Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Articles 1 and 2, Part 2 of
Article 3 of the Republic of Lithuania Law "On the
Assessment of the USSR Committee of State Security
(NKVD, NKGB, MGB, KGB) and Present Activities of
the Regular Employees of This Organisation" as
well as Parts 1 and 2 of Article 1 of the Republic
of Lithuania Law on the Enforcement of the Law "On
the Assessment of the USSR Committee of State
Security (NKVD, NKGB, MGB, KGB) and Present
Activities of the Regular Employees of This
Organisation" with the Constitution of the
Republic of Lithuania
Vilnius, 4 March 1999
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas
Rasimavičius, Teodora Staugaitienė, and Juozas Žilys,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representatives of the petitioner-a group of members
of the Seimas of the Republic of Lithuania-Vytenis Povilas
Andriukaitis, Algimantas Salamakinas and Gintaras Šileikis, all
they are Seimas members,
the representatives of the party concerned-the Seimas of
the Republic of Lithuania-Andrius Kubilius, First Deputy
Chairman of the Seimas, Antanas Napoleonas Stasiškis, a Seimas
member, Gintaras Goda, a senior consultant to the Law
Department of the Chancery of the Seimas,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the
Republic of Lithuania Law on the Constitutional Court, on 9
February 1999 in its public hearing conducted the investigation
of Case No. 24/98 subsequent to the petition submitted to the
Court by the petitioner-a group of Seimas members-requesting to
investigate if Article 1 of the Republic of Lithuania Law "On
the Assessment of the USSR Committee of State Security (NKVD,
NKGB, MGB, KGB) and Present Activities of the Regular Employees
of This Organisation" was in compliance with Part 2 of Article
5, Article 67, Part 1 of Article 114 of the Constitution; if
Article 2 of the said law was in compliance with Article 23,
Parts 1 and 2 of Article 31, Part 1 of Article 33, Part 1 of
Article 46, Part 1 of Article 48, Part 1 of Article 109 of the
Constitution; as well as if Part 2 of Article 3 of the said law
was in compliance with Part 2 of Article 5, Part 3 of Article
31, Articles 77 and 84, Part 1 of Article 109 and Part 3 of
Article 111 of the Constitution.
Besides, the petitioner requested to investigate whether
Parts 1 and 2 of Article 1 of the Republic of Lithuania Law on
the Enforcement of the Law "On the Assessment of the USSR
Committee of State Security (NKVD, NKGB, MGB, KGB) and Present
Activities of the Regular Employees of This Organisation" were
in compliance with Part 3 of Article 31 of the Constitution,
and if Part 2 of Article 1 of the said law was in compliance
with Part 1 of Article 33 of the Constitution.
The Constitutional Court
has established:
I
On 16 July 1998, the Seimas adopted the Law "On the
Assessment of the USSR Committee of State Security (NKVD, NKGB,
MGB, KGB) and Present Activities of the Regular Employees of
This Organisation" (Official Gazette Valstybės žinios, 1998,
No. 65-1877; hereinafter referred to as the Law) and the Law on
the Enforcement of the Law "On the Assessment of the USSR
Committee of State Security (NKVD, NKGB, MGB, KGB) and Present
Activities of the Regular Employees of This Organisation"
(Official Gazette Valstybės žinios, 1998, No. 65-1878;
hereinafter referred to as the Law on the Enforcement of the
Law).
The petitioner-a group of Seimas members-requests to
investigate if Article 1 of the Law is in compliance with Part
2 of Article 5, Article 67, Part 1 of Article 114 of the
Constitution; if Article 2 of the Law was in compliance with
Article 23, Parts 1 and 2 of Article 31, Part 1 of Article 33,
Part 1 of Article 46, Part 1 of Article 48, Part 1 of Article
109 of the Constitution; as well as if Part 2 of Article 3 of
the Law is in compliance with Part 2 of Article 5, Part 3 of
Article 31, Articles 77 and 84, Part 1 of Article 109 and Part
3 of Article 111 of the Constitution.
Besides, the petitioner requests to investigate whether
Parts 1 and 2 of Article 1 of the Law on the Enforcement of the
Law are in compliance with Part 3 of Article 31 of the
Constitution, and whether Part 2 of Article 1 of the said law
is in compliance with Part 1 of Article 33 of the Constitution.
II
The request of the petitioner is grounded on the following
arguments.
By the Law and the Law on the Enforcement of the Law which
were adopted on 16 July 1998, the Seimas restricted the right
of the former regular employees of the USSR Committee of State
Security (NKVD, NKGB, MGB, KGB; hereinafter referred to as the
CSS) to freely choose occupation.
Article 22 of the Republic of Lithuania Criminal Code
provides for a punishment which is deprivation of the right to
hold certain office, to work certain work or occupy oneself
with certain activities. Such punishment is given to a guilty
person and it may only be given by a court. In the opinion of
the petitioner, the provision of Article 2 of the Law whereby
the former regular employees of the CSS are prohibited from
working in various areas for 10 years, establishes collective
responsibility for the said employees and, in fact, provides
punishment for them. Meanwhile, Part 1 of Article 31 of the
Constitution prescribes that every person shall be presumed
innocent until proven guilty according to the procedure
established by law and until declared guilty by an effective
court sentence, while Part 2 thereof stipulates that every
indicted person shall have the right to a fair and public
hearing by an independent and impartial court. Part 1 of
Article 109 of the Constitution provides that in the Republic
of Lithuania, the courts shall have the exclusive right to
administer justice. Therefore the petitioner doubts as to
whether the aforesaid provision of Article 2 of the Law is in
conformity with Parts 1 and 2 of Article 31, and Part 1 of
Article 109 of the Constitution. The petitioner also maintains
that the Constitution does not grant the Seimas any powers to
implement justice, i.e. by laws to establish people's guilt and
give punishments to them. Therefore the adoption of the Law may
contradict the provision of Article 5 of the Constitution
whereby the scope of powers shall be defined by the
Constitution, Article 67 of the Constitution whereby the powers
of the Seimas are established, as well as Article 114 of the
Constitution whereby institutions of State power (thus,
including the Seimas as well) shall be prohibited from
interfering with the activities of a judge or the court.
According to the petitioner, the provision of Article 2 of
the Law prohibiting the former regular employees of the CSS to
work in certain areas for 10 years may also contradict Part 1
of Article 48 of the Constitution whereby every person may
freely choose an occupation or business. The fact that Article
2 of the Law contains a prohibition for the former employees of
the CSS to work not only in State institutions, offices or
organisations but also private enterprises-banks, credit
unions, security services, communication enterprises, education
establishments-as well as to work as private advocates or
notaries and to engage in private practice connected with
possession of a weapon may contradict Part 1 of Article 46 and
Article 23 of the Constitution as by such a prohibition, in the
opinion of the petitioner, individuals' freedom of economic
activity and the right of private ownership are restricted.
The petitioner also doubts whether the provisions of Part
2 of Article 3 of the Law are in conformity with the
Constitution. Part 2 of Article 3 of the Law provides that,
following the joint motivated proposal of the Centre for
Research into People's Genocide and Resistance of Lithuania and
the State Security Department, decisions concerning
non-application of the restrictions for the former regular
employees of the CSS shall be adopted by a 3-person commission
formed by the President of the Republic. Decisions by the said
commission are to be assessed as acquittals of individuals and
this resembles the function of the court. Thus the commission
may be considered a special court. Therefore one is to
investigate whether the aforesaid provision of Part 2 of
Article 3 of the Law is in compliance with Part 1 of Article
109 and Part 3 of Article 111 of the Constitution. The
petitioner also doubts whether the provision regarding a
3-person commission formed by the President of the Republic
contained in Part 2 of Article 3 of the Law is in conformity
with Part 2 of Article 5, and Articles 77 and 84 of the
Constitution.
The petitioner also points out that Part 2 of Article 3 of
the Law provides that a former regular employee of the CSS, in
case he reveals knowledge about his former activities in the
CSS and existing links with former employees and agents of the
CSS, may avoid application of the restrictions in his regard.
Parts 1 and 2 of Article 1 of the Law on the Enforcement of the
Law provide that the former regular employees of the CSS must
report this knowledge concerning themselves to the employer.
Sanctions are applied to individuals who hide such knowledge.
This is to be assessed as compulsion established by the Law to
give evidence against oneself or against one's family members
or close relatives who may have worked in the CSS or may have
been agents. Therefore the aforesaid provisions of Part 2 of
Article 3 of the Law, and those of Parts 1 and 2 of Article 1
of the Law on the Enforcement of the Law may contradict Part 3
of Article 31 of the Constitution prohibiting to compel to give
evidence against oneself or against one's family members or
close relatives. In the course of the preparation of the case
for the Constitutional Court hearing, the Seimas member V. P.
Andriukaitis, on behalf of the representatives of the
petitioner, presented additional arguments to the
Constitutional Court. It is indicated in his paper that Article
33 of the Constitution guarantees the right of citizens to have
the equal opportunity to serve in a State office of the
Republic of Lithuania. Articles 108 and 115 of the Constitution
provide for concrete bases of dismissal of judges which may not
be expanded by laws. Therefore doubts arise whether Article 2
of the Law and the provisions of Part 2 of Article 1 of the Law
on the Enforcement of the Law which provide restrictions on
occupational activities of the former regular employees of the
CSS are in conformity with Part 1 of Article 33 of the
Constitution.
III
In the course of the preparation of the case for the
judicial hearing, along with other material, explanations by V.
Staniulis, Secretary of the President's Office, K. Kovarskas,
Deputy Prosecutor General, S. Šedbaras, Minister of Internal
Affairs, Č. Stankevičius, Minister of Defence, M. Laurinkus,
Director General of the State Security Department, V.
Kundrotas, State Controller, R. Šatkauskas, Deputy Director of
the Customs Department under the Ministry of Finance, V.
Vadapalas, Director General of the Department of European Law
under the Government of the Republic of Lithuania, J. Jasaitis,
a Seimas ombudsman, K. Lipeika, Chairman of the Lithuanian Bar
Council, T. Birmontienė, Director of the Lithuanian Centre for
Human Rights, D. Kuodytė, Director General of the Centre for
the Research into the Genocide and Resistance of Lithuanian
People, S. Kaušinis, a responsible secretary of the Committee
of the Lithuanian Association for Human Rights, J. Girnienė,
President of the House of Lithuanian Notaries, were received.
It is pointed out in the conclusions of the working group,
formed by the President of the Republic, for a legal assessment
of the acts regulating the status of former regular employees
and secret agents of the USSR Committee of State Security in
Lithuania: (1) when the status of the former regular employees
of the CSS is decided, continuation of State policy is
necessary, therefore one has to take account of the 27 March
1990 statement of the Supreme Council-Reconstituent Seimas on
the CSS employees, as well as respective Government resolutions
adopted in 1991-1992; (2) regulating the present status of the
former regular employees of the CSS, one has to pay special
attention to the provisions of the Constitution which guarantee
the equal opportunity to serve in a State office (Article 33),
which consolidate the right to private ownership, freedom of
individual economic activity (Article 46), which grant the
right to every individual freely to choose an occupation or
business (Article 48), which establish that in Lithuania, the
courts shall have the exclusive right to administer justice
(Article 109); (3) the legal acts regulating the present
activity of the former CSS regular employees must be in
conformity with the obligations of the Republic of Lithuania
under the international agreements of the Republic of
Lithuania; (4) adopting the legal acts regulating the status of
the former employees of the CSS, one has to coordinate them
with other laws, e.g. with the Criminal Code, the Law on the
Labour Agreement, the Code of Criminal Procedure, the Law on
the Bar, as well as with the laws providing certain
peculiarities of dismissal of individual categories of
officials, e.g., the Law on State Control, the Law on the
Police, the Law on the Prosecutor's Office; (5) legal acts
regulating the present activity of the former employees of the
CSS ought to be in line with the principles of proportionality
and legal certainty; (6) questions of restriction of the rights
to the former employees of the CSS must be decided only by
courts; (7) legal acts ought to establish a thorough and final
list of positions so that when the former employees of the
former repressive structures of the USSR attempt to take them,
restrictions may be applied to them.
In his explanation K. Kovarskas pointed out that Article 2
of the Law provides for a sanction whereby the former regular
employees of the CSS are deprived of the right to work in
certain areas or be in certain office for 10 years. The said
sanction may violate the provisions of the European Convention
for the Protection of Human Rights and Fundamental Freedoms
establishing the entitlement for everyone to a fair and public
hearing by an independent and impartial tribunal. Certain
doubts arise as for the prohibition for such persons to work in
private structures.
In his explanation, A. Svetulevičius drew one's attention
to the fact that the provision of Article 2 of the Law
stipulating that the former regular employees of the CSS may
not work in certain indicated institutions for 10 years may be
disputed. A recognition by law that an institution is criminal
does not provide grounds for application of the principle of
collective responsibility. This is also provided for by Part 1
of Article 31 of the Constitution. According to A.
Svetulevičius, the fact that by a joint conclusion of the
Centre for Research into People's Genocide and Resistance of
Lithuania and the State Security Department questions of
occupational restrictions of persons are decided means that the
aforesaid institutions are commissioned with the function of
implementation of justice, while this is not in line with Part
1 of Article 109 of the Constitution.
Č. Stankevičius is of the opinion that the Law and the
provisions of the Law on the Enforcement of the Law are in
conformity with the aims of ensuring national security of the
Republic of Lithuania and are in compliance with the
Constitution. This conclusion is based on an extensive legal
argumentation.
It is maintained in the explanation by V. Vadapalas that
the provisions of the aforementioned laws, in essence, do not
contradict European Union law. The European Convention for the
Protection of Human Rights and Fundamental Freedoms does not
guarantee the right to work. The established restriction for
the former regular employees of the CSS to work in certain
areas may not, in itself, be considered criminal punishment,
therefore the provisions of the Convention (Articles 6 and 7)
are not linked with these restrictions, either.
According to T. Birmontienė, the Lithuanian Centre for
Human Rights approved of the conclusions and legal analysis of
the working group, formed by the President of the Republic, for
a legal assessment of the acts regulating the status of former
regular employees and secret agents of the USSR Committee of
State Security in Lithuania.
S. Kaušinis points out that the Lithuanian Association for
Human Rights approves of the provisions of Article 1 of the Law
which recognise that the USSR Committee of Security is a
criminal organisation, however other provisions establish
collective responsibility, compulsory registration of persons,
and these norms restrict the right to choose occupation. This
violates elementary human rights. Restrictions of human rights
may only be applied by a court order to concrete individuals
for committed crimes.
K. Lipeika explained that the effective Law on the Bar
does not provide for removal of persons from the List of
Practising Advocates on the grounds which are enumerated in the
Law. Nor does the Law on the Bar prohibit recognition as an
advocate nor inclusion into the List of Practising Advocates
persons who formerly were regular employees of the CSS.
Therefore it may be disputed whether it is possible to amend or
annul legal provisions without amending effective laws. In the
opinion of K. Lipeika, by at once repealing all effective
provisions worded in laws, the main principle of the protection
of the fundamental human rights is violated whereby the rights
of a person which he acquired conforming to the requirements of
effective laws may not be deprived or restricted by a newly
adopted law.
IV
In the Constitutional Court hearing the representatives of
the petitioner virtually reiterated the arguments set forth in
the petition.
According to V. P. Andriukaitis, in some states of central
and eastern Europe lustration has been applied, and one of the
main argument for adoption of such a law in Lithuania was that
other post-communist states have applied various restrictions
in respect to former security officials. Unlike in other
states, Lithuania was not a state relatively independent of the
USSR. Thus in these states of central and eastern Europe the
restrictions were applied to subjects under jurisdiction of
national law. In Lithuania the restrictions are applied to
persons who worked in organisations of another state, thereby
the limits of the jurisdiction of national law are overstepped.
Proclamation that an organisation of another state is criminal
falls within the jurisdiction of international but not national
law, therefore it is to be disputed whether the Seimas is
entitled to pass such a law at all. If the document adopted by
the Seimas in essence contradicts the fundamental principles of
law-governed State which are established by the Constitution,
therefore such an act is not and may not be a law as it in its
all scope will contradict the Constitution.
V. P. Andriukaitis believes that the deprivation of the
right of the former regular employees of the CSS to hold
certain positions or work in certain areas is, in essence,
criminal punishment. The representative of the petitioner also
underlined that such punishment may be given only by a court.
This would be in line with the practice of the European Court
of Human Rights as the criteria under which a violation of law
is considered a crime is the importance of the violated norm of
law, as well as nature and severity of possible punishment.
The representative of the petitioner pointed out that
restrictions for the former employees of the CSS were already
applied by respective Republic of Lithuania legal acts of
1990-1992. Therefore the Law and the Law on the Enforcement of
the Law once again establish restrictions for the former
regular employees of the CSS to work in some area or hold a
certain position. However, adopting laws, one has to follow
fundamental principles of law. For instance, the principle of
legal certainty demands that subjects of legal relations feel
certain as concerns their legal situation. Adopting the said
laws, the complex principle of legal certainty which belongs to
the concept of a State under the rule of law is evidently
violated. The principle of legal certainty is tightly connected
with the legal principle prohibiting retroactive effect of
laws. In the opinion of V. P. Andriukaitis, the disputed laws
also violate the principle whereby no one is to be punished for
the second time for the same deed, and the principle whereby it
is prohibited to demand to give evidence against oneself. Along
with these principles, in the jurisprudence of the European
Court of Human Rights the principle of proportionality has been
noted for many a time. According to this principle, every
measure applied by a state may not be too severe, nor may it
restrict subjects of law more severely than achievement of
legitimate interests would demand. In some cases the
aforementioned laws violate this principle as well, e.g.,
prohibition to work as an usher at a bank or occupy himself in
a similar job there.
The representative of the petitioner maintains that
granting the functions of the court to the commission which is
to be formed by the President of the Republic is doubtful.
Decisions by the commission not to apply restrictions are to be
interpreted as acquittals, i.e. this is accomplishment of
judicial functions. Therefore, even though the sanction
prohibiting certain work in a certain area for 10 years is
assessed as a measure of not criminal nature, doubts are
certain to occur as to how this is in line with Paragraph 1 of
Article 6 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms. It is prescribed therein
that in the restriction or determination of his individual
rights and obligations, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and
impartial tribunal established by law. The judicial
interpretation of the functions of the commission evidently
contradicts the concept of the constitutional power of the
President of the Republic as well. The President of the
Republic, as, by the way, the Seimas too, may not take the
functions of implementation of justice. It must also be noted
that neither the President of the Republic nor a commission
formed by him have any constitutional grounds to issue acts of
application of law.
V. P. Andriukaitis is of the opinion that the application
of the restrictions provided for by Article 2 of the Law are
also doubtful. During the nine years after the restoration of
the independence, the former employees of the CSS might
specially acquire certain occupational skills or a certain
qualification. Prohibition to occupy in such a job is to be
assessed as loss of the right to remuneration. This violates
the principle of legitimate expectation of such a person
therefore this contradicts Part 3 of Article 23 of the
Constitution. The representative of the petitioner maintains
that the establishment of restrictions for former regular
employees of the CSS concerning their occupational activities
may also be not in line with the principle of the equality of
citizens before the law. V. P. Andriukaitis cannot understand
why the former employees of the CSS are held less loyal than
the leaders of the Communist Party of Lithuania (Communist
Party of the Soviet Union).
The representative of the petitioner A. Salamakinas
explained that in the context of the case at issue Article 33
of the Constitution establishing the equal rights for citizens
of Lithuania to serve in a State office is of much importance.
The former employees of the CSS are also citizens of the
Republic of Lithuania. The representative of the petitioner G.
Šileikis also approved of the arguments of the petition.
V
In the opinion of the representative of the party
concerned A. Kubilius, the Law has been reviewed from every
legal and political aspect. Article 1 of the Law does not lead
to any legal consequences. This is not a judgement by a court,
this is a statement of the fact but not establishment of guilt.
According to him, doubts whether the CSS committed war crimes
and whether the Seimas may name an institution of another state
a criminal one, are not the object of the dispute. All the
remaining articles have individual legal meaning. Analogous
laws were adopted in most of the states which became free of
totalitarian or occupation regimes and began democratic lives.
Such laws were passed in Greece, Portugal, Spain, some
countries of Latin America, central and eastern Europe, as well
as in the South African Republic and South Korea. All new
democracies must solve the same problem: what should be done
with the former ones? Two ways are known: either to apply
certain restrictions to the former ones, while prosecute them
under legal procedure for committed crimes, or pardon them by
naming their guilt. Up to now, this has been in Lithuania as
well. One of the most important reproaches to the Law is that
it kind of establishes punishment to the former employees of
the CSS, even though to do so may only the court. The
restriction of the right for former employees of the CSS to
occupy themselves in certain areas is linked with exceptional
requirements for certain positions because of their importance
to the State and society. In its ruling of 11 November 1998,
the Constitutional Court held that in State institutions only
such persons may work who are loyal to that State and fidelity
of whom is not doubted. The fact that the persons who do not
conform to such requirements are prohibited to hold concrete
positions may not be held a punishment. The Law does not decide
any question of guilt of the former employees of the CSS nor
that of application of such punishment. The representative of
the party concerned maintains that the commission formed by the
President of the Republic does not decide the question of guilt
of the former employees of the CSS while decisions of the
commission concerning non-application of the restrictions
against the said employees may not be held acquittals,
therefore the commission may not be compared to a special
court. The assertion of the petitioners that by the Law the
Seimas interferes with the activities of judges or courts is
groundless, too, as the Seimas does not establish any guilt of
persons nor does it give any punishment by the Law.
According to A. Kubilius, the State may establish special
requirements for work in the most important areas of economy
and private sector in like manner as requirements are
established for work in a State service. The purpose of such
requirements may be safeguarding of national prosperity and
security. It is evident that there are such areas and positions
in the private sector the work in which is of crucial
importance to society, therefore society may establish special
requirements for those who intend to occupy themselves in such
jobs or to render such services to society. Part 3 of Article
47 of the Constitution provides that the State shall regulate
economic activity so that it serves the general welfare of the
people.
A. Kubilius pointed out that the purpose of Article 31 of
the Constitution is to establish guarantees for persons in
criminal procedure. The discussed Law is not linked with
questions of criminal procedure therefore the arguments of the
petitioner that the constitutional rights of participants to
criminal procedure will be violated are unmotivated.
The representative of the party concerned noted that Part
2 of Article 77 of the Constitution provides that the President
of the Republic shall perform all the duties which he or she is
charged with by the Constitution and laws. Item 10 of Article
84 of the Constitution provides that the President of the
Republic shall appoint or dismiss, according to the established
procedure, State officers provided by law. Therefore the fact
that the President of the Republic, implementing his
obligations by the law, appoints three members of the
commission and confirms the regulations for the activities of
the commission may not contradict the Constitution.
The representative of the party concerned A. N. Stasiškis
explained that the Law concerns the former employees of such an
organisation which implemented the occupation regime in
Lithuania. It persecuted any movement, any expression of
democratic thought and any attempt to protect the freedoms of
individuals and citizens or any attempt to raise such issues.
Assessing the adopted laws, a question is solved whether
society has the right not to trust some of its members who took
part in certain activities. One has in mind only the question
of confidence.
The representative of the party concerned G. Goda
maintained that there is one principal question, whether the
restrictions of occupational activities of the regular
employees of the CSS as provided by Article 2 of the Law
constitute criminal punishment or not. The answers to the other
questions depend on this answer. Perhaps there appears an
impression that the aforesaid restriction is a punishment due
to the fact that Article 1 of the Law states that the CSS is a
criminal organisation while the Criminal Code provides for a
criminal punishment, i.e. prohibition to work in certain field
is associated with these restrictions. However, the Law does
not provide for any criminal punishment. Article 1 of the Law
presents only a political assessment of the CSS. It needs to be
noted that Article 1 does not overstep the limits of national
jurisdiction as the criminal nature of the CSS is recognised
only in the scope wherein the said organisation acted in the
Republic of Lithuania.
According to G. Goda, the Law does not deprive the courts
of their right and obligation to implement justice. It is
impossible to notice any interference with the activities of
the courts as in such a case the courts do not investigate any
particular cases. The law recognises no one guilty, while
criminal punishment would necessarily encompass the element of
guilt. Thus this law establishes special requirements for
holding respective office to the former employees of the CSS
but not criminal punishment for them.
VI
In the Constitutional Court hearing the specialists-A.
Anušauskas, Director of the Centre for the Research into the
Genocide and Resistance of Lithuanian People, and A.
Starkauskas, a programmes co-ordinator of the Centre for the
Research into the Genocide and Resistance of Lithuanian People,
spoke.
A. Anušauskas explained that the CSS was an absolutely
centralised organisation. Its territorial structures operated
by the regulations unified for all Soviet Union republics. A
person who wanted to work at the CSS was, first of all,
admitted into the military forces of the USSR, swore loyalty to
the USSR and only after that he would become a regular employee
of the CSS. In the office instructions it was pointed out that
a regular employee of the CSS must, along with criminal cases,
investigate anti-Soviet actions, sabotage, and implement
political persecution. The territorial organisation of the CSS
which operated in Lithuania virtually controlled the life in
Lithuania. Under instructions, practically all the territory of
Lithuania was off-limits for foreigners, they could visit only
400 objects. The main object of persecution, as it was
indicated in all CSS reports, were the people who previously
had taken part in anti-Soviet actions, had been imprisoned,
subjected to repression, exiled, subjected to preventive
dealing with, or warned because of their anti-Soviet
activities. There were around 100,000 of such people in
Lithuania.
A. Anušauskas noted that all divisions of the CSS were
closely interlinked, while, in case of need, their employees
were used for accomplishing political persecution as well as
counter-espionage. The service sub-divisions, e.g., economic
division, operational-technical division, had to ensure the
implementation of all said operations as well as instructions
given from Moscow. In the main instructions of the CSS it was
indicated that, fulfilling its tasks, the CSS shall resort to
all measures. In other instructions it was indicated that it
shall be permitted to use radioactive and other substances
harmful to human health, while in 1980s narcotic substances
were used as well. Thus, the activities of the CSS were
criminal from this aspect too.
According to A. Anušauskas, the Law has come into force.
The Centre for the Research into the Genocide and Resistance of
Lithuanian People was successful in obtaining part of 1990-1991
secret service files which were held by the former employees of
the CSS. Thus the Law is useful with respect to the national
security too, as, it is possible to presume, it diminishes
possibilities to blackmail individual persons. It is also
necessary so that the former employees of the CSS might resolve
to cut their links with the past.
J. A. Starkauskas drew one's attention to the repressive
nature of the CSS and motivated the reason of the application
of restrictions to the former employees of the CSS.
The Constitutional Court
holds that:
On 16 July 1998 the Seimas passed the Law "On the
Assessment of the USSR Committee of State Security (NKVD, NKGB,
MGB, KGB) and Present Activities of the Regular Employees of
This Organisation". The Law provides for restrictions for
present activities of employees of the CSS. The Law also
provides for cases when the restrictions are not applied to the
former employees of the CSS. The procedure for the enforcement
of provisions of the Law was established by the Republic of
Lithuania Law on the Enforcement of the Law "On the Assessment
of the USSR Committee of State Security (NKVD, NKGB, MGB, KGB)
and Present Activities of the Regular Employees of This
Organisation" which was adopted on the same day.
A group of Seimas members appealed to the Constitutional
Court with a petition requesting to investigate the compliance
of certain norms of the said laws with the Constitution.
1. Upon restoration of the independence of the Republic of
Lithuania, already in the first acts of the State it was
attempted legally to assess the activities of the USSR
Committee of State Security (NKVD, NKGB, MGB, KGB) in Lithuania
as a repressive institution of the occupation government and
decide the problem of confidence and loyalty of regular
employees and secret agents of the CSS to the State of
Lithuania.
In its 27 March 1990 statement, "in order to consolidate
peace and accord," the Supreme Council-Reconstituent Seimas
appealed to the persons collaborating with the CSS and
suggested that they resolve and not render help to the bodies
of the CSS. It was guaranteed that persons who decided to do so
until 28 March 1990 and who had not committed grave crimes
against the people of Lithuania and who refused from then on to
maintain ties with the CSS would not experience any moral nor
legal nor any other persecutions from the side of the
authorities of the Republic.
It was noted in the 1 August 1991 "Persuasion of the
persons who are still serving the CSS of the USSR" adopted by
the Supreme Council-Reconstituent Seimas of the Republic of
Lithuania that the division of the CSS took part in the 1940
annexation of the State of Lithuania, killing of the members of
its government and subjection to repression hundreds of
thousands of innocent people. It is also emphasised in the
persuasion that a special unit (the Alpha group) as the main
shock force killing civilians directly participated in the 13
January 1991 assault on the buildings of Lithuanian television.
It was held therein that this department of the USSR was
continuing its anti-State activities in Lithuania.
In its 23 August 1991 Resolution No. 351, the Government
underlined that the USSR Committee of State Security was
conducting activities hostile to the Republic of Lithuania,
that it had taken part in implementation of the orders of the
anti-constitutional USSR State Committee of Emergency Situation
in Lithuania and in an attempt to overturn the authorities of
the State of the Republic of Lithuania.
On 26 August 1991, the Government adopted Resolution No.
360 wherein it established guarantees for social rehabilitation
for the employees of the USSR Ministry of Defence, USSR
Interior Ministry, and the USSR Committee of State Security
which were being liquidated who wished to work for the Republic
of Lithuania and who had not committed crimes against it as
well as social guaranties for the members of their families.
Implementing this resolution, by its 26 August 1991 Resolution
No. 361 the Government decided to register the employees of the
USSR Ministry of Defence, USSR Interior Ministry, and the USSR
Committee of State Security at the State Security Department
under the Government of the Republic of Lithuania.
In its 12 October 1991 Resolution No. 418, the Government
defined the activities of the USSR Committee of State Security
as directed against the State and established that the
employees as well as informers (agents) of the CSS may not, for
five years, hold positions at Republic of Lithuania ministries,
departments and other State services of inspectorates, and that
they may not work as officers in charge (heads and their
deputies) at the main structural subdivisions (departments) of
ministries, boards of towns and districts for the same period.
It was pointed out to the said persons who were holding the
listed positions to resign until 1 January 1992. By its 6 April
1992 Order No. 418 the Government established that the persons
who were holding the listed positions would have to fill in a
special form of personal data of officials of State
institutions of the Republic of Lithuania. By the Government
order, such forms were to be filled in for five years.
Generalising the aforesaid legal acts of the Sate of
Lithuania, one is able to present certain conclusions.
Already in the first legal acts of Lithuania which had
restored its independence there were elements of the assessment
of the activities of the USSR CSS in our state. Alongside, it
needs to be noted that the CSS did not cease its hostile
activities even after 11 March 1990. Meanwhile, respective
social guarantees were established for the employees of the CSS
who wished to work for the Republic of Lithuania and who had
not committed crimes against it. It goes without saying,
certain restrictions were established for the employees of the
CSS: they had to register, they might not hold any high and
leading positions at State institutions for 5 years. These
measures, however, were not a type of legal responsibility. It
should also be noted that the restrictions were not of
universal character: they were only applied to part of the
former employees of the CSS. It means that the problem of the
verification of reliability and loyalty of the former employees
of the CSS was not completely solved by the legal acts of that
time.
2. In 1990 and later in the states of central and eastern
Europe, where essential political changes were taking place
too, it was started to clarify by means of legal procedure
whether persons who hold influential positions in the areas of
economy and politics or attempting to hold such positions (had)
had no ties with secret services of former communist regimes.
Alongside, it was attempted to be sure about the loyalty of
regular employees of security services (including secret
services) to the State and establish their opportunities to
hold important and responsible positions from the standpoint of
the security of each State. Upon establishment of the character
and degree of collaboration of present or future State
officials or employees with the said secret services, the right
freely to choose occupation, as a rule in State services, was
either restricted for a certain time or this right was
deprived. Quite often this process is referred to as lustration
(from Latin lustratio-purification, sacrifice of something for
atonement), while the laws regulating it-lustration laws.
On 22 March 1990 in Czechoslovakia the names of deputies
of the Federal Assembly included in registers of the communist
security service were made known. On 4 October 1991 the
Lustration Law came into force. After Czechoslovakia had split
into the Czech Republic and Slovakia in 1993, the Lustration
Law became effective on the territories of both states. It
provided as to what restrictions were to be applied for persons
to hold elective or designated positions in a State service, in
establishments of higher education or mass media provided they,
from 25 February 1948 to 17 November 1989 were: members of the
secret service, residents, agents, tenants or owners of secret
flats, informers, co-workers of the security service on
ideological grounds; members and secretaries of regional or
higher communist party committees (with the exception of
persons who held such positions from 1 January 1968 until 1 May
1969); representatives of people's militia; students of higher
officer's schools of the USSR CSS or the Ministry of Interior,
as well as post-graduate students or students of longer than
3-month courses at these schools etc. The listed persons may
not work in: State institutions, the army (at the rank of
colonel or higher); security information service; offices of
the President and the Parliament; the Government; registry of
the Constitutional Court; Presidium of the Academy of Sciences;
State radio and television, office of the press; State
enterprises and organisations; joint-stock companies the main
shareholder of which is the State; organisations of foreign
trade, State banks, etc. Under the said law, opportunities are
also restricted to work as a judge, public prosecutor, public
notary, and State arbiter.
The agreement on unification of Germany signed on 31
August 1990 provided for an opportunity to dismiss the former
senior party functionaries of the German Democratic Republic
who were in State offices, as well as heads of trade unions and
the persons who co-operated with the GDR security service. On
20 December 1991, the Federal Republic of Germany adopted the
law on the documents of the former German Democratic Republic
security service. By this law, a wide circle of persons (by
prior informing them) is checked in connection with their
possible links with the GDR secret service: members of the
government of the State and those of the lands, as well as
other persons who are linked by State legal labour relations;
deputies and representatives of institutions of local
authorities; members of advisory bodies; persons who work or
continue to hold office in the institutions of the State and
federal lands, as well as institutions of local authorities or
intergovernmental and international organisations a member of
which is the Federal Republic of Germany, as well as church
institutions; notaries or lawyers; members, managers, heads or
persons in charge of enterprises enjoying the status of the
legal person; managers, heads of enterprises or other persons
whom the law, a statute or an agreement of a joint-stock
enterprise commissions to represent the majority in the
joint-stock enterprise. In addition, reliability of persons is
checked who are entrusted with facts, objects or discoveries
related to the State secret, or when they have access to them;
as well as that of persons who work or will work in the
institutions important in connection with security, or objects
important for or in connection with defence. Possible links of
the persons holding listed positions or aspiring to hold them
with the former GDR security service are checked. In addition,
reliability of persons may be checked (with their agreement)
who work: in the boards of political parties; as judges of
honour; in public church organisations etc.
In May 1992 the Sejm of the Republic of Poland adopted a
law which obligated the Ministry of Interior to prepare lists
of collaborators with communist special services and present
them to the parliament. On 11 April 1997 it passed the Law "On
Disclosure of the Work or Collaboration of Persons
Accomplishing Public Functions in Services of State Security
Services or Collaboration with Them in 1944-1990". By the said
law, public functions are accomplished by: the President of the
Republic of Poland, a Sejm member, senator, or a person
summoned, elected or appointed by the President of the Republic
of Poland, or the Sejm, Presidium of the Sejm or the chairman
of either the Senate of the Council of Ministers; heads of the
civil service, ministers, directors general of central
institutions, as well as judges and public prosecutors. These
persons must fill in special statements wherein it is
recognised or denied that they worked or collaborated with
security services. The aforementioned law is also applied to
the members of observers' councils of the joint-stock companies
"Polish Television", "Polish Radio", as well as members of the
boards, programme directors, directors or regional centres and
agencies of the said companies, as well as the Director General
of the Polish Press Agency, etc.
Other states have also adopted legal acts deciding the
problems of collaboration with secret services of the communist
regimes: Hungary (8 March 1994; new wording of 3 July 1996),
Estonia (20 February 1995), Bulgaria (30 July 1997).
An analysis of the norms of said laws of the Czech
Republic, Germany, and Poland, as well as that of similar laws
of other states, permits to draw some conclusions which may be
linked with respective legal acts of Lithuania.
In 1990-1992 in the Czech Republic, Poland, Hungary and
the other states which had been under communist regimes the
problems of checking the employees of secret services of these
regimes and their collaborators were only at initial phase of
their solution. It needs to be noted that changing limits of
legal regulation and dynamism is characteristic of the
lustration process. Lustration laws present wide but most often
particular lists of posts in order to occupy which a special
check-up is necessary. As a rule, these posts are in a State
office and are linked with wide and responsible powers. It is
also noteworthy that the lustration laws provide in detail for
the procedure of investigation of the information about the
checked persons and that of applying restrictions to these
persons. The information is checked and conclusions are drawn
by either a judicial institution or specially formed,
independent commission representing various institutions. In
the lustration process the rights and duties of the
participating subjects are defined, while to the person
concerned (checked) broad rights are granted actively to
participate in this process, e.g. on his own initiative to
present certain data, to become familiar with the conclusion of
the check-up and the documents confirming it. Quite often such
a person may use services of the lawyer (advocate) even still
at the phase of the check-up. In the lustration laws of most
states the right to appeal to court is established for persons
undergoing the lustration process.
3. On the compliance of Article 1 of the Law with Part 2
of Article 5, Article 67 and Part 1 of Article 114 of the
Constitution.
Article 1 of the Law provides: the USSR Committee of State
Security (NKVD, NKGB, MGB, KGB) is recognised a criminal
organisation, which committed war crimes, carried out genocide,
repression, terror and political persecution in the Republic of
Lithuania which was occupied by the USSR.
The petitioner maintains that recognition of an
organisation of another state as criminal is within the
competence of an international tribunal but not the Seimas.
Besides, the petitioner asserts that Article 1 of the Law
determines the purpose and content of the rest of the norms of
the law. Therefore the Seimas, having declared the CSS a
criminal organisation by Article 1 of the Law, in the other
articles of the Law states that the persons who worked at the
CSS are guilty and gives them punishments. Thus by means of
this Law, the Seimas is implementing justice, i.e. a function
which it has not been entitled by the Constitution. In the
opinion of the petitioner, doubts arise whether by Article 1 of
the Law and by the entire Law the Seimas did not contradict the
provision of the Constitution stipulating that the scope of
powers shall be defined by the Constitution (Part 2 of Article
5), as it overstepped its competence (Article 67 of the
Constitution), and interfered with court activities (Part 1 of
Article 114 of the Constitution).
As mentioned above, upon restoration of the independence
of the Republic of Lithuania, the activities of the CSS as a
repressive institution of the occupation authorities were
assessed and the problem of regular employees and secret agents
of the CSS was attempted to decide. In some legal acts a
political definition of the activities of the repressive
structures of the USSR which operated in Lithuania during its
occupation was presented. For example, it is pointed out in the
preamble of the Government Resolution No. 418 of 12 October
1991, that the activities of the CSS in the Republic of
Lithuania are criminal and anti-State. The Law "On Verification
of the Mandates of the Deputies Suspected of Conscious
Collaboration with Special Services of Other States" reads that
the institutions of Soviet security organised destructive
activities against the State of Lithuania and its institutions.
The preamble of the Law "On Responsibility for the Genocide of
the People of Lithuania", with reference to the documents of
international law, holds that "the policy of genocide and
crimes against humanity which was carried out against the
people of Lithuania was accomplished at the time of occupation
and annexation by the Nazi Germany and the USSR". Such a
definition of the activities of the CSS in Lithuania was
determined by the political-repressive character of the
activities of this structure. The designation, content of the
activities of the CSS, along with its other functions, are
revealed by its purpose: with the help of the CSS, to ensure
the political basis of the USSR, take measures "against
destructive and anti-Soviet activities", to suppress the
resistance against the occupation. For example, on 1 December
1989 the panel of the USSR CSS urged that the chiefs of CSS
subdivisions in "Soviet Union republics" take on all leading
and operative employees of the CSS for the struggle against the
persons and movements seeking to liquidate the Soviet State and
social system, disseminating the ideas of cessation of the
Soviet republics and, on the whole, distrust in the national
policy of the CPSU and the Soviet State. It is also pointed out
in the instructions of the CSS that the CSS, implementing its
tasks, must resort to all possible measures. It needs to be
noted that the CSS acted in the Republic of Lithuania against
the State of Lithuania also after the restoration of
independence until September 1991.
On the grounds of the arguments set forth, a conclusion is
to be drawn that the definition of the activities of the CSS in
Lithuania as given by Article 1 of the Law is of general
character. It reflects the political, historical, and legal
assessment of the occupation and its effects which, since 1990,
has been stated in Lithuanian legal acts for many a time. This
is a statement of a historical fact but not the grounds
formulated by the legislator for criminal responsibility of all
employees of the CSS. The liability for genocide, war crimes,
acts of terror and other crimes committed by concrete persons
is provided for by the Criminal Code. Thus, if any of the
employees of the CSS have committed the crimes provided for by
the said code, they may be brought to criminal responsibility
under its corresponding articles and punished as established by
the sanctions of these articles. It is also noteworthy that the
Criminal Code does not provide for criminal responsibility of
legal persons. Thus Article 1 of the Law does not presuppose
any collective responsibility for the criminal deeds
accomplished by the CSS, nor is it linked with the questions of
criminal law or those of criminal procedure law. Such a content
of Article 1 of the Law indicates that the restrictions
established by Article 2 are not criminal sanctions. Such
restrictions are not any form of responsibility at all. They
are restrictions of the right freely to choose occupation which
are determined by the area, nature or specific character of the
occupation.
Taking account of the arguments set forth it is to be
concluded that Article 1 of the Law is in compliance with Part
2 of Article 5, Article 67 and Part 1 of Article 114 of the
Constitution.
4. On the compliance of Article 2 of the Law with Parts 1
and 2 of Article 31, Part 1 of Article 109 of the Constitution
and that of Part 2 of Article 3 of the Law and Parts 1 and 2 of
Article 1 of the Law on the Enforcement of the Law with Part 3
of Article 31 of the Constitution.
The petitioner maintains that the provision of Article 2
of the Law which prohibits the former regular employees of the
CSS to work as officers or officials in the institutions of
State power and government, courts and other areas for 10
years, provides for a responsibility of these persons and
establishes a criminal punishment for them, therefore the
petitioner doubts whether the aforesaid provision is in
compliance with Parts 1 and 2 of Article 31 and Part 1 of
Article 109 of the Constitution.
The petitioner also doubts as to whether, first, the
provision of Part 2 of Article 3 of the Law under which former
regular employee of the CSS may be pardoned from the
restrictions of job activities provided he himself reveals
everything about his former activities at the CSS and his
present links with the former employees and agents of the CSS
to the State Security Department, and, second, whether the
requirement established by Parts 1 and 2 of Article 1 of the
Law on the Enforcement of the Law whereby the former regular
employees of the CSS must notify about this fact the employer
are in compliance with Part 3 of Article 31 of the
Constitution.
The Constitutional Court underlines that the norms of
Article 31 of the Constitution are linked, first of all, with
consolidation of the constitutional principles of justice. For
example, the norms of this article are designated: to
consolidate the presumption of innocence; to particularise the
right to defence at court in criminal cases; to consolidate the
fundamental principles of implementation of justice in criminal
procedure; to establish principles of giving criminal
punishments; to create guarantees for immunity of the person
and his honour, as well as protection of the private life in
the procedure of criminal cases etc.
As mentioned above, the measures provided for by Article 2
of the Law are not criminal sanctions, therefore their
application is linked with neither the penal-procedural
relations nor with implementation of justice. In the course of
the enforcement of the Law the former regular employees of the
CSS are not recognised as suspects, nor are they arrested nor
detained, while the investigation of their case is not criminal
prosecution, therefore the application of the restrictions
provided for by Article 2 of the Law is not the matter of
criminal procedure. Also the notification of the employee of
the CSS about his former activities is not to be assessed as
bringing an accusation against oneself.
Thus Article 2 of the Law is in compliance with Parts 1
and 2 of Article 31 and Part 1 of Article 109 of the
Constitution, while Part 2 of Article 3 of the Law and Parts 1
and 2 of the Law on the Enforcement of the Law are in
compliance with Part 3 of Article 31 of the Constitution.
5. On the compliance of Article 2 of the Law with Article
23, Part 1 of Article 33, Part 1 of Article 46, Part 1 of
Article 48 of the Constitution and that of Part 2 of Article 1
of the Law on the Enforcement of the Law with Part 1 of Article
33 of the Constitution.
5.1. The petitioner doubts whether the norm of Article 2
of the Law whereby the former regular employees of the CSS are
prohibited to work in a State office as officers or officials
of the State of Lithuania, and whether the norm of Part 2 of
Article 1 of the Law on the Enforcement of the Law whereby the
former regular employees may not be admitted to work as
officers or officials in a State office, while those who
already serve as officers or officials in a State office must
be dismissed do not contradict the provision of Part 1 of
Article 33 of the Constitution whereby citizens "shall have the
equal opportunity to serve in a State office of the Republic of
Lithuania".
Part 1 of Article 33 of the Constitution provides for the
right of citizens to have the equal opportunity to serve in a
State office of the Republic of Lithuania is not absolute. The
State cannot and does not burden itself with the obligation to
admit every person to serve in a State office. Taking account
of the nature of a State office and its importance in the life
of every individual, that of society and the State, as well as
in an attempt to ensure a potent and effective work of
institutions of State power and government as well as other
institutions, respective requirements are established for State
officers and officials. Laws provide for special procedure for
admitting to work (e.g. acquiring a post by way of
competition), however those who wish to become State officers
or officials must also have corresponding education,
professional experience and certain personal characteristics.
The higher position, or the more important area of activities,
the higher requirements are raised before the person holding
such a position. In its 11 November 1998, the Constitutional
Court held that "in State institutions only the persons who are
loyal to that State and regarding their loyalty or credibility
no doubts arise may work in its institutions". The European
Court of Human Rights in the case Vogt vs. Germany confirmed
that a democratic state is entitled to demand that its
officials be loyal to the constitution. Thus the requirement
for loyalty and credibility in connection with service in a
State office is common and understandable.
It needs to be noted that neither the European Convention
for the Protection of Human Rights and Fundamental Freedoms nor
its additional protocols provide guarantees for the right to
work in a State office. In the case Glasenapp vs. Germany the
European Court of Human Rights held that the right to be
admitted to a State office is recognised neither by the
Convention nor its protocols, therefore it belongs to the right
to be admitted to a State office but this right is not covered
by the Convention. The Court held, however, that this does not
mean that in all other respects the Convention is not to be
applied to officials. Thus the states are granted greater
freedom in domestic law to decide the questions of regulation
of service in a State office, and to establish greater
requirements and restrictions in cases of adoption of persons
to State institutions. On the other hand, the character of the
said restrictions must be in line with the objectives because
of which they are established. This principle of
proportionality in restriction of rights and freedoms has been
noted for many a time in the cases investigated by the European
Court of Human Rights (e.g., the case Vogt vs. Germany).
Taking account of the character of the purpose and
activities of the USSR CSS in the occupied Republic of
Lithuania, the requirements determining the loyalty and
credibility of former regular employees of the CSS who work or
wish to work in a State service are urgent, indeed. These
persons consciously and of their own free will went to work as
regular employees of the CSS. Adoption to the structures of the
CSS showed big confidence of the occupation government in them.
By their activities, these persons carried out political
persecution of persons and organisations that promoted the
ideas and aspirations of Lithuanian independence, or
contributed to such persecution. Thus the Republic of Lithuania
has reason to doubt the former regular employees of the CSS and
must make sure that they are loyal and could be trusted,
therefore the effort of the State to restrict the opportunities
for the former regular employees of the CSS to serve in a State
service is understandable and justified.
The arguments and motives set forth permit to draw a
conclusion that Article 2 of the Law and Part 2 of Article 1 of
the Law on the Enforcement of the Law are in compliance with
Part 1 of Article 33 of the Constitution.
5.2. The petitioner doubts whether the stipulation
established by Part 2 of the Law whereby the former regular
employees of the CSS are prohibited from working not only in
State institutions but also in private enterprises-banks,
credit unions, security services, communications, etc., to
practise as a private lawyer, notary or be engaged in other
private occupation is in compliance with Part 1 of Article 48,
Part 1 of Article 46 and Article 23 of the Constitution.
Article 48 of the Constitution is contained in its chapter
entitled National Economy and Labour. The provision "every
person may freely choose an occupation or business" of Part 1
of the aforesaid article is a norm of common nature based on
universally recognised concept of human freedom. Thus the
aforesaid provision of Part 1 of Article 48 guarantees, first
of all, that every individual has an opportunity freely to
choose an occupation or business in the area of private
enterprise. This is linked with the provision of Part 1 of
Article 46 of the Constitution which reads that "Lithuania's
economy shall be based on the right to private ownership,
freedom of individual economic activity, and initiative".
Assessing the conformity of Article 2 of the Law with the said
constitutional provisions, one has to take account of the fact
that Part 3 of Article 46 of the Constitution provides that the
State shall regulate economic activity so that it serves the
general welfare of the people.
The duty of the State in the relations of labour market in
the area of private enterprise is to ensure by legal means the
balance of interests of employers and those of persons
proposing their labour force and skills and harmonise them with
those of society. Pre-conditions for the Sate implementing this
function to interfere with these labour market relations which
may be established by partnership or labour contracts or by
collective agreements are limited. In this area the State must
respect the freedom of economic activity which is understood as
the freedom of contracts, freedom of fair competition, and
equal rights of entities of economic activity. In other words,
freedom of individual economic activity and initiative is the
whole complex of legal opportunities which creates
pre-conditions for an individual to adopt decisions necessary
for his economic activity by himself (Constitutional Court
ruling of 18 April 1996).
Part 1 of Article 48 of the Constitution consolidates the
right of individuals to choose an occupation or business. This
is one of the necessary conditions to satisfy the vital needs
and secure a proper position in society for the human being and
personality. On the other hand, such a constitutional right of
every person determines an obligation for the State to create
corresponding legal, social and organisational pre-conditions
for implementation of this right.
The content of Part 1 of Article 48 of the Constitution
must be linked with the provisions of Parts 1 and 3 of Article
46 of the Constitution. All these constitutional provisions,
conditioning each other, create prerequisites to pass laws
reacting not only to the activity of national economy but also
the variety and change of economic and social life, evolution
of the forms of property as well as other circumstances.
Implementing its obligation to ensure national security and
proper guidance of young people, to secure education, credible
financial system, protection of State secrets etc., the State
is entitled to establish additional, special requirements for
those who wish to work in the main areas of economy and
business. In private enterprise there are also such areas and
posts which are of crucial importance to society and the State,
therefore the State may set special requirements to those who
want to work in such jobs. Such regulation may be linked with
the needs of the State too, as well as the necessity to take
into consideration the characteristics of persons who aspire
for respective jobs.
However, the influence of the State on private sphere is
limited, and its opportunities to control this sphere are
smaller. Such a restriction in this area may be justified only
in such cases when this is linked with essential interests of
society and the State. Finally, the scale of the retractions
may not negate the restricted rights in general. Thus the
nature, scale and criteria of the restrictions must be clear
and be in line with objectives sought.
The restrictions established by Article 2 of the Law
virtually do not negate the right freely to choose occupation
or business which is established by Part 1 of Article 48. The
Law indicates only certain positions or enterprises,
institutions, organisations and particular areas of business
which, in the opinion of the legislator, are exclusively
important to society, the State and their security, therefore
there must be no doubts concerning the credibility and loyalty
of people working there. Besides, Article 3 of the Law provides
for cases when the restrictions may also not be applied to the
former regular employees of the CSS when they choose
occupation.
Constituting the whole-complex, the norms entrenched in
Article 23 of the Constitution reveal the essence of the
protection of property and emphasise constitutional protection
of property. In its ruling of 18 April 1996, the Constitutional
Court held that "subjective property right may be defined as
the law protected opportunity of the owner to manage the
possessions which belong to him, to utilise and dispose of them
at his discretion and in his interests, not overstepping,
however, the limits imposed by the law, and not impairing the
rights and freedoms of other people". The restrictions
established by Article 2 of the Law restrict the right of
former regular employees of the CSS freely to choose occupation
in certain private enterprises or offices as well, however
nothing is spoken of the rights of ownership therein. The
nature, objective and area of effect of the restrictions
established by the said article are not regulation of ownership
relations nor are they impairment of the right of the owner
freely to use, manage and dispose of his property but certain
restriction of the right freely to choose occupation.
Taking account of the arguments set forth, a conclusion is
to be drawn that Article 2 of the Law is in compliance with
Article 23, Part 1 of Article 46 and Part 1 of Article 48 of
the Constitution.
5.3. It needs to be noted that in the legal regulation
established by Article 2 of the Law there exists certain
vagueness, which is incompatible with other laws. For instance,
in some cases the Law prohibits the former regular employees of
the CSS to work in any jobs in certain areas, as banks, credit
unions, strategic objects of economy, security services
(structures), other services (structures) rendering detective
services, as well as in communications. Meanwhile, in other
cases the Law, listing institutions and organisations,
indicates concrete, as a rule, key positions, e.g. in the
system of education, to which restrictions may be applied.
Establishing a restriction for the former regular employees of
the CSS, one has not taken into consideration the fact that no
labour contract is concluded with an advocate. The Law on the
Bar does not provide for the bases under which one is removed
from the list of practising advocates, which, however, is
provided by Article 2 of the Law. Due to such inconsistency and
incompatibility of legal regulation, problems may arise in the
course of implementation of the norms of the disputed Law.
6. On the compliance of Part 2 of Article 3 of the Law
with Part 2 of Article 5, Articles 77 and 84, Part 1 of Article
109 and Part 3 of Article 111 of the Constitution.
In the opinion of the petitioner, doubts arise whether the
provision of Part 2 of Article 3 of the Law whereby a decision
concerning non-application of the activity restrictions to the
former regular employees of the CSS is adopted by a 3-person
commission formed by the President of the Republic and
regulation of which are confirmed by the latter are in
compliance with Part 2 of Article 5, Articles 77 and 84, Part 1
of Article 109 and Part 3 of Article 111 of the Constitution.
6.1. Article 5 of the Constitution consolidates the
principle of separation of powers, and provides that in
Lithuania, the powers of the State shall be exercised by the
Seimas, the President of the Republic and the Government, and
the Judiciary. This principle is developed and particularised
in individual chapters and articles of the Constitution.
The status of the President of the Republic is defined by
Articles 77 and 84 of the Constitution. They establish the
essence of this State institution, the powers of the President
of the Republic, the main functions and directions of his
activities revealing the place of the President of the Republic
in the system of power, as well as his relations with the other
institutions implementing State power. Direct establishment of
powers by the Constitution means that one State power
institution neither may take over the powers of another one nor
hand over its powers to another institution nor refuse its
powers. Thus the constitutional powers of institutions
implementing State power may not be amended nor restricted by
law. Taking account of this, the compliance of the disputed
norms of Part 2 of Article 3 of the Law will be assessed.
Part 2 of Article 3 of the Law provides that the Centre
for Research into People's Genocide and Resistance of Lithuania
and the State Security Department may adopt a joint motivated
proposal recommending that the restrictions established by the
Law for the former regular employees of the CSS may be
suspended. Such a proposal may be adopted in case the said
persons register themselves at the State Security Department
and reveal all their knowledge about their former work at the
CSS and their present links with the former employees and
agents of the CSS. Decisions concerning non-application of the
restrictions for the former regular employees of the CSS shall
be adopted by a 3-person commission which is formed by the
President of the Republic. The Law also provides that the
regulations of this commission shall be confirmed by the
President of the Republic.
The President of the Republic forms commissions when this
is necessary for implementation of his constitutional powers.
For example, the established Citizenship Commission and
Clemency Commission perform preparatory actions necessary for
the powers of the President of Republic as provided for by
Items 21 and 23 of Article 84 of the Constitution, which are
granting citizenship of the Republic of Lithuania and clemency
for convicted persons. The disputed provision of Part 2 of
Article 3 of the Law commission the President of the Republic
to form a commission which could decide whether to apply the
restrictions to the right to choose occupation. The
Constitution, however, does not provide that the President of
the Republic may decide the questions of restriction of human
rights and freedoms, therefore there exist no constitutional
pre-conditions to commission, by law, the President of the
Republic to form a commission which could decide questions of
this nature.
It also needs to be noted that a respective legal
regulation is necessary for guaranteeing the activity of such a
commission. Neither the Law nor the Law on the Enforcement of
the Law regulates the relations between the commission and the
President of the Republic, nor is it established as to what
criteria the commission must follow adopting a decision
concerning non-application of the restrictions for the former
regular employees of the CSS nor other issues are solved,
however, by the provision "the regulations for the activities
of this commission shall be confirmed by the President of the
Republic" of Article 3 of the Law virtually the right is
delegated to the President of the Republic to issue a normative
legal act deciding questions of human rights and freedoms.
Taking account of the fact that additional powers of the
President of the Republic may be established by laws, the
Constitutional Court also notes that the nature of new
functions must not cause dissonance nor oppose the
constitutional powers of the President of the Republic, nor
contradict the constitutional status of Head of State of
Lithuania.
Taking account of the arguments and motives set forth, it
is to be concluded that Part 2 of Article 3 of the Law
providing that decisions concerning non-application of the
restrictions for the former regular employees of the CSS shall
be adopted by a 3-person commission which is formed by and the
regulations of activity whereof is confirmed by the President
of the Republic contradict Part 2 of Article 5 and Articles 77
and 84 of the Constitution.
6.2. Under the Law, the aforesaid commission is granted
wide powers: it adopts decisions concerning non-application of
the restrictions to the former employees of the CSS to work in
a State office and other areas for 10 years. Thus decisions of
the commission are linked with implementation of the right
freely to choose occupation or business which is entrenched in
the Constitution. Assuming that the commission has the right
not to approve the non-application of the restrictions which is
recommended by a joint proposal of the Centre for Research into
People's Genocide and Resistance of Lithuania and the State
Security Department, such a decision of the commission may have
negative effects in the course of implementation of the rights
of concrete individuals. Following the analysis of the content
of the norms of the Law and those of the Law on the Enforcement
of the Law, a conclusion is to be draw that decisions of the
commission are not subject to appeal against in court. In
addition, no right is provided to lodge an appeal to court
against decisions of the Centre for Research into People's
Genocide and Resistance of Lithuania and the State Security
Department concerning application of the restrictions. Thus
such a position when there exist no opportunities to dispute a
decision in court is not in line with the concept of the State
under the rule of law or the doctrine of constitutional
protection of the rights of an individual.
On the other hand, in the sphere of the application of the
Law, the powers of the commission are limited: the question
concerning non-application of the restrictions are decided by
the commission only in cases when there is a joint and
motivated proposal of the Centre for Research into People's
Genocide and Resistance of Lithuania and the State Security
Department recommending not to apply the restrictions. It needs
to be noted that the persons with respect to whom the
restrictions are applied may not, on their own initiative,
appeal to the commission.
The Constitutional Court notes that even though the
restrictions established by Article 2 of the Law are not any
type of punishment, still by them certain human rights and
freedoms are restricted. Assessing this, one is to conclude
that in the course of application of these restrictions, a
procedure must be created which would include judicial review
as well. However, enforcing the measures provided for by
Article 2 of the Law, judicial institutions take part neither
in the ascertainment process of the character of activities of
the former employees of the CSS nor in the process of
application of the restrictions provided for by the Law. No
opportunity to appeal to court is provided for the persons
against whom the restrictions are applied. Meanwhile, under the
universally recognised doctrine of protection of human rights
and freedoms it is possible to restrict the rights and freedoms
only by law and by necessarily providing a guarantee for an
opportunity to appeal to court on the grounds of the violated
rights.
Paragraph 1 of Article 6 of the European Court of Human
Rights provides that "in the determination of his civil rights
and obligations [...] everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law". The European Court of
Human Rights is of the opinion that the institutions, adopting
initial decisions, must conform to procedural requirements set
down by Paragraph 1 of Article 6 of the Convention, or that
decisions of such institutions must be reviewed by a judicial
body which follows the said requirements (case Albert and Le
Compte vs. Belgium). The European Court of Human Rights has
also noted that an opportunity to appeal to judicial
institutions must be real and not merely formal.
Thus, the fact that in Part 2 of Article 3 of the Law (as
in the Law and the Law on the Enforcement of the Law in
general) no individuals' right to appeal to court against the
adopted decisions concerning them and against whom the
occupation restrictions are applied is provided for is to be
assessed as contradiction to Part 1 of Article 30 of the
Constitution.
The petitioner maintains that there are grounds to doubt
as to whether the disputed provision of Part 2 of Article 3 of
the Law is in compliance with Part 1 of Article 109 and Part 3
of Article 111 of the Constitution as well.
Part 1 of Article 109 of the Constitution stipulates that
"in the Republic of Lithuania, the courts shall have the
exclusive right to administer justice", while Part 3 of Article
111 provides that "courts with special powers may not be
established in the Republic of Lithuania in times of peace". As
held above, the commission formed by the President of the
Republic is not a judicial institution, therefore the disputed
norms of Part 2 of Article 3 are not linked with either Part 1
of Article 109 or Part 3 of Article 111 of the Constitution,
and, consequently, do not contradict them.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
1. To recognise that Articles 1 and 2 of the Republic of
Lithuania Law "On the Assessment of the USSR Committee of State
Security (NKVD, NKGB, MGB, KGB) and Present Activities of the
Regular Employees of This Organisation" are in compliance with
the Constitution of the Republic of Lithuania.
2. To recognise that the provisions of Part 2 of Article 3
of the Republic of Lithuania Law "On the Assessment of the USSR
Committee of State Security (NKVD, NKGB, MGB, KGB) and Present
Activities of the Regular Employees of This Organisation"
whereby decisions concerning non-application of the
restrictions for the former regular employees of the CSS shall
be adopted by a 3-person commission which is formed by and the
regulations of activity whereof is confirmed by the President
of the Republic contradict Part 2 of Article 5 and Articles 77
and 84 of the Constitution of the Republic of Lithuania.
3. To recognise that the legal regulation established by
Part 2 of Article 3 of the Republic of Lithuania Law "On the
Assessment of the USSR Committee of State Security (NKVD, NKGB,
MGB, KGB) and Present Activities of the Regular Employees of
This Organisation" which in reality does not guarantee an
opportunity for an individual to appeal to court against
decisions, which concern him, and which are adopted by the
Centre for Research into People's Genocide and Resistance of
Lithuania and the State Security Department as well as those by
the commission formed by the President of the Republic,
contradict Part 1 of Article 30 of the Constitution of the
Republic of Lithuania.
4. To recognise that Parts 1 and 2 of Article 1 of the
Republic of Lithuania Law on the Enforcement of the Law "On the
Assessment of the USSR Committee of State Security (NKVD, NKGB,
MGB, KGB) and Present Activities of the Regular Employees of
This Organisation" 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.