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Content updated: 19-01-2018 16:00

One of the actions of Seimas member Mindaugas Bastys specified in the conclusion of the Special Investigation Commission is in conflict with the Constitution

22-12-2017

In its conclusion given today, the Constitutional Court has held that one of the actions of Seimas member Mindaugas Bastys is in conflict with the Constitution 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” in Item 55 of this questionnaire, Mindaugas Bastys concealed his relationships with former KGB official Piotr Voyeyko; in this way, having violated Item 11 of Paragraph 2 of Article 17 of the Law on State Secrets and Official Secrets, namely the requirement to provide information about relationships affecting the decision to grant authorisation to handle or access classified information, and acting in bad faith, he 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 security of state secrets. By this action, Seimas member Mindaugas Bastys grossly violated the Constitution and breached his oath.

The Constitutional Court did not investigate other actions of Seimas member Mindaugas Bastys indicated in the inquiry submitted by the Seimas, as their consideration was found not within the jurisdiction of the Constitutional Court. The inquiry of the Seimas, set out in the resolution of the Seimas of 6 June 2017, requested investigation into the constitutionality of the specific actions of Seimas member Mindaugas Bastys that were specified in the conclusion of the Special Investigation Commission of the Seimas set up for determining the reasonableness of the motion to institute impeachment proceedings against Seimas member Mindaugas Bastys and for preparing a conclusion regarding the grounds to institute impeachment proceedings.

In the constitutional justice case at issue, the Constitutional Court, among other things, noted that, in line with the interpretation of the constitutional principle of a free mandate of a member of the Seimas in the context of 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, a member of the Seimas 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, among other things, the interests of another state or persons related to that state that are contrary to the interests of the Republic of Lithuania.

 

The Constitutional Court held in its conclusion that the Constitution was grossly violated and the oath was breached. The main arguments

 

The Constitutional Court noted in its conclusion that the constitutionally established oath of a member of the Seimas, as consolidated in Article 5 of the Law on the Procedure for the Entry into Force of the Constitution of the Republic of Lithuania, and the constitutional status of a member of the Seimas, as consolidated, among other things, in Paragraphs 2 and 4 of Article 59 of the Constitution, give rise to the duties of a member of the Seimas, among other things, 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 perform the duties of a representative of the Nation 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, among other things, the protection of state secrets. Failure to fulfil this duty can give grounds for doubting the integrity of the member of the Seimas (among other things, 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 the constitutional justice case at issue, mention should be made of the following circumstances significant for this case and their assessment:

  1. From 14 December 2016 until 5 January 2017, Seimas member Mindaugas Bastys was completing and, on 5 January 2017, signed 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.
  2. 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.
  3. The nature of the personal relationships of Seimas member Mindaugas Bastys with Piotr Voyeyko was defined by the VSD as “rather close communication”.
  4. 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, also that he had maintained contact with former Lithuanian SSR KGB and USSR KGB staff members residing in Lithuania and Russia.
  5. 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”.
  6. As it was clear from the notification by the VSD, 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.
  7. 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.
  8. 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, while completing the Questionnaire, he had, purportedly, forgotten to indicate former KGB official Piotr Voyeyko, the Constitutional Court drew attention to the fact that Mindaugas Bastys knew Piotr Voyeyko rather well (they had been acquainted for a long time, according to Mindaugas Bastys, for sixteen years), had maintained rather close communication with him (they had asked each other for support, Seimas member 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); Seimas member 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, the Constitutional Court paid attention 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.

The Constitutional Court noted that, for completing the Questionnaire, Seimas member Mindaugas Bastys had had enough time to go into the detail of the questions set out in the Questionnaire. He had not addressed 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 had he made 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 addition, neither during his first or repeated questioning at the VSD, had Seimas member Mindaugas Bastys stated that he had not understood the content of the question at issue; this argument had been 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.

The Constitutional Court pointed out that, if the officials of the VSD had not had information about the relationships between Seimas member 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 Seimas member Mindaugas Bastys himself, these relationships would not have transpired. As it was clear from the material of the constitutional justice case at issue, 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 rather than the information provided in the Questionnaire by Seimas member Mindaugas Bastys.

In view of the circumstances significant for the case and their assessment, the Constitutional Court held 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 had 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 had not fulfilled the duty, stemming from the oath of a member of the Seimas, to respect and observe the laws of the Republic of Lithuania.

The Constitutional Court also held that, by such his action, Seimas member Mindaugas Bastys had failed to comply with the requirement, stemming from the constitutional duty of a member of the Seimas to protect state secrets and from the oath and constitutional status of a member of the Seimas, that a member of the Seimas must act in good faith. Seimas member Mindaugas Bastys had also failed in his 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, among other things, the protection of state secrets. Thus, Seimas member Mindaugas Bastys had failed to fulfil the duties of a member of the Seimas, stemming from the constitutionally established oath of a member of the Seimas, as consolidated in Article 5 of the Law on the Procedure for the Entry into Force of the Constitution of the Republic of Lithuania, and from the constitutional status of a member of the Seimas, as consolidated, among other things, in Paragraphs 2 and 4 of Article 59 of the Constitution, 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 in this context 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 legal regulation laid down in 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.

The Constitutional Court also pointed out that, 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 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.

The Constitutional Court also stated that, as mentioned before, 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. Thus, Seimas member Mindaugas Bastys had repeatedly failed to fulfil 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), including information about relationships with other persons with whom communication can affect the protection of state interests and, among other things, the protection of state secrets. The Constitutional Court held in the context of this case that a fair reply to the question concerning acquaintances with the officials of the intelligence or security services of other states, set out in Item 55 of the Questionnaire, should be regarded as particularly important in view of the relationships of Seimas member Mindaugas Bastys that were evident from the material of the constitutional justice case at issue and had affected the decision to grant authorisation to handle or access classified information. As mentioned before, it was clear from the notification of 8 March 2017 given by the VSD to the Speaker of the Seimas that, 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 these circumstances, the Constitutional Court held that, by concealing his relationships with Piotr Voyeyko and, thus, seeking in bad faith to obtain authorisation to handle or access information classified as “Top Secret”, Seimas member Mindaugas Bastys had grossly violated the Constitution, among other things, 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.

 

Other actions of Seimas member Mindaugas Bastys specified in the resolution of the Seimas were not investigated, as their consideration was found not within the jurisdiction of the Constitutional Court

 

The Constitutional Court dismissed part of the case concerning the following actions of Seimas member Mindaugas Bastys indicated in the resolution (No XIII-412) of the Seimas of 6 June 2017 on instituting impeachment against Seimas member Mindaugas Bastys and applying to the Constitutional Court:

– while questioned at the VSD and 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;

– 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.

The Constitutional Court drew attention in the conclusion to the fact that, under the legal regulation laid down in the Statute of the Seimas, a special investigation commission 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, following the said investigation, 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 (among other things, 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) entails 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, among other things, 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, among other things, 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 the members of the Seimas (or the structural subunit of the Seimas) initiating impeachment, rather than would formulate charges that are in principle new and have not been brought by the subjects initiating impeachment, in particular on the grounds of the explanations provided for the said commission set up by the Seimas or another structural subunit of the Seimas by the member of the Seimas or state official against whom impeachment may be instituted. Otherwise, the preconditions would be created for deterring a member of the Seimas or state official against whom impeachment may be instituted from exercising the above-mentioned rights of the due legal process.

The Constitutional Court held that the group of members of the Seimas who had initiated the impeachment had brought no charges in relation to the above-mentioned actions of Seimas member Mindaugas Bastys specified in the conclusion of the Special Investigation Commission. On the grounds of the explanations provided for it by Seimas member Mindaugas Bastys, the Special Investigation Commission had formulated charges that were in principle new and had not been brought by the group of members of the Seimas who had initiated the impeachment. Since the group of members of the Seimas who had initiated the impeachment had not proposed a motion to institute impeachment proceedings in relation to the above-mentioned actions of Seimas member Mindaugas Bastys, the Constitutional Court did not investigate these charges.

The Constitutional Court also dismissed part of the case related to the inquiry of the Seimas, as set out in the resolution (No XIII-412) of the Seimas of 6 June 2017 on instituting impeachment against Seimas member Mindaugas Bastys and applying to the Constitutional Court, regarding the conclusion on the constitutionality of the action 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 noted that the above actions, whose assessment in terms of compliance with the Constitution was requested by the Seimas, had been carried out not during the current term of the Seimas, but during the 2012–2016 term of the Seimas. The powers of the members of the Seimas of the 2012–2016 term of office ceased after the newly elected Seimas convened for its first sitting on 14 November 2016. Therefore, 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 Constitutional Court noted that 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. As noted by the Constitutional Court in its ruling of 24 February 2017, the impeachment grounds of being “found to have committed a crime”, as specified in Article 74 of the Constitution, are not linked to the time when a crime is committed.

The other grounds indicated in Article 74 of the Constitution 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 Constitutional Court stated that 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 office referred to in Article 74 of the Constitution, which may be entered only after taking an oath provided for in the Constitution, and while 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 from office of the person who has grossly violated the Constitution and breached the oath 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 or 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, under the Constitution, 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 also 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 particular importance, i.e. of state importance.

This conclusion of the Constitutional Court will enter into force upon its publication on the website of the Constitutional Court.

The full text of the conclusion is available on the website of the Constitutional Court at http://www.lrkt.lt/lt/teismo-aktai/paieska/135/ta1773/content.