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Case No. 14/2012

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

CONCLUSION

ON THE INQUIRY OF THE PRESIDENT OF THE REPUBLIC OF LITHUANIA WHETHER THE REPUBLIC OF LITHUANIA LAW ON THE ELECTIONS TO THE SEIMAS WAS NOT VIOLATED DURING THE 2012 ELECTIONS TO THE SEIMAS

26 October 2012

Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretary—Daiva Pitrėnaitė,

in the presence of the representatives of the President of the Republic of Lithuania, the petitioner, who were Rasa Svetikaitė,chief advisor to the President of the Republic, and Indrė Pukanasytė, an advisor to the President of the Republic,

Zenonas Vaigauskas, Chairman of the Central Electoral Commission of the Republic of Lithuania, and the members of the said commission—Rokas Stabingis and Jonas Udris,

pursuant to Item 1 of Paragraph 3 of Article 105 of the Constitution of the Republic of Lithuania, Paragraph 2 of Article 1, Item 1 of Article 73 and Article 77 of the Law on the Constitutional Court of the Republic of Lithuania, on 24 October 2012, in the Court’s public hearing considered case No. 14/2012 subsequent to the 23 October 2012 inquiry of the President of the Republic of Lithuania requesting for a conclusion whether during the 2012 elections to the Seimas of the Republic of Lithuania the Republic of Lithuania Law on Elections to the Seimas was not violated.

The Constitutional Court

has established:

I

1.On 14 October 2012, the elections to the Seimas took place in 71 single-member constituencies and one multi-member constituency.3 Members of the Seimas were elected in single-member constituencies, 67 Members of the Seimas were not elected from the 71 single-member constituencies and,on 28 October 2012,the run-off voting will be carried out (Decision of the Central Electoral Commission No. Sp-308 “On the Results of the 14 October 2012 Elections to the Seimas in Single-member Constituencies and the Multi-member Constituency” of 21 October 2012).

2.One of the single-member constituencies in which the voting took place on 14 October 2012 is Zarasai–Visaginas constituency No. 52.

On 21 October 2012,the Central Electoral Commission,by its Decision No. Sp-311 “On the Violation of Article51 of the Law on Elections to the Seimas Committed by the Candidate for a Member of the Seimas of the Republic of Lithuania RimvydasPodolskis” (hereinafter also referred to asdecision of the Central Electoral Commission No. Sp-311 of 21 October 2012) (that decision was published on the Seimas’ internet website), while invoking the Conclusion “On the Alleged Violation of Article 51 of the Republic of Lithuania Law on Elections to the Seimas Committed by the Candidate for a Member of the Seimas of the Republic of Lithuania Rimvydas Podolskis” of 20 October 2012 (the said decision indicates 19 October 2012 as the date of that conclusion) (hereinafter also referred to as the conclusion of the Working Group for Investigation into Briberies) made by the Working Group for Investigation into Briberies of the Central Electoral Commission (hereinafteralso referred to as the Working Group for Investigation into Briberies), recognised that the candidate for a Member of the Seimas Rimvydas Podolskis had violated the prohibition consolidated in Article 51 of the Law on Elections to the Seimas to bribe voters and persons eligible to vote and thus grossly violated Article 51 of the Law on Elections to the Seimas.

On 21 October 2012, the Central Electoral Commission,by its Decision No. Sp-313 “On Recognisingthe Election Results in Zarasai–VisaginasConstituency No. 52 as Invalid” (hereinafter also referred to as decision of the Central Electoral Commission No. Sp-313 of 21 October 2012) and by Item 2 of its Decision No. Sp-308 “On the Results of the 14 October 2012 Elections to the Seimas of the Republic of Lithuania in Single-member Constituencies and in the Multi-member Constituency” (hereinafter also referred to asdecision of the Central Electoral Commission No. Sp-308 of 21 October 2012),recognised the results of the 14 October 2012 elections in Zarasai–Visaginassingle-member constituency No. 52 as invalid due to the established gross violations of Article 51 of the Law on Elections to the Seimas.

3.On 22 October 2012, the political party “Order and Justice” filed a complaint with the President of the Republic regarding decision of the Central Electoral Commission No. Sp-308 of 21 October 2012 insofar as the said decision recognised the results of the 14 October 2012 elections in Zarasai–Visaginas single-member constituency No. 52 as invalid and decided to carry out the run-off voting in 67 single-member constituencies on 28 October 2012 by excluding Zarasai–Visaginas constituency No. 52, and requested that the President of the Republic apply to the Constitutional Court with an inquiry regarding violation of the Law on Elections to the Seimas.

4.By her Decree No. 1K-1248 “On the Inquiry to the Constitutional Court of the Republic of Lithuania” of23 October 2012, the President of the Republic applied to the Constitutional Court requesting for a conclusion whether during the 2012 elections to the Seimas the Law on Elections to the Seimas had not been violated.

Article 1 of the said decree points out two decisions of the Central Electoral Commission whereby the election results in Zarasai–Visaginasconstituency No. 52 were recognised as invalid:decision No. Sp-313 of 21 October 2012 and decision No. Sp-308 of 21 October 2012 (Item 2).

II

1.At the Constitutional Court hearing the representatives of the President of the Republic, the petitioner, who were R. Svetikaitė and I. Pukanasytė,explained that the President of the Republic applied to the Constitutional Court with an inquiry whether during the 2012 elections to the Seimas the Law on Elections to the Seimas had not been violated because she was seeking to disperse the doubts whether by decision of the Central Electoral Commission No. Sp-313 of 21 October 2012 and Item 2 of its decision No. Sp-308 of 21 October 2012, which recognised the results of the 14 October 2012 elections in Zarasai–Visaginas single-member constituency No. 52 as invalid, one had not violated the Law on Elections to the Seimas.

2.At the Constitutional Court hearing, Z. Vaigauskas, Chairman of the Central Electoral Commission, and R. Stabingis and J. Udris, members of that commission, explained what facts were investigated and assessed by the Central Electoral Commission and what arguments it followed while adopting its decision No. Sp-313 of 21 October 2012 and Item 2 of its decision No. Sp-308 of 21 October 2012.

3.At the Constitutional Court hearing, a witness—Daiva Kelečienė, Chairwoman of the Electoral Commission of Zarasai–Visaginas Constituency No. 52—was questioned.

The Constitutional Court

holds that:

I

1.On 14 October 2012,at the elections to the Seimas, voting took place at Zarasai–Visaginas constituency No. 52. Upon counting the votes of the voters, it was established that the following candidates for Members of the Seimas received the most votes of the voters:Algimantas Dumbrava—4,881 (voting in polling districts—4,242, by mail—639), i.e. he received 29.88 percent of valid votes, Rimvydas Podolskis—2,921 (voting in polling districts—2,312, by mail—609), i.e. he received17.88 percentof valid votes, and Nikolajus Gusevas—2,527 (voting in polling districts—2,142, by mail—385), i.e. he received 15.47 percentof valid votes.

2.On 21 October 2012, the Central Electoral Commission adopted decision No. Sp-311, wherein, while taking account of the investigation into the actions of R. Podolskis, a candidate nominated by the Labour Party in Zarasai–Visaginas constituency No. 52, by whom violations of the prohibition to bribe voters and persons eligible to vote and violations of Article 51 of the Law on Elections to the Seimas may have been committed, while invoking the conclusion made by the Working Group for Investigation into Briberies and pursuant to Article 51 of the Law on Elections to the Seimas, decided:

“1. To recognise that the candidate for a Member of the Seimas Rimvydas Podolskis has violated the prohibition consolidated in Article 51 of the Republic of Lithuania Law on Elections to the Seimas to bribe voters and persons eligible to vote;

2.To recognise that the candidate for a Member of the Seimas Rimvydas Podolskis has grossly violated Article 51 of the Republic of Lithuania Law on Elections to the Seimas.”

3.On the same day, on 21 October 2012, the Central Electoral Commission adopted two decisions whereby the election results in Zarasai–Visaginas constituency No. 52 were recognised as invalid:decision No. Sp-313 of 21 October 2012 and decision No. Sp-308 of 21 October 2012 (Item 2).

It is clear from decision of the Central Electoral Commission No. Sp-313 of 21 October 2012 that the commission that has performed the investigation into the actions of R. Podolskis, a candidate nominated by the Labour Party in Zarasai–Visaginas constituency No. 52, by whom violations of the prohibition to bribe voters and persons eligible to vote and violations of Article 51 of the Law on Elections to the Seimas may have been committed, while invoking the conclusion made by the Working Group for Investigation into Briberies and decision of the Central Electoral Commission No. Sp-313 of 21 October 2012, established that in that Zarasai–Visaginas constituency No. 52 gross violations of Article 51 of the Law on Elections to the Seimas had been committed which were influential upon the establishment the election results in Zarasai–Visaginas constituency No. 52, namely:

1)R. Podolskis received 2,921 votes of the voters in Zarasai–Visaginas constituency No. 52 and in this constituency took the second place in the list of candidates for Members of the Seimas.Nikolajus Gusevas, having received 2,527 votes of the voters, took the third place in this list. Thus, the difference between the candidates who took the second and third places is 394 votes of the voters. This difference is assessed as raising doubts regarding the place in the list of elections;

2)In Zarasai–Visaginas constituency No. 52, R. Podolskis received 605 votes of the voters during the early voting, which constitutes 25 percent of all votes received by mail, even though the average number of votes cast for this candidate is 17.88 percent.Algimantas Dumbrava, the candidate who took the first place, received 639 votes in the early voting, even though the average number of votes cast for him is 29.88 percent. Therefore, while taking account of the material presented in the conclusion made by the Working Group for Investigation into Briberies on buying votes of voters during the early voting, the Central Electoral Commission assessed this discrepancy as unusually big.

In its decision No. Sp-311 of 21 October 2012, the Central Electoral Commission, while taking account of the information collected by the Working Group for Investigation into Briberies that the briberies had been carried out in various places of the Zarasai district during festivities, which attract many residents of the local community, where ice-cream and sweets were being given out on a mass scalein the presence of the candidate for a Member of the Seimas R. Podolskis and his wife O. Podolskienė, the warden of the town of Zarasai, thus inducing the voters to vote for the said candidate, held that the will of more than 394 voters might have been influenced.

4.The conclusion made by the Working Group for Investigation into Briberies, by invoking which the Central Electoral Commission adopted its decision No. Sp-311 of 21 October 2012 (which inter alia recognised that R. Podolskis had grossly violated Article 51 of the Law on Elections to the Seimas) and by taking account of which the said commission recognised the election results in Zarasai–Visaginas constituency No. 52 as invalid, established the circumstances pointed out below, which show that during the election agitation and early voting, as well as on the day of the voting in polling districts, violations of Article 51 of the Law on Elections to the Seimas were committed.

4.1.The Central Electoral Commission established the following circumstances showing that violations of Article 51 of the Law on Elections to the Seimas were committed during the election agitation.

4.1.1.The candidate for a Member of the Seimas R. Podolskis and persons who have ties with him were giving away ice-cream and sweets free of charge during the festivities that took place in August-September in the Zarasai district.This information was published: in the 11 August 2012 article “The Most Beautiful Festival of the Residents of the Town of Antalieptėis the Porziuncola Indulgence” of the newspaper“Utenis”, which wrote that “everyone was very happy that the businessman Rimvydas Podolskis was giving out ice-cream for refreshment”;in the 8 August 2012 article “The Most Beautiful Festival of the Residents of the Town of Antalieptė is the Porziuncola Indulgence” of the newspaper “Dusetos” which presented the information of the same content; in the 11 September 2012 article “Memorable Festivity Given as a Present” of the newspaper “Zarasų kraštas”which wrote that “the autumn wind that wandered to the spot whispered thatnot only the Public Council of Communities of the ward that, on one occasion, had adopted a decision favourable to the children, but also the O. and R. Podolskis family who had bought the equipment and cold meals for the entertainment from their own funds, presented a joyful festivity of at least one hour length to the children and adults in the microdistrict”.

This information is supplemented with the 25 September 2012 conclusion made by the Investigation Group of the Electoral Commission of Zarasai–Visaginas Constituency No. 52, as confirmed by Protocol No. 6 of the Electoral Commission of Zarasai–Visaginas Constituency No. 52 of 26 September 2012, the 2 October 2012 complaint with attachments filed by R. Firavičiūtė, the representative of the Homeland Union-Lithuanian Christian Democrats at the Central Electoral Commission, the 26 September 2012 and 13 October 2012 letters of the Zarasai unit of the Lithuanian Social Democratic Party, the 12 October 2012 letter of the State Tax Inspectorate under the Ministry of Finance of the Republic of Lithuania, the 12 October 2012 letter of the Nationalist Union, the 13 October 2012 letter and a copy of the 4 October 2012 letter of the Member of the Seimas R. Žilinskas.

It needs to be noted that, on 26 September 2012, the Electoral Commission of Zarasai–Visaginas Constituency No. 52, having assessed all the said circumstances regarding giving out ice-cream during the events, recognised that R. Podolskis had violated the provisions of Article 51 of the Law on Elections to the Seimas subsequent to Registration Cards Nos. 2 and 3 of the Information on Alleged Bribing of Voters or Persons Eligible to Vote (Protocol No. 6 of the Electoral Commission of Zarasai–Visaginas Constituency No. 52 of 26 September 2012).

4.1.2.On 8 September 2012,during a festivity of the townlet of Turmantas,O. Podolskienė, the wife of the candidate for a Member of the Seimas R. Podolskis from the Labour Party, dressed in a hedgehog’s costume, gave out sweets and other food to members of the community.In the photographs attached to the complaint one can see R. Podolskis, his wife O. Podolskienė dressed in a hedgehog’s costume, and the Member of the Seimas R. Žilinskas (those circumstances are confirmed by the 26 September 2012 letter of the Zarasai unit of the Lithuanian Social Democratic Party, the 2 October 2012 complaint with attachments filed by R. Firavičiūtė, the representative of the Homeland Union-Lithuanian Christian Democrats at the Central Electoral Commission, a copy of the 4 October 2012 letter of the Member of the Seimas R. Žilinskas, and the visual material).In her letter of 5 October 2012, O. Podolskienė admitted that during the said event she, dressed in a hedgehog’s costume, gave out ice-cream and that R. Podolskis also took part in the same event. O. Podolskienė admitted that that she had bought the brushes, gouache, modelling clay and ice-cream on her own initiative. In addition, O. Podolskienė emphasised her status as the warden of the town of Zarasai in organising events.

In the 19 October 2012 sitting of the Central Electoral Commission, R. Podolskis partially confirmed the aforesaid circumstances: “During the festivity in Turmantas sweets (0.5 kg) were given out. Ice-cream was often given out. I supported the events in Antalieptė with my own funds by presents worth LTL 50-100. I own a shop in the village of Imbradas, so I told the kids, ‘Rush there and take some ice-cream’.”In his testimony of 19 October 2012, F. Pužas asserts that “during the Dusetos Harvest and Trades Festivity, which took place on 29 September 2012, the candidate for a Member of the Seimasof the Republic of Lithuania Rimvydas Podolskis treated residents of the town of Dusetos, 7–8 people, to beer, while prompting them to vote for him during the upcoming elections to the Seimas of the Republic of Lithuania”.

4.1.3.While taking account of the collected information, the Working Group for Investigation into Briberies drew a conclusion that the candidate for a Member of the Seimas R. Podolskis and persons who had ties with him had given out ice-cream and sweets free of charge to the voters and had treated them to beer.

4.1.4.These circumstances were essentially confirmed by the witness D. Kelečienė who was questioned at the Constitutional Court hearing.She testified that investigations had been conducted in the commission headed by her regarding indirect bribery of persons eligible to vote carried out during the election agitation in favour of the candidate for a Member of the Seimas R. Podolskis.According to her, during at least 6 mass events that took place in August–October 2012 in the Zarasai district, their participants were given out sweets and ice-cream free of charge. Those events were supported in one or other way also by R. Podolskis, whilst his wife O. Podolskienė, dressed in a hedgehog’s costume, gave out sweets to children and other participants of those events.

4.2.The Central Electoral Commission established the following circumstances showing that violations of Article 51 of the Law on Elections to the Seimas were committed during the period of early voting and on the day of voting in polling districts.

4.2.1.The candidate for a Member of the Seimas R. Podolskis, possibly together with his alleged accomplice, R. Garbinčius, whose criminal case was tried in the Zarasai District Local Court, indirectly bought votes of some voters. As it is stated in letters Nos. S-18433 and S-18895 of the Utena Local Prosecutor’s Office of the Panevėžys County Prosecutor’s Office, R. Garbinčius, acting with his accomplice R. Podolskis and having received money from the latter, while expecting to receive material award and trying to achieve that as many as possible voters vote for the Labour Party denoted by No. 3 and the candidate for a Member of the Seimas R. Podolskis from the Labour Party, on 10–11 October 2012, in the town of Zarasai, with the purpose to influence the will of voters, promised them verbally to pay LTL 10 to each of them provided that they vote for the Labour Party denoted by No. 3 and the candidate of for a Member of the Seimas R. Podolskis from the Labour Party, while after the said voters had participated in the elections, he gave LTL 10 to each of them.

R. Garbinčius pointed out that, on 10 October 2012, he bought votes from some voters. In the opinion of the Working Group for Investigation into Briberies, while drawing a conclusion from the testimony of R. Garbinčius, there could be more people whose votes might have been bought. In the 19 October 2012 sitting of the Central Electoral Commission, such information was partially confirmed by the prosecutor G. Jefimovas. In addition, in the opinion of the Working Group for Investigation into Briberies, it is possible to assume from R. Garbinčius’ statement “most of the people I met told me that they had already voted for R. Podolskis and they were paid LTL 10 for the vote” that he had also met more people who had voted for R. Podolskis and had been paid for such voting.