Seimo nario imunitetas: kai kurios teorinės ir praktinės problemos

Abstract

The article deals with the immunity of a Member of the Seimas, i.e. prohibition to hold a Member of the Seimas criminally liable without his consent, or to arrest him or otherwise restrict his freedom; the difference between the immunity of a Member of the Seimas and indemnity of a Member of the Seimas is shown. Although the Constitution provides expressis verbis the subjects who enjoy immunity, this, however, does not mean that the list of subjects specified in the Constitution is comprehensive (final) and that the Constitution generally prohibits to establish, by means of a law, immunity also to some other subjects, who are not directly specified in the Constitution. In the opinion of the author, the list of the subjects enjoying immunity could be legislatively expanded, however, only in case where such expansion is arises from the Constitution itself and where it would be grounded on the Constitution. The criterion allowing to decide whether the law that consolidates the immunity of subjects who are not directly specified in the Constitution might be as follows: the immunity can be established legislatively only with regard to the subjects who participate in general elections to the offices specified in the Constitution and when the Constitution itself provides for immunity for the subjects who hold such offices. Both conditions are necessary, i.e. the office must be taken by means of general elections and the Constitution itself must provide for the immunity for the person who holds the said office. Under the Constitution, only the President of the Republic and Members of the Seimas are elected in general elections; the Constitution provides expressis verbis that the President of the Republic and Members of the Seimas enjoy immunity. Thus, the legal regulation established in the Law on Elections to the Seimas, whereby a candidate to Members of the Seimas, as well as a person, who was elected a Member of the Seimas, but who has not taken an oath yet, enjoys immunity, can be grounded on the Constitution and arises from the Constitution. The Constitution does not prohibit to legislatively establish the immunity of a candidate to Members of the European Parliament, as well as the immunity of a person, who was elected as a Member of the European Parliament. In addition, the immunity for a candidate to the President of the Republic, as well as the immunity for a person, who was elected President of the Republic, but who has not taken an oath yet, which is entrenched in the Law on Presidential Elections, is reasonable from the standpoint of the Constitution. It is emphasised that the immunity of the said persons is necessary so that only the Nation, i.e. the voters, would be able to decide who should be elected as a Member of the Seimas, the President of the Republic, or a Member of the European Parliament in general elections, so that the candidates to these offices would not be eliminated from the election process by decisions of the law and order institutions or those of their officials, so that the law and order institutions or their officials would not interfere in the elections process and would not influence the results of the elections. The article maintains that it is impossible to apply the same arguments as regards candidates to the Prime Minister or a minister, as well as candidates to judges, and the persons who had been appointed to the said offices, but who have not taken their oath yet. Laws may not establish immunity to the said persons, since they take office not by general elections, but in other ways—they are appointed to the corresponding office by the President of the Republic or the Seimas. The Prime Minister, ministers, as well as judges acquire the immunity established in the Constitution only after they take an oath.
When the Seimas decides whether to agree that a Member of the Seimas can be held criminally liable, arrested, or his freedom restricted otherwise, it is utmost important, what kind of note is presented to the Seimas by an investigation commission. Attention should be paid to the fact that the Statute of the Seimas does not provide expressis verbis what should be reflected in the note of the commission, and that it does not provide for any structure of the note. The purpose of these commissions established in the Statute of the Seimas and the Law on Seimas Provisional Investigation Commissions implies the fact that the note prepared by the commission must always contain the material that was analysed by the commission and present the arguments following which the commission suggests that the Seimas should agree or disagree that the Member of the Seimas be held criminally liable, arrested, or his freedom be restricted otherwise. The article analyses the notes, which were prepared by provisional investigation commissions formed by the Seimas, in which it was suggested that the Seimas should either agree or disagree on the abolition of the immunity of a Member of the Seimas. In the opinion of the author, an analysis of these notes permits to assert that these notes often have essential drawbacks: the notes contain insufficient arguments following which the commission substantiates its proposal that the Seimas should not give its consent to hold a Member of the Seimas criminally liable, to arrest him or restrict he freedom otherwise; at times such notes do not contain any such arguments at all; sometimes the commissions exceed the powers granted to them and undertake functions which are not characteristic of such commissions. The Constitution establishes the immunity of a Member of the Seimas not for the purpose that a Member of the Seimas who committed a crime could avoid criminal liability, but that he would not be held criminally liable in the absence of legal grounds, that he would not be persecuted for political or other similar reasons, and that no influence (which is prohibited by the Constitution) would be exerted on him due to his activity in the capacity of a Member of the Seimas.