide, in a fair manner, the state institutions that make a decision regarding the right to handle or access information constituting a state secret (or other classified information) with all the required information, including information about relationships with other persons with whom communication can affect the protection of state interests and the protection of state secrets. Thus, Mindaugas Bastys failed to fulfil the duties of a member of the Seimas to be loyal to the Republic of Lithuania, respect and observe its Constitution and laws, conscientiously perform the duties of a representative of the Nation, and act in the interests of the Nation and the State of Lithuania.

Assessing whether this violation of the Constitution committed by Seimas member Mindaugas Bastys was gross and whether, thereby, the oath of the member of the Seimas had been breached, the Constitutional Court took into account the significance of the constitutional institution of state secrets, the nature of the action committed by Seimas member Mindaugas Bastys by concealing his relationships with Piotr Voyeyko, and the potential threat to the fundamental and other constitutional values related to state secrets.

The Constitutional Court noted that, under the Constitution, a state secret is such information not to be disclosed and not to be imparted whose disclosure could cause harm to the state as the common good of the entire society and the political organisation of the entire society, i.e. could violate the most important relations regulated, defended, and protected under the Constitution; under the Law on State Secrets and Official Secrets, information classified as “Top Secret” means information constituting a state secret, which requires the highest level of protection, since its loss or unauthorised disclosure may violate the fundamental constitutional values – may pose a threat to the sovereignty or territorial integrity of the Republic of Lithuania, lead to particularly serious consequences for the interests of the state, or endanger human life. As mentioned before, the unfair provision of information for the state institutions that make a decision regarding the right to handle or access information constituting a state secret (or other classified information) can lead to a situation where a person who is not reliable and loyal to the State of Lithuania will be able to access a state secret and, thereby, pose a threat to the protection of state secrets and, thus, also to the values consolidated and protected under the Constitution.

Seimas member Mindaugas Bastys had repeatedly failed in his duty to provide, in a fair manner, all the required information for the state institutions that make a decision regarding the right to handle or access information constituting a state secret (or other classified information).

In its conclusion, the Constitutional Court also held that a fair reply to the question of the Questionnaire concerning acquaintances with the officials of the intelligence or security services of other states should be regarded as particularly important in view of the relationships of Seimas member Mindaugas Bastys that were evident from the material of the case and had affected the decision to grant authorisation to handle or access classified information. As mentioned before, besides Piotr Voyeyko, Seimas member Mindaugas Bastys had also maintained relationships with other persons connected with the implementation of the interests of the Russian Federation that are contrary to the interests of the Republic of Lithuania.

In view of all the above circumstances, the Constitutional Court declared that Seimas member Mindaugas Bastys had grossly violated the Constitution (the requirements stemming from Paragraphs 2 and 4 of Article 59 thereof and Article 5 of the Law on the Procedure for the Entry into Force of the Constitution of the Republic of Lithuania) and, at the same time, had breached his oath.

Constitutional liability for actions committed during a previous term of office of a member of the Seimas (during the exercise of powers held previously) is possible only where the member of the Seimas is found to have committed a crime; dismissing part of the case

The Constitutional Court dismissed part of the case related to the inquiry of the Seimas regarding the conclusion on the constitutionality of the following actions of Seimas member Mindaugas Bastys: insofar as, at the end of 2012 and the beginning of 2013, he organised the meetings of representatives of the Rosatom State Atomic Energy Corporation of the Russian Federation with the heads of state authorities of the State of Lithuania while seeking to ensure political support for the plans of this corporation in Lithuania.

The Constitutional Court held that these actions had been carried out not during the current term of the Seimas, but during the 2012–2016 term of the Seimas. The powers and the validity of the oath taken by Mindaugas Bastys as a member of the Seimas of the 2012–2016 term of office had expired.

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) through impeachment proceedings 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. These grounds for impeachment are not identical and may not be interpreted in the same manner.

The impeachment grounds of being “found to have committed a crime” are not linked to the time when a crime is committed. The preconditions for discrediting state power can be created not only in cases where it transpires that the persons specified in Article 74 of the Constitution 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 their respective office and these circumstances transpire already when they are in this office.

The other grounds for impeachment – a gross violation of the Constitution and a breach of the oath, from the aspect of the time of committing the actions constituting these grounds, should be assessed differently compared to the grounds of being “found to have committed a crime”. The wording of Article 74 of the Constitution, under which the Seimas may remove the persons specified in this article from office through impeachment proceedings if they “grossly violate the Constitution or breach their oath”, makes it clear that importance falls not only on the time when the actions grossly violating the Constitution or breaching the oath transpire; the time of committing these actions is also important, i.e. it is important that such actions are committed by the person not at any time, but while holding the respective office and being bound by the oath taken by that person.

The Constitutional Court noted that impeachment proceedings are not an objective in itself. The objective of impeachment proceedings is to decide the question of the constitutional liability of the persons listed in Article 74 of the Constitution. The content of the constitutional sanction (constitutional liability) applied through impeachment proceedings for a gross violation of the Constitution and a breach of the oath comprises both the removal of the person from office and the prohibition stemming therefrom that prevents such a person in the future from holding any constitutionally established office that can be entered only after taking an oath provided for in the Constitution. Thus, as a constitutional sanction applied through impeachment proceedings, removal from office must be related to a gross violation of the Constitution and a breach of the binding oath committed while holding this office (rather than other office or office held previously), i.e. the purpose of this sanction is to remove a person indicated in Article 74 of the Constitution specifically from the office being held by that person – such office that he/she entered after taking the respective oath and was holding at the time when he/she breached his/her binding oath. Obviously, it is impossible to remove a person from office that he/she is no longer holding after his/her powers have expired (ceased); therefore, the constitutional liability of a person indicated in Article 74 of the Constitution for a gross violation of the Constitution and a breach of the oath committed at the time when he/she was holding the said office is also impossible.

Thus, under the Constitution, among other things, Article 74 thereof, it is impossible to apply constitutional liability to a member of the Seimas through impeachment proceedings for his/her actions that may have grossly violated the Constitution and breached his/her oath if these actions were committed during a previous term of office of the member of the Seimas (during the exercise of powers held previously). Accordingly, the Constitutional Court has no powers to assess, in terms of compliance with the Constitution, such actions of a member of the Seimas that were committed during his/her previous term of office as a member of the Seimas (during the exercise of powers held previously), i.e. at the time before the member of the Seimas took his/her currently binding oath of a member of the Seimas.

The Constitutional Court drew attention to the fact that, under the Constitution, it would be possible to apply impeachment to a member of the Seimas for his/her actions that were committed during his/her previous term of office as a member of the Seimas and may have grossly violated the Constitution and breached his/her oath binding at that time if such actions were criminal, i.e. upon the impeachment grounds of being “found to have committed a crime”. In any case, the actions of a member of the Seimas that were committed during his/her previous term of office as a member of the Seimas and may have grossly violated the Constitution and breached his/her oath binding at that time could provide the grounds, according to Article 75 of the Constitution, for expressing no confidence in such a member of the Seimas and dismissing him/her from the office at the Seimas for which he/she was appointed or elected by the Seimas; such actions of a member of the Seimas could also be an object for an investigation by an ad hoc investigation commission of the Seimas if they were of state importance.

The Constitutional Court, without assessing the constitutionality of the above-mentioned specific actions of Seimas member Mindaugas Bastys, noted in the context of this part of the inquiry by the Seimas that the constitutional principle of a free mandate of a member of the Seimas should be interpreted taking into account the constitutionally consolidated concept of pluralist democracy. Under the Constitution, a member of the Seimas may hold and freely express convictions other than those held by the majority of members of the Seimas, among other things, he/she is not obliged to follow the same concept of state interests as the one held by the majority of members of the Seimas. Therefore, under the Constitution, a member of the Seimas, as a representative of the Nation, may communicate with various people, among them with people whose views and convictions differ from those held by the majority of members of the Seimas or the majority of members of society. However, in view of the constitutional concept of a free mandate of a member of the Seimas, when communicating with other people, a member of the Seimas, as a representative of the Nation, must follow the interests of the Nation and the State of Lithuania, which are oriented towards the Constitution and values protected under the Constitution, rather than his/her own interests or the interests of his/her close persons, political parties, organisations, or interest groups, or other personal, private, or group interests, inter alia, the interests of another state or persons related to that state that are contrary to the interests of the Republic of Lithuania.

Constitutional liability is possible only for actions regarding which a subject holding the right of impeachment initiative has submitted a motion to institute impeachment proceedings; dismissing part of the case

The Constitutional Court also dismissed part of the case concerning the following actions of Seimas member Mindaugas Bastys indicated in the inquiry by the Seimas:

– while questioned at the Seimas at the Committee on National Security and Defence (Nacionalinio saugumo ir gynybos komitetas (NSGK), hereinafter referred to as the NSGK), Seimas member Mindaugas Bastys provided different explanations as to whether he knew about Piotr Voyeyka’s work in the KGB, compared to those provided at the VSD;

– while providing explanations for the officials of the VSD and for the NSGK, Seimas member Mindaugas Bastys tried to conceal his permanent and systematic relationships, as well as their significance and nature, and avoided answering questions he was asked in the course of the investigation, i.e. he sought to deny or diminish his role in organising the meetings of representatives of the Rosatom State Atomic Energy Corporation of the Russian Federation with the highest officials of the Republic of Lithuania; he sought to create the impression that he had taken care of the work related to the closure of the Ignalina nuclear power plant, rather than the implementation of the project of the Baltic (Baltiyskaya) nuclear power plant; he denied he had been given a warning by Algirdas Butkevičius because of the organisation of a meeting with representatives of the Rosatom Corporation; he denied he had met with the officials of the VSD in 2006 and the details of the operational questioning conducted by the officials of the VSD; and provided different explanations regarding the nature, frequency, and time of his contact with Yevgeni Kostin.

Under the Statute of the Seimas, a motion to institute impeachment proceedings may be submitted to the Seimas by a group of not less than 1/4 of the members of the Seimas and by the Commission for Ethics and Procedures; the said right is not conferred on any other subjects. A special investigation commission of the Seimas has the power to investigate the reasonableness of a motion to institute impeachment proceedings only if it is submitted by subjects holding the right of impeachment initiative, also the power to prepare a conclusion regarding the grounds for instituting impeachment proceedings.

The Constitutional Court noted that, under the Constitution, the requirement of the due legal process in parliamentary procedure before instituting impeachment (inter alia, in the course of investigation by a commission set up by the Seimas or another structural subunit of the Seimas into the reasonableness of charges brought by members of the Seimas) implies such a process during which a member of the Seimas or state official against whom impeachment may be instituted could effectively exercise his/her rights, inter alia, be aware of the charges brought against him/her, provide his/her explanations, and respond to the arguments on which the charges against him/her are based. Therefore, this parliamentary procedure must be such that a commission set up by the Seimas or another structural subunit of the Seimas would investigate the reasonableness of charges brought by a subject initiating impeachment, rather than would formulate charges that are in principle new, in particular on the grounds of the explanations provided by the person against whom impeachment may be instituted. Otherwise, the preconditions would be created for deterring the person concerned from exercising the above-mentioned rights.

The Constitutional Court held in the conclusion that the group of members of the Seimas who had initiated the impeachment had not brought charges in relation to the above-mentioned actions of Seimas member Mindaugas Bastys: specifically that, during his questioning at the NSGK, he changed his explanations previously given at the VSD; that, while providing his explanations for the officials of the VSD and for the NSGK, he tried to conceal his permanent and systematic relationships, as well as their significance and nature; also that he avoided answering questions he was asked in the course of the investigation. On the grounds of the explanations provided by Seimas member Mindaugas Bastys, the Special Investigation Commission of the Seimas had formulated charges that were in principle new. The group of members of the Seimas that had initiated the impeachment had not been able to bring any charges at all in relation to the explanations provided by Mindaugas Bastys at the NSGK, since the questioning of Mindaugas Bastys at this committee took place after the said group of members of the Seimas had submitted to the Seimas their motion to institute the impeachment proceedings.

In view of the foregoing, the Constitutional Court did not investigate the constitutionality of the above-mentioned actions of Seimas member Mindaugas Bastys.