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1 Page 1 of 61 Lietuviškai Case No. 14/04 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA CONCLUSION ON THE COMPLIANCE OF ACTIONS OF PRESIDENT ROLANDAS PAKSAS OF THE REPUBLIC OF LITHUANIA AGAINST WHOM AN IMPEACHMENT CASE HAS BEEN INSTITUTED WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA 31 March 2004 Vilnius The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Armanas Abramaviius, Egidijus Jarašinas, Egidijus Kris, Kstutis Lapinskas, Zenonas Namaviius, Augustinas Normantas, Jonas Prapiestis, Vytautas Sinkeviius, and Stasys Staiokas, with the secretary of the hearing-daiva Pitrnait, in the presence of: the representatives of the petitioner, the Seimas of the Republic of Lithuania, who were Julius Sabatauskas and Raimondas Šukys, members of the Seimas, and Mindaugas Girdauskas and Antanas Jatkeviius, senior consultants of the Legal Department of the Office of the Seimas, the representatives of the President of the Republic of Lithuania, the party concerned, who were the advocates Gediminas Baublys, Evaldas Rapolas, and Kstutis Švirinas, pursuant to Paragraph 3 of 105 of the Constitution of the Republic of Lithuania and Paragraph 2 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on March 2004, in its public hearing heard Case No. 14/04 which originated in the inquiry set forth in the 19 February 2004 Resolution "On the Application to the Constitutional Court of the Republic of Lithuania" of the Seimas of the Republic of Lithuania, the petitioner, whether concrete actions of the President of the Republic Rolandas Paksas, which were indicated in the charges formulated in the conclusion of the Special Investigation Commission, are in conflict with the Constitution of the Republic of Lithuania. The Constitutional Court has established: I The Seimas of the Republic of Lithuania, the petitioner, requests the Constitutional Court to present a conclusion whether concrete actions of the President of the Republic Rolandas Paksas, which are indicated in the following charges formulated in the conclusion of the Special Investigation Commission for investigation in the reasonableness and seriousness of the charges brought against the President of the Republic Rolandas Paksas and for preparation of a conclusion concerning a proposal to institute impeachment proceedings (hereinafter-the Special Investigation Commission), are in conflict with the Constitution: Charge 1. Rolandas Paksas, while in office of the President of the Republic, having no right to take and have any commitments to private persons, which are incompatible with the interests of the Nation and the State of Lithuania, undertook such commitments to Jurij Borisov, was, while in office of the

2 Page 2 of 61 President of the Republic of Lithuania, influenced by the latter and acted not in the interests of the Nation and the State of Lithuania, but in the interests of the private person, namely: Rolandas Paksas committed to perform, after he becomes the President of the Republic, actions incompatible with the interests of the Nation and the State of Lithuania for the benefit of Jurij Borisov for financial and other notably solid support rendered by the latter, due to which, first, by rewarding him for the said support, he unlawfully granted citizenship of the Republic of Lithuania to this person by President of the Republic Decree No. 40 of 11 April 2003, also, on 17 March 2003, meeting Jurij Borisov, knowingly dropped a hint to him that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations, second, the President of the Republic was and is bound and affected by other commitments taken in regard of Jurij Borisov; Charge 2. Rolandas Paksas, while in office of the President of the Republic, did not ensure the protection of the state secret, namely: on 17 March 2003, meeting Jurij Borisov, the President of the Republic knowingly dropped a hint to him that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations; Charge 3. Rolandas Paksas, while in office of the President of the Republic, making use of his status, by giving unlawful orders to his advisors and by other actions exerted unlawful influence on decisions of private persons and private entities of economy in the area of property relations, namely: in 2003, seeking to implement property interests of private persons close to him, by making use of his status, while in office of the President of the Republic, Rolandas Paksas gave orders to his advisor Visvaldas Rakauskas, to seek to influence, by making use of his official position, through institutions of law and order, decisions of heads and shareholders of the company "Žemaitijos keliai" UAB concerning transfer of shares to persons close to Rolandas Paksas, and he was aware that the unlawful influence was being exerted by making use of his name as the President of the Republic, and took no measures to prevent this; Charge 4. Rolandas Paksas, while in office of the President of the Republic, did not co-ordinate public and private interests in his activities, namely: as compensation for financial and other notably solid support, guided by personal interests but not those of the Nation and the State of Lithuania, he unlawfully granted citizenship of the Republic of Lithuania to Jurij Borisov by President of the Republic Decree No. 40 of 11 April 2003; on 17 March 2003, meeting Jurij Borisov, knowingly dropped a hint to him that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations, also, in 2003, seeking to implement property interests of private persons close to him, by making use of his status, exerted influence on decisions of heads and shareholders of the company "Žemaitijos keliai" UAB concerning transfer of shares to persons close to Rolandas Paksas; Charge 5. Rolandas Paksas, while in office of the President of the Republic, discredited public authority, namely: guided by personal interests but not those of the Nation and the State of Lithuania, he unlawfully granted citizenship of the Republic of Lithuania to Jurij Borisov by President of the Republic Decree No. 40 of 11 April 2003 for financial and other notably solid support rendered by the latter, therefore, for unlawful purposes made use of the

3 Page 3 of 61 exclusive right, granted by the Constitution to the President of the Republic, to grant citizenship of the Republic of Lithuania to persons by way of exception and thus discredited the authority of the institution of the President of the Republic, also, by public statements about conclusions of the Provisional Commission of the Seimas of the Republic of Lithuania for Investigation into Possible Threats to Lithuanian National Security and the Constitutional Court ruling of 30 December 2003 discredited the authority of the Seimas and the Constitutional Court; Charge 6. Rolandas Paksas, while in office of the President of the Republic, gave unlawful orders to his advisors and did not take actions to prevent abuses by his particular advisors in the course of discharge of their duties, namely: in 2003, Rolandas Paksas, while in office of the President of the Republic, by not following the procedure and grounds established in laws, gave an unlawful order to his advisor Remigijus Aas to collect information about the private life of persons, due to this, Remigijus Aas and Evaldas Vaitkus, advisors to the President of the Republic, gave unlawful instructions to the Special Investigation Service to collect information about the private lives of 44 persons, also, in 2003, Rolandas Paksas, while in office of the President of the Republic, gave orders to his advisor Visvaldas Rakauskas to influence, by making use of his official position, through law and order institutions, decisions of heads and shareholders of the company "Žemaitijos keliai" UAB concerning transfer of shares to persons close to Rolandas Paksas. II In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from President Rolandas Paksas of the Republic of Lithuania, the party concerned (the 12 March 2004 explanations of the President of the Republic concerning case (1 D-499/06) 2 D-1278, received at the Constitutional Court on 15 March 2004, reg. No. 13 B-86). It is noted in the explanations of the President of the Republic Rolandas Paksas that the Constitutional Court, in presenting a conclusion concerning a Seimas inquiry, considers only legal issues and presents a conclusion by which it answers to the request formulated in the inquiry, i.e. whether concrete actions of a concrete state official are in conflict with the Constitution. In the absence of concrete actions of the state official, or in case they are not pointed out, due to the constitutionality of which a conclusion is requested, there are grounds to dismiss the instituted legal proceedings (Article 80 of the Constitutional Court). The President of the Republic Rolandas Paksas believes that in his inquiry the petitioner has formulated charges, i.e. its conclusions, by which the President of the Republic is charged with violating the Constitution, and the statements on the grounds of which respective assessment is made, however, in the said inquiry concrete actions of the President of the Republic are not enumerated, concerning whose constitutionality the law grants the right to apply to the Constitutional Court for a conclusion. In the opinion of the President of the Republic, the petitioner seeks to ensure that the Constitutional Court perform the investigation activity and establish the facts of the presence of respective actions of the President of the Republic, i.e. it is sought to achieve that the Constitutional Court establish and assess factual circumstances, thus by delegating, in this way, part of its functions in the impeachment proceedings.

4 Page 4 of 61 The President of the Republic Rolandas Paksas notes that, in the impeachment proceedings laws of the Republic of Lithuania do not provide for delegation of interrogation actions to another branch of state power, the court. In its ruling of 11 May 1999 on the compliance of Article 259 of the Statute of the Seimas of the Republic of Lithuania with the Constitution of the Republic of Lithuania, the Constitutional Court held that it is impossible to abstract the application of the constitutional sanction from the establishment of the fact of violation. Thus, in the opinion of the President of the Republic, it is not permitted to assess lawfulness of his actions before the fact of the presence of respective actions is established. The Statute of the Seimas of the Republic of Lithuania provides that the Seimas shall conduct the investigation activity in the establishment of factual circumstances, by forming, prior to this, the Special Investigation Commission (Chapter 38 of the Statute of the Seimas), later interrogation actions are carried out in the Seimas (Chapter 39 of the Statute of the Seimas). In the said ruling the Constitutional Court held that impeachment proceedings are always characteristic of judicial procedures permitting to base the decision concerning the application of the constitutional sanction on a thorough, objective and public investigation of the circumstances of the case. In addition, in the same ruling the Court stated that the Seimas, from the beginning to the end of impeachment proceedings, becomes an impeachment institution, while impeachment proceedings at the Seimas consist of five constituent phases indicated in Article 247 of the Statute: preparation, interrogation, pleadings, the final word of the impeached person, and the vote on the presented charges. Thus, the Seimas is the only institution of the Republic of Lithuania, which is legislatively commissioned to conduct impeachment proceedings and be responsible for it, i.e. the Seimas is obligated by laws to carry out all necessary phases of impeachment (preparation, interrogation, pleadings, the final word of the impeached person, and the vote on the presented charges). The Statute of the Seimas provides for discretion of the Seimas-the institution conducting impeachment-to apply to the Constitutional Court as the supreme judicial institution of constitutional legal proceedings for a legal conclusion whether concrete actions of the impeached person violate the Constitution. Laws do not provide for an opportunity to move the constituent part of impeachment proceedings, i.e. preparation, interrogation, and pleadings to the Constitutional Court and repeat them in it. The President of the Republic Rolandas Paksas believes that a conclusion of the Constitutional Court is possible as legal assessment, from the constitutional standpoint, of part of the conclusions of the preparation phase of the impeachment proceedings, i.e. as the constitutional assessment of the established concrete actions. Otherwise, in case the Constitutional Court undertook the investigation into the aspect of the presence or absence of the actions of the President of the Republic, the impeachment proceedings would be legally disordered, since it is not permitted to perform the interrogation actions in the Constitutional Court-the interrogation phase of the impeachment proceedings (Article 249 of the Statute of the Seimas) has not started yet, as, on 8 March 2004, the Seimas decided to suspend the impeachment proceedings. The President of the Republic Rolandas Paksas maintains that it is not permitted to move the actions of interrogation, i.e. the investigation of the fact of the presence or absence of the actions, to the Constitutional Court legal proceedings dealing with a conclusion on the constitutionality concerning the actions indicated in the

5 Page 5 of 61 inquiry. It is pointed out in the explanations of the President of the Republic Rolandas Paksas that the Law on the Constitutional Court stipulates that the Seimas inquiry to the Constitutional Court be particularised, i.e. a necessary condition for such an inquiry is the revelation of the concrete actions of the impeached person and indication thereof to the institution, which will perform a legal analysis of these actions from the constitutionality aspect and will present a conclusion to the petitioner. According to the President of the Republic Rolandas Paksas, the 19 February 2004 Seimas Resolution "On the Application to the Constitutional Court of the Republic of Lithuania" does not indicate any concrete actions of the President of the Republic, nor the circumstances (time, place, manner) of the performance of these actions. The content of the inquiry of the petitioner does not meet the requirement established in Item 4 of Paragraph 1 of Article 76 of the Law on the Constitutional Court, i.e. the inquiry does point out any concrete actions, which constitute episodes of the charges, nor does it indicate the circumstances (time, place, manner) of the performance of these actions. In the opinion of the President of the Republic Rolandas Paksas, the statement "Rolandas Paksas committed to perform, after he becomes the President of the Republic, actions incompatible with the interests of the Nation and the State of Lithuania for the benefit of Jurij Borisov for financial and other notably solid support rendered by the latter" is an evaluative conclusion, but not a concrete action of the person. One does not point out by means of which actions the commitment was realised, nor does it indicate any circumstances (time, place, manner) of the undertaking of this commitment. The President of the Republic Rolandas Paksas notes that there were not, nor could have been any such actions of the President of the Republic, on the grounds of which, either directly or indirectly, it would be possible to make the assessment that has been formulated in the inquiry of the petitioner. It is also noted in the explanations that after the episode was indicated in the inquiry (in charges 1, 2 and 4) that "on 17 March 2003, meeting Jurij Borisov, the President of the Republic knowingly dropped a hint to him that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations" one did not reveal by what actions (failure to act) the President of the Republic accomplished "dropping a hint knowingly". According to the President of the Republic Rolandas Paksas, he does not understand what action he made by which it would be possible to ground this accusing provision. The President of the Republic Rolandas Paksas notes that, while executing the powers of the President of the Republic, he did not perform any such action (failure to act). Concerning the episode indicated in the Seimas inquiry that "in 2003, seeking to implement property interests of private persons close to him, by making use of his status, while in office of the President of the Republic, Rolandas Paksas gave orders to his advisor Visvaldas Rakauskas, to seek to influence, by making use of his official position, through institutions of law and order, decisions of heads and shareholders of the company 'Žemaitijos keliai' UAB concerning transfer of shares to persons close to Rolandas Paksas, and he was aware that the unlawful influence was being exerted by making use of his name as the President of the Republic, and took no measures to prevent this", the President of the Republic Rolandas Paksas notes that, while executing the powers of the President of the Republic, he did not give any orders of

6 Page 6 of 61 such nature, nor any other orders whereby he might have pursued personal interests. Besides, the inquiry of the petitioner does not indicate the private persons whose property interests were sought to be protected by the President of the Republic Rolandas Paksas, nor when and under what circumstances he gave the order mentioned in the charge to his advisor, what is the true (verbatim) content of this order, nor when and under what circumstances the President of the Republic Rolandas Paksas might learn that unlawful influence was exerted to private persons by making use of his name as the President of the Republic. Nor does this episode indicate as to when precisely in 2003 the episodes pointed out in the inquiry of the Seimas took place. It is also noted in the explanations of the President of the Republic Rolandas Paksas that the Seimas, by indicating in the inquiry (Charge 5) that "Rolandas Paksas <...> by public statements about conclusions of the Provisional Commission of the Seimas of the Republic of Lithuania for Investigation into Possible Threats to Lithuanian National Security and the Constitutional Court ruling of 30 December 2003 discredited the authority of the Seimas and the Constitutional Court", did not present the content of the public statements, nor when and in what manner the said statements were made in public. The President of the Republic Rolandas Paksas asserts that he cannot give an exhaustive explanation concerning this episode, since it is not clear to him as to what concrete statements by the President of the Republic Rolandas Paksas are assessed as discrediting the authority of the Seimas and the Constitutional Court. The President of the Republic Rolandas Paksas notes that he never had a purpose to degrade or otherwise discredit the authority of the Constitutional Court, also, that the statements of the President of the Republic in which he mentioned the Constitutional Court are not and never have been directed against the obligation of the rulings passed by the Constitutional Court, and that he never called for, nor publicly incited non-compliance with the rulings passed by the Constitutional Court. However, the President of the Republic, as any citizen of the Republic of Lithuania, has a constitutional right to have his own convictions and freely express them. According to the assessment by the President of the Republic Rolandas Paksas, his criticism that was made in public in regard of the Seimas Provisional Commission and the Constitutional Court ruling cannot be held to be in contradiction with the Constitution, since this criticism is not directed against the constitutional order of the state, and it is guaranteed by the right of the person to have his own convictions and freely express them. The Constitution (Article 25) guarantees the right of the person, as well as of a state official, to freely express his opinion and convictions: each human being has the right to have his convictions and freely express them. The rights of the President of the Republic are not restricted in this case. Paragraph 3 of Article 25 of the Constitution establishes a prohibition when a public expression of an opinion of persons may be regarded as violation of law: freedom to express convictions may not be restricted other than by law, if it is necessary to protect the health, honour and dignity, private life, and morals of a human being, or to defend constitutional order. In a state under the rule of law, a public statement of an opinion concerning decisions of a court or other institution is a constituent part of the constitutional right of citizens, thus also of officials, to expression and no one can be persecuted for it. In a democratic society, public assessment of court

7 Page 7 of 61 decisions is a civil control of courts' activity, which is one of the means for consolidation of the principle of a state under the rule of law (rule of law) in a democratic society. A publicly expressed opinion by the President of the Republic cannot be legally assessed as discrediting of branches of state power: on the contrary, the absence of public criticism or its groundless restriction may be assessed as contradiction to the principles of the order of a democratic state. Article 84 of the Constitution provides for a duty of the President of the Republic to make annual reports about the situation in Lithuania, the internal and foreign policy of the Republic of Lithuania. The President of the Republic Rolandas Paksas raises a question whether it is possible to hold the criticism stated in the annual reports of Presidents of the Republic, whose term of office has expired, in regard of the activities of the Seimas and the Government as discrediting these branches of power. It is also maintained in the explanations by the President of the Republic Rolandas Paksas that the petitioner, having indicated in his inquiry (Charge 6) that "Rolandas Paksas <...> gave an unlawful order to his advisor Remigijus Aas to collect information about the private life of persons, due to this, Remigijus Aas and Evaldas Vaitkus, advisors to the President of the Republic, gave unlawful orders to the Special Investigation Service to collect information about the private lives of 44 persons", did not indicate when, in what form and concerning the private lives of what persons the President of the Republic gave his order to collect information, nor what was the content of such an order. It is not clear upon what arguments the unlawfulness of such alleged order is made. The President of the Republic Rolandas Paksas notes that, when one takes account of the fact that the Seimas inquiry does not indicate any concrete actions nor any circumstances of their performance, the legal proceedings in the Constitutional Court concerning the requested conclusion is not permitted (Item 4 of Paragraph 1 of Article 80 of the Law on the Constitutional Court). In case the requirements established in the Law on the Constitutional Court were not followed, the right of the President of the Republic, as an impeached person, to due and fair proceedings would be infringed, since he, as an impeached person, would not be able to exercise due defence and submit his explanations to the Constitutional Court. III 1. At the Constitutional Court hearing, the member of the Seimas J. Sabatauskas, the member of the Seimas R. Šukys, as well as M. Girdauskas and A. Jatkeviius, grounded their explanations upon the conclusion of the Special Investigation Commission and upheld the charges formulated in the Seimas 19 February 2004 Resolution "On the Application to the Constitutional Court". 2. At the Constitutional Court hearing, the representatives of the President of the Republic Rolandas Paksas, who were G. Baublys, E. Rapolas, and K. Švirinas, upheld the explanations of the President of the Republic Rolandas Paksas concerning the case, which were submitted to the Constitutional Court on 12 March 2004, and additionally gave their arguments as to the explanations. 3. The witnesses were questioned at the Constitutional Court hearing: Remigijus Aas, a former advisor to the President of the Republic on national security issues, the advocate Juozas Gaudutis, and Ona Buišien, a former advisor to the President of the Republic on legal issues.

8 Page 8 of 61 The Constitutional Court holds that: I 1. On 5 January 2003, R. Paksas was elected President of the Republic of Lithuania. On 26 February 2003, the elected President of the Republic of Lithuania Rolandas Paksas took an oath to the Nation to be faithful to the Republic of Lithuania and the Constitution, to conscientiously fulfil the duties of his office, and to be equally just to all. 2. On 18 December 2003, 86 members of the Seimas submitted a proposal to the Seimas to institute impeachment proceedings against the President of the Republic Rolandas Paksas. 3. By its 23 December 2003 Resolution "On the Formation of the Special Investigation Commission", the Seimas formed the Special Investigation Commission in order to investigate the reasonableness and seriousness of the charges brought against the President of the Republic Rolandas Paksas and to draw up a conclusion regarding the proposal to institute the impeachment proceedings. 4. On 19 February 2004, the Special Investigation Commission drew a conclusion that the charges brought against the President of the Republic Rolandas Paksas in the proposal by a group of members of the Seimas are grounded and serious (only in part of the volume of the charges they are not sufficiently grounded and serious) to institute impeachment proceedings, therefore there are grounds to institute the impeachment proceedings in the Seimas. On 19 February 2004, the Conclusion "On the Proposal to Institute Impeachment Proceedings against the President of the Republic Rolandas Paksas" was submitted to the Seimas. 5. On 19 February 2004, the Seimas adopted Resolution "On the Beginning of the Impeachment Proceedings Against the President of the Republic Rolandas Paksas" whereby it decided to institute impeachment proceedings against the President of the Republic Rolandas Paksas. 6. On 19 February 2004, the Seimas adopted the Resolution "On the Application to the Constitutional Court of the Republic of Lithuania" whereby it applied to the Constitutional Court for a conclusion whether concrete actions of the President of the Republic Rolandas Paksas, which were indicated in the charges formulated in the conclusion of the Special Investigation Commission, are in conflict with the Constitution. 7. In the 19 February 2004 Seimas Resolution "On the Application to the Constitutional Court of the Republic of Lithuania" the following charges against the President of the Republic Rolandas Paksas were formulated: Charge 1. Rolandas Paksas, while in office of the President of the Republic, having no right to take and have any commitments to private persons, which are incompatible with the interests of the Nation and the State of Lithuania, undertook such commitments to Jurij Borisov, was, while in office of the President of the Republic of Lithuania, influenced by the latter and acted not in the interests of the Nation and the State of Lithuania, but in the interests of the private person, namely: Rolandas Paksas committed to perform, after he becomes the President of the Republic, actions incompatible with the interests of the Nation and the State of Lithuania for the benefit of Jurij Borisov for financial and other notably solid support rendered by the latter, due to which, first, by rewarding him for the said support, he unlawfully granted citizenship of the Republic of Lithuania to this person by

9 Page 9 of 61 President of the Republic Decree No. 40 of 11 April 2003, also, on 17 March 2003, meeting Jurij Borisov, knowingly dropped a hint to him that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations, second, the President of the Republic was and is bound and affected by other commitments taken in regard to Jurij Borisov; Charge 2. Rolandas Paksas, while in office of the President of the Republic, did not ensure the protection of the state secret, namely: on 17 March 2003, meeting Jurij Borisov, the President of the Republic knowingly dropped a hint to him that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations; Charge 3. Rolandas Paksas, while in office of the President of the Republic, making use of his status, by giving unlawful orders to his advisors and by other actions exerted unlawful influence on decisions of private persons and private entities of economy in the area of property relations, namely: in 2003, seeking to implement property interests of private persons close to him, by making use of his status, while in office of the President of the Republic, Rolandas Paksas gave orders to his advisor Visvaldas Rakauskas, to seek to influence, by making use of his official position, through institutions of law and order, decisions of heads and shareholders of the company "Žemaitijos keliai" UAB concerning transfer of shares to persons close to Rolandas Paksas, and he was aware that the unlawful influence was being exerted by making use of his name as the President of the Republic, and took no measures to prevent this; Charge 4. Rolandas Paksas, while in office of the President of the Republic, did not co-ordinate public and private interests in his activities, namely: as compensation for financial and other notably solid support, guided by personal interests but not those of the Nation and the State of Lithuania, he unlawfully granted citizenship of the Republic of Lithuania to Jurij Borisov by President of the Republic Decree No. 40 of 11 April 2003; on 17 March 2003, meeting Jurij Borisov, knowingly dropped a hint to him that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations, also, in 2003, seeking to implement property interests of private persons close to him, by making use of his status, exerted influence on decisions of heads and shareholders of the company "Žemaitijos keliai" UAB concerning transfer of shares to persons close to Rolandas Paksas; Charge 5. Rolandas Paksas, while in office of the President of the Republic, discredited public authority, namely: guided by personal interests but not those of the Nation and the State of Lithuania, he unlawfully granted citizenship of the Republic of Lithuania to Jurij Borisov by President of the Republic Decree No. 40 of 11 April 2003 for financial and other notably solid support rendered by the latter, therefore, for unlawful purposes made use of the exclusive right, granted by the Constitution to the President of the Republic, to grant citizenship of the Republic of Lithuania to persons by way of exception and thus discredited the authority of the institution of the President of the Republic, also, by public statements about conclusions of the Provisional Commission of the Seimas of the Republic of Lithuania for Investigation into Possible Threats to Lithuanian National Security and the Constitutional Court ruling of 30 December 2003 discredited the authority of the Seimas and the Constitutional Court;

10 Page 10 of 61 Charge 6. Rolandas Paksas, while in office of the President of the Republic, gave unlawful orders to his advisors and did not take actions to prevent abuses by his particular advisors in the course of discharge of their duties, namely: in 2003, Rolandas Paksas, while in office of the President of the Republic, by not following the procedure and grounds established in laws, gave an unlawful order to his advisor Remigijus Aas to collect information about the private life of persons, due to this, Remigijus Aas and Evaldas Vaitkus, advisors to the President of the Republic, gave unlawful instructions to the Special Investigation Service to collect information about the private lives of 44 persons, also, in 2003, Rolandas Paksas, while in office of the President of the Republic, gave orders to his advisor Visvaldas Rakauskas to influence, by making use of his official position, through law and order institutions, decisions of heads and shareholders of the company "Žemaitijos keliai" UAB concerning transfer of shares to persons close to Rolandas Paksas. 8. It is clear from the content of the 19 February 2004 Seimas Resolution "On the Application to the Constitutional Court of the Republic of Lithuania", in which the inquiry to the Constitutional Court is set forth, that the Seimas requests for a conclusion whether the following actions of the President of the Republic Rolandas Paksas are in conflict with the Constitution: 1) by President of the Republic Decree No. 40 "On Granting Citizenship of the Republic Lithuania by Way of Exception" of 11 April 2003, the President of the Republic Rolandas Paksas unlawfully granted citizenship of the Republic of Lithuania to Jurij Borisov for financial and other notably solid support rendered by the latter and thus discredited the authority of the institution of the President of the Republic; 2) the President of the Republic Rolandas Paksas knowingly dropped a hint to Jurij Borisov that in his regard institutions of law and order were conducting investigation and tapping his telephone conversations; 3) the President of the Republic Rolandas Paksas, seeking to implement property interests of private persons close to him, by making use of his status, while in office of the President of the Republic, gave orders to his advisor Visvaldas Rakauskas, to seek to influence, by making use of his official position, through institutions of law and order, decisions of heads and shareholders of the company "Žemaitijos keliai" UAB concerning transfer of shares to persons close to Rolandas Paksas; 4) the President of the Republic Rolandas Paksas, seeking to implement property interests of private persons close to him, and making use of his status, exerted influence on decisions of heads and shareholders of the company "Žemaitijos keliai" UAB concerning transfer of shares to persons close to Rolandas Paksas; 5) the President of the Republic Rolandas Paksas, knowing that unlawful influence was being exerted on heads and shareholders of the company "Žemaitijos keliai" UAB by making use of his name as the President of the Republic, took no measures to prevent this; 6) the President of the Republic Rolandas Paksas made public statements about conclusions of the Seimas Provisional Commission for Investigation into Possible Threats to Lithuanian National Security and the Constitutional Court ruling of 30 December 2003, and by these statements he discredited the authority of the Seimas and the Constitutional Court; 7) the President of the Republic Rolandas Paksas, by not

11 Page 11 of 61 following the procedure and grounds established in laws, gave an unlawful order to his advisor Remigijus Aas to collect information about the private life of persons, and due to this, Remigijus Aas and Evaldas Vaitkus, advisors to the President of the Republic, gave unlawful instructions to the Special Investigation Service to collect information about the private lives of 44 persons. 9. The Constitutional Court will investigate the compliance of only the aforesaid actions with the Constitution, and will present a conclusion to the Seimas only in regard of these actions. Since, under Article 235 of the Statute of the Seimas, the Special Investigation Commission is formed in order to investigate the reasonableness and seriousness of the charges presented by the initiators of the proposal to institute the impeachment, in this case the Constitutional Court will investigate only whether the aforesaid actions of the President of the Republic Rolandas Paksas which were performed prior to the date when the initiators of the impeachment, a group of Seimas members, submitted a proposal to the Seimas to institute impeachment proceedings against the President of the Republic Rolandas Paksas, i.e. prior to 18 December 2003, are in conflict with the Constitution. II 1. Article 74 of the Constitution provides: "For gross violation of the Constitution, breach of oath, or upon disclosure of the commission of a crime, the Seimas may, by a 3/5 majority vote of all the members of the Seimas, remove from office the President of the Republic, the President and justices of the Constitutional Court, the President and justices of the Supreme Court, the President and judges of the Court of Appeal, as well as members of the Seimas, or may revoke the mandate of a member of the Seimas. This shall be performed in accordance with the procedure for impeachment proceedings which shall be established by the Statute of the Seimas." Some other articles of the Constitution are also related with the impeachment institute: Item 5 of Article 63, Paragraph 2 of Article 86, Item 5 of Article 88, Paragraph 1 of Article 89, Item 4 of Paragraph 3 of Article 105, Item 5 of Article 108, and Article The Constitution shall be an integral act (Paragraph 1 of Article 6 of the Constitution). The provisions of the Constitution are interrelated not only formally, according to the structure of arrangement of the norms of the Constitution, but also according to their content; the norms and principles of the Constitution constitute a harmonious system, it is not permitted to construe any norm of the Constitution by disregarding other provisions of the Constitution, it is not permitted to construe them so that the content of some other constitutional provision would be distorted or denied, since thus the essence of the entire constitutional regulation would be distorted, and the balance of constitutional values would be disturbed. It is not permitted to dissociate the striving for an open, just harmonious civil society and a state under the rule of law from the provision of Article 1 of the Constitution that the State of Lithuania shall be an independent democratic republic, from the provision of Article 4 of the Constitution that the Nation shall execute its supreme sovereign power either directly or through its democratically elected representatives, from the provisions of Article 5 of the Constitution that the scope of power shall be limited by the

12 Page 12 of 61 Constitution and that state institutions shall serve the people. The constitutional principle of a state under the rule of law requires that all state institutions and officials act only following the Constitution and law, and in compliance with the Constitution and law. 3. In a democratic state under the rule of law all state institutions and officials must follow the Constitution and law. The responsibility of state power for the public is inseparable from the constitutional principle of a state under the rule of law; the responsibility is constitutionally consolidated by establishing that state institutions serve the people, that the scope of power is limited by the Constitution, that state officials who violate the Constitution and laws, who raise personal or group interests above the interests of society, by their actions discredit state power, may be removed from office under procedure established in laws. Impeachment is a special procedure provided for in the Constitution, when the issue of constitutional responsibility of the officials indicated in Article 74 of the Constitution is decided, i.e. their removal from office for these actions provided for in the Constitution: gross violation of the Constitution, breach of oath, and commission of a crime. Under the Constitution, one of state officials who may be removed from office according to the procedure of impeachment proceedings is the President of the Republic. 4. Under Article 77 of the Constitution, the President of the Republic is Head of State, he represents the State of Lithuania and performs everything that he is charged with by the Constitution and laws. While construing Article 77 of the Constitution, in its rulings of 8 May 2000 and 19 June 2002, the Constitutional Court held that only one person acquires the status of the Head of State for the period determined in the Constitution, i.e. the President of the Republic who is elected by citizens of the Republic of Lithuania, that the legal status of the President of the Republic as the Head of State is an individual one, different from that of the rest of state officials and the rest of the citizens. The exceptional legal status of the President of the Republic, as the Head of the State, is revealed by various provisions of the Constitution, which establish the inviolability of the person of the President of the Republic, prohibition to hold the President of the Republic criminally and administratively liable, the oath of the President of the Republic, his powers, the beginning and end of these powers, etc. 5. Under Paragraph 2 of Article 78 of the Constitution, the President of the Republic is elected for a five-year term. The powers of the President of the Republic may expire before the established time only upon the grounds established in the Constitution. One of them is when the Seimas removes the President of the Republic from office in accordance with the procedure for impeachment proceedings (Item 5 of Article 88 of the Constitution). 6. It needs to be noted that the President of the Republic, beginning his office, takes an oath to the Nation to be faithful to the Republic of Lithuania and the Constitution, to conscientiously fulfil the duties of his office, and to be equally just to all (Paragraph 1 of Article 82 of the Constitution). The oath of the elected President of the Republic reflects the main values entrenched in the Constitution, which are linked by the Nation with the office of the President of the Republic; these values are inseparable from one another, the President of the Republic, while in office, cannot deviate from universal constitutional values

13 Page 13 of 61 entrenched in the oath of the President of the Republic, which are the most important to the Nation. In its ruling of 30 December 2003, the Constitutional Court held that from the moment of taking the oath a duty arises to the President of the Republic to act only so as the oath taken to the Nation obligates, and that breach of the oath is one of the grounds under which the President of the Republic may be removed from office according to the procedure for impeachment proceedings. In the said ruling the Constitutional Court also held that breach of the oath is, alongside, a gross violation of the Constitution, while a gross violation of the Constitution is, alongside, breach of the oath. 7. Under Paragraph 2 of Article 77 of the Constitution, the President of the Republic shall represent the State of Lithuania and shall perform everything that he is charged with by the Constitution and laws. The provision of Paragraph 2 of Article 77 of the Constitution that the President of the Republic shall perform everything that he is charged with by the Constitution and laws, when one takes account of the content of the oath of the President of the Republic established in Paragraph 1 of Article 82 of the Constitution, means that the President of the Republic, when implementing the powers established for him in the Constitution and laws, must follow only the Constitution and laws, he cannot violate them, that the President of the Republic must act only in the interests of the Nation and the state, that the President of the Republic may not act with the purposes or in the interests that are incompatible with the Constitution and laws, with the interests of the Nation and the state, with public interests, that the President of the Republic may not raise personal or group interests above those of the society and the state, that he may not act so that state power would be discredited. It needs to be noted that the opportunity consolidated in the Constitution to remove the President of the Republic from office in accordance with the procedure for impeachment proceedings is a form of public, democratic control over the activities of the President of the Republic, a manner of the constitutional responsibility of the President of the Republic before the Nation, one of the means of self-defence of the democratic civil society against abuses by the President of the Republic within the sphere of powers established for him. Under Article 74 of the Constitution, it is permitted to institute impeachment proceedings against the President of the Republic only for gross violation of the Constitution, breach of oath, or upon disclosure of the commission of a crime; only the Seimas may remove the President of the Republic from office, when this is done in accordance with the procedure established in the Statute of the Seimas; the President of the Republic is removed from office only in case not less than 3/5 of all members of the Seimas vote for this. III 1. Under Item 4 of Paragraph 3 of Article 105 of the Constitution, the Constitutional Court shall present conclusions whether concrete actions of members of the Seimas and State officials against whom an impeachment case has been instituted are in conflict with the Constitution. As mentioned, under Article 74 of the Constitution, one of the state officials who may be removed from office in accordance with impeachment proceedings is the President of the Republic. Paragraph 3 of Article 107 of the Constitution provides that on the basis of the conclusions of the Constitutional Court, the Seimas shall take a final decision on the issues set forth in Paragraph 3 of Article 105 of the Constitution.

14 Page 14 of While revealing the content of the legal regulation established in Item 4 of Paragraph 3 of Article 105 and Paragraph 3 of Article 107 of the Constitution, one must take account of the provisions of Article 74 of the Constitution, the provisions of Paragraph 2 of Article 5 of the Constitution, and the constitutional principles of separation of powers and of a state under the rule of law. 3. It has been mentioned that the Constitution is an integral act, that all provisions of the Constitution are interrelated and constitute a harmonious whole, and that it is not permitted to construe any norm of the Constitution by disregarding other provisions of the Constitution. While construing the Constitution, the linguistic method of construction alone may not be applied: it is necessary to make use of the systemic, logical, teleological, as well as other methods of construction of law. 4. It has also been mentioned that under Item 4 of Paragraph 3 of Article 105 of the Constitution, the Constitutional Court presents a conclusion whether concrete actions of the President of the Republic against whom an impeachment case has been instituted are in conflict with the Constitution; Paragraph 3 of Article 107 of the Constitution provides that on the basis of the conclusions of the Constitutional Court, the Seimas shall take a final decision on the issues set forth in Paragraph 3 of Article 105 of the Constitution. When construing the said provisions of the Constitution only linguistically, in separation from other provisions of the Constitution that consolidate the institute of impeachment, the powers of the Seimas and the Constitutional Court in impeachment proceedings, it might appear that it is possible to assert that, purportedly, the Constitution provides for the legal regulation whereby the Constitutional Court presents a conclusion whether concrete actions of the President of the Republic against whom an impeachment case has been instituted are in conflict with the Constitution, while the Seimas takes a final decision whether the actions of the President of the Republic are in conflict with the Constitution. However, such construction of the aforesaid provisions of the Constitution would be constitutionally groundless. It needs to be noted that the principle of separation of powers that is entrenched in the Constitution inter alia means that after the Constitution has directly established the powers of a concrete state institution, one state institution may not take over such powers from the other, nor transfer or waive them, and that such powers may not be changed or restricted by means of a law. Under Item 4 of Paragraph 3 of Article 105 of the Constitution, the Constitutional Court presents a conclusion whether concrete actions of the President of the Republic against whom an impeachment case has been instituted are in conflict with the Constitution. Paragraph 2 of Article 107 of the Constitution provides that the decisions of the Constitutional Court on issues ascribed to its competence by the Constitution shall be final and not subject to appeal. The presentation of the conclusion specified in Item 4 of Paragraph 3 of Article 105 of the Constitution is one of the issues that are attributed only to the competence of the Constitutional Court by the Constitution. Thus, under the Constitution, a conclusion whether concrete actions of the President of the Republic against whom an impeachment case has been instituted are in conflict with the Constitution is final and not subject to appeal. 5. It has been mentioned that, under Paragraph 3 of