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On changing the final results of the election to the Seimas

Case No. 24/2013

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF THE RESOLUTION OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA (NO. XII-488) “ON AMENDING ARTICLES 1 AND 2 OF THE RESOLUTION OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA ‘ON THE ESTABLISHMENT OF THE FINAL RESULTS OF THE 14 OCTOBER 2012 ELECTION TO THE SEIMAS OF THE REPUBLIC OF LITHUANIA IN THE MULTI-MEMBER ELECTORAL CONSTITUENCY’” OF 2 JULY 2013 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 27 May 2014, No. KT19-N8/2014

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

Vytautas Antanas Matulevičius, a member of the Seimas, acting as the representative of a group of members of the Seimas of the Republic of Lithuania, the petitioner

Vytautas Gapšys, a member of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 20 May 2014, at the Court’s public hearing, heard constitutional justice case No. 24/2013 subsequent to the petition (No. 1B-33/2013) of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether the Resolution of the Seimas of the Republic of Lithuania (No. XII-488) “On Amending Articles 1 and 2 of the Resolution of the Seimas of the Republic of Lithuania ‘On the Establishment of the Final Results of the 14 October 2012 Election to the Seimas of the Republic of Lithuania in the Multi-Member Electoral Constituency’” of 2 July 2013 is not in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 7, Item 1 of Paragraph 3 of Article 105, and Paragraphs 2 and 3 of Article 107 of the Constitution of the Republic of Lithuania and the constitutional principles of a state under the rule of law and responsible governance.

The Constitutional Court

has established:

I

The petition of the group of members of the Seimas, the petitioner, is substantiated by the following arguments.

  1. Seven months after the adoption of the Constitutional Court’s conclusion “On the Inquiries of the Seimas of the Republic of Lithuania and the President of the Republic of Lithuania Whether the Republic of Lithuania’s Law on Elections to the Seimas Was Not Violated During the 2012 Election to the Seimas” of 10 November 2012 (hereinafter referred to as the Constitutional Court’s conclusion of 10 November 2012) and the adoption of the Seimas Resolution (No. XI-2420) “On the Establishment of the Final Results of the 14 October 2012 Election to the Seimas of the Republic of Lithuania in the Multi-Member Electoral Constituency” of 14 November 2012 (hereinafter also referred to as the Seimas resolution of 14 November 2012), i.e., the final decision of the Seimas on the results of the 2012 election to the Seimas in the multi-member electoral constituency, the Seimas, having reviewed the final results of the said election to the Seimas, on 2 July 2013, passed the Resolution (No. XII-488) “On Amending Articles 1 and 2 of the Resolution of the Seimas of the Republic of Lithuania ‘On the Establishment of the Final Results of the 14 October 2012 Election to the Seimas of the Republic of Lithuania in the Multi-Member Electoral Constituency’”(hereinafter also referred to as the Seimas resolution of 2 July 2013), through which Živilė Pinskuvienė (No. 23), Jolanta Gaudutienė (No. 24), Jonas Pinskus (No. 25), and Vytautas Gricius (No. 35), who had previously been removed from the list of the candidates of the Labour Party for members of the Seimas, were again included in the final order of candidates on the list of the candidates of the Labour Party for members of the Seimas, and the legal preconditions were created for these candidates to take up, under Item 2 of Article 97 of the Republic of Lithuania’s Law on Elections to the Seimas (wording of 18 July 2000) (hereinafter referred to as the Law on Elections to the Seimas), the available vacant seats of members of the Seimas once such vacancies occur. The order of all the candidates for members of the Seimas on that list changed in a corresponding manner (Nos. 26–34 appeared instead of the previous Nos. 23–31, and Nos. 36–140—instead of the previous Nos. 32–136).
  2. The preamble to the Seimas resolution of 2 July 2013 sets out the legal grounds and circumstances through which the Seimas substantiated the adoption of that resolution: purportedly, that Seimas resolution was, among other things, adopted “on the basis of the Constitutional Court’s conclusion of 10 November 2012”, although, in namely that conclusion, the Constitutional Court ruled Items 2 and 3 of the Decision of the Central Electoral Commission of the Republic of Lithuania (No. Sp-321) “On the Final Election Results of the 14 October 2012 Election to the Seimas of the Republic of Lithuania” of 4 November 2012 (hereinafter referred to as the Central Electoral Commission’s decision (No. Sp-321) of 4 November 2012) to be defective; also that Seimas resolution was adopted by taking into consideration “the newly established circumstances that there is no evidence that Živilė Pinskuvienė, Jolanta Gaudutienė, Jonas Pinskus, and Vytautas Gricius organised the bribery of voters or otherwise engaged in bribing voters in the 2012 election to the Seimas”, although at the sitting of the Seimas on 13 June 2013, during which the draft of Seimas resolution No. XIIP-492 was submitted, or during the consideration of that draft resolution of the Seimas on 19 June 2013 and on 2 July 2013 at the Committee on State Administration and Local Authorities, which had been appointed as the steering committee, or during any other law-making stages established in the Statute of the Seimas of the Republic of Lithuania (during consideration at a sitting of the Seimas or at its committees, or during the adoption of the resolution), no documents confirming the aforementioned newly established circumstances were provided. While voting on the Seimas resolution in question, the members of the Seimas were able to rely solely on the words of the drafters of that legal act and the words of the First Deputy Speaker of the Seimas.
  3. Such a practice of the review of the final Seimas decision adopted in relation to the establishment of the results of the election to the Seimas when, after the election to the Seimas, by taking account of certain political arrangements or the interests of a concrete party to the effect that the final order of candidates on the list of the candidates put up by that party for the election to the Seimas would include those persons whose inclusion in such a list of candidates was ruled by the Constitutional Court in its conclusion to be unlawful, the Seimas is allowed to alter its final decision on the election results and to disregard the facts held in the Constitutional Court’s conclusion as well as the legal significance of such a conclusion (Paragraphs 1 and 2 of Article 107 of the Constitution), is not in line with the Constitution.

Under Item 6 of Article 63 of the Constitution, the Seimas is allowed only to revoke the powers of a member of the Seimas where, already after the members of the Seimas are elected and acquire their powers, i.e., after a newly elected Seimas convenes for its first sitting, the election is recognised as invalid, or certain gross violations of the election law during the election to the Seimas are established, and these violations raise reasonable doubts regarding the lawfulness of the election of certain members of the Seimas, but it is possible to determine the election results reflecting the genuine will of the voters.

  1. The Seimas resolution of 2 July 2013 was adopted in disregard of the Constitution, inter alia, the constitutional principles of the separation of powers, a state under the rule of law, and responsible governance, and the Constitutional Court’s conclusion of 10 November 2012. That resolution has created preconditions for doubting the Seimas and has undermined the confidence of people in law and the state itself.

Under the Constitution, it is only the institution of judicial power—the Constitutional Court—that has the powers to determine whether any violations of the election law were committed during elections to the Seimas. Such a legal fact (which is not an object of political assessment), under Paragraphs 1 and 2 of Article 5 and Item 1 of Paragraph 3 of Article 105 of the Constitution and the constitutional principle of a state under the rule of law, may not be determined by the Seimas—an institution that, by its nature and essence, has a political character and whose decisions reflect the political will of the majority of members of the Seimas and are based on political arrangements, various political compromises, etc.

The powers of the Constitutional Court to decide whether any violations of the election law were committed during elections to the Seimas, also whether those violations were gross and substantial and had an influence on the election results, in addition to the fact that, under Paragraph 2 of Article 107 of the Constitution, such decisions of the Constitutional Court are final and not subject to appeal, provide the constitutional guarantee for candidates for members of the Seimas that the Seimas will not groundlessly (in the absence of an appropriate conclusion from the Constitutional Court) recognise the election results as invalid and will not change them; the Seimas also does not have any powers to alter or question the facts established in a conclusion of the Constitutional Court in relation to violations of the election law, or to decide whether such a conclusion is well-grounded and lawful.

Thus, when conclusively deciding, under Paragraph 3 of Article 107 of the Constitution, which candidates were or were not elected as members of the Seimas in the multi-member electoral constituency, as well as when establishing the final order of candidates on the list of the candidates put up by the Labour Party for members of the Seimas, and when approving the final list of the members of the Seimas elected in the multi-member electoral constituency, the Seimas was not allowed to change or question the facts, established in the Constitutional Court’s conclusion of 10 November 2012, that the inclusion of Živilė Pinskuvienė, Jolanta Gaudutienė, Jonas Pinskus, Vytautas Gricius, and Viačeslav Ždanovič in the final order of candidates on the list of the candidates of the Labour Party, and the establishment that Jolanta Gaudutienė, Jonas Pinskus, and Živilė Pinskuvienė had been elected to the Seimas in the multi-member electoral constituency from the list of the candidates of the Labour Party, violated the provisions of the Law on Elections to the Seimas that consolidate the prohibition on bribing voters.

  1. In its resolution of 2 July 2013, the Seimas disregarded the prohibition, stemming from Paragraphs 1 and 2 of Article 107 of the Constitution, on repeatedly establishing, through any laws and other legal acts adopted later, such a legal regulation that is incompatible with the concept of the provisions of the Constitution that is set out in the acts of the Constitutional Court; therefore, that resolution may not be regarded as a lawful ground for Živilė Pinskuvienė, Jolanta Gaudutienė, Jonas Pinskus, and Vytautas Gricius (who, on the basis of the said resolution, were included in the final order of candidates on the list of the candidates of the Labour Party for members of the Seimas) to acquire the right, under Paragraph 2 of Article 97 of the Law on Elections to the Seimas, to take up the available vacant seats of members of the Seimas once such vacancies occur.

II

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from Vytautas Gapšys, a member of the Seimas, acting as the representative of the Seimas, the party concerned, in which it is maintained that the Seimas resolution of 2 July 2013 is not in conflict with the Constitution. The position of the representative of the party concerned is substantiated by the following arguments.

  1. In the Constitutional Court’s conclusion of 10 November 2012, after establishing that in total nearly 3,000 votes might have been bought in favour of Živilė Pinskuvienė, Jolanta Gaudutienė, Jonas Pinskus, Vytautas Gricius, and Viačeslav Ždanovič, it was defectively held that these candidates were not elected as members of the Seimas, since, in that conclusion, it was not established how many possibly bought preferential votes had gone to each of those candidates, and no regard was paid to the will of the voters who had cast their votes honestly.

In determining the actual final election results and the genuine will of the voters, the bought votes should be considered invalid and should be deducted from the total of the received votes. Doing so would create preconditions for ensuring the interests of candidates to be elected honestly, to be protected against any possible manipulations where the buying of votes for contestants is organised and is given publicity, as well as their interests that a speedy, honest, and transparent election process is ensured and the votes cast honestly are preserved. In the case where it would be impossible to determine the scope of vote-buying, it should be held that such a case of vote-buying constitutes a gross violation of elections, which renders it impossible to determine the genuine will of the voters and leads to the invalidity of all or a respective part of the election.

  1. Article 95 of the Law on Elections to the Seimas establishes, inter alia, the duty of the Seimas, after assessing the facts held in the respective Constitutional Court’s conclusion regarding the violation of the Law on Elections to the Seimas as well as after considering other circumstances, to determine the actual final results of the election to the Seimas. The fulfilment of this duty should be governed by the requirements of honesty, transparency, and accuracy, since an improper fulfilment of this duty would create preconditions for reasonably doubting the legitimacy and lawfulness of the election results and for limiting or altogether denying the expression of the supreme sovereign will of the nation through its representation—the Seimas. If Article 95 of the Law on Elections to the Seimas were construed in such a way that, under this article, the Seimas has no right to alter the final results of elections to the Seimas, and if the resolutions of the Seimas on the final results of elections to the Seimas were judged as under no circumstances correctable, this would not be in line with the Constitution; moreover, the foregoing would result in a legislative omission in the Law on Elections to the Seimas and would potentially provide an opportunity for the Seimas to rig election results unquestionably.

Under Paragraphs 3–6 of Article 95 of the Law on Elections to the Seimas, a newly elected Seimas, in the event of extraordinary and newly established circumstances (new facts concerning vote-buying, cases of rigging the results, etc.), may correct the final results of an election to the Seimas, by, at the same time, under Paragraph 6 of the same article, passing a resolution on unlawfully and lawfully elected members of the Seimas, including those members of the Seimas who, based on the final election results, have not been elected to the Seimas. In addition, a resolution of the Seimas on the approval of the final results of an election to the Seimas may be altered at least due to the established possibility of filing with the Constitutional Court an application contesting the compliance of the said resolution of the Seimas with the Constitution and laws. A newly elected Seimas, having convened for its first sitting within 15 days of its election, would have the right to correct the results of the election to that Seimas also in the case where, subsequent to the respective Constitutional Court’s conclusion on the violation of the Law on Elections to the Seimas, the establishment of the final results of the election to the Seimas under Article 95 of the Law on Elections to the Seimas would be prolonged (due to the recounting of the election results carried out on the basis of the vote-count protocols of the electoral commissions, etc.), and the outgoing Seimas would not have enough time and resources to transparently and reasonably establish the final results of the election to the Seimas.

  1. Any pre-trial investigations into the alleged vote-buying with regard to Živilė Pinskuvienė, Jolanta Gaudutienė, Jonas Pinskus, and Vytautas Gricius were not begun, as it had not been established that the said persons had, by any means, bought votes or organised vote-buying; consequently, these candidates did not commit any violations of the Law on Elections to the Seimas. Thus, the Seimas was under the duty to correspondingly change the Seimas resolution of 14 November 2012 (while adopting which, it was not at all assessed whether without counting the votes that might have been bought, Živilė Pinskuvienė, Jolanta Gaudutienė, Jonas Pinskus, Vytautas Gricius, and Viačeslav Ždanovič would be elected as members of the Seimas), since, if that resolution had not been changed, the will of the voters would have been distorted.

From the beginning of the work of the elected new Seimas until then when, according to the representative of the party concerned, it was found that the final results of the 2012 election to the Seimas had been established inaccurately, there was the period of nearly eight months. Due to the possibly unconstitutional Seimas resolution of 14 November 2012, the aforementioned candidates did not become members of the Seimas, but, in order to defend their violated interests, they agreed to be included in the list of the candidates of the Labour Party. Taking account of the foregoing and having regard to the legitimate expectations of the candidates of the Labour Party, the Seimas adopted a compromise decision, by means of which, without revoking the mandates of the incumbent members of the Seimas (elected in the multi-member electoral constituency from the list of the candidates of the Labour Party), it included Živilė Pinskuvienė, Jolanta Gaudutienė, Jonas Pinskus, and Vytautas Gricius in the list of the candidates of the Labour Party (three of them as having priority and the right to become members of the Seimas if other members of the Seimas who have been elected in the multi-member electoral constituency from the list of the candidates of the Labour Party refused or otherwise lost their mandates of a member of the Seimas). The Seimas resolution of 2 July 2013 should be judged as a peaceful arrangement between the parties to the dispute.

  1. All persons who stand as candidates in elections to public authority institutions must be ensured the equality of rights not only when they register as candidates and participate in electoral campaigning but also when the election results are counted and approved. The sole means of guaranteeing the equality of rights among candidates and their right to be elected to public authority institutions is to ensure that elections (an inseparable part of which is the duty of the Seimas to establish the final results of elections to the Seimas) are conducted transparently and honestly. Every case of vote-buying, which can be used as a dishonest means to discredit political opponents, must be investigated particularly carefully, and the responsibility of the persons liable for the commission of such unlawful deeds should not be equated with the establishment of the election results.

As there is no possibility for an individual constitutional complaint, and it is only the Constitutional Court that, under Article 102 of the Constitution, has the right to decide (which takes a long time), inter alia, on whether a resolution of the Seimas establishing the election results is in compliance with the Constitution, the reestablishment of the final results of an election to the Seimas in an honest, transparent, and fair manner under the procedure provided for in Paragraph 5 of Article 95 of the Law on Elections to the Seimas is not only an instrument for consolidating confidence in the Seimas, as the representation of the Nation, but it is also nearly the sole means of defending the violated interests and ensuring the legitimate expectations of the affected candidates, as well as a way of restoring justice.

  1. The final results of elections to the Seimas and the responsibility of the person are separate issues. Criminal liability and impeachment, which may be brought against a person (a candidate standing in an election to an elective public authority institution) who undertakes to commit unlawful acts—buys votes or organises vote-buying, once the unlawful acts committed by the person (candidate) are discovered after that person (candidate) wins the election and becomes a member of a certain public authority institution, as well as the invalidation of an election where a gross violation of the election law, which has a substantial effect on the election results, is found, constitute sufficiently effective measures ensuring that persons are held liable for the committed criminal deeds. However, in determining the election results, the consequences of the aforesaid unlawful deeds—violations of election laws—should be assessed separately from the responsibility of candidates standing in elections to elective public authority institutions. The vote-buying referred to in the Constitutional Court’s conclusion of 10 November 2012 may not be related to Živilė Pinskuvienė, Jolanta Gaudutienė, Jonas Pinskus, and Vytautas Gricius, since otherwise the presumption of innocence would be violated and their constitutional right to due process and an impartial court would be restricted.
  2. When adopting its resolution of 14 November 2012, the Seimas did not properly assess the circumstances determined in the Constitutional Court’s conclusion of 10 November 2012, and it did not clarify and did not establish the actual results of the 2012 election to the Seimas and the actual places of Živilė Pinskuvienė, Jolanta Gaudutienė, Jonas Pinskus, and Vytautas Gricius in the final order of candidates on the list of the candidates of the Labour Party for members of the Seimas, which these candidates would have to take up if only the possibly bought votes cast in favour of each of them separately were not counted. The aforementioned resolution of the Seimas (Paragraph 2 of Article 1 thereof) established a sanction provided for neither in the Constitution nor in the Law on Elections to the Seimas, which was disproportionate and contradicted the Constitution, inter alia, one of the essential legal principles—lex non cogit ad impossibilia (legal acts may not demand impossible things), and which was selectively applied only with regard to Živilė Pinskuvienė, Jolanta Gaudutienė, Jonas Pinskus, and Vytautas Gricius, i.e., the said resolution provided for the removal of these candidates from the list of the candidates of the Labour Party, regardless of the fact that they were by no means related to the organisation or conduct of vote-buying during the 2012 election to the Seimas. The said resolution of the Seimas violated the constitutional rights of the aforementioned candidates to be elected to the Seimas; therefore, while following the constitutional principles of a state under the rule of law, responsible governance, and the transparency and honesty of elections, the Seimas adopted the resolution of 2 July 2013.

III

  1. At the Constitutional Court’s hearing, Vytautas Antanas Matulevičius, a member of the Seimas, acting as the representative of the group of members of the Seimas, the petitioner, virtually reiterated the arguments set forth in the petition and answered the questions of Vytautas Gapšys, a member of the Seimas, acting as the representative of the Seimas, the party concerned, and those of the justices of the Constitutional Court.
  2. At the Constitutional Court’s hearing, Vytautas Gapšys, a member of the Seimas, acting as the representative of the Seimas, the party concerned, virtually reiterated the arguments set forth in his written explanations, supplemented them with the statements based on the jurisprudence of the European Court of Human Rights in relation to the passive electoral right, and answered the questions of Vytautas Antanas Matulevičius, a member of the Seimas, acting as the representative of the group of members of the Seimas, the petitioner, and those of the justices of the Constitutional Court.

The Constitutional Court

holds that:

I

  1. On 14 October 2012, an election to the Seimas was held in the multi-member electoral constituency and single-member electoral constituencies. In the single-member constituencies, 3 members of the Seimas were elected; in Zarasai–Visaginas single-member constituency No. 52, the election results were recognised as invalid. On 28 October 2012, run-off voting took place in 67 out of 71 single-member electoral constituencies.
  2. The Central Electoral Commission, by its decision No. Sp-321 of 4 November 2012, which was published on the Internet on 4 November 2012 and in the Official Gazette “Valstybės žinios”—on 6 November 2012 (Official Gazette Valstybės žinios, 2012, No. 128-6462), approved the final results of the 2012 election to the Seimas in 67 single-member electoral constituencies and the multi-member electoral constituency. Through Item 2 of the said decision, the Central Electoral Commission approved the final order of candidates on the lists of candidates for members of the Seimas in the multi-member electoral constituency, inter alia, the order of candidates on the list of the candidates of the Labour Party for members of the Seimas, and through Item 3, the Central Electoral Commission determined the persons elected to the Seimas, inter alia, in the multi-member electoral constituency, thus including those from the list of the candidates of the Labour Party.

After considering the received complaints, and among them—the complaint filed on 18 October 2012 by the Nationalist Union, the Central Electoral Commission held in its investigation conclusion of 2 November 2012 that certain gross violations of the Law on Elections to the Seimas had been committed in the multi-member electoral constituency during the 2012 parliamentary elections; however, in its decision No. Sp-325 of 4 November 2012, the Central Electoral Commission recognised that those violations did not have a substantial effect upon the establishment of the election results in that electoral constituency.

After receiving complaints, inter alia, the 5 November 2012 complaint from the Nationalist Union concerning the approval of the final results of the 2012 election to the Seimas, as approved by 4 November 2012 decision No. Sp-321 of the Central Electoral Commission, inter alia, in the multi-member electoral constituency, the Seimas, by its Resolution (No. XI-2378) “On the Inquiry to the Constitutional Court of the Republic of Lithuania” of 6 November 2012, and the President, by her Decree (No. 1K-1262) “On the Inquiry to the Constitutional Court of the Republic of Lithuania” of 7 November 2012, applied to the Constitutional Court with the inquiries requesting for a conclusion on whether the Law on Elections to the Seimas was not violated during the 2012 election to the Seimas.

  1. On 10 November 2012, pursuant to Item 1 of Paragraph 3 of Article 105 of the Constitution, the Constitutional Court gave the conclusion, where it, inter alia, recognised that Item 2 of the Decision (No. Sp-321) of the Central Electoral Commission “On the Final Results of the 14 October 2012 Election to the Seimas of the Republic of Lithuania” of 4 November 2012, insofar as it had been decided, when establishing the final order of candidates on the lists of candidates for members of the Seimas in the multi-member electoral constituency, to include Živilė Pinskuvienė (No. 10), Jolanta Gaudutienė (No. 17), Jonas Pinskus (No. 22), Vytautas Gricius (No. 35), and Viačeslav Ždanovič (No. 48) in the final order of candidates on the list of the candidates of the Labour Party for members of the Seimas, as well as Item 3 of the same decision, insofar as it had established that Jolanta Gaudutienė, Jonas Pinskus, and Živilė Pinskuvienė had been elected to the Seimas in the multi-member electoral constituency from the list of the candidates of the Labour Party, violated Paragraph 1 (wording of 15 April 2008) of Article 51 and Article 90 (wording of 15 April 2008) of the Law on Elections to the Seimas.

In the aforesaid conclusion, the Constitutional Court noted that the Central Electoral Commission had failed to take into consideration the available information that mass vote-buying had been organised in penal institutions with the purpose of inducing voters to cast preferential votes for the concrete persons on the list of the candidates of the Labour Party for members of the Seimas. Having established that voters might have been massively bribed by inducing them to cast preferential votes for Jonas Pinskus, Živilė Pinskuvienė, Jolanta Gaudutienė, Vytautas Gricius, and Viačeslav Ždanovič, who had been included in the list of the candidates of the Labour Party, the Central Electoral Commission had not assessed that fact, had counted the ranking points for the said candidates, and had established the final order of the candidates on the list of the Labour Party, into which, inter alia, Živilė Pinskuvienė (No. 10), Jolanta Gaudutienė (No. 17), Jonas Pinskus (No. 22), Vytautas Gricius (No. 35), and Viačeslav Ždanovič (No. 48) had been included; the Central Electoral Commission had failed to assess the influence of the established violations on the results of the election to the Seimas in the multi-member electoral constituency, although they had had a substantial significance for the election results.

  1. On 14 November 2012, the Seimas adopted a resolution, which, under Article 4 of that resolution, came into force from the moment of its adoption. In the preamble to that resolution, it was indicated that the Seimas adopted that resolution “pursuant to Paragraph 3 of Article 107 of the Constitution of the Republic of Lithuania, Paragraphs 4, 5, and 6 of Article 95 of the Republic of Lithuania’s Law on Elections to the Seimas, as well as on the basis of the Constitutional Court’s conclusion ‘On the Inquiries of the Seimas of the Republic of Lithuania and the President of the Republic of Lithuania Whether the Republic of Lithuania’s Law on Elections to the Seimas Was Not Violated During the 2012 Election to the Seimas’ of 10 November 2012”. In that resolution, it was decided:

Article 1.

  1. To establish that, when approving the final order of candidates on the lists of candidates for members of the Seimas in the multi-member electoral constituency in the election to the Seimas of the Republic of Lithuania, Živilė Pinskuvienė (No. 10), Jolanta Gaudutienė (No. 17), Jonas Pinskus (No. 22), Vytautas Gricius (No. 35), and Viačeslav Ždanovič (No. 48) were included in the final order of candidates on the list of the candidates of the Labour Party for members of the Seimas in violation of Paragraph 1 of Article 51 and Article 90 of the Republic of Lithuania’s Law on Elections to the Seimas.
  2. To remove Živilė Pinskuvienė (No. 10), Jolanta Gaudutienė (No. 17), Jonas Pinskus (No. 22), Vytautas Gricius (No. 35), and Viačeslav Ždanovič (No. 48) from the list of the candidates of the Labour Party and to approve the final order of the candidates of the Labour Party for members of the Seimas (appended).

Article 2.

To establish that Živilė PINSKUVIENĖ, Jolanta GAUDUTIENĖ, and Jonas PINSKUS are not elected as Members of the Seimas of the Republic of Lithuania in the multi-member electoral constituency, and that, instead of these persons, according to the final order of candidates on the list of the candidates of the Labour Party for members of the Seimas as approved by Paragraph 2 of Article 1 of this Resolution, Vilija FILIPOVIČIENĖ, Gediminas JAKAVONIS, and Larisa DMITRIJEVA are elected as Members of the Seimas of the Republic of Lithuania.

Article 3.

To establish the final results of the 14 October 2012 election to the Seimas of the Republic of Lithuania in the multi-member electoral constituency and to approve the final list of the Members of the Seimas of the Republic of Lithuania elected in the multi-member electoral constituency (appended).”

Thus, in the aforementioned resolution, based on the Constitutional Court’s conclusion of 10 November 2012, under which the Law on Elections to the Seimas was violated during the 2012 election to the Seimas, the Seimas made the final decision on the results of the 2012 election to the Seimas in the multi-member electoral constituency, through which, inter alia, it approved the final order of candidates on the list of the candidates of the Labour Party for members of the Seimas (by excluding Živilė Pinskuvienė, Jolanta Gaudutienė, Jonas Pinskus, Vytautas Gricius, and Viačeslav Ždanovič) as well as the final list of the members of the Seimas elected in the multi-member electoral constituency (by establishing that Živilė Pinskuvienė, Jolanta Gaudutienė, and Jonas Pinskus were not elected as members of the Seimas in the multi-member electoral constituency), and which meant that, together with the members of the Seimas elected in single-member electoral constituencies, more than 3/5 of members of the Seimas were elected, i.e., under Paragraph 2 of Article 55 of the Constitution, a new Seimas was elected. On 16 November 2012, the newly elected Seimas convened for its first sitting, during which the elected members of the Seimas took the oath and acquired all the rights of the representatives of the nation.

  1. On 2 July 2013, the Seimas adopted a resolution, which is impugned in the case at issue and which, under Article 3 of that resolution, came into force from the moment of its adoption. The latter resolution, as indicated in the preamble thereto, was adopted by the Seimas, inter alia, “based on the Constitutional Court’s conclusion of 10 November 2012” and “while recognising the necessity to take into consideration the newly established circumstances that there is no evidence that Živilė PINSKUVIENĖ, Jolanta GAUDUTIENĖ, Jonas PINSKUS, and Vytautas GRICIUS organised the bribery of voters or otherwise engaged in bribing voters in the 2012 election to the Seimas”.

Through Article 1 of the Seimas resolution of 2 July 2013, Article 1 of the Seimas resolution of 14 November 2012 was amended and set forth as follows:

“1. To establish that Živilė PINSKUVIENĖ, Jolanta GAUDUTIENĖ, Jonas PINSKUS, and Vytautas GRICIUS did not violate Paragraph 1 of Article 51 and Article 90 of the Republic of Lithuania’s Law on Elections to the Seimas.

  1. To include Živilė PINSKUVIENĖ, Jolanta GAUDUTIENĖ, Jonas PINSKUS, and Vytautas GRICIUS in the list of the candidates of the Labour Party in the following order: Živilė PINSKUVIENĖ (No. 23), Jolanta GAUDUTIENĖ (No. 24), Jonas PINSKUS (No. 25), Vytautas GRICIUS (No. 35), and to approve the final order of candidates on the list of the candidates of the Labour Party for members of the Seimas (appended).”

Through Article 2 of the Seimas resolution of 2 July 2013, Article 2 of the Seimas resolution of 14 November 2012 was amended and set forth as follows:

“To establish that Vilija FILIPOVIČIENĖ, Gediminas JAKAVONIS, and Larisa DMITRIJEVA are elected as Members of the Seimas of the Republic of Lithuania.”

  1. Thus, through its resolution of 2 July 2013, the Seimas altered the final results of the 2012 election to the Seimas in the multi-member electoral constituency, which had been established in its resolution of 14 November 2012, adopted on the basis of the Constitutional Court’s conclusion of 10 November 2012: in the final order of candidates on the list of the candidates of the Labour Party, after the elected 22 members of the Seimas appearing on that list, the Seimas included Živilė Pinskuvienė, Jolanta Gaudutienė, Jonas Pinskus (respectively Nos. 23–25) and Vytautas Gricius (No. 35), who had been, by the Seimas resolution of 14 November 2012, excluded from the candidates for members of the Seimas, i.e., the Seimas included those persons whose inclusion in the final order of candidates on the list of the candidates of the Labour Party for members of the Seimas was judged in the Constitutional Court’s conclusion of 10 November 2012 as a violation of Paragraph 1 (wording of 15 April 2008) of Article 51 and Article 90 (wording of 15 April 2008) of the Law on Elections to the Seimas. The latter resolution created preconditions for the aforementioned persons to take up the available vacant seats of members of the Seimas (to acquire the powers of members of the Seimas) once such vacancies occur under Item 2 of Article 97 of the Law on Elections to the Seimas, which prescribes that, once the powers of a member of the Seimas elected in the multi-member electoral constituency are recognised as having been discontinued, the vacant seat of that member of the Seimas in the Seimas is taken up by the first candidate who has not been awarded a mandate of a member of the Seimas from the list of candidates from which the outgoing member of the Seimas was elected (i.e., the said first candidate becomes a member of the Seimas).

It should be noted that, in the preamble to the Seimas resolution of 2 July 2013, it was indicated that this resolution was adopted by following the same Constitutional Court’s conclusion of 10 November 2012, which had been followed by the Seimas when adopting the resolution of 14 November 2012, as well as that the resolution of 2 July 2013 was grounded in the necessity to take into consideration the newly established circumstances that there was no evidence that the aforementioned candidates for members of the Seimas “organised the bribery of voters or otherwise engaged in bribing voters in the 2012 election to the Seimas”.

II

  1. The group of members of the Seimas, the petitioner, requests an investigation into the compliance of the Seimas resolution of 2 July 2013, which, as mentioned before, altered the final results of the 2012 election to the Seimas in the multi-member electoral constituency, which had been established by the Seimas resolution of 14 November 2012, with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 7, Item 1 of Paragraph 3 of Article 105, and Paragraphs 2 and 3 of Article 107 of the Constitution and the constitutional principles of a state under the rule of law and responsible governance. Thus, in the context of the constitutional justice case at issue, it is important to disclose the constitutional powers of the Seimas to take a decision on the results of an election to the Seimas.
  2. Paragraph 3 of Article 107 of the Constitution stipulates that, on the basis of the conclusions of the Constitutional Court, the Seimas takes a final decision on the issues specified in Paragraph 3 of Article 105 of the Constitution. Under Item 1 of Paragraph 3 of Article 105 of the Constitution, the Constitutional Court gives conclusions on whether the election law was not violated during the elections of members of the Seimas. As held by the Constitutional Court in its decision of 29 November 2012, the Seimas, after receiving the Constitutional Court’s conclusion that the election law was violated during the election of members of the Seimas, is obliged to adopt a final decision.
  3. The powers of the Seimas, established in Paragraph 3 of Article 107 of the Constitution, to take a final decision on the results of an election to the Seimas should be construed in conjunction with, inter alia, the provisions of Item 13 of Article 67 and Paragraph 5 of Article 106 of the Constitution.

Under Item 13 of Article 67 of the Constitution, the Seimas forms the Central Electoral Commission and alters its composition. The Constitutional Court has held that, according to the aforesaid provision, in Lithuania, the universal institution for the organisation of elections—the Central Electoral Commission—must be formed (the Constitutional Court’s decision of 11 July 1994 and its conclusion of 26 October 2012). It should be noted that the constitutional purpose of the Central Electoral Commission to organise elections also implies the powers of this commission to determine and announce the results of elections to the Seimas.

Paragraph 5 of Article 106 of the Constitution provides that the Seimas and the President may request from the Constitutional Court conclusions on whether the election law was not violated, inter alia, during elections of members of the Seimas (Item 1 of Paragraph 3 of Article 105 of the Constitution). It should be noted that a doubt as to whether the election law was not violated, inter alia, when the Central Electoral Commission was implementing its powers consolidated in the Constitution and laws in relation to the establishment of the final results of elections to the Seimas, may constitute a ground to request the aforesaid conclusion from the Constitutional Court; under Item 1 of Paragraph 3 of Article 105 of the Constitution, the Constitutional Court must verify whether such a doubt is justified.

It should be emphasised that, once the Constitutional Court gives the conclusion that the election law was not violated during the election of members of the Seimas, there is no ground to doubt the results established by the Central Electoral Commission for the election to the Seimas and no ground for the Seimas to take a final decision provided for in Paragraph 3 of Article 107 of the Constitution. Thus, under Paragraph 3 of Article 107 of the Constitution, the Seimas has the powers to take a final decision on the results of an election to the Seimas only in the cases where, subsequent to an inquiry of the Seimas or the President, the Constitutional Court gives the conclusion that the election law was violated during the election of members of the Seimas.

  1. It should be noted that, under Paragraph 3 of Article 107 of the Constitution, the Seimas takes a final decision on the results of elections to the Seimas only on the basis of the conclusions of the Constitutional Court. It should also be noted that, under Item 1 of Paragraph 3 of Article 105 of the Constitution, it is only the institution of judicial power—the Constitutional Court—that may establish whether the election law was violated during elections to the Seimas; the establishment of violations of the election law is an object of judicial rather than political assessment.

Thus, the provision of Paragraph 3 of Article 107 of the Constitution, under which, based on the conclusions of the Constitutional Court, the Seimas conclusively decides on the issues specified in Paragraph 3 of Article 105 of the Constitution, may not be construed in such a manner that, purportedly, the Seimas is allowed to decide anew the same issue regarding which the Constitutional Court has given its conclusion; under the Constitution, the Seimas has no powers to decide on whether the conclusions of the Constitutional Court on violations of the election law are well-founded and lawful. This, inter alia, means that the Seimas, which is, by its nature and essence, a political institution, whose decisions reflect the political will of the majority of members of the Seimas and whose decisions are grounded in political arrangements and compromises, is not allowed to decide the issue of law as to whether the election law was violated, inter alia, to disregard the Constitutional Court’s conclusions that the election law was violated during elections to the Seimas.

  1. When implementing its powers, established in Paragraph 3 of Article 107 of the Constitution, to take a final decision on the results of elections to the Seimas, the Seimas is obliged to pay regard to the constitutional principles of a state under the rule of law and responsible governance.

5.1. The Constitutional Court has held on more than one occasion that, in a constitutional democracy, representative political institutions may not be formed in such a way that would raise doubts as to their legitimacy and legality, inter alia, as to whether the principles of a democratic state under the rule of law were not violated in the course of the election of persons to representative political institutions; democratic elections are an important form of citizens’ participation in the governance of the state as well as 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 the elections are held by trampling on the principles of democratic elections established in the Constitution and violating democratic electoral procedures (inter alia, the Constitutional Court’s conclusion of 5 November 2004, its ruling of 1 October 2008, and its conclusion of 10 November 2012).

The principle of responsible governance, which is consolidated in the Constitution, implies that all state institutions and officials are obliged to follow the Constitution and law while performing their functions and to properly implement the powers granted to them by the Constitution and laws by acting in the interests of the nation and the State of Lithuania (the Constitutional Court’s conclusions of 26 October 2012 and 10 November 2012).

5.2. When the Seimas is making a final decision on the final election results, an essential significance derives from the fact that during the election certain gross violations of the principles of democratic, free, and fair elections were committed, and that those violations might have distorted the genuine will of the voters. It should be noted that violations of the said electoral principles can be committed not necessarily by candidates for members of the Seimas themselves—these violations can be committed also by other persons seeking the election of certain candidates to the Seimas.

5.3. In its conclusion of 10 November 2012, the Constitutional Court, while construing the requirements stemming from the constitutional principles of a state under the rule of law, responsible governance, and those of democratic, free, and fair elections to the Seimas, inter alia, emphasised that candidates whose election was sought by committing gross violations of the principles of democratic, free, and fair elections may not receive a mandate of a member of the Seimas; otherwise, the confidence of the nation in its representation and the state itself would be undermined.

5.4. Thus, while implementing its powers, provided for in Paragraph 3 of Article 107 of the Constitution, to take a final decision on the results of elections to the Seimas and having regard to the constitutional principles of a state under the rule of law and responsible governance, the Seimas, inter alia, is not allowed to create any preconditions for awarding a mandate of a member of the Seimas for candidates whose election was sought by committing certain gross violations of the principles of democratic, free, and fair elections.

  1. Under Paragraph 3 of Article 107 of the Constitution, on the basis of the Constitutional Court’s conclusion that the election law was violated during the election of members of the Seimas, the Seimas takes a final decision on the results of the election to the Seimas. It should be noted that the Seimas has the powers to conclusively decide on the results of elections to the Seimas insofar as these results are related to the violations of the election law established in the respective conclusion of the Constitutional Court.

6.1. It should be mentioned that the Constitutional Court has held on more than one occasion that the protection of legitimate expectations, legal certainty, and legal security are inseparable elements of the principle of a state under the rule of law. In the context of the constitutional justice case at issue, it should be emphasised that the constitutional principles of the protection of legitimate expectations, legal certainty, and legal security imply, inter alia, the requirement that the stability of the system of state power, inter alia, the stability of the Seimas, as a representative political institution, must be ensured. In view of this fact, it should be noted that the final results of elections to the Seimas that are established by the Seimas under Paragraph 3 of Article 107 of the Constitution may not be altered, unless there is a constitutional ground for doing so.

6.2. For instance, such a constitutional ground is implied by Item 6 of Article 63 of the Constitution, under which the powers of a member of the Seimas cease where the election is recognised as invalid, or it is found that the election law is grossly violated.

In its conclusion of 10 November 2012, the Constitutional Court pointed out that:

– under the Constitution, the gross violations of the principles of democratic, free, and fair elections, inter alia, the honesty and transparency of the election process, committed during elections to the Seimas may also be established later, after the elected members of the Seimas have acquired their powers, i.e., after the elected Seimas convenes for its first sitting;

– Item 6 of Article 63 of the Constitution implies the powers of the Seimas to revoke the powers of a member of the Seimas if the gross violations of democratic, free, and fair elections, which give rise to reasonable doubts regarding the lawfulness of the election of that member of the Seimas, are established after that member of the Seimas has acquired the powers of a member of the Seimas; under Item 6 of Article 63 of the Constitution, the powers of a member of the Seimas may be revoked both when the election is recognised and when it is not recognised as invalid (for example, it is possible to establish the election results reflecting the genuine will of the voters);

– under Item 1 of Paragraph 3 of Article 105, Paragraph 5 of Article 106, and Paragraph 3 of Article 107 of the Constitution, the Seimas may adopt a decision on revoking the powers of a member of the Seimas under Item 6 of Article 63 of the Constitution only on the grounds of the Constitutional Court’s conclusion that the election law was violated during the election to the Seimas, while the Constitutional Court may present the said conclusion only subsequent to an inquiry by the Seimas or the President.

6.3. It has been mentioned that if the gross violations of the principles of democratic, free, and fair elections were committed with the aim of electing certain candidates, these candidates may not be awarded a mandate of a member of the Seimas, since otherwise the confidence of the nation in its representation and the state itself could be undermined; thus, the Seimas may not create any preconditions for awarding such candidates a mandate of a member of the Seimas.

In view of this fact, it should be noted that, in the cases where, after the establishment of the final results of an election to the Seimas, the gross violations of the principles of democratic, free, and fair elections are discovered revealing that those violations were committed with the aim of electing certain candidates who have not acquired the powers of a member of the Seimas and appear on the lists of candidates as potential candidates to take up the available vacant seats of members of the Seimas once such vacancies occur, as well as where the Constitutional Court, having received an inquiry of the Seimas or the President, gives the conclusion that the election law was violated during the election to the Seimas, the Seimas, under the Constitution (Item 6 of Article 63 thereof, construed in conjunction with Item 1 of Paragraph 3 of Article 105, Paragraph 5 of Article 106, and Paragraph 3 of Article 107 of the Constitution), on the grounds of the said Constitutional Court’s conclusion, is allowed to alter the final results of the election to the Seimas in the multi-member electoral constituency, inter alia, by removing from the list of candidates those candidates whose election was sought by committing the gross violations of the aforementioned electoral principles.

6.4. While summarising, it should be noted that, under Paragraph 3 of Article 107 of the Constitution, the final results established by the Seimas for an election to the Seimas may be altered upon the emergence of a constitutional ground only in the same manner in which they have been established, i.e., only on the basis of another conclusion of the Constitutional Court.

  1. While deciding whether the Seimas resolution of 2 July 2013 is not in conflict with, inter alia, Paragraph 3 of Article 107 of the Constitution and the constitutional principles of a state under the rule of law and responsible governance, it should be noted that, as mentioned before, through its resolution of 2 July 2013, the Seimas altered the final results of the 2012 election to the Seimas in the multi-member electoral constituency, which had been established in its resolution of 14 November 2012, adopted on the basis of the Constitutional Court’s conclusion of 10 November 2012; in its resolution of 2 July 2013, the Seimas included in the list of the candidates of the Labour Party and in the final order of the candidates on that list those persons whose inclusion in the final order of candidates on the list of the candidates of the Labour Party for members of the Seimas had been judged by the Constitutional Court in its conclusion of 10 November 2012 as a violation of the provisions of the Law on Elections to the Seimas; thus, the final results of the election to the Seimas, which had been established in the Seimas resolution of 14 November 2012, were altered in the absence of another Constitutional Court’s conclusion and in disregard of the Constitutional Court’s conclusion of 10 November 2012, according to which, during the 2012 election to the Seimas, the election law was violated and preconditions were created for awarding a mandate of a member of the Seimas to the candidates whose election was sought by committing the gross violations of the principles of democratic, free, and fair elections.

7.1. As mentioned before, under Paragraph 3 of Article 107 of the Constitution, the Seimas takes a final decision on the results of elections to the Seimas only on the basis of the conclusions of the Constitutional Court; the Seimas may not decide the issue of law as to whether the election law was violated, inter alia, it may not disregard the Constitutional Court’s conclusion that the election law was violated during the election to the Seimas; while implementing its powers, provided for in Paragraph 3 of Article 107 of the Constitution, to take a final decision on the results of elections to the Seimas and, while having regard to the constitutional principles of a state under the rule of law and responsible governance, the Seimas, inter alia, is not allowed to create any preconditions for awarding a mandate of a member of the Seimas to the candidates whose election was sought by committing the gross violations of the principles of democratic, free, and fair elections.

It has also been mentioned that the final results established by the Seimas for elections to the Seimas under Paragraph 3 of Article 107 of the Constitution may not be altered, unless there is a constitutional ground for doing so; the final results established by the Seimas for elections to the Seimas may be altered upon the emergence of a constitutional ground only in the same manner in which they have been established, i.e., only on the basis of another conclusion of the Constitutional Court.

7.2. Thus, it needs to be held that, in its resolution of 2 July 2013, the Seimas disregarded the requirements, which stem from Paragraph 3 of Article 107 of the Constitution and the constitutional principles of a state under the rule of law and responsible governance, that, when taking a final decision on the results of an election to the Seimas, the Seimas is obliged to base its decision on the respective Constitutional Court’s conclusion, also that it may not create any preconditions for awarding a mandate of a member of the Seimas to the candidates whose election was sought by committing the gross violations of the principles of democratic, free, and fair elections, as well as that it may not alter the final results of the election to the Seimas without a constitutional ground and without another conclusion of the Constitutional Court.

In the light of the foregoing arguments, the conclusion should be drawn that the Seimas resolution of 2 July 2013 is in conflict with Paragraph 3 of Article 107 of the Constitution and the constitutional principles of a state under the rule of law and responsible governance.

  1. Having held the foregoing, in the constitutional justice case at issue, the Constitutional Court will not further investigate whether the Seimas resolution of 2 July 2013 is not in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 7, Item 1 of Paragraph 3 of Article 105, and Paragraph 2 of Article 107 of the Constitution.
  2. The Constitutional Court has held on more than one occasion that the constitutional principle of a state under the rule of law, among other things, means that all institutions implementing state power must act on the basis of law and in compliance with law; law does not arise from illegal acts.

Under Paragraph 1 of Article 7 of the Constitution, any law or any other act that contradicts the Constitution is invalid, and, under Paragraph 1 of Article 107 of the Constitution, an act of the Seimas may not be applied from the day of the official publication of the decision of the Constitutional Court that the act is in conflict with the Constitution.

Thus, it needs to be held that the Seimas resolution of 2 July 2013, which was adopted in violation of the Constitution, did not alter the final results of the election to the Seimas, also that it provided no grounds for anyone to acquire the right to take up the available vacant seats of members of the Seimas (to acquire the powers of a member of the Seimas) once such vacancies occur, as well as that the final results of the 2012 election to the Seimas are established in the Seimas resolution of 14 November 2012.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that the Resolution of the Seimas of the Republic of Lithuania (No. XII-488) “On Amending Articles 1 and 2 of the Resolution of the Seimas of the Republic of Lithuania ‘On the Establishment of the Final Results of the 14 October 2012 Election to the Seimas of the Republic of Lithuania in the Multi-Member Electoral Constituency’” of 2 July 2013 (Official Gazette Valstybės žinios, 2013, No. 73-3659) is in conflict with Paragraph 3 of Article 107 of the Constitution of the Republic of Lithuania and the constitutional principles of a state under the rule of law and responsible governance.

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

Justices of the Constitutional Court:                        Elvyra Baltutytė

                                                                                             Vytautas Greičius

                                                                                             Pranas Kuconis

                                                                                             Gediminas Mesonis

                                                                                             Vytas Milius

                                                                                             Egidijus Šileikis

                                                                                             Algirdas Taminskas

                                                                                             Dainius Žalimas