Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
CONCLUSION
On the compliance of Articles 4, 5, 9, 14 as well as
Article 2 of Protocol No 4 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms with the
Constitution of the Republic of Lithuania
24 January 1995, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed from the Justices of the Constitutional Court Algirdas
Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Vladas
Pavilonis, Pranas Vytautas Rasimavičius, Stasys Stačiokas,
Teodora Staugaitienė, Stasys Šedbaras and Juozas Žilys,
the secretary of the hearing - Rolanda Stimbirytė,
the petitioner - Seimas deputy Chairman Juozas Bernatonis,
representative of the President of the Republic of Lithuania,
pursuant to the third part of Article 105 of the
Constitution of the Republic of Lithuania and Part 1, Article 1
of the Law on the Constitutional Court of the Republic of
Lithuania, in its public court hearing of 5 January 1995
conducted the investigation of Case No 22/94 subsequent to the
inquiry submitted by the President of the Republic of Lithuania
concerning the conclusion if Articles 4, 5, 9, 14 as well as
Article 2 of Protocol No 4 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms is in
compliance with the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
The petitioner requests the Constitutional Court to submit
a conclusion whether Articles 4, 5, 9, 14 as well as Article 2
of Protocol No 4 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms is in conformity with
the Constitution of the Republic of Lithuania. The request is
based on the following motives.
Article 1 of the Convention provides that the duty of
every state is to "secure to everyone within their jurisdiction
the rights and freedoms defined in Section 1 of this
Convention". Due to such obligation of the Republic of
Lithuania, national legislation with respect to human rights
must be co-ordinated with the requirements of said Convention.
On 11 February 1994, the President of the Republic by
Decree No 233 formed the working group for the conduction of
comparative analysis of the European Convention for the
Protection of Human Rights and Fundamental Freedoms and its
Protocols, and the Constitution of the Republic of Lithuania.
In the petitioner's opinion, such comparative analysis of the
Convention and the Constitution shows that some articles of the
Convention and its Protocols may contradict the provisions of
the Constitution (or fail to comply with them according to the
scope). In such a case, the Republic of Lithuania, having
ratified the European Convention for the Protection of Human
Rights and Fundamental Freedoms and its Protocols, would not be
able to comply with the international obligations, as Article 7
of the Constitution prescribes that "any law or other statute
which contradicts the Constitution shall be invalid".
Conforming to these motives, the petitioner requests the
Constitutional Court to present the conclusion:
(1) whether Article 4 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms is in
compliance with Article 48 of the Constitution of the Republic
of Lithuania;
(2) whether Article 5 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms is in
conformity with Article 20 of the Constitution of the Republic
of Lithuania;
(3) whether Article 9 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms is
consistent with Article 26 of the Constitution of the Republic
of Lithuania;
(4) whether Article 14 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms conforms to
Article 29 of the Constitution of the Republic of Lithuania;
(5) whether Article 2 of Protocol No 4 of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms does not contradict Article 32 of the Constitution of
the Republic of Lithuania.
The Constitutional Court
holds that:
The European Convention for the Protection of Human Rights
and Fundamental Freedoms (hereinafter referred to as the
Convention) was concluded in Rome on 4 November 1950 and
entered into force on 3 September 1953. According to the first
part of Article 66 of the Convention, it must be ratified.
Protocol 4 of the Convention was concluded in Strasbourg on 16
September 1963 and came into force on 2 May 1968. On 14 May
1993, the Minister of Foreign Affairs of the Republic of
Lithuania signed the Convention and its Protocols No 1, No 4
and No 7. These Protocols must also be ratified.
Section 1 of the Convention defines human rights and
freedoms that, according to Articles 1 and 57 thereof, shall be
secured by every state which has ratified the Convention to
everyone within its jurisdiction. In Article 1 of the
Convention it is established that: "The High Contracting
Parties shall secure to everyone within their jurisdiction the
rights and freedoms defined in Section 1 of this Convention".
Thus, every state which has ratified the Convention must
effectively implement the provisions of the Convention (or its
Protocols that have been signed by this state) in order to
fully carry out all the obligations under it.
This general requirement is directly connected with the
relation between the international law and domestic (national)
laws of the states in general and with respect to separate
problems, specifically - to the problem of human rights and
freedoms. Nowadays, the system of so-called parallel adjustment
of international and domestic law is perhaps the most widely
spread in Europe; it is based on the rule that international
treaties are transformed in the legal system of a state (i. e.
are incorporated in it). Such way of realization of
international agreements, the Convention among them, is
established in the Constitution of the Republic of Lithuania.
The European Convention for the Protection of Human Rights
and Fundamental Freedoms is a peculiar source of international
law, the purpose of which is different from that of many other
acts of international law. This purpose is universal, i. e. to
strive for universal and effective recognition of the rights
declared in the Universal Declaration of Human Rights and to
achieve that they were observed while protecting and further
implementing human rights and fundamental freedoms. With
respect to its purpose, the Convention performs the same
function as the constitutional guarantees for human rights,
because the Constitution establishes the guarantees in a state
and the Convention - on the international scale. That is why it
is very significant to evaluate and establish the relation
between the Convention and the Constitution.
Chapter 2 of the Constitution ("The Individual and the
State"), also preamble, Chapters 3, 4 and 12 of the
Constitution define the rights and freedoms to be guaranteed
for individuals within the jurisdiction of the Republic of
Lithuania.
The legal system of the Republic of Lithuania is based on
the fact that no law or other legal act as well as
international agreements (in this case the Convention) may
contradict the Constitution. In contrary case the Republic of
Lithuania would not be able to ensure the legal protection of
the rights and freedoms recognised by the Convention, which is
prescribed in Article 13 of the Convention containing the basis
for the implementation of the provisions of the Convention in
the internal legal system of every state. This Article
declares: "Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation
has been committed by persons acting in an official capacity."
Consequently, national authority, while implementing legal
protection, must directly apply constitutional norms and
realize the provisions of the Convention. The provisions must
become the constituent part of the domestic law of a state and
must meet no obstacles in their application in courts and other
authorities providing legal protection.
It should also be emphasized that the requirement that the
norms of the domestic law must literally comply with the
contents of the norms of the Convention is not directly
formulated in the Convention as the realization of this
requirement would not be possible. Neither it is strictly
specified in the Convention which ways should be employed for
the realization of human rights established in the Convention.
Every state itself establishes the ways it will use to ensure
the application of the provisions of the Convention. At this
point it is important to define the so-called limits of
compliance, i. e. to determine a sufficiently effective
protection of the rights specified in the Convention by the
laws of a state. Such "limits of compliance" are provided by
the national authority of a state on the basis of the powers
prescribed to them by the Constitution. The European Court of
Human Rights in its judgement of 6 February 1976 in the Swedish
Engine Drivers' Union Case argued that neither Article 13 nor
the Convention in general lays down for the Contracting States
any given manner for ensuring within their internal law the
effective implementation of any of the provisions of the
Convention.
However, the provisions of Sections 2, 3, 4 and 5 of the
Convention concerning the international protection of human
rights and freedoms established therein doubtlessly imply that
the norms of the Convention must be really implemented and the
violation of these rights and freedoms may not be explained by
saying that national laws prescribe otherwise. Such validity of
the Convention may be explained by the fact that a State Party
to the Convention must secure the application of the norms of
the Convention in the domestic legal system. Nevertheless,
international agreements, the Convention among them, is
differently applied in separate spheres of legal activity.
Concrete ways and forms of their application are established by
the laws of the Republic of Lithuania. In civil proceedings
direct application of international agreements is established
as a way of solving the competition between such agreements and
the norms of laws of the Republic of Lithuania: in case that
international agreements of the Republic of Lithuania set forth
other rules than it is provided by the laws of the Republic of
Lithuania, the rules of international agreements shall prevail
(Civil Code, Article 606, and Code of Civil Procedure, Article
482). Said way of deciding the competition of norms shall not
be applied in criminal proceedings. In such cases criminal laws
and laws of criminal procedure of the Republic of Lithuania
shall be directly applied, whereas international agreements
shall be applicable only in special cases prescribed by the
laws (Article 71 of the Criminal Code, and Articles 20, 21,
211, 212, 22, 221 and 222 of the Code of Criminal Procedure).
If, in the process of application of a criminal law, doubts
arose as to the guarantees for the realization of human rights
established in the Convention, the issue of the
constitutionality of the applied law should be settled in the
procedure of constitutional review. On the other hand, human
rights determined in the Convention cannot be realized without
direct application of domestic law acts. Putting it otherwise,
if only direct application of the Convention is recognized,
said rights can not be secured because the Convention itself
does not provide for any ways of realization of these rights in
the states that have ratified the Convention, or legal
responsibility of offenders, or appropriate procedures and
special jurisdiction for judicial institutions of the states.
The rule ubi jus ibi remedium, i. e. when the law provides the
right it also provides the remedy, is obviously valid here.
Such remedy in the legal system of a state is established by
the laws of this state. The Convention sets forth the remedy
only for the cases when litigation concerning the protection of
human rights established in it becomes the subject-matter of
international jurisdiction.
In the third part of Article 138 it is determined:
"International agreements which are ratified by the Seimas of
the Republic of Lithuania shall be the constituent part of the
legal system of the Republic of Lithuania." With respect to the
Convention, this constitutional provision implies that upon its
ratification and enforcement Convention will become the
constituent part of the legal system of the Republic of
Lithuania and shall be applied in the same way as laws of the
Republic of Lithuania. The provisions of the Convention in the
system of legal sources of the Republic of Lithuania are
equalled to the laws, because in Article 12 of the 21 May 1991
Law "On International Agreements of the Republic of Lithuania"
(Official Gazette "Valstybės Žinios" No 16-415, 1991; No
30-915, 1992) it is established that: "International agreements
of the Republic of Lithuania shall have the power of law on the
territory of the Republic of Lithuania."
Equal with laws application of the Convention in the
domestic law of the Republic of Lithuania and the legal power
of its provisions ipso facto does not ensure yet that the
provisions of the Convention shall in all cases be effectively
applied, because in the first part of Article 7 of the
Constitution it is determined: "Any law or other statute which
contradicts the Constitution shall be invalid." Although this
constitutional provision by itself may not make the
international agreement, the Convention in this case, invalid,
however it requires the compliance of the provisions of the
international agreement with the constitutional provisions,
because in contrary case it would be problematic to implement
the Convention in the domestic law of the Republic of
Lithuania.
While evaluating the contents of human rights established
in the Constitution and in the Convention, it is necessary to
take into consideration methodological basis for co-ordination
of comparative constitutional law and international law. The
provisions of the convention might be recognized as
contradicting the Constitution if:
(1) the Constitution established a complete and final list
of rights and freedoms and the Convention set forth some other
rights and freedoms;
(2) the Constitution prohibited some actions and the
Convention defined them as one or another right or freedom;
(3) some provision of the Convention could not be applied
in the legal system of the Republic of Lithuania because it was
not consistent with some provision of the Constitution.
(1) Pursuant to the general analysis of the Constitution
and the Convention it can be stated that neither the
Constitution nor the Convention contain a complete and final
list of human rights and freedoms. This is also confirmed in
Article 18 of the Constitution which establishes that "the
rights and freedoms of individuals shall be inborn". No legal
act may establish an exhaustive list of inborn rights and
freedoms.
The interpretation of the compatibility (relation) of the
norms of the Constitution and the Convention must be semantic,
logical and not only literal. Literal interpretation of human
rights alone is not acceptable for the nature of the protection
of human rights. For example, in the second part of Article 5
of the International Covenant on Civil and Political Rights it
is set forth that: "There shall be no restriction upon or
derogation from any of the fundamental human rights recognized
or existing in any State Party to the present Covenant pursuant
to law, conventions, regulations or custom on the pretext that
the present Covenant does not recognize such rights or that it
recognizes them to a lesser extent."
The literal interpretation of legal norms when applied as
the only way of interpretation is not acceptable because while
interpreting the contents of a legal norm not the particular
wording of a certain rule is most significant, but the fact
that the text should provide understanding beyond doubt that
the instruction is given to certain subjects under certain
conditions to act in appropriate way.
The formal literal interpretation of the provisions of the
Convention is not recognized in the practice of the European
Court of Human Rights as well. This Court on 27 June 1968 in
the judgement in Wemhoff Case and on 17 June 1970 in the
judgement in Delcourt Case repeated the same conclusion that,
given that it is a law-making-treaty, it is also necessary to
seek the interpretation that is most appropriate in order to
realize the aim and achieve the object of the treaty, not that
which would restrict to the greatest possible degree the
obligations undertaken by the parties.
The fact that the fundamental rights, freedoms and the
guarantees in one or another verbal form are formulated in the
Constitution does not allow yet to maintain that these wordings
are in all cases absolute in the sense of their application. A
law may provide a more extensive formulation of human rights,
freedoms and their guarantees than their literal expression in
concrete article or its part in the Constitution. Therefore,
their broader application is possible only if it is provided by
another legal act which has the power of law (in this case, by
the Convention and its Protocols. In this case, the third part
of Article 138 of the Constitution shall have determining
significance, as it establishes the principle of incorporation
of international agreements which are ratified by the Seimas,
consequently also of their equal application with laws, in the
legal system of the Republic of Lithuania.
Therefore, the provisions of the Convention, which define
human rights and freedoms, may be applied along with the
constitutional provisions provided they do not contradict the
latter.
(2) The Constitutional Court after a general analysis of
the texts observes that no provision of the Constitution and no
provision establishing human rights and freedoms in the
Convention allows to maintain that the Constitution forbids
some actions whereas the Convention defines them as one or
another right or freedom.
While evaluating the interaction of the norms of the
Constitution and the Convention and interpretation limits for
mutual interaction, the provision of part 1, Article 6 of the
Constitution "the Constitution shall be an integral and
directly applicable statute" should not be disregarded. The
Constitutional Court emphasizes that the integrity of the
Constitution first of all implies that constitutional
provisions are related not only formally, i. e. according to
the structure of their arrangement, but also according to their
contents. This unanimity of norms implies that the preamble to
the Constitution, its chapters and articles comprise the
significant whole of the Constitution. The significance of the
Constitution as integral and directly applicable act is
exceptional only when evaluating constitutional provisions
pertaining to human rights and freedoms. It is obvious that,
while interpreting the contents of concrete constitutional
provision, in many cases it is impossible to interpret it
separately from other provisions of the Constitution. It is
especially important to take this into account with regard to
such Chapters of the Constitution as "The Individual and the
State", "Society and the State", "National Economy and Labour"
and others which contain guarantees for the implementation and
means of legal protection of constitutional rights and
freedoms.
(3) The Constitutional Court notes that it is possible to
answer the question concerning compatibility of concrete
provisions of the Convention with concrete articles of the
Constitution only after analizing these concrete norms. Further
in this conclusion it is presented the analysis of the norms of
the Convention and the Constitution the compatibility of which
has been questioned in the inquiry.
1. On the compliance of Article 4 of the European
Convention for the Protection of Human Rights and Freedoms with
the Constitution of the Republic of Lithuania.
In the inquiry of the President of the Republic it is
indicated that the second part of Article 4 of the Convention
declares that "no one shall be required to perform forced or
compulsory labour", and the third part of this Article contains
explanation what kind of work is not considered forced or
compulsory. Item (a) of the third part provides that this is
"any work required to be done in the ordinary course of
detention imposed according to the provisions of Article 5 of
this Convention or during conditional release from such
detention." Whereas, according to the provision of the fifth
part of Article 48 of the Constitution, "labour which is
performed by convicts in places of confinement and which is
regulated by law shall not be deemed as forced labour either".
Every criminal penalty provided in the Criminal Code may
comprise the duty of a convict to work. This principle is
realized by correctional labour penalty without imprisonment
(Article 29 of Criminal Code). The rule formulated in the
Convention provides the duty to work only for an individual who
has been imprisoned or conditionally released from detention.
In the inquiry it is stated that the rule prescribed by the
Convention is of somewhat narrower scope, therefore the
conclusion can be drawn that item (a) of part 3, Article 4 of
the Convention contradicts part 5, Article 48 of the
Constitution.
The Constitutional Court emphasizes that such
interpretation of the interaction of norms of the Constitution
and the Convention is inaccurate first of all because the
Constitution does not provide for correctional labour as
criminal penalty, in fact such labour is not even mentioned.
The rule of the fifth part of Article 48 of the Constitution
that labour which is performed by convicts and which is
regulated by law shall not be deemed as forced labour either,
does not imply, however, that laws must establish correctional
labour penalty without imprisonment. It should also be noted
that the Criminal Code does not provide for the forced
employment of a convict as penalty.
On the other hand, forced labour in item (a) of part 3,
Article 4 of the Convention related to the application of
Article 5 of the Convention, i. e. to lawful detention (or to
conditional release from detention.) Such standpoint has in
essence been confirmed in the practice of the European Court of
Human Rights and other courts of the states of Europe. For
instance, Van Droogenbroeck case the essence of which was
forced work done by the recidivist executing a sentence
including deprivation of liberty, because the work was required
in order to save 12 000 Belgian francs. The European Court of
Human Rights in its judgement of 24 June 1982 argued that in
this case it was important to evaluate whether conditions of
the plaintiff's detention complied with Article 5 of the
Convention. The Court also pointed out that the work which Mr.
Van Droogenbroeck was asked to do did not go beyond what is
"ordinary" in this context since it was calculated to assist
him in reintegrating himself into society and had as its legal
basis provisions which find an equivalent in certain other
member States of the Council of Europe.
The comparative analysis of Article 48 of the
Constitution, Article 4 of the Convention and the practice of
application of this Article allows to draw the conclusion that
item (a), part 3, Article 4 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms does not
contradict the Constitution of the Republic of Lithuania.
2. On the compliance of Article 5 of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms with the Constitution of the Republic of Lithuania.
In the inquiry of the President of the Republic it is
specified that, first, the third part of Article 5 of the
Convention prescribes that "everyone arrested or detained ...
shall be brought promptly before a judge". Meanwhile, in the
third part of Article 20 it is established that "a person
detained in flagrante delicto must, within 48 hours, be brought
to court." The comparison of these two rules allows to presume
that the Convention provides for a more extensive guarantee as,
under it, everyone detained in accordance with the criminal
procedure shall be brought to court, whereas under the
Constitution, only a person detained in flagrante delicto must
be brought to court. In the inquiry it is emphasized that in
this case it may be stated that this constitutional rule is a
special norm, whereas part 2, Article 20 of the Constitution
provides for a general norm which declares that "no person may
be deprived of freedom except on the bases, and according to
the procedures, which have been established in laws", however
such conclusion may be presented only by the Constitutional
Court.
Second, in the inquiry it is requested to establish
whether the term "promptly" used in the Convention complies
with the rule of 48 hours determined in the Constitution.
Finally, third, part 4 of Article 5 of the Convention
contains the requirement that a judge should decide the
lawfulness of detention, whereas under the Constitution the
court must decide only the validity of the detention. The
petitioner maintains that this difference is essential because
a lawful detention is at the same time valid, whereas valid
detention can be unlawful.
The Constitutional Court emphasizes that such doubts is
not a significant basis for maintaining that the Convention
contradicts the Constitution. In the introductory part of the
argumentation of this conclusion it has already been stated
that the fact that the Constitution does not establish any
human rights, freedoms or their guarantees or provides somewhat
different wording for them, does not imply, however, that such
rights, freedoms or means of their realization may not be
guaranteed in the legal system of the Republic of Lithuania.
They may be, and usually are, stipulated in other legal acts
and are realized while applying these acts. Taking separately,
this also may be ensured by applying the Convention on the
basis of part 3, Article 138 of the Constitution. It would not
be possible to apply the provisions of the Convention only in
the case that they contradict according to their contents to
the Constitution.
First of all, the Constitutional Court, having compared
the concepts "shall be brought promptly before a judge"
(Convention, Article 5, part 3) and "must, within 48 hours, be
brought to court", emphasizes that they in essence do not
contradict each other. In the practice of the application of
the Convention the period of 48 hours conforms to the provision
"promptly brought". In order to found this, there is no need to
make an independent analysis of the application of the
Convention, because it is universally recognized that the
period of 4 days in cases of usual criminal offences and a
5-day-period in exceptional cases are considered as conforming
to the requirement of promptness. On the other hand, having
compared the Constitutions of other member-States of the
Council of Europe, we can find analogous constitutional norms.
For example, the same term of 48 hours is established in the
Constitutions of Portugal and Italy (Articles 28 and 13,
respectively), of 72 hours in the Constitution of Spain
(Article 17). Thus, even the comparative analysis of the
constitutions of member-States of the Council of Europe
confirms the above mentioned evaluation with respect to this
issue.
Secondly, in the inquiry, while comparing part 3, Article
20 of the Constitution and part 3, Article 5 of the Convention,
the conclusion is made that "the Convention provides for a
broader procedural guarantee, because under it everyone
detained in accordance with the criminal procedure shall be
brought to court, whereas under the Constitution only a person
detained in flagrante delicto must be brought to court. The
Constitutional Court observes that the main purpose of the
provisions of part 3, Article 20 of the Constitution is to
guarantee that such a person be brought to court. Even in the
case that the conclusion made in the inquiry were true, it
would be possible to co-ordinate both provisions. When applied
together, they would only complement each other making one
legal guarantee.
Thirdly, although in the fourth part of Article 5 of the
Convention it is required that a judge should decide the
lawfulness of detention, whereas according to part 3, Article
20 of the Constitution the court must determine the validity of
the detention, which, in the petitioner's opinion, is the
essential difference, these provisions, however, when evaluated
not literally but notionally, do not contradict each other.
According to the Constitution as well as conforming to the
Convention, the Constitutional Court must evaluate the
lawfulness and the validity of detention. However, part 3,
Article 20 of the Constitution may not be evaluated separately
from the text of all this Article and other constitutional
provisions concerning the guarantees of lawfulness. In the
second part of said Article it is set forth: "No person may be
arbitrarily arrested or detained. No person may be deprived of
freedom except on the basis, and according to the procedures,
which have been established in laws." These provisions actually
establish the principle of lawfulness of detention as a
universal rule. The term "validity" used in Article 20 of the
Constitution has a more extensive meaning than causative
factual relation, i. e. it includes "lawfulness" as well.
Taking all this into consideration, the conclusion may be
drawn that Article 5 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms is in
conformity with the Constitution of the Republic of Lithuania.
3. On the compliance of Article 9 of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms with the Constitution of the Republic of Lithuania.
In the inquiry of the President of the Republic it is
specified that the second part of Article 9 of the Convention
provides for the possibility to restrict a person's "freedom to
manifest one's religion or beliefs", whereas part 4, Article 26
of the Constitution declares that "a person's freedom to
profess and propagate his or her religion or faith" may be
subject to limitations. In the inquiry it is stated that, in
the Convention as well as the Constitution, freedom to profess
and propagate one's religion or beliefs is discerned into two
independent freedoms, therefore it may be maintained that the
Convention does not prescribe any possibility to restrict a
person's freedom to profess his or her religion or beliefs.
The Constitutional Court states that neither Article 9 nor
any other article of the Convention contains two independent
freedoms, i. e. a person's freedom to profess religion or
beliefs and freedom to manifest religion or beliefs. The
freedom to profess religion or beliefs is simply not mentioned
in the Convention. In the first part of Article 9 of the
Convention it is determined: "Everyone has the right to freedom
of thought, conscience and religion; this right includes
freedom to change his religion or belief and freedom, either
alone or in community with others and in public or private, to
manifest his religion or belief, in worship, teaching, practice
and observance."
Thereby this text of the Convention differs not only from
Article 26 of the Constitution but also from the texts of the
first part of Article 18 of the International Covenant on Civil
and Political Rights containing the word "to have".
Consequently, international legal acts and the Constitution
while securing to everyone freedom of religion, employ
different terms to define this freedom.
Taking this into consideration, there is absolutely no
basis for maintaining that Article 26 of the Constitution
provides for the possibility to restrict a person's freedom to
profess religion or beliefs. On the contrary, the first part of
Article 26 of the Constitution establishes a general principle:
"Freedom of thought, conscience, and religion shall not be
restricted", whereas the second part provides: "Every person
shall have the right to freely choose any religion or faith
and, either individually or with others, in public or in
private, to manifest his or her religion or faith in worship,
observance, practice or teaching."
The profession of religion or beliefs, when taken apart
from manifestation and propagation, is a spiritual category
implying the possession of religious and faith beliefs. It is
not accidental that Lithuanian words "laisvė išpažinti"
(freedom to profess) in the French and English texts of the
first part of Article 18 of the Covenant on Civil and Political
Rights correspond to "la liberte d'avoir" and "freedom to
have", respectively, the word-for-word translation of which
would be "laisvė turėti" (religiją ar tikėjimą) "freedom to
have" (religion or belief). In translations the word "to
profess" was used instead of "to have" because the latter does
not entirely reflect the spiritual nature of religion or faith
and also the inner state of human soul. This state may not be
restricted in any way if only by persecuting a person for his
religion or faith, and even in such a case the persecution
cannot deprive him of his religious beliefs or faith. In this
case a general legal principle is valid: lex non cogit ad
impossiblia - the law does not require impossible things.
The Constitutional Court states that the word "to profess"
in the phraze "a person's freedom to profess and propagate his
or her religion or faith may be subject only to those
limitations prescribed by law" in part 4, Article 26 of the
Constitution may be interpreted as corresponding in its sense
to the words "one's religion" in the Convention. If part 4,
Article 26 of the Constitution had provided separate
limitations on the freedom to profess religion or faith, the
phraze would be joined by the conjunction "or" instead of
"and". The joining of the words "to profess" and "to propagate"
by the conjunction "and" means nothing else but one's religion
or beliefs". That is why this constitutional provision did not
have any negative legal consequences in the legal system of the
Republic of Lithuania with respect to freedom of faith or
religion, there is no law restricting the right to profess
religion or faith.
Taking all this into account the conclusion can be drawn
that Article 9 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms is in compliance with the
Constitution of the Republic of Lithuania.
4. On the compliance of Article 14 of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms with the Constitution of the Republic of Lithuania.
In the inquiry of the President of the Republic it is
pointed out that the Convention prohibits only the so-called
negative discrimination, whereas the Constitution forbids
"negative" as well as "positive" discrimination (granting of
privileges). Furthermore, in the inquiry it is stated that the
Convention establishes a longer list of the grounds for
prohibiting discrimination: in the Constitution no mention is
made of the colour of the skin, belonging to a national
minority.
The Constitutional Court states that the so-called
positive discrimination mentioned in the inquiry may not be
considered as granting of privileges. The Constitution only
establishes certain universally recognized special rights
peculiar for a certain group of people, namely the rights of
the members of national minorities, which are determined in
Articles 37 and 45 of the Constitution. The Constitution also
prescribes that the State shall take care of families bringing
up children at home, and shall render them support, shall
provide privileges for working mothers (Article 39), etc.
Such standpoint with regard to special human rights is
peculiar also to the practice of the application of the
Convention. The European Court of Human Rights in its judgement
of 8 July 1986 in the Case of Lithgow and Others made the
conclusion that the Contracting States enjoy a certain margin
of appreciation in assessing whether and to what extent
differences in otherwise similar situations justify a different
treatment in law.
All this, along with the general non-discrimination rule,
ensure the underlying principle of all people's equality. This
is confirmed by the general rule established in the first part
of Article 29 of the Constitution: "All people shall be equal
before the law, the court, and other State institutions and
officers."
The second part of this Article derives from the first one
as it forbids violation of equality by determining that: "A
person may not have his right restricted in any way, or be
granted any privileges, on the basis of his or her sex, race,
nationality, language, origin, social status, religion,
convictions, or opinions." Here the phraze "a person may not
have his rights restricted in any way, or be granted any
privileges" is adequate to the phraze "the enjoyment of the
rights and freedom set forth in this Convention shall be
secured without discrimination on any ground." The restriction
of human rights on the basis of his or her sex, race,
nationality, etc., is nothing else but discrimination which is
prohibited by both, the Convention and the Constitution.
The Constitutional Court argues that word-for-word
comparison of the texts of the second part of Article 29 of the
Constitution and Article 14 of the Convention allows to
maintain that the Convention provides for more extensive
non-discrimination guarantees, because it prohibits
discrimination also on the basis of colour, association with a
national minority, property, birth or other status. However, it
is necessary to take into consideration the essential identity
of the constitutional norms and the norms of the Convention
concerning non-discrimination of people on any ground, and not
the differences in verbal expression of separate
non-discrimination indications. Besides, it should be noted
that some different words used in the Constitution and in the
Convention actually imply the same non-discrimination
indication or embraces some of them. For example, it may be
presumed that the word "faith" used in the Constitution
embraces the word "religion" employed in the Convention. If it
were evaluated otherwise, it might cause doubts where the
Convention recognizes faith as a basis for non-discrimination.
The notion "social status" used in the Constitution comprises
the concepts "social origin" and "property" of the Convention.
On the other hand, the fact that the phrase "social status" is
not used in the Convention, and the phraze "social origin" is
mentioned instead, does not imply the possibility to establish
unequal rights for persons of separate social groups. The words
"races", "nationalities", "national minorities" that are
actually used to define the same non-discrimination basis,
should be evaluated in the same way.
Consequently, complex and not formal word-for-word
comparison of the provisions of the Constitution and the
Convention allows to make a conclusion that Article 14 of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms does not contradict the Constitution of
the Republic of Lithuania.
5. On the compliance of Article 2 of Protocol No 4 of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms with the Constitution of the Republic of
Lithuania.
In the inquiry of the President of the Republic it is
specified that part 1, Article 2 of Protocol No 4 prescribes
that "everyone lawfully within the territory of a State shall,
within that territory, have the right to liberty of movement
and freedom to choose his residence." Meanwhile, in the first
part of Article 32 of the Constitution it is declared that
"citizens may move and choose their place of residence in
Lithuania freely, and may leave Lithuania at their own will."
The petitioner argues that systematic analysis of articles of
the Constitution shows that the legislator uses concepts
"person", "individual" and "citizen". The analysis of the texts
in which these notions are used allows to maintain that they
are not synonyms and have certain legal meaning. For instance,
concepts "individual" and "person" used in Articles 22, 24, 25
and 26 of the Constitution which provide for universal human
rights and freedoms (for a citizen of a state, a foreigner and
a person without citizenship). Meanwhile, the concept "citizen"
is employed only in those articles of the Constitution which
establish specific rights concerning relation between a person
and the Lithuanian State, i. e. concerning citizenship (e. g.
Constitution, Article 32, parts 1, 2, 3; Article 33).
Therefore, the petitioner has doubts whether Article 2 of
Protocol No 4 of the Convention according to its scope is in
conformity with the first part, Article 32 of the Constitution.
The Constitutional Court states that the norm of Article 2
of Protocol No 4 of the Convention that "everyone lawfully
within the territory of a State shall, within that territory,
have the right to liberty of movement and freedom to choose his
residence" consists of two parts that are interdependent. One
of them implies freedom of movement and freedom to choose one's
residence, whereas another means that only persons that are
lawfully within a State shall be entitled to such right. Such
persons may be citizens, foreigners and persons without
citizenship. A citizen's being in his or her state is always
lawful. In part 3, Article 32 of the Constitution it is set
forth: "A person may not be prohibited from returning to
Lithuania." Meanwhile, the conditions for the lawfulness of
arrival, departure and being in a state of a foreigner or a
person without citizenship are prescribed in the domestic law.
Such conditions have been established in the Law of the
Republic of Lithuania "On the Legal Status of Foreigners in the
Republic of Lithuania" (Official Gazette "Valstybės Žinios", No
27-729, 1991).
Foreigners and persons without citizenship that in
accordance with said Law are lawfully within the Republic of
Lithuania have the same rights and freedoms as citizens of the
Republic of Lithuania unless the Constitution, this Law and
other laws as well as international agreements prescribe
otherwise. Thus, the provisions in question of Protocol No 4,
when applied in the legal system of Lithuania along with the
provisions of the Law "On the Legal Status of Foreigners in the
Republic of Lithuania" and other laws of the Republic of
Lithuania would include each other. There would be only one
question to solve - whether in concrete case a foreigner or a
person without citizenship is lawfully within territory of the
Republic of Lithuania, so that he might fully exercise the
right to movement and free choice of his place of residence.
The evaluation of all this results in the conclusion that
Article 2 of Protocol No 4 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms is in
compliance with the Constitution of the Republic of Lithuania.
Taking into consideration all the motives presented in the
argumentation of this conclusion and interpretation of some
concepts of the Constitution and the Convention, and conforming
to part 3, Article 105 of the Constitution; item 3, Article 73
and Article 83 of the Law on the Constitutional Court, the
Constitutional Court has presented the following
conclusion:
Articles 4, 5, 9, 14 and Article 2 of Protocol No 4 of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms are in compliance with the Constitution of
the Republic of Lithuania.
This Constitutional Court conclusion is final and not
subject to appeal.