In Search for Conceptual Comprehension of the Institute of Impeachment

Abstract

It is important that from a wider scientific perspective the basics of the conceptual comprehension of impeachment entrenched in the 1992 Lithuanian Constitution be related not only to (a) the nine explicit provisions whereby impeachment relations are regulated directly (Item 5 of Article 63, Article 74, Paragraph 2 of Article 86, Item 5 of Article 88, the first sentence of Paragraph 1 of Article 89, Item 4 of Paragraph 3 of Article 105, Paragraph 3 of Article 107, Item 5 of Article 108, Article 116), but also to (b) the general constitutional principles (especially, the principle of protection of the rights and freedoms of a person), as well as to (c) the precedents of preparation, arrangement, suspension or continuation of impeachment proceedings (in cases of A. Butkevičius, R. Paksas or L. Karalius) and to (d) comparative international aspects, which are perceived not only in the US Constitution, but also in the European Convention on Human Rights which is no longer compatible (and clashing as regards the issue of consequences of impeachment) with the former. According to the European Court of Human Rights (judgment of 6 January 2011 in the case Paksas v. Lithuania), the European Convention on Human Rights prohibits irreversible (termless) limitation (grounded on impeachment) of the passive electoral right to be a Member of Parliament.
It is also important to perceive (three) abstract procedural grounds of application of this institute to a certain official—a gross violation of the Constitution, breach of the oath and in case it transpires that a crime has been committed (Article 74 of the Constitution), and the factual (“concrete actions”—see Item 4 of Paragraph 3 of Article 105) grounds qualified according to the former, while due to the factual grounds the “impeachment case” is instituted.
The notion “impeachment case” used in Item 4 of Paragraph 3 of Article 105 of the Constitution deserves special scientific attention. This notion indirectly means that: (a) prior to the application to the Constitutional Court by the Seimas, an impeachment case is (must be) instituted, which in itself means that impeachment and initiation and consideration thereof are distinguished by peculiarity in substantive procedure; (b) the Constitutional Court neither institutes this case nor “takes it over” (considers it), but in “its own” case of constitutional justice verifies those factual and procedural grounds, which are necessary in “the other” (impeachment) case instituted in the Seimas.
The essence of the institute of impeachment cannot be properly perceived in the constitutional notions of “impeachment”, “case”, “proceedings“, if these notions are assessed only in the explicit provisions of Article 74 of the Constitution, i.e. they are not related to the logic of substantive and procedural arrangement and “intertwining” of the three provisions of the Constitution (Article 74, Item 4 of Paragraph 3 of Article 105 and Paragraph 3 of Article 107) as well as to the purpose of these provisions. On the grounds of the said three provisions of the Constitution, it is possible to assume that the essence of the institute of impeachment lies in a specific official accusation (of violations of special law) against the officials who have acquired (or who hold) certain constitutional powers and of bringing such officials to constitutional liability under the procedure for specific parliamentary impeachment proceedings and constitutional justice proceedings, i.e. deprivation (discontinuation) of constitutional powers under multi-level procedure for conditionally dual proceedings, in which the parliamentary  proceedings and the constitutional justice proceedings are inter-connected and supplementeach other.