Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Articles 5 and 10 of the Law
of the Republic of Lithuania on State Secrets and
Their Protection with the Constitution of the
Republic of Lithuania as well as on the compliance
of the 6 March 1996 Resolutions No. 309 and 310 of
the Government of the Republic of Lithuania with
the Constitution of the Republic of Lithuania and
the norms of the Republic of Lithuania Code of
Civil Proceedings
19 December 1996, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Egidijus
Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas
Rasimavičius, Teodora Staugaitienė, and Juozas Žilys,
the secretary of the hearing - Daiva Pitrėnaitė,
the party concerned - Ramutė Ruškytė, the representative
of the Government of the Republic of Lithuania,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the Law on
Constitutional Court of the Republic of Lithuania, in its
public hearing on 4 December 1996 conducted the investigation
of Case No. 3/96 subsequent to the petition submitted to the
Court by the petitioner - Vilnius City District Court No. 1 -
requesting to investigate if Articles 5 and 10 of the Law of
the Republic of Lithuania on State Secrets and Their Protection
are in compliance with Parts 3 and 5 of Article 25 of the
Constitution of the Republic of Lithuania as well as if the
provisions of the 6 March 1996 Resolution No. 309 of the
Government of the Republic of Lithuania "On the approval of the
list of the information which is considered a state secret of
the Republic of Lithuania" and those of the 6 March 1996
Resolution No. 310 of the Government of the Republic of
Lithuania "On the approval of the list of duties whereby the
persons who discharge them are entitled to familiarise
themselves with the information which is considered a state
secret without exceeding their competence established by law,
as well as on notifying these persons of liability for
disclosure or loss of such information" are in compliance with
Parts 3 and 5 of Article 25, Part 1 of Article 29 of the
Constitution of the Republic of Lithuania, and Articles 4, 31,
197, Part 3 of Article 220, Articles 222 and 253 of the
Republic of Lithuania Code of Civil Proceedings.
The Constitutional Court
has established:
I
On 1 April 1996, the petitioner - Vilnius City District
Court No. 1 - was investigating a civil case subsequent to the
complaint of the plaintiff V. Šulcas against the respondent the
Ministry of Internal Affairs regarding the restoration to work
of the former. The court by its interlocutory ruling suspended
the investigation of the case and appealed to the
Constitutional Court with the request to investigate if
Articles 5 and 10 of the Law of the Republic of Lithuania on
State Secrets and Their Protection (Official Gazette "Valstybės
žinios" No. 96-214, 1995) are in compliance with Parts 3 and 5
of Article 25 of the Constitution. The petitioner also requests
to investigate if the provisions of the 6 March 1996 Resolution
No. 309 of the Government of the Republic of Lithuania "On the
approval of the list of the information which is considered a
state secret of the Republic of Lithuania" (Official Gazette
"Valstybės žinios", No. 22-579, 1996) and those of the 6 March
1996 Resolution No. 310 of the Government of the Republic of
Lithuania "On the approval of the list of duties whereby the
persons who discharge them are entitled to familiarise
themselves with the information which is considered a state
secret without exceeding their competence established by law,
as well as on notifying these persons of liability for
disclosure or loss of such information" (Official Gazette
"Valstybės žinios" No. 22-580, 1996) are in compliance with
Parts 3 and 5 of Article 25, Part 1 of Article 29 of the
Constitution, and Articles 4, 31, 197, Part 3 of Article 220,
Articles 222 and 253 of the Republic of Lithuania Code of Civil
Proceedings.
II
The petitioner grounds his request on the following
arguments.
1. Articles 5 and 10 of the Law on State Secrets and Their
Protection which restrict the right and freedom of people to
obtain information contradict the provisions of Parts 3 and 5
of Article 25 of the Constitution as Article 5 delegates to the
Government the right to restrict obtaining of information.
Besides, the disputed articles do not implement the requirement
of the Constitution under what procedure citizens should obtain
any available information which concerns them from state
agencies.
2. The contested resolutions of the Government restrict
the opportunities of the persons participating in a case to
implement the rights established by Article 31 of the Code of
Civil Proceedings as well as the opportunity to appropriately
implement the provisions of Articles 4, 197, 222, 253, and Part
3 of Article 220 of the said code. This contradicts the
principle of equality of all people which is consolidated in
Article 29 of the Constitution. The disputed Government
resolutions violate the principle of people's equality which is
consolidated in Article 31 of the Code of Civil Proceedings.
III
While the case was being prepared for the judicial
investigation, an explanation from Prime Minister M.
Stankevičius was received wherein it was indicated that the
Government, when adopting the disputed resolutions, did not
establish a new circle of persons who were entitled to
familiarise with the information which is considered a state
secret but merely enumerated the duties of the state officials
and persons provided for by the Constitution, and who are
appointed by the President of the Republic, the Seimas, the
Government and the Prime Minister to the aforementioned duties.
The Government had not restricted people's right to information
by its disputed resolutions.
P. Vitkevičius, the Chairman of the State and Law
Committee of the Seimas, explained in writing that the right to
information may be restricted only by law. Item 2 of Article 5
of the disputed law provides that the Government shall approve
the list of state secrets. This and other issues indicated in
the provisions of that article should be regulated by law.
Article 10 of the disputed law is in compliance with Article 25
of the Constitution. The contested Government resolutions are
in compliance with Part 1 of Article 29 of the Constitution,
however, they contradict Article 25 of the Constitution. The
contested resolutions are in compliance with Articles 4, 197,
222, 253, and Part 3 of Article 220 of the Code of Civil
Proceedings.
G. Švedas, a secretary of the Ministry of Justice,
explained the practice of European institutions for human
rights protection. He pointed out that the European Commission
for Human Rights and the European Court of Human Rights raises
2 requirements: 1) the person concerned must be given the
opportunity to acquire information about the applied
regulations; 2) the law must be formulated in a sufficiently
precise manner so as the person would be able to act in
accordance to it.
T. Birmontienė, Director of the Lithuanian Centre for
Human Rights, emphasised in her paper that Article 5 of the
disputed law delegates to the Government the regulation of
state secrets. Therefore Government Resolution No. 309
contradicts the Constitution while Government Resolution No.
310 is not linked with Part 5 of Article 25 of the
Constitution.
K. Pėdnyčia, an assistant director of the Department of
State Security, and K. Šimkus, Head of the Department of the
Operational Tactics of the Police Academy of Lithuania,
explained in writing certain circumstances of the question at
issue.
During the court hearing, the representative for the
Government virtually reiterated the arguments set forth in the
paper of the Prime Minister.
The Constitutional Court
holds that:
Article 25 of the Constitution guarantees each individual
the right to express his convictions and the right to
information. Part 2 of the said article stipulates:
"Individuals must not be hindered from seeking, obtaining, or
disseminating information or ideas".
It is universally recognised that in today's society
information is a need of the individual, as well as the measure
of his knowledge. Information eliminates ignorance, it makes
human behaviour meaningful. The implementation of human rights
and freedoms is directly linked with the individual's
opportunity to obtain information from various sources and make
use of it. This is one of pluralistic democracy achievements
ensuring the progress of society.
Alongside, it should be noted that the right of the
individual to seek, obtain and disseminate information is not
an absolute one. The relation of this constitutional value to
other legal values expressing the rights and freedoms of other
persons as well as necessary public needs determines the
restrictions of the right to information. One of such needs is
a necessity to protect certain information for the good of
interests of the society and individuals. This is state,
commercial, professional, technological secrets or information
concerning private life of individuals. The state proclaims
some especially important military, economic, political or
other information the disclosure of which may harm national
interests to be a state secret. In attempt to prevent
disclosure of such information, its protection is established
by law and the use of such information is restricted. However,
the protection of common interests in a democratic state may
not deny the human right to information as such. The doctrine
of human rights and freedoms, as well as the international and
national law which are based on the former, links the solution
of this issue with the rational relation of legal values which
guarantees that the essence of the respective human right is
not violated. Article 10 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms
guaranteeing the right for the individual to hold opinions, to
receive and impart information and ideas provides for an
opportunity to restrict this freedom under these conditions: 1)
providing it is necessary in a democratic society, 2) providing
it is provided for in national law, and 3) providing it is
sought to protect by restrictions such values as national
security, territorial integrity, public safety, prevention of
disorder or crime, the protection of health or morals, etc.
Most states follow these standards. Parts 3 and 4 of Article 25
of the Constitution prescribe:
"Freedom to express convictions, as well as to obtain and
disseminate information, may not be restricted in any way other
than as established by law, when it is necessary for the
safeguard of the health, honour and dignity, private life, or
morals of a person, or for the protection of constitutional
order.
Freedom to express convictions or impart information shall
be incompatible with criminal actions - the instigation of
national, racial, religious, or social hatred, violence, or
discrimination, the dissemination of slander or
misinformation."
These provisions of the Constitution circumscribing
restrictions of the human right to information are the main
criterion of legal regulation of protection relations of
classification, use and making public of the information which
is considered a sate secret. The legislator determining how the
information which is considered a state secret must be
protected is obligated to decide on such legal measures whereby
to groundlessly restrict the right of the individual to
information would be impossible.
Article 145 of the Constitution also provides for
exclusive principles of temporary restriction of the right to
information during martial law or a state of emergency.
1. On the compliance of Articles 5 and 10 of the Law on
State Secrets and Their Protection.
1.1. The Law on State Secrets and Their Protection defines
what a state secret is as well as how the information which is
considered a state secret is classified, used, and made public
in the Republic of Lithuania and its diplomatic embassies and
consulates abroad.
Article 5 of the law wherein the protection of the
information which is considered a state secret is regulated
stipulates:
"Protection of the information which is considered a state
secret shall be regulated by this Law and, in the manner
prescribed by laws, the Government of the Republic of Lithuania
which shall:
1) establish the procedure for drawing up and amending the
list (hereinafter referred to as the list of state secrets) of
the Republic of Lithuania information which is considered a
state secret;
2) approve the list of state secrets;
3) approve the list of subjects of state secrets, as well
as establish the procedure for drawing up, approving and
amending detailed lists of the information which is considered
a state secret, relating to the activities of subjects of state
secrets;
4) establish the procedure for familiarising of the
persons who hold office provided for in Part 4 of Article 10 of
this Law, with the information which is considered a state
secret, as well as for notifying these persons of liability
which is established by laws of the Republic of Lithuania for
disclosure or loss of the information which is considered a
state secret;
5) prolong the term of classifying of the information
which is considered a state secret;
6) approve normative acts which regulate protection of the
information which is considered a state secret; and
7) establish the procedure for release of the information
which is considered a state secret to other states or
international organisations, as well as for permitting citizens
of other states to have access to or familiarise themselves
with the information which is considered a state secret."
Article 10 of the law stipulates:
"To familiarise oneself with the information which is
considered a state secret shall have the right only a person
who has been granted the permit to work with such information,
and only with that of information which is related with the
performance of his duties.
A permit to familiarise oneself with the information which
is considered a state secret, and which another subject of
state secret has at its disposal, shall be granted to the
person by the head of the institution which disposes of such
information. The person must produce a purposive order issued
by the head of the institution he works wherein. It must be
confirmed in the order that the person has the permit to work
with the information which is considered a state secret,
specified the type and volume of information the person needs
to familiarise himself with, as well as the motive for
familiarising with such information.
If a decision is adopted not to allow the person to
familiarise himself with the information which is considered a
state secret specified in the order, the head of the
institution which disposes of such information must give
reasons for his decision, as well as familiarise within 10 days
the head of the institution, which has sent the person, with
this decision.
The following shall ex officio have the right to
familiarise themselves with the information which is considered
a state secret, without exceeding their powers established by
laws:
the President of the Republic,
the Prime Minister, and
the members of the Seimas of the Republic of Lithuania;
the persons who are appointed to discharge their duties
by:
the President of the Republic,
the Seimas of the Republic of Lithuania,
the Government of the Republic of Lithuania, and
the Prime Minister."
The petitioner is of the opinion that Article 5 of the Law
on State Secrets and Their Protection which delegates to the
Government the right to restrict information obtaining, as well
as Article 10 which restricts the right and freedom of the
individual to obtain information, contradicts the provisions of
Parts 3 and 5 of Article 25 of the Constitution. Furthermore,
the requirement provided for by Part 5 of Article 25 of the
Constitution to establish the procedure whereby citizens are
entitled to obtain any available information concerning them
from state agencies is not implemented in Articles 5 and 10 of
the said law.
It is clear from the content of Article 25 of the
Constitution that two conditions must be followed, when
restricting human rights to seek, obtain, and disseminate
information: they may be restricted only by law and only when
the values enumerated in Part 3 of Article 25 must be
safeguarded or protected.
When deciding the question whether the Seimas may delegate
to the Government to decide state secret protection issues
linked with the establishment of restrictions of human right to
information, one must take account of the principle of
separation of powers as established in the Constitution.
The doctrine of human rights and freedoms treats the state
as the major guarantor of these rights and freedoms, and as the
subject which may potentially violate these rights and
freedoms. When actually implementing the principle of
separation of powers, it is possible to reinforce human rights
guarantees. The state governance may be divided into relatively
independent branches: the legislative, executive, and judicial.
Different, still equally important roles fall upon these powers
in the sphere of major rights and freedoms. Every institution
of power is granted competence corresponding to its purpose.
Article 67 of the Constitution consolidates the exclusive
right of the Seimas to pass laws. The most important issues of
public life are regulated by legal norms. Item 2 of Article 94
of the Constitution provides that the Government shall
implement laws and other resolutions of the Seimas.
Substatutory acts adopted by the Government particularise and
specify legal norms. Thus the main issues of the hierarchy of
legal acts are consolidated in the Constitution.
It should be noted that the Constitutional Court, when
judging the question whether the Seimas may commission the
Government to regulate relations linked with human rights and
freedoms, held in its 26 October 1995 ruling:
"The delegating of the right of legislation to the
Government must be legitimate, i.e. based on the provisions
consolidated in the Constitution of the State. In the
Constitution of the Republic of Lithuania the delegation of
legislation is not provided for, only executive legal acts
therefore may be adopted by the Government.
The regulation limits of laws and executive acts depend on
many factors - traditions of law, level of political and legal
culture of the society, however, from the standpoint of both
the theory of law and the practice of legislation, certain
priority matters of a society must be regulated only by laws.
In a democratic society the priority is given to an individual,
therefore, everything that is related to the fundamental human
rights and freedoms is regulated by laws. That comprises the
confirmation of human rights and freedoms, determination of the
contents thereof, legal guarantees of protection and defence,
their permissible limitation, etc."
Human rights and freedoms are the most important legal
value, therefore, as a rule, the legislator establishes such
ways and means to protect a state secret which would not create
conditions to groundlessly restrict the right of the individual
to information. The law as the legal source, along with the
manner of its adoption, best guarantees that the common
interests conditioned by the constitutional order to protect a
state secret are co-ordinated with ensuring of the right of the
individual to seek, obtain and disseminate information. Such
rights of the individual, along with the observance of the
reciprocity principle of the law restricting them, is a
significant guarantee for implementation of human rights and
freedoms.
1.2. Item 1 of Article 5 of the Law on State Secrets and
Their Protection provides that the Government shall establish
the procedure for drawing up and amending the list of the
information which is considered a state secret. The content of
this norm depends upon the norm of item 2 of Article 5 of the
law, therefore, in the first place, the issue of compliance of
the latter to Part 3 of Article 25 of the Constitution is to be
judged.
Item 2 of Article 5 of the law provides that the
Government shall approve the list of state secrets. The state
protects the information entered into the list, a special
procedure concerning its use is established. Therefore the
approval of the list of state secrets (respective selection of
information, the establishment of the content of the list,
etc.) is directly related to restriction of human right to
information. The issue of solution of the compliance of this
norm with Part 3 of Article 25 of the Constitution is to be
linked with the notion "a state secret" which is formulated in
Article 2 of the said law. Therein it is indicated that a state
secret shall be construed to mean "political, economic,
military, law-and-order, scientific, technological or other
information, the disclosure or loss whereof can violate
sovereignty of the Republic of Lithuania, military or economic
power, cause damage to the constitutional system and political
interests, and which is specified in the list of the Republic
of Lithuania, approved by the Government of the Republic of
Lithuania, concerning the information which is considered a
state secret". This notion does not precisely enough define
what information is held a state secret. Information becomes a
state secret if it is entered into the list of state secrets
which is made by the Government. Thus the restrictions of the
right of the individual to information are actually established
by a substatutory act norm but not by law.
Neither does Article 8 of the said law regulating what
information may not be a state secret ensure the right of the
individual to information. When defining such information, a
substatutory act norm is given priority but not that of law.
Thus, there being no precise criteria formulated by law of
recognition which information is a state secret, the Government
is virtually commissioned to regulate relations which are the
matter of legal regulation but not to particularise the law.
Thereby the constitutional principle of human rights legal
protection is violated. Taking account of the motives set forth
it should be concluded that items 1 and 2 of Article 5 of the
disputed law contradict Part 3 of Article 25 of the
Constitution.
As the commissioning of the Government to approve the list
of state secrets violates constitutional provisions, then the
commissioning of the Government to establish the procedure of
drawing up and amending the list as provided for by item 1 of
the said law contradicts Part 3 of Article 25 of the
Constitution, too.
As it was already mentioned above, items 1 and 2 of
Article 5 are related to each other, therefore item 1 of this
article is to be assessed correspondingly as item 2 was above.
Item 3 of Article 5 of the Law on State Secrets and Their
Protection provides that the Government shall approve the list
of subjects of state secrets, as well as establish the
procedure for drawing up, approving and amending of detailed
lists of the information which is considered a state secret,
relating to the activities of subjects of state secrets. The
provision of this item "[the Government shall] approve the list
of subjects of state secrets" is to be assessed while taking
account of the norms of Articles 4 and 2 of the disputed law.
According to Article 4 of the law, subjects of state
secrets shall be public institutions or other legal persons
vested with special powers of the Government of the Republic of
Lithuania, the activities whereof are related to use or
protection of the information which is considered a state
secret. The entering of these institutions or legal persons
into the list of subjects of state secrets means that the
organisation and its respective employees are entitled to use
the information which is considered a state secret. The
vagueness of the regulation provides the executive power with
the opportunity to condition by a substatutory act the volume
of use of the information. Furthermore, Article 4 of the law
mentions “other legal persons". This permits the Government to
give the status of a subject of a state secret not only to
public but also to private legal persons as well.
The norms of Article 4 link giving the status of a subject
of a state secret, first of all, with a formal entering into
the list of subjects of state secrets but never with a state
secret itself. Such a conclusion is confirmed by the fact that
the Government by its 31 January 1991 resolution approved the
list of subjects of state secrets, which was earlier than the
list of state secrets itself was approved. Institutions of
culture and education, special purpose stock companies, private
companies, stock companies, etc., were entered into the former
list. As there are no clear legal criteria on the grounds of
which information is considered a state secret in the norm of
Article 2 of the law, pre-conditions are created for the
executive power to consider certain information of limited use
(which would constitute a professional, official, commercial or
technological secret) as a state secret. Thus the use of this
information is additionally restricted.
Taking account of the motives set forth a conclusion is to
be drawn that the provision "[the Government shall] approve the
list of subjects of state secrets" of item 3 of Article 5 of
the law contradicts Part 3 of Article 25 of the Constitution.
Another provision of the said item that the Government
shall "establish the procedure for drawing up, approving and
amending of detailed lists of the information which is
considered a state secret" is the commissioning of the
Government to merely specify legal norms, therefore this
provision is in compliance with Part 3 of Article 25 of the
Constitution.
Items 4, 5, 6 and 7 of Article 5 provide for concrete
authorisations for the Government. They are devoted for
implementation of the law, therefore there are no grounds to
conclude that the said items of Article 5 of the law contradict
the Constitution.
1.3. The petitioner requests to investigate whether the
norms of Article 10 of the Law on State Secrets and Their
Protection are in compliance with Part 3 of Article 25 of the
Constitution and points out that in one particular civil case
the Ministry of Internal Affairs presented the information
which is considered a state secret and which was necessary for
the investigation of the case only to the judge. In the opinion
of the petitioner, thereby the rights of the parties
participating in the case are violated.
The norms of Article 10 of the Law on State Secrets and
Their Protection regulate the permit to familiarise oneself
with the information which is considered a state secret. They
regulate relations the parties of which, on the one hand, are
the subject of a state secret, and, on the other hand, the
persons who have been granted the permit to work with the
information which is considered a state secret, as well as the
persons who discharge the duties enumerated in Part 4 of
Article 10 of this law. The analysis of the content of this
article permits to assert that a person is entitled to
familiarise himself with the information which is considered a
state secret only in order to discharge certain duties. Thus
these norms do not directly regulate citizens' relations with
subjects of a state secret.
Article 10 does not directly indicate that a judge, when
discharging his duties, is entitled to familiarise himself with
the information which is considered a state secret. This may be
assessed as a deficiency of the law. The Constitutional Court
deems that the right of a judge who investigates a case to
familiarise himself with the information which is considered a
state secret is grounded on Article 109 of the Constitution
prescribing that the courts shall have the exclusive right to
administer justice, as well as on Article 117 of the
Constitution providing the solution of issues related to state
secrets during court trials. It should be noted that the right
of a judge to familiarise himself with the information which is
considered a state secret and which is necessary for the
investigation of a case is determined by the function of the
court as a state institution to implement justice but never by
entering the position of the judge into any lists.
The norms of Article 10 of the law do not regulate the
procedure of use of the information which is considered a state
secret in court trials. The Constitutional Court will
investigate the relation between a state secret and norms of
civil proceedings in Item 2 of this ruling.
The imperfection of the aforementioned legal regulation
does not provide grounds to assert that Article 10 contradicts
the Constitution.
1.4. When implementing the right of citizens to seek,
obtain and disseminate information, the provision "citizens
shall have the right to obtain any available information which
concerns them from State agencies in the manner established by
law" of Part 5 of Article 25 of the Constitution is of no less
importance. Thereby the legislator is directly commissioned to
establish by law the procedure under which state agencies must
present information to citizens which concerns them.
The norms of various parts of Article 25 of the
Constitution constitute an indivisible whole complex. Part 3 of
the said article provides for an opportunity to restrict by law
the right of the individual to obtain information when
corresponding constitutional values are protected. One of such
laws is the Law on State Secrets and Their Protection. The
norms of this law may be assessed from the standpoint of the
content of Part 5 of Article 25 of the Constitution only while
taking into consideration the content of Part 3 of the same
article of the Constitution, therefore the right of the
individual to obtain any available information which concerns
them from state agencies in the manner established by law may
be restricted when seeking to protect state secrets.
The norms of Articles 5 and 10 of the Law on State Secrets
and Their Protection do not regulate citizens' right to obtain
any available information which concerns them from state
agencies. Taking account of the motives set forth, it should be
concluded that the norms of the said articles are in compliance
with Part 5 of Article 25 of the Constitution.
2. On the compliance of the provisions of the 6 March 1996
Resolution No. 309 of the Government of the Republic of
Lithuania "On the approval of the list of the information which
is considered a state secret of the Republic of Lithuania" and
the 6 March 1996 Resolution No. 310 of the Government of the
Republic of Lithuania "On the approval of the list of duties
whereby the persons who discharge them are entitled to
familiarise themselves with the information which is considered
a state secret without exceeding their competence established
by law, as well as on notifying these persons of liability for
disclosure or loss of such information" with Parts 3 and 5 of
Article 25, Part 1 of Article 29 of the Constitution of the
Republic of Lithuania and Articles 4, 31 and 197, Part 3 of
Article 220, Articles 222 and 253 of the Republic of Lithuania
Code of Civil Proceedings.
2.1. While implementing the Law on State Secrets and Their
Protection, by its 6 March 1996 Resolution No. 309 "On the
approval of the list of the information which is considered a
state secret of the Republic of Lithuania" (hereinafter in the
ruling referred to as Government Resolution No. 309), the
Government approved which information is considered a state
secret. The information which is considered a state secret is
defined on the basis of certain specific indications.
By its 6 March 1996 Resolution No. 310 "On the approval of
the list of duties whereby the persons who discharge them are
entitled to familiarise themselves with the information which
is considered a state secret without exceeding their competence
established by law, as well as on notifying these persons of
liability for disclosure or loss of such information"
(hereinafter in the ruling referred to as Government Resolution
310), the Government approved the list of duties whereby the
persons who discharge them are entitled to familiarise
themselves with the information which is considered a state
secret without exceeding their competence established by law,
and also established the procedure for the said persons to
familiarise themselves with the information which is considered
a state secret as well as their notification of liability for
disclosure or loss of such information.
The petitioner deems that the contested Government
resolutions contradict Parts 3 and 5 of Article 25 of the
Constitution wherein it is prescribed that freedom to obtain
information and restriction procedure of its obtaining may be
regulated only by law.
2.2. Part 3 of Article 25 of the Constitution establishes
conditions under which people's right to information may be
restricted. When discharging its commission made by the
legislator, by Item 1 of its Resolution 309, the Government
approved the list of information which is considered a state
secret.
The norm of item 2 of Article 5 of the Law on State
Secrets and Their Protection whereby the right is delegated to
the Government to approve the list of state secrets has been
assessed in this ruling of the Constitutional Court as
contradicting Part 3 of Article 25 of the Constitution,
therefore it should be concluded that Item 1 of Government
Resolution No. 309 whereby such delegation is implemented
contradicts Part 3 of Article 25 of the Constitution, too. The
remaining part of the said resolution whereby other Government
resolutions are recognised as null and void is not linked with
this norm of the Constitution. The Constitutional Court shall
not investigate and assess it.
Item 1.1 of Government Resolution No. 310 approves the
list of duties whereby the persons who discharge them are
entitled to familiarise themselves with the information which
is considered a state secret. When approving the list of the
duties, the Government established which persons are entitled
to familiarise themselves with the information which is
considered a state secret. It should be noted that the
provisions of Item 1.1 of the said resolution have no legal
basis. The introductory part of the resolution points out that
it has been adopted conforming to item 4 of Article 5 of the
Law on State Secrets and Their Protection, however, in the said
item the legislator merely commissions the Government to
establish the procedure for familiarising with the information
which is considered a state secret but never is it commissioned
to establish the duties themselves. In reality, the norm of the
said resolution is grounded on Item 4 of the 25 October 1995
Seimas Resolution "On implementation of the Republic of
Lithuania Law on State Secrets and Their Protection" whereby
the Government was suggested that such a list be approved,
however, the Government was not granted this right by the Law
on State Secrets and Their Protection. Taking account of the
hierarchy of legal acts, the Government may have entered only
the officials who are appointed and dismissed by the Government
and Prime Minister into such a list. After it had entered
therein other officials who are appointed by the President of
the Republic and the Seimas, it intruded into the prerogatives
of other powers. It contradicts the constitutional nature of
executive power.
Taking account of the indicated motives, it should be
concluded that Item 1.1 of Government Resolution No. 310, in
its volume whereby the duties are established which are
appointed by the President of the Republic or the Seimas,
contradicts Part 3 of Article 25, and Part 2 of Article 5 of
the Constitution.
The remaining part of the Government resolution whereby
the procedure is established for the persons who ex officio are
entitled to familiarise themselves with the information which
is considered a state secret without exceeding their competence
established by law, as well as notifying these persons of
liability for disclosure or loss of such information, is
devoted to implementation of the provisions of this law. This
part of the resolution merely settles procedural issues,
therefore it is in compliance with Part 3 of Article 25 of the
Constitution.
2.3. The provision "citizens shall have the right to
obtain any available information which concerns them from State
agencies in the manner established by law" of Part 5 of Article
25 of the Constitution is an obligation for the legislator to
establish by law the procedure under which state agencies must
provide a citizen respective information which concerns him.
The norms of the contested resolutions do not regulate
providing citizens with information which concerns individuals,
therefore the issue of their compliance with the Constitution
is not to be assessed.
2.4. In the opinion of the petitioner, the contested
Government resolutions also contradict Part 1 of Article 29 of
the Constitution wherein the principle of the equality of all
people is consolidated.
Part 1 of Article 29 of the Constitution defines the
equality of people by pointing out that "all people shall be
equal before the law, the court, and other State institutions
and officers". This provision is linked with the provisions of
Part 2 of the said article which establish that a person may
not have his rights 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
options.
The petitioner is of the opinion that the principle of
equality of people which is consolidated by Part 1 of Article
29 of the Constitution is violated by the contested Government
resolutions as only the judge investigating a case may
familiarise himself with the information which is considered a
state secret during the investigation of the case, however, the
persons participating in the case and who are enumerated in
Article 30 of the Code of Civil Proceedings may not do so.
The aforesaid universal principle of law manifests itself
in civil proceedings as procedural equality of parties. The
procedural rights of parties are equal. The rights of one party
correspond those of the other; for instance, the plaintiff is
entitled to sue some person, the respondent is entitled to
defend his case by rebutting the demand of the plaintiff or by
counter-claiming, etc. This principle is of great importance as
only equal sides of pleadings may contend on equal grounds. It
is important that the principle of procedural equality of
parties were observed in all stages of the proceedings as the
implementation of other principles of the proceedings depends
upon their implementation.
The notion "court" is used in its most general meaning in
procedural relations when the court is understood not only as a
collective body but also as the judge himself. The court is a
special subject of procedural legal relations. It is only the
court which is authorised to implement justice. When
implementing this function, the court acts on behalf of the
state. It does not depend upon the persons participating in the
case and it obeys only the law.
Thus the essence of the equality of persons participating
in the case is their equality before the court but never the
equality between the court (the judge) and the persons
participating in the case. Otherwise the nature of the court as
an institution which implements justice would be denied.
The contested Government resolutions do not establish any
privileges or restrictions whereby the procedural equality of
persons were denied. They do not condition any rights of the
persons participating in the case. Taking account of the
motives set forth a conclusion is to be drawn that the said
resolutions are in compliance with Part 1 of Article 29 of the
Constitution.
2.5. In the opinion of the petitioner, the contested
Government resolutions restrict the implementation of the
rights of persons participating in the case provided for by
Article 31 of the Code of Civil Proceedings, as well as the
opportunity to properly implement the provisions of Articles 4,
197, Part 3 of Article 220, Articles 222 and 253 of the said
code.
The norm of Article 4 of the Code of Civil Proceedings
that every person concerned shall have the right to appeal to
court so as violated or contested rights or interests
safeguarded by law could be protected consolidates the
principle which grants every person the right to protect his
violated or contested rights or legitimate interests in court.
Article 31 of the said code establishes the rights and duties
of the persons participating in the case, Article 197 regulates
the investigation of written evidence, Part 2 of Article 220
establishes the procedure of drawing up of the court decision,
Article 222 establishes the content of the decision as a
procedural document, Article 253 regulates the content of the
record of proceedings. The procedure of argumentation is also
regulated by other norms of the Code of Civil Proceedings which
have not been indicated by the petitioner.
As Item 1 of Government Resolution No. 309 has been
assessed in this ruling of the Constitutional Court as
contradicting Part 3 of Article 25 of the Constitution, its
conformity with the indicated norms of the Code of Civil
Proceedings is not to be investigated. The remaining part of
the said Government resolution whereby other Government
resolutions are recognised null and void is not linked with the
aforementioned norms of the Code of Civil Proceedings,
therefore its compliance with the norms of the Code of Civil
Proceedings is not to be assessed.
Government Resolution No. 310 has no influence upon the
norms of the Code of Civil Proceedings which were pointed out
by the petitioner. The norms of the said resolution do not
prescribe the procedure under which such information should be
used in civil proceedings, and how in such proceedings the
principles of protection of state secrets and those of
implementation of rights of persons who participate in the case
are co-ordinated. The relations regulated by the Code of Civil
Proceedings and those of the contested Government resolution
are neither identical nor interdependent, therefore the issue
concerning the compliance of the said Government resolution
with the indicated norms of the Code of Civil Proceedings is
not to be investigated.
The fundamentals of protection of state secrets in court
trial are provided for by Article 117 of the Constitution which
establishes that closed court sittings may be held in order to
prevent the disclosure of state secrets when open investigation
of cases endangers of disclosure of state secrets. This
constitutional provision is virtually reiterated in Article 10
of the Code of Civil Proceedings. The Law on Protection of
State Secrets and Their Protection has not solved the issue how
state secrets in court trials should be used. As it is
necessary to ensure the right of persons to judicial protection
which is consolidated in Part 1 of Article 30 of the
Constitution, it is necessary that the relations of use and
protection of state secrets in court trials be regulated by a
procedural law.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law
of the Republic of Lithuania on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
1. To recognise that items 1 and 2 as well as the
provision "[the Government shall] approve the list of subjects
of state secrets" of item 3 of Article 5 of the Law on State
Secrets and Their Protection contradict Part 3 of Article 25 of
the Constitution. Other norms of Article 5 of the said law are
in compliance with the Constitution of the Republic of
Lithuania.
2. To recognise that Article 10 the Law on State Secrets
and Their Protection is in compliance with the Constitution of
the Republic of Lithuania.
3. To recognise that Item 1 of the 6 March 1996 Resolution
No. 309 of the Government of the Republic of Lithuania "On the
approval of the list of the information which is considered a
state secret of the Republic of Lithuania" contradicts Part 3
of Article 25 of the Constitution of the Republic of Lithuania.
Other norms of the said Government resolution are in compliance
with the Constitution of the Republic of Lithuania.
4. To recognise that Item 1.1 of the 6 March 1996
Resolution No. 310 of the Government of the Republic of
Lithuania "On the approval of the list of duties whereby the
persons who discharge them are entitled to familiarise
themselves with the information which is considered a state
secret without exceeding their competence established by law,
as well as on notifying these persons of liability for
disclosure or loss of such information" in its volume whereby
the list of duties which are appointed by the President of the
Republic or the Seimas is established, contradicts Part 3 of
Article 25, and Part 2 of Article 5 of the Constitution of the
Republic of Lithuania. Other norms of the said Government
resolution are in compliance with the Constitution of the
Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.