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Content updated: 10-01-2018 08:58

The actions of Seimas member Kęstutis Pūkas specified in the conclusion of the Special Investigation Commission are in conflict with the Constitution

19-12-2017

In its conclusion presented today, the Constitutional Court has held that the actions of Seimas member Kęstutis Pūkas specified in the conclusion of the Special Investigation Commission for Impeachment against Seimas Member Kęstutis Pūkas, which were performed with regard to the persons holding the positions of the secretaries assistants of the same member of the Seimas and the persons applying for these positions, are in conflict with the Constitution. By these actions, Seimas member Kęstutis Pūkas has grossly violated the Constitution and breached the oath.

In its jurisprudence, the Constitutional Court has held that state officials must have the trust of citizens. A public democratic control over the activities of state officials is needed in order for citizens to have reasonable trust in public officials. One such form of control is the constitutional institute of impeachment. Under the Constitution, only two state institutions – the Seimas and the Constitutional Court – have powers in impeachment proceedings. An impeachment case may be instituted only on the proposal of members of the Seimas. The Constitutional Court presents a conclusion on whether the concrete actions of a person against whom an impeachment case has been instituted are in conflict with the Constitution. If the Constitutional Court holds that a person has grossly violated the Constitution, the Seimas may revoke his/her mandate of a member of the Seimas by not less than 3/5 majority vote of all the members of the Seimas.

 According to the conclusion of the Constitutional Court, there have been a gross violation of the Constitution and a breach of the oath. The key arguments

 The conclusion of the Special Investigation Commission for Impeachment against Seimas Member Kęstutis Pūkas, among other things, indicates that: Seimas member Kęstutis Pūkas, both verbally and by non-verbal body language, degraded the dignity of the persons holding the positions of his secretaries assistants and that of the persons applying for these positions, clearly discriminated them, and unreasonably interfered with their private life; by such actions, Seimas member Kęstutis Pūkas discredited the authority of the state and of the Seimas. In this regard, the Special Investigation Commission is of the opinion that the actions of Kęstutis Pūkas are to be regarded as a breach of the oath of a member of the Seimas (by taking which the member of the Seimas committed himself to respecting and upholding the Constitution and laws), as well as a gross violation of the Constitution.

In this conclusion, the Constitutional Court has held that the requirements, arising from the oath of a member of the Seimas and the constitutional status of a member of the Seimas, to respect and uphold the Constitution and laws, to perform honestly the duties of a representative of the Nation, to act in the interests of the Nation and the State of Lithuania, and to refrain from conduct degrading the reputation and authority of the Seimas also determine the duty to respect the human rights entrenched in and protected by the Constitution and not to use the status of a member of the Seimas to violate the constitutional rights and freedoms of other persons. Actions of a member of the Seimas by which the constitutional rights or freedoms of other persons are violated can grossly violate the Constitution and breach the oath of the member of the Seimas, as well as degrade the reputation and authority of the Seimas – the representation of the Nation.

In its conclusion, the Constitutional Court has noted that one of the forms of discrimination (including the degrading of human dignity), prohibited under Article 29 of the Constitution, is harassment, inter alia, harassment based on gender and sexual harassment. Harassment based on gender is understood as unacceptable or unwanted conduct related to another person’s gender, which is expressed by physical, verbal, or non-verbal actions (among others, by means of touch or gestures, verbally, in writing, or by means of pictures) and, among other things, has the purpose or effect of violating a person’s dignity, or of creating an intimidating, hostile, humiliating, or offensive environment for him/her. The characteristic feature of sexual harassment, which is one of the forms of harassment based on gender, is conduct of a sexual nature seen as unwanted by a harassed person. Such conduct inevitably encroaches on a person’s physical or psychological integrity, disturbs his/her physical, mental, or spiritual state, restricts the expression of his/her freedom of physical activity, of his/her intellectual and creative freedoms, thus, also the expression of his/her free personality, and can make his/her relations with other persons more complicated. Harassment can lead to long-term or even permanent consequences that adversely affect a person’s private and social life. In order to identify sexual harassment, it is not necessary that a harassed person should clearly and categorically oppose such conduct where it is clear that this person found it unwelcome and objectively offensive, but, rather, consideration must be given to the fact how the harassed person perceived such conduct. Among other things, it is not necessary to establish that an individual who allegedly committed harassment did so with the purpose of violating a person’s dignity or of creating an intimidating, hostile, humiliating, or offensive environment for him/her. Committed harassment may not be denied simply because it is denied by a person who allegedly committed it, but it is necessary to take into account all relevant circumstances in order to identify committed harassment.

Having assessed the actions of Seimas member Kęstutis Pūkas, it has been stated that his actions virtually correspond to the above-mentioned characteristics of harassment based on gender and sexual harassment and thus can be regarded as harassment based on gender, among other things, as sexual harassment: the actions of Seimas member Kęstutis Pūkas were seen by the persons holding the positions of his secretaries assistants and the persons applying for these positions as unpleasant, unwanted, and unacceptable; he treated in such a manner exclusively females (young women). When inviting the candidates for the position of his secretary assistant for a job interview, Kęstutis Pūkas gave preference to unmarried female candidates who did not maintain personal relations with anyone at the time, he did not talk to them about subjects related to direct responsibilities, but, rather, about intimate, disturbing, unpleasant, sex-related, and similar sexual and other exclusively personal topics, commented on their appearance and physical characteristics, gave disturbing and ambiguous proposals, interacted with them otherwise in an uncivil and disrespectful manner, and, by such conduct, created an unpleasant, degrading, and offensive environment for them. Part of the actions of Seimas member Kęstutis Pūkas was sexual in nature. Seimas member Kęstutis Pūkas engaged in such conduct more than once and harassed more than one person. The above-mentioned persons felt humiliated and offended, had to endure tension, stress, and fear, as well as suffered long-lasting unpleasant consequences. Such conduct of Seimas member Kęstutis Pūkas should objectively be regarded as manifestly offensive and unacceptable.

Although Seimas member Kęstutis Pūkas claims that he did not humiliate the above-mentioned persons, that he did not treat them in a disrespectful manner or harassed them, the Constitutional Court, based on the examination and assessment of the gathered evidence, has held that there are no grounds to believe that the witnesses testified falsely or pointed out circumstances that did not correspond to reality, that they were connected in any way with one another, that they were acquaintances, or that they, in concert or alone, were consciously conspiring against Seimas member Kęstutis Pūkas.

The Constitutional Court has also noted that, according to the Constitution, the oath of a member of the Seimas gives rise to the duty to respect and uphold not only the Constitution, but also the laws.

Based on the circumstances established in this case, the Constitutional Court has held that Seimas member Kęstutis Pūkas violated Paragraph 2 of Article 16 of the Statute of the Seimas and the provisions of Article 4 of the Code of Conduct for State Politicians. In addition, the said actions of Seimas member Kęstutis Pūkas may be regarded as harassment in the sense of Paragraph 5 of Article 2 of the Law on Equal Opportunities for Women and Men and Paragraph 5 of Article 2 of the Law on Equal Opportunities, among other things, as sexual harassment in the sense of Paragraph 6 of Article 2 of the Law on Equal Opportunities for Women and Men.

Due to the discriminatory nature of harassment, which brings about the degradation of human dignity, as well as its consequences, such conduct of a member of the Seimas inevitably undermines the reputation and authority of the Seimas – the representation of the Nation – and discredits state authority irrespective of whether such conduct of a member of the Seimas is related to his/her parliamentary activity or the use of his/her constitutional status. The conduct of a member of the Seimas that is discriminatory, degrades human dignity, and can also be regarded as harassment based on gender, among other things, as sexual harassment, should be considered a gross violation of the Constitution, inter alia, Paragraphs 1, 2, and 3 of Articles 21, Paragraphs 1 and 4 of Article 22, and Article 29 thereof, as well as a breach of the oath of a member of the Seimas.

Taking into account the fact that the conduct of Seimas member Kęstutis Pūkas was discriminatory and degraded the dignity of the persons holding the positions of his secretaries assistants and the persons applying for these positions, as well as the fact that his actions should be considered harassment based on gender and sexual harassment, the Constitutional Court has held that Seimas member Kęstutis Pūkas grossly violated the Constitution and breached the oath.

The impeachment proceedings are lawful

 In this constitutional justice case, Seimas member Kęstutis Pūkas, the person concerned, argued that the Special Investigation Commission, having adopted the conclusion on the basis of which impeachment proceedings were instituted against him, committed procedural violations that prevented him from using his right to defence; therefore, the instituted impeachment proceedings may not be considered lawful.

In its jurisprudence, the Constitutional Court has held that the constitutional concept of impeachment implies fair legal proceedings, in which the priority is given to the protection of the rights of a person. The protection of the rights of a person is guaranteed only if the proceedings are public, the parties to the proceedings enjoy equal rights, and the legal disputes, in particular those regarding the rights of a person, are decided by ensuring that the particular person has the right and opportunity to defend these rights.

In this conclusion, it has been noted that, under the Constitution, impeachment proceedings begin only after the Seimas adopts a resolution on the beginning in the Seimas of impeachment proceedings against a concrete person; thus, actions preceding the beginning of impeachment, i.e. before the Seimas adopts such a resolution (where such actions include, among other things, the initiative of members of the Seimas to begin impeachment or the investigation of the reasonableness of the charges brought by them in the Special Investigation Commission formed by the Seimas), do not constitute a stage of impeachment proceedings; therefore, in the course of such actions, a person against whom impeachment may be instituted need not be given the same conditions for the protection of his/her rights as a person against whom impeachment has been instituted and is under way. The above-mentioned actions preceding the beginning of impeachment is a parliamentary procedure that cannot be regarded as a genuine legal process: in the course of such actions, the Seimas does not decide on the application of constitutional liability of a person, but only whether there is a basis for impeachment. Giving a person against whom impeachment may be instituted other conditions for the protection of his/her rights may be based, among other things, on the objective to protect constitutional values such as human dignity and the inviolability of private life. In order to ensure due process in this procedure, a person against whom impeachment may be instituted must have a real opportunity to know what he/she is being accused of, to submit his/her explanations to the Seimas, to a commission formed by the Seimas, or to another structural unit of the Seimas that investigates the reasonableness of the charges brought against the said person, or to respond to the arguments on which the charges against this person are based at the sitting of the Seimas in which it is decided on whether to begin impeachment. Certain elements of the process before beginning impeachment at the Seimas may also be not open to the public.

According to the Constitution, when ensuring that impeachment proceedings as a whole comply with the requirements of fair legal proceedings, the proceedings before the Constitutional Court during which the case is considered whether the actions of an impeached person are in conflict with the Constitution become particularly significant. Impeachment proceedings as a whole should be considered fair and appropriate if, in compliance with the requirements of due process, an impeached member of the Seimas and/or his/her representatives are given the opportunity to defend their interests both at the hearing of the Constitutional Court and at the Seimas where, following the entry into force of the conclusion of the Constitutional Court that the concrete actions of the person against whom the impeachment case was instituted are in conflict with the Constitution, impeachment proceedings are continued in accordance with the procedure established by the Statute of the Seimas.

It has also been noted in this conclusion that, under the Constitution, the requirements for fair legal proceedings applicable to impeachment are not absolute, among other things, the principle that judicial proceedings must be public is not absolute. In order to protect constitutional values such as human dignity and the inviolability of private life, certain elements of impeachment proceedings before the Constitutional Court (including the hearing of the Constitutional Court in which evidence is examined, witnesses are questioned, and court pleadings take place) may be not open to the public by a decision of the Constitutional Court.

It is clear from the material of this constitutional justice case that Seimas member Kęstutis Pūkas attended the sitting of the Seimas in which the proposal of the Seimas Commission for Ethics and Procedures “To Begin Impeachment against Seimas Member Kęstutis Pūkas” was submitted and considered, and the resolution to begin impeachment was adopted. Seimas member Kęstutis Pūkas and/or his representative provided their explanations to the Special Investigation Commission formed by the Seimas, participated in other sittings of the Seimas concerning the procedures for impeachment against him, but did not take the floor when requested to do so by the chairperson of the sitting.

In the course of the examination of this case before the Constitutional Court, the material of the case was sent to the representatives of Seimas member Kęstutis Pūkas, the summonses to appear at the hearing of the Constitutional Court were properly served on the member of the Seimas and his representatives, and written explanations from the member of the Seimas were received. At the hearing of the Constitutional Court, the representatives of Seimas member Kęstutis Pūkas, the party concerned, were heard, the Seimas member himself was heard during the court pleadings, his representatives were able to submit requests and evidence to the Constitutional Court, to participate in the examination of evidence, to put questions to other persons involved in the case, to give explanations, to participate in court pleadings, and to have the last word.

Thus, in view of the fact that there was no violation of the requirement to ensure due process in the course of performing respective actions at the Seimas before the adoption of the resolution of the Seimas to begin impeachment, as well as the fact that the rights of Seimas member Kęstutis Pūkas to defence were ensured at the hearing of the Constitutional Court, there are no grounds for stating that, as a whole, the impeachment proceedings concerning the compliance of the actions of Seimas member Kęstutis Pūkas with the Constitution were not fair or appropriate and that these proceedings should be considered unlawful.

The purpose of impeachment proceedings is to solve the issue of constitutional liability, which, according to the Constitution, does not constitute the application of criminal liability, although sometimes the same unlawful actions may incur both constitutional and other legal liability, for example, criminal liability. The kind of liability incurred as a result of unlawful actions depends on whether the legal system recognises that the same unlawful actions can violate not only the legal values protected by the Constitution, but also those protected by other legal acts.

Consequently, this conclusion of the Constitutional Court results in the application of constitutional liability to Seimas member Kęstutis Pūkas for the above actions; however, it does not necessarily result in the application of other liability (including criminal liability).

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

In this case, one separate concurring opinion was issued.