Last week, in the world news, one of the "hottest" news was the announcement of Donald Trump, who has become the first former and newly elected U.S. president to be found guilty of criminal charges.
As explained, Donald Trump's sentencing in his New York criminal case means he'll be the first U.S. president to take office with a felony criminal conviction.
Judge Juan Merchan's sentencing of Trump to an "unconditional discharge" places a judgment of guilt on his record just days before he officially reclaims the White House on Jan. 20.
In the context of this news, assessments are made from a US legal perspective on various issues relevant to the assessment of this important post and its holder See, for example.
Below, Sorainen Corporate Crime Investigations and Compliance attorneys provide a brief assessment from a Baltic law perspective.
In short, it is likely that the legal capacity of the newly elected president in Latvia and Lithuania would be different from that in the U.S.
Could Mr. Trump be president while convicted?
Latvia
The short answer from the point of view of Latvian law is that it is most likely not.
A candidate for the highest public offices in Latvia requires a good reputation (see Section 2 of the Law on the Election of the President of Latvia. Law on the Election of the President of Latvia: Law of the Republic of Latvia. 03.05.2007. Latvijas Vēstnesis, 17.05.2007. No.79.). However, the fact that criminal proceedings have been initiated against a potential candidate for the office of President of Latvia does not mean that he or she should be denied the opportunity to be elected, taking into account the principle of the presumption of innocence in criminal law.
On the other hand, if a person has been punished for an intentional criminal offence, this automatically deprives him of the opportunity to run for various public offices. Article 3 of the Law on the Election of the President of Latvia also stipulates that a person who has been punished for an intentional criminal offence may not be elected President, except for a person who has been rehabilitated or whose criminal record has been extinguished or removed, or if the person has been punished with a prohibition to stand as a candidate in elections to the Saeima, the European Parliament, the city council, the municipality council and the parish council, except for a person who has been rehabilitated or whose criminal record has been extinguished or removed.
If criminal prosecution has been initiated or continues against an already elected President, a relevant question arises whether the president's office does not end in the case provided for in Article 54 of the Constitution of the Republic of Latvia, i.e., when the President, with the consent of the Saeima, is held criminally liable.
However, the President would have lost office only if the Saeima had also decided on his dismissal (Dišlers K. Organs of state power of Latvia and their functions. Rīga: 1925, p.158.). If there is no such decision of the Saeima, then it shall be considered that the President shall be suspended from office by his or her transfer to the court only for a period of time until the notification of the judgment. If the president is acquitted, he will be able to resume his duties. Such an approach would also be linked to the principle of the presumption of innocence in criminal law.
On the other hand, if the President is found guilty and convicted, the Saeima has grounds to decide on his or her dismissal from office from the moment the court judgment comes into force.
Although Article 51 of the Constitution does not lay down the criteria and grounds for the dismissal of the President, there may be a situation in which the Saeima may dismiss the President in accordance with Article 51 of the Constitution, which, accordingly, could be caused by the conviction that the Constitution allows the President to be dismissed regardless of whether the President has committed a crime, committed any reprehensible act or not.
However, the Constitution essentially allows the President to be dismissed from office if the President has committed a legally identifiable offence. The legal provisions of the Constitution should be interpreted in such a way that the Saeima does not have the right to dismiss the President simply because the representatives of the Saeima have it in mind or they want it. However, if the Saeima considers that the policy of the President is contrary to the interests of the State, then its representatives have the right to act (5 Dišlers K. Political Responsibility of the President of the Republic of Latvia. Journal of the Ministry of Justice, 1922. No.2, p.58.).
Finally, here we see fit to comment on the Special Prosecutor's observation in the Trump case that Trump would be convicted of very serious charges if not elected, the Special Prosecutor points out (see, for instance) Namely, contrary to the US Constitution, or more precisely the US Department of Justice's interpretation of the Constitution that it does not allow the accusations and trial of an elected President, Latvia has no such pseudo-amnesty principle/privileged immunity in its Constitution, which would impose an absolute ban on the trial of an elected President.
Lithuania
The Lithuanian Constitution does not establish a direct provision stating that a convicted person cannot be a President. However, Article 78 of the Constitution states that one of the preconditions for a person to be elected as a President is the eligibility to be elected as a member of the Lithuanian Parliament (Seimas). According to Article 56 of the Lithuanian Constitution, persons who have not served their sentence imposed by the court may not be elected members of the Seimas. This rule applies regardless of the criminal offense committed and (or) the sentence or penalty measure imposed. Hence, failing to complete a sentence means a person is not eligible to stand as a candidate in both Parliamentary and Presidential elections. However, if a candidate has already served his sentence, the mere fact that he or she has been convicted does not prevent them from running for President and being a President.
Considering Mr. Trump’s sentencing to an “unconditional discharge”, it must be noted that there is no such form of implementation of criminal liability in Lithuanian criminal law. Essentially, this situation would be the closest thing to an exemption from sentence. It should be stressed that even in this case, the person is first sentenced, the sentence is imposed, and only then is exempted from the sentence. However, since Mr Trump was not sentenced with an actual sentence at all and was only found to have committed criminal offences, it is considered that it would not prevent Mr Trump from being a President according to Lithuanian laws. Especially given that criminal records (which would be relevant to the assessment of impeccable reputation) and the length of it established in the Lithuanian Criminal Code are, in many cases, also linked to serving a real sentence.
It is noteworthy that the principle of the presumption of innocence in criminal law applies to ongoing criminal investigations. This means that if a candidate for President is under criminal investigation, he or she is presumed innocent until proven guilty according to the procedure established by law and declared guilty by an effective court judgment. In this case, there are no formal barriers to standing as a candidate in Presidential elections or being a President. The situation would be evaluated differently if a person were suspected of committing a criminal offence while being a President. Article 8, paragraph 1 of the Lithuanian Law on the Office of the President states that a person of Lithuanian President is inviolable, meaning that a President has immunity against any legal proceedings. The President of the Republic could be removed from office prematurely only if he or she has committed a serious violation of the Lithuanian Constitution or has broken an oath of office or in the event of a criminal offence. The question of the removal of the Lithuanian President from office is decided by the Lithuanian Parliament (Seimas) by the procedure of impeachment.
Could Mr. Trump carry a gun while convicted?
The short answer to the question is no.
In Latvia, Section 20 of the Law on the Circulation of Weapons specifies restrictions on natural persons obtaining a permit to carry a weapon. These restrictions also apply to a person who has been punished for committing a criminal offence before the conviction is extinguished or removed. The State Police shall cancel the permit for natural persons ahead of time if the restrictions specified in Section 20 of this Law have been set in.
In Lithuania, Article 17, paragraph 1(1) of the Law on Control of Weapons and Ammunition states that a natural person who does not have an impeccable reputation may not acquire or possess weapons or ammunition. A conviction (guilty verdict) means that the person no longer has an impeccable reputation and cannot obtain or possess weapons or ammunition. The same rule applies if a person is exempted from criminal liability. Still, only if the offence was of a violent nature, weapons were used in the commission of a criminal offence, or a person committed an offence under the influence of alcohol, narcotic drugs, psychotropic substances, or other psychoactive substances. In these cases, a person may not acquire or possess weapons or ammunition even during criminal proceedings.
Considering that Mr. Trump was convicted, he would not be allowed to carry a gun in Lithuania. The duration of such a ban on carrying a gun would depend on which offense in the Lithuanian Criminal Code would correspond to the acts committed by Mr. Trump in the US, the length of the criminal record (if applicable), etc.
Could Mr. Trump, being convicted, amnesty himself as president?
The short answer to the question is no.
First of all, considering that the general principle does not allow a convicted person to hold the office of President of Latvia, it should be concluded that in Latvia, it is not possible for the President to amnesty himself.
Secondly, under the Amnesty Act, amnesty is to be understood as releasing a person from serving a real custodial sentence. According to information in the public media, Mr. Trump is not facing a real prison sentence. Consequently, under the Amnesty Act, the President's right to pardon a person could not even theoretically apply to Mr Trump.
Third, Trump has been found guilty of committing serious crimes (felonies). However, the Amnesty Law restricts the right of the President of Latvia to pardon a person who has been found guilty of a serious criminal offence.
Lithuania
Article 79 of the Lithuanian Criminal Code states that the Lithuanian President can only grant pardons. This means that the Lithuanian President does not take part in adopting Amnesty acts by the Lithuanian Parliament (Seimas). Regardless, both institutes of pardon and amnesty may only be applied to those sentenced to real sentences (for example, imprisonment or arrest). Whereas in Mr Trump’s case, there would be no legal basis for using these institutes.
Considering a scenario where Mr Trump was sentenced to a real sentence, it should be noted that no Lithuanian law formally prohibits the Lithuanian President from pardoning himself. In addition, the Lithuanian President determines the procedure for granting pardons and is not bound by the Pardon Commission’s opinion on whether or not to grant a pardon to a particular convicted person. Of course, it must be noted that the Lithuanian President must avoid conflicts of public and private interests as enshrined in the Lithuanian Law on the Adjustment of Public and Private Interests. Granting a pardon to himself would unambiguously be regarded as a breach of the requirements of this law. For such infringement of law, a person may not be promoted, recruited, appointed or elected to an equivalent or higher post for a period of one year from the date on which the decision of the Chief Official Ethics Commission was taken. However, this sanction does not apply to those participating in Parliamentary or Presidential elections.
Could Mr Trump, while convicted, vote?
There is no ban on voting for convicted persons in Latvia, as well as in Lithuania.
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