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Content updated: 25-06-2020 09:13

The Constitutional Court: An ad hoc investigation commission of the Seimas must not be entrusted with tasks of boundless scope

12-06-2020

By its ruling passed today, the Constitutional Court has recognised that the resolution (No XIII-1495) of the Seimas of 25 September 2018 on forming an ad hoc investigation commission of the Seimas of the Republic of Lithuania for conducting a parliamentary investigation into possible undue influence and/or impact on Lithuanian politicians, state servants, and political processes in Lithuania (as amended) is in conflict with Article 67 of the Constitution, which enshrines the constitutional powers of the Seimas, with Article 76 thereof, under which the structure and procedure of activities of the Seimas is established by the Statute of the Seimas, which has the force of a law, as well as with the constitutional principles of responsible governance and a state under the rule of law. In addition, the resolution (No XIII-2937) of 14 May 2020 of the Seimas on the conclusion of the parliamentary investigation conducted by an ad hoc investigation commission of the Seimas into possible undue influence and/or impact on Lithuanian politicians, state servants, and political processes in Lithuania has been recognised as contrary to the constitutional principles of responsible governance and a state under the rule of law.

The official constitutional doctrine

The Constitutional Court has held on more than one occasion that the constitutional principle of a state under the rule of law is extremely capacious. It covers a wide range of interrelated requirements, among others, that a legal regulation must be clear and certain, that the general principle of law that illegal acts cannot create law (ex injuria jus non oritur) must be respected, and that legal acts may not demand impossible things (lex non cogit ad impossibilia). The constitutional principle of responsible governance, under which all state authorities and officials must exercise their functions in accordance with the Constitution and law, acting in the interests of the People and the State of Lithuania, must properly exercise the powers conferred on them by the Constitution and by law, is also related to the constitutional principle of a state under the rule of law.

The Constitutional Court noted in its ruling that the Constitution, including Articles 67 and 76 thereof, enshrines the powers of the Seimas while taking into account, among other things, the constitutional principles of responsible governance and a state under the rule of law, to establish its structural units, as well as to form ad hoc investigation commissions of the Seimas and to formulate their tasks.

Although the Constitution does not allow any exhaustive (final) list of issues for which the Seimas may establish ad hoc investigation commissions, the Constitution, among other things, the principle of responsible governance enshrined therein, presupposes such an institution of ad hoc investigation commissions of the Seimas and the legal regulation of the formation of such commissions and of their activities where the said ad hoc investigation commissions are formed not in order to investigate any, but only special questions, i.e. those of state importance. The provisions of the Constitution imply the possibility of establishing by law broad powers of ad hoc investigation commissions of the Seimas; however, the same provisions also consolidate the limits on the investigation activity of ad hoc investigation commissions of the Seimas; the said limits must not be expanded by means of laws or other legal acts.

The powers of an ad hoc investigation commission of the Seimas may stem only from an act of the Seimas as the representation of the People, i.e. from the expression of the will of the Seimas, but not from the expression of the will or intention of a certain unit of the Seimas, including an ad hoc investigation commission itself, or of a certain group of members of the Seimas. Due to this, it is only the Seimas that may decide on whether or not to form an ad hoc investigation commission on a certain issue, it is only the Seimas that may establish the composition, tasks, etc. of that commission, as no one else may express such will for the Seimas; thus, neither any structural unit of the Seimas nor any group of members of the Seimas may express such will.

In this ruling, the Constitutional Court stressed that, according to the Constitution, among others, Articles 67 and 76 thereof, as well as the constitutional principles of responsible governance and a state under the rule of law, the Seimas may form an ad hoc investigation commission only to investigate a specifically defined issue of state importance, i.e. it is necessary to establish such tasks (required for the investigation of that issue) of the ad hoc investigation commission of the Seimas that would make clear the limits of the investigation activity of that commission, including what information (information from which area) on processes taking place in the state and society and what issues (issues from which area) are to be collected for the Seimas.

Thus, under the Constitution, among others, Articles 67 and 76 thereof, the constitutional principles of responsible governance and a state under the rule of law, the Seimas must not establish such tasks necessary to investigate the issue of state importance for an ad hoc investigation commission of the Seimas which would not make clear the limits of the investigative activity of that commission and/or which would be impossible to carry out. Nor may the issue of state importance and/or tasks necessary to investigate that issue be formulated in such a way as to create the preconditions for the commission itself to choose which investigation tasks and to what extent to carry out and thereby to determine the limits of its investigation. Otherwise, the ad hoc investigation commission of the Seimas would take over the constitutional powers of the Seimas to define the issue of state importance entrusted to such a commission and to establish the tasks necessary for the investigation of this issue.

The assessment of the impugned resolution of the Seimas of 25 September 2018

In this constitutional justice case, the constitutionality of Paragraph 1 of Article 4 of the resolution of the Seimas of 25 September 2018 was impugned. The said paragraph established the issues for the ad hoc investigation commission of the Seimas (hereinafter referred to as the Commission), formed by this resolution; that commission was obliged to examine the said issues by conducting a parliamentary investigation into possible undue influence and/or impact on Lithuanian politicians, state servants, and political processes in Lithuania.

The Constitutional Court noted that, in referring to the issues of a parliamentary investigation in Paragraph 1 of Article 4 of this resolution of the Seimas, the assignment for the Commission, set up under Article 1 of the resolution, to conduct a parliamentary investigation into possible undue influence and/or impact on Lithuanian politicians, state servants, and political processes in Lithuania was detailed. In assessing the parliamentary investigation issues set out in Paragraph 1 of Article 4 of the resolution of the Seimas of 25 September 2018, the Constitutional Court had to disclose their content item by item, among other things, by taking into account that, in the preamble of the resolution, the need for a parliamentary investigation is based on the necessity to carry out a detailed analysis of the factual circumstances established during a former parliamentary investigation conducted by the Committee of the Seimas on National Security and Defence (Seimo Nacionalinio saugumo ir gynybos komitetas; hereinafter referred to as the NSGK), as well as an analysis of other information that had appeared in public about possible undue influence and/or impact on the appointment of law enforcement officials and influencing political processes in the Seimas.

According to Item 1 of Paragraph 1 of Article 4 of the resolution of the Seimas of 25 September 2018, the Commission was obliged to investigate the possible exertion of undue influence and/or impact over the period 2008–2016 by persons and/or groups thereof on political processes of the country (including electoral processes, formation of parliamentary coalitions, formation of parliamentary groups, the work of individual politicians, and the activities and financing of parties and public movements). The Constitutional Court noted that it is not clear from this item:

– who exactly are the interested persons and/or groups thereof, among others, those mentioned in the NSGK’s conclusion or documents, on which the NSGK had relied, whose possible undue influence and/or impact during the period 2008–2016 on political processes must be investigated;

– which political processes in the country in 2008–2016, including the conduct of elections, the formation of which parliamentary coalitions, the work of which parliamentary groups, the work of which individual politicians, the financing of which political parties and public movements and which activities thereof affected by possible undue influence and/or impact must be investigated.

According to Item 2 of Paragraph 1 of Article 4 of this resolution of the Seimas, the Commission was obliged to investigate the possible exertion of undue influence and/or impact by interested persons and/or groups thereof on the law-making process (initiation, preparation, consideration, and/or adoption of legal acts) during the period 2008–2016. The Constitutional Court noted that it is not clear from this item:

– who exactly are the interested persons and/or groups thereof, among others, those mentioned in the NSGK’s conclusion or documents, on which the NSGK had relied, whose possible undue influence and/or impact during the period 2008–2016 on law-making processes must be investigated;

– which law-making processes in the country, among others, the initiation, preparation, consideration, and/or adoption of which legal acts (legal acts from which area) affected during the period 2008–2016 by possible undue influence and/or impact must be investigated.

According to Item 3 of Paragraph 1 of Article 4 of the impugned resolution of the Seimas, the Commission was obliged to investigate the possible exertion of undue influence and/or impact by interested persons and/or groups thereof on the election or appointment and/or activities of the heads and state servants of state institutions during the period 2008–2016. The Constitutional Court noted that it is not clear from this item:

– who exactly are the interested persons and/or groups thereof, among others, those mentioned in the NSGK’s conclusion or documents, on which the NSGK had relied, whose possible undue influence and/or impact during the period 2008–2016 on the election or appointment and/or activities of the heads and state servants of state institutions must be investigated;

– the election or appointment and/or activities of the heads and state servants of which state institutions affected during the period 2008–2016 by possible undue influence and/or impact must be investigated.

According to Item 4 of Paragraph 1 of Article 4 of the impugned resolution of the Seimas of 25 September 2018, the Commission was obliged to investigate the possible exertion of undue influence and/or impact by interested persons and/or groups thereof on the election or appointment and/or activities of the heads of state-owned enterprises (their subsidiaries), the heads of public establishments, and members of administrative or supervisory bodies during the period 2008–2016. The Constitutional Court noted that it is not clear from this item:

– who exactly are the interested persons and/or groups thereof, among others, those mentioned in the NSGK’s conclusion or documents, on which the NSGK had relied, whose possible undue influence and/or impact during the period 2008–2016 on the election or appointment and/or activities of the heads of state-owned enterprises (their subsidiaries), the heads of public establishments, and members of administrative or supervisory bodies must be investigated;

– the election or appointment and/or activities of the heads of which state-owned enterprises (their subsidiaries), among others, of the heads of which enterprises, the heads of which public establishments, members of which administrative or supervisory bodies, mentioned in the NSGK’s conclusion or documents, on which the NSGK had relied, affected during the period 2008–2016 by possible undue influence and/or impact must be investigated.

According to Item 5 of Paragraph 1 of Article 4 of the resolution of the Seimas of 25 September 2018, the Commission was obliged to investigate the information, obtained by the competent authorities from law enforcement and intelligence authorities, directly related to the exertion of undue influence and/or impact on politicians, state servants, and political processes during the period 2008–2016, among other things, to specify how and by what procedure the law enforcement and intelligence authorities provided information (and what was the nature of that information) to the competent authorities and the NSGK on the issues defined in Items1–4 of this paragraph, as well as to specify on the basis of which provided information the competent authorities made their conclusions, also, which legal acts were initiated and what other measures were taken on the basis of that information. The Constitutional Court noted that it is not clear from this item the activities of which competent authorities (authorities from which area) related both to the receipt of information from law enforcement and intelligence authorities and to decisions adopted on the basis of that information must be investigated.

Summarising the tasks formulated for the Commission in Paragraph 1 of Article 4 of the resolution of the Seimas of 25 September 2018, the Constitutional Court noted that, under such a legal regulation, the Commission was instructed to investigate the possible exertion of undue influence and/or impact during the period 2008–2016 by any interested persons and/or groups thereof, among others, those mentioned in the NSGK’s conclusion or documents, on which the NSGK had relied, as well as by any other interested persons and/or groups thereof about whom significant new information appeared in public, on any political processes of the country during that period, on any law-making processes of that period, on the election or appointment and/or activities of the heads and state servants of any state institutions during that period, on the election or appointment and/or activities of the heads of any state-owned enterprises (their subsidiaries), the heads of any public establishments, and members of any administrative or supervisory bodies during that period, as well as to investigate the activities of any competent authorities in relation to the receipt of information from law enforcement and intelligence authorities and the decisions adopted on the basis of that information during that period. In particular, the subject of the investigation by the Commission is not limited to the activities of any interested persons and/or groups thereof, mentioned in the NSGK’s conclusion or documents, on which the NSGK had relied, as well as of any other interested persons and/or groups thereof during the period 2008–2016, nor to any circumstances established or recorded in the NSGK’s conclusion or documents, on which the NSGK had relied, or any other factual circumstances of the period, nor to the activities of any competent authorities (in any area) related to the receipt of information from law enforcement and intelligence authorities and the decisions adopted on the basis of that information.

Thus, under the impugned legal regulation, enshrined in Paragraph 1 of Article 4 of the resolution of the Seimas of 25 September 2018, the Commission was given parliamentary investigation issues formulated so broadly that they entrusted the Commission with the task of investigating in principle all the political and law-making processes in the country during the period 2008–2016, the election or appointment and/or activities of the heads and state servants of all state institutions during that period, the election or appointment and/or activities of the heads of all state-owned enterprises (their subsidiaries), the heads of all public establishments, and members of all administrative or supervisory bodies during that period, the activities of all competent authorities related to the receipt of information from law enforcement and intelligence authorities and the decisions adopted on the basis of that information during that period. Therefore, the issues of the parliamentary inquiry formulated in this way must be assessed as impossible to investigate; nor do they clearly define the limit of the parliamentary investigation entrusted to the Commission, which creates the preconditions for the Commission itself to determine the issues of the conducted investigation.

The Constitutional Court also mentioned that it is evident from Item 8 of the Commission’s conclusion that the Commission itself had determined the subject of the parliamentary investigation, i.e. three episodes that took place in 2013–2014, 2017, and 2018 related to the activities of the Chief Official Ethics Commission and of the Office of the Prosecutor General, as well as related to the application by a group of members of the Seimas to the Constitutional Court regarding the Law on the Accumulation of Pensions.

Taking all this into account, the Constitutional Court drew the conclusion that the legal regulation laid down in Paragraph 1 of Article 4 of the impugned resolution of the Seimas of 25 September 2018 disregarded the requirements, arising from Articles 67 and 76 of the Constitution and from the constitutional principles of responsible governance and a state under the rule of law, to specifically define the state importance issue whose investigation is entrusted to an ad hoc investigation commission of the Seimas, to establish such tasks (necessary for the investigation of state importance issue) of the ad hoc investigation commission of the Seimas that would make clear the limits of the investigation activity of that commission, not to establish such tasks (necessary for the investigation of state importance issue) of the ad hoc investigation commission of the Seimas that would be impossible to carry out, also, not to create the preconditions for the commission at its discretion to choose which investigation tasks and to what extent to carry out and thereby to determine the limits of its investigation, i.e. not to create the preconditions for the commission to take over the constitutional powers of the Seimas to define the state importance issue that must be investigated and to establish the tasks necessary for the investigation of that issue.

Thus, according to the Constitution, the Seimas must not set up such an ad hoc investigation commission that would be entrusted with conducting a parliamentary investigation of boundless scope.

After assessing the impugned Paragraph 1 of Article 4 of the resolution of the Seimas of 25 September 2018 as contrary to the Constitution, the Constitutional Court also assessed as contrary to the Constitution Paragraph 1 of Article 4 of that resolution in its subsequent wording under which the parliamentary investigation limits of the ad hoc investigation commission of the Seimas were further extended with a longer investigation period, ranging from 2008 to 2018. The Constitutional Court also took into account the fact that the provisions of Paragraph 1 of Article 4 of the resolution of the Seimas are essential to detail the assignment of the Commission to conduct the parliamentary investigation laid down in Article 1 of that resolution, as well as the fact that all the other provisions of the resolution of the Seimas of 25 September 2018 (as amended) are intended to implement Article 1 of the resolution, which sets up the Commission and entrusts it with a parliamentary investigation (establishes the composition of the Commission, appoints the Chairperson of the Commission, lays down the deadline for conducting the parliamentary investigation, etc.). Therefore, following the recognition of Paragraph 1 of Article 4 of the resolution of the Seimas of 25 September 2018 as contrary to the Constitution, the other provisions of this resolution (and hence the entire resolution) intended to implement the anti-constitutional provision were also declared to be contrary to the Constitution.

The assessment of the resolution of the Seimas of 14 May 2020 endorsing the Commission’s conclusions

The Constitutional Court has repeatedly held that it administers constitutional justice, that it guarantees both the supremacy of the Constitution in the legal system and constitutional lawfulness. Therefore, having established that a legal act not impugned by the petitioner is in conflict with the Constitution, the preconditions for whose adoption were created by the legal act impugned by the petitioner, the Constitutional Court must state the unconstitutionality of the not impugned legal act. If the Constitutional Court did not state the unconstitutionality of the not impugned legal act related to the impugned legal act, this would not be in line with the constitutional mission of the Constitutional Court to administer constitutional justice, and to guarantee both the supremacy of the Constitution in the legal system and constitutional lawfulness. Taking this into account, the Constitutional Court stressed that, according to the Constitution, it must remove from the legal system all anti-constitutional provisions whose unconstitutionality becomes apparent in a relevant constitutional justice case under consideration.

The Constitutional Court noted that the Commission’s conclusion was endorsed by the resolution of the Seimas of 14 May 2000. Item 1 of the said conclusion indicates the basis of the Commission’s powers – the resolution of the Seimas of 25 September 2018 (as amended), which created the preconditions for the Commission to adopt the conclusion, endorsed by the resolution of the Seimas of 14 May 2020. As it has been held in this ruling of the Constitutional Court that the resolution of the Seimas of 25 September 2018 is in conflict with the Constitution, the resolution of the Seimas of 14 May 2020, endorsing the conclusion of the Commission (whose formation was anti-constitutional), is incompatible with the requirement, arising from the constitutional principle of a state under the rule of law, to respect the general principle of law that illegal acts cannot create law, as well as the requirement, arising from the constitutional principles of a state under the rule of law and of responsible governance, that state authorities must perform their functions in accordance with the Constitution and law, and must properly implement the powers conferred on them by the Constitution and by law.

Thus, the anti-constitutional conclusions of the Commission cannot in themselves be lawful.

The full text of this ruling of the Constitutional Court can be found on the website of the Constitutional Court at https://www.lrkt.lt/lt/teismo-aktai/paieska/135/ta2161/content.