Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Part 2 of Article 6 of the
Republic of Lithuania Meetings Law with the
Constitution of the Republic of Lithuania
Vilnius, 7 January 2000
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas
Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the party concerned-Audronė
Ožiūnienė, a consultant to the Legal 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 4
January 2000 in its public hearing conducted the investigation
of Case No. 11/99 subsequent to the petition submitted to the
Court by the petitioner-the Kaunas Regional Court-requesting to
investigate if Part 2 of Article 6 of the Republic of Lithuania
Meetings Law was in conformity with the Constitution of the
Republic of Lithuania.
The Constitutional Court
has established:
I
The petitioner-the Kaunas Regional Court-investigated a
civil case concerning restoration of violated rights and
recognition of 31 July 1997 Decision No. 54 "On Setting the
Place of Meetings" adopted by the Kaunas City Council as
conflicting with Part 1 of Article 36 of the Constitution and
Article 5, Part 4 of Article 6 and Article 18 of the Meetings
Law and as null and void.
By its ruling the court suspended the investigation of the
case and appealed to the Constitutional Court with the petition
requesting to investigate whether Part 2 of Article 6 of the
Republic of Lithuania Meetings Law (Official Gazette Valstybės
žinios, 1993, No. 69-1291; hereinafter referred to as the Law)
was in conformity with Article 36 of the Constitution.
II
The request of the petitioner is based on the following
arguments.
Part 2 of Article 6 of the Law grants the right to the
local governments to set permanent places for meetings of
citizens. This norm conflicts with Article 36 of the
Constitution Part 1 whereof provides: "citizens may not be
prohibited or hindered from assembling in unarmed peaceful
meetings", while Part 2 prescribes that the right to assemble
in meetings "may not be subjected to any restrictions except
those which are provided by law and are necessary to protect
the security of the State or the community, public order,
people's health or morals, or the rights and freedoms of other
persons". Thus, in the opinion of the petitioner, under Part 2
of Article 6 of the Law the local governments are permitted to
restrict the constitutional right of citizens to assembly.
III
In the course of the preparation of the case for judicial
investigation, the representative of the party concerned
explained in writing that the Law is designated for the
implementation of the provisions of Article 36 of the
Constitution. Regulating the conditions of and procedure for
the arrangement of meetings, the Law provides for the form of
the implementation of right of assembly on notice, i.e. the
persons who arrange peaceful meetings do not need a prior
permission of the State or local governments. Part 2 of Article
6 of the Law provides for a possibility for local governments
to set permanent places or premises for meetings while, of
course, the requirements of the Law regarding the time, place
and other circumstances are followed. The obligation to arrange
meetings only in the places set by local governments has not
been consolidated in the Law, therefore the disputed provision
of Part 2 of Article 6 of the Law is to be assessed not as a
restriction of the constitutional right of citizens to assembly
but rather as a condition facilitating the situation of the
organisers and participants of the meetings (such places must
be known to residents and easy to reach; in cases when the
number of the participants of the meeting does not exceed 100,
even the written notice concerning the arrangement of the
meeting is not necessary); thus this provision is to be
assessed as an additional condition of the guarantee of the
implementation of the right of assembly.
The representative of the party concerned also pointed out
the fact that in other countries, too, the questions of
arrangement of meetings are regulated by special laws which
sometimes grant the right to local authorities to apply special
measures at their discretion ensuring the security of
arrangement of meetings.
On the grounds of the arguments set forth, the
representative of the party concerned maintains that an
opportunity for the local governments to set permanent places
or premises for meetings as established in the Law does not
restrict the constitutional right of citizens to assembly and
is in compliance with Article 36 of the Constitution.
IV
1. In the course of the preparation of the case for
judicial investigation explanations of L. Sabutis, Chairman of
the Public Administration Reforms and Local Government Affairs
Committee of the Seimas, S. Kaktys, Minister of the Republic of
Lithuania Administration Reforms and Local Government Affairs,
Dr. G. Švedas, Vice-minister of Justice of the Republic of
Lithuania, Habil. Dr. V. Vadapalas, Director of the Department
of the European Law under the Government of the Republic of
Lithuania, S. Šiupšinskas, Director of the Administration of
the Lithuanian Local Governments Association, Dr. E. Šileikis,
a senior assistant at the State Law Department of Vilnius
University, Assoc. Prof. Dr. E. Vaitiekienė who works at the
Constitutional Law Department of the Law Academy of Lithuania,
T. Klimas, Head of the Law Department of the University of
Vytautas the Great, Dr. T. Birmontienė, Director of the
Lithuanian Centre for Human Rights, A. Gazarianas, Chief
Officer of the Research Centre of Self-government Problems, J.
Šiugždinienė, Director of the Self-government Training Centre
at Kaunas Technological University, J. Elzbergas, Director of
the Legal Department of the Vilnius City Local Government, H.
Tamulis, Mayor of the City of Kaunas, were received concerning
the arguments of the petitioner. In all explanations opinions
were stated that Part 2 of Article 6 of the Law was in
compliance with the Constitution.
2. In the course of the preparation of the case for
judicial investigation, the information of the Ministry of
Administration Reforms and Local Government Affairs, the
Lithuanian Local Governments Association and the Vilnius City
Local Government concerning as to how the local governments of
the Republic of Lithuania interpret and apply the norm of Part
2 of Article 6 of the Law. It needs to be noted that the
absolute majority of the local governments have not set the
permanent places for meetings as yet.
V
At the court hearing the representative of the party
concerned virtually reiterated the explanations presented in
writing.
The Constitutional Court
holds that:
1. On 2 December 1993, the Seimas adopted the Meetings
Law. Article 6 of the Law provides:
"This law establishes the conditions of and procedure for
arrangement of meetings in public places, i.e. streets,
squares, parks, public gardens of towns and settlements, as
well as in other public places and publicly used buildings.
Local governments may set permanent places or premises for
meetings.
It shall not be permitted to arrange meetings, rallies,
pickets or other actions of groups or individuals at the
establishments of state authority and administration, on the
premises of local governments, those of the police, sentence
service, social rehabilitation, as well as those of the
national defence, security service, prosecutor's office and
courts, in military units and military objects, state banks,
nuclear energy enterprises and other enterprises with special
work security regime or those guarded by armed sentinels.
Meetings near the buildings of the Seimas of the Republic
of Lithuania, the official residence of the President of the
Republic, the Government or courts may be arranged not closer
than 75 metres, and near other establishments of state
authority and administration, foreign diplomatic offices, local
governments establishments, prosecutor's office, establishments
of the Ministry of Internal Affairs and the Ministry of
National Defence, military units and other objects with special
work security regime or those guarded by armed sentinels not
closer than 25 metres from the main entrance into these
buildings or objects, and in all cases free access to them must
be guaranteed."
In the opinion of the petitioner, under Part 2 of Article
6 of the Law, local governments are permitted to restrict the
constitutional right of citizens to assembly, therefore this
part conflicts with Article 36 of the Constitution.
2. Article 36 of the Constitution provides:
"Citizens may not be prohibited or hindered from
assembling in unarmed peaceful meetings.
This right may not be subjected to any restrictions except
those which are provided by law and are necessary to protect
the security of the State or the community, public order,
people's health or morals, or the rights and freedoms of other
persons."
3. The constitutional establishment of the right of
assembly means that it is treated as one of fundamental human
rights and values in the democratic society and is an
indivisible element of the democratic system. It is an
important condition of the implementation of the strife for an
open, just, and harmonious civil society and law-governed
state.
The right of assembly is the subjective right of citizens
to participate in peaceful gatherings and freely to express
their opinion and views, ensuring the expression of political
activity of individuals in society and the State.
The Constitution is an integral statute (Part 1 of Article
6 of the Constitution), therefore the freedom of assembly is to
be treated not only as a democratic value to be taken for
granted but also as an important guarantee so that various
constitutional rights and freedoms would be implemented in all
possible manner: the right of citizens to participate in the
government of their state (Part 1 of Article 33 of the
Constitution), the right to criticize the work of State
institutions and their officers (Part 2 of Article 33 of the
Constitution), the right of individuals to have their own
convictions and freely express them (Part 1 of Article 25 of
the Constitution), their right to seek, obtain, or disseminate
information or ideas (Part 2 of Article 25 of the
Constitution), the right of citizens to freely form societies,
political parties, and associations (Part 1 of Article 35 of
the Constitution) etc. Thus, arrangement of meetings is one of
the ways of civil and political action.
4. Article 36 of the Constitution not only provides for
the right of citizens to assemble in peaceful meetings but also
formulates the bases of legal regulation for the implementation
of the freedom of assembly and the opportunity is guaranteed
therein to implement this freedom without violating the other
values enshrined in the Constitution. This pre-supposes certain
rights and duties of the legal relations linked with the
arrangement and conduct of meetings and those of the
subjects-the organisers of meetings and the institutions and
officials adopting decisions concerning the coordinated place,
time and form of the meeting.
On the one hand, organisers of meetings may freely choose
the place, time, purpose and manner of meetings. In case these
rights were absent, the freedom of meetings itself would lose
its sense. Alongside, the organisers of meetings must take
measures so that the meeting, as provided for in Part 2 of
Article 36 of the Constitution, would not intimidate the
security of the State or the community, public order, people's
health or morals, or the rights and freedoms of other persons.
In their turn, the institution or official adopting
decisions concerning the coordinated place, time and form of
the meeting must ascertain whether the meeting will not
intimidate to the security of the State or the community,
public order, people's health or morals, or the rights and
freedoms of other persons. Coordinating the place for the
meeting, this institution or official must also assess whether
it is a proper place so that the security of the participants
of the meeting would be ensured.
5. The right of individuals and citizens to peaceful
meetings in case this does not violate the fundamental public
values and the rights of other people is also established in
the international law acts. For example, Paragraph 1 of Article
20 of the Universal Declaration of Human Rights promulgates:
"Everyone has the right to freedom of peaceful assembly and
association." Under Paragraph 2 of Article 29 of the
Declaration, in the exercise of his rights and freedoms,
everyone shall be subject only to such limitations as are set
by law solely for the purpose of securing due recognition and
respect for the rights and freedoms of others and of meeting
the just requirements of morality, public order and the general
welfare in a democratic society. Similarly it is provided in
Article 21 of the International Covenant on Civil and Political
Rights: "The right of peaceful assembly shall be recognized. No
restrictions may be placed on the exercise of this right other
than those imposed in conformity with the law and which are
necessary in a democratic society in the interests of national
security or public safety, public order (ordre public), the
protection of public health or morals or the protection of the
rights and freedoms of others."
Article 11 of the Convention for the Protection of Human
Rights and Fundamental Freedoms provides:
"1. Everyone has the right to freedom of peaceful assembly
and to freedom of association with other, including the right
to form and to join trade unions for the protection of his
interests.
2. No restrictions shall be placed on the exercise of
these rights other than such as are prescribed by law and are
necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or
crime, for the protection of the rights and freedoms of others.
This article shall not prevent the imposition of lawful
restrictions on the exercise of these rights by members of the
armed forces, of the police or of the administration of the
State."
Interpreting the provisions of Article 11 of the
Convention, in the case of Ezelin vs. France (European Court of
Human Rights, judgment of 26 April 1991, Series A, No. 202) the
European Court of Human Rights considered that the freedom to
take part in a peaceful assembly, unlike in a demonstration
that is prohibited, is of such importance that it cannot be
restricted in any way, so long as the person concerned does not
himself commit any reprehensible act on such an occasion. The
European Court of Human Rights in the case of Platform "Ärzte
für das Leben" (European Court of Human Rights, judgment of 21
June 1988, Series A, No. 139) also construed that the right to
freely arrange peaceful assemblies includes not only the
negative duty of the State not to interfere with the
arrangement of a peaceful assembly but also its positive duty
to ensure proper protection for the participants of such an
assembly; coordinating the place of the assembly, the
respective state institution must ascertain that it is a proper
place so that the protection of the participants of the
assembly would be guaranteed.
6. Regulating the implementation of the right of citizens
to assemble only in unarmed and only in peaceful meetings which
is entrenched in Article 36 of the Constitution, the legislator
enjoys discretion to establish the procedure for the
implementation of this right, however, he may not deny the
essence of the right of assembly itself. The Constitutional
Court notes that the interference of the State with the
exercise of the right of assembly, as well as other rights and
freedoms of individuals and citizens, is recognised as lawful
and necessary only in case the principle of restriction and
proportionality of the attempted legitimate objective is
followed. In all cases balance must be maintained between the
rights of persons and the public interest. Such is also the
case-law practice of the European Court of Human Rights.
Part 2 of Article 36 of the Constitution provides that the
right of citizens to assemble in unarmed peaceful meetings may
not be subjected to any restrictions except those which are
provided by law and are necessary to protect the security of
the State or the community, public order, people's health or
morals, or the rights and freedoms of other persons. Thus, in
the determination of the procedure for the implementation of
the freedom of assembly the Law may define the limits of the
implementation of this freedom: it may contain particularised
requirements as to the place, time and form of meetings, and it
may establish as to what meetings are prohibited.
The requirements as to the place, time and form of
meetings may not deny the provision of Part 2 of Article 36 of
the Constitution whereby the right to unarmed peaceful meetings
may not be subjected to any restrictions except those which are
provided by law and are necessary to protect the security of
the State or the community, public order, people's health or
morals, or the rights and freedoms of other persons. In the
like manner, the legislator may not overstep the limits of the
implementation of the freedom of assembly defined in Part 2 of
Article 36 of the Constitution, by establishing as to what
meetings are prohibited. The list of prohibited meetings
contained in the Law must be exhaustive and may not be
construed in the extended manner. It is not permitted not to
allow to arrange the meetings which are not directly prohibited
in the Law in case these meetings conform to the requirements
as to their place (Parts 3 and 4 of Article 6 of the Law) and
as to their time (Article 7 of the Law) as established in the
Law.
7. Under Article 5 of the Law, the meetings arranged
according to the procedure established in the Law do not
require any prior permission of the State or the local
government; the organisers shall coordinate the place (the
route of the procession or demonstration), time and other
procedure of its arrangement with the chief officer of the
executive body of the local government council or his
authorised representative. It needs to be noted that the Law
provides for the procedure of the submission of the notice
regarding arrangement of the meeting and that of reception of a
corresponding certificate but never for that of the issuance of
the permission to arrange the meeting. Thus, the Law provides
for the procedure of the implementation of the constitutional
freedom of assembly on notice but never that requiring a
permission. In cases when any public places prescribed in Part
1 of Article 6 of the Law, i.e. streets, squares, parks, public
gardens of towns and settlements, as well as in other public
places and publicly used buildings, are chosen for the meeting,
then the place for the meeting must be coordinated, conforming
to the procedure established in the Law, with the chief officer
of the executive body of the local government council or his
authorised representative.
8. Under the Law, the notice regarding the arrangement of
the meeting shall be considered by the chief officer of the
executive body of the local government council or his
authorised representative (Part 2 of Article 10 of the Law). In
case in the course of the consideration of the notice
circumstances come to light due to which it is impossible to
arrange the meeting in the form, at the place or the time
pointed out in the notice, proposals regarding different forms,
places or the time of the meeting may be submitted and
considered only in the presence of the organisers of the
meeting (Part 3 of Article 10 of the Law).
Under Item 2 of Part 1 of Article 11 of the Law, upon
investigation of the notice of the organiser of the meeting or
his representative concerning the arrangement of the meeting,
the chief officer of the executive body of the local government
council or his authorised representative may adopt a decision
to refuse to issue a certificate on the coordinated place, time
and form of the meeting in case the security of the State or
the community, public order, people's health or morals, or the
rights and freedoms of other persons may be violated. The
organisers of the meeting may lodge a complaint against such a
decision in court.
The Constitutional Court notes that the chief officer of
the executive body of the local government council or his
authorised representative, when he adopts a decision to refuse
to issue a certificate on the coordinated place, time and form
of the meeting, is bound by the bases of the restriction of the
freedom of assembly as indicated in Part 2 of Article 36 of the
Constitution: adopting such a decision, he must present clear
proofs as to in what particular way the meeting is bound to
violate the security of the State or the community, public
order, people's health or morals, or the rights and freedoms of
other persons.
9. The wording "local governments may set permanent places
or premises for meetings" contained in Part 2 of Article 6 of
the Law is not an imperative one. This norm is that of
empowerment: local governments have the right to set permanent
places or premises for meetings but they are not obligated to
do so.
It needs to be noted, however, that when they set
permanent places for meetings, local governments may not
violate the principle of equality of all persons. Part 1 of
Article 29 of the Constitution provides that all persons shall
be equal before the law, the court, and other State
institutions and officers, Part 2 of the same article provides
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 opinions. Therefore it is not permitted that in
certain permanent places for meetings only particular persons
may arrange meetings and that particular persons are prohibited
from arrangement of meetings in the said places.
10. As mentioned, disputed Part 2 of Article 6 of the Law
provides that "local governments may set permanent places or
premises for meetings", Part 2 of Article 7 of the same law
provides that "local governments may set the permanent time for
meetings in the permanent places or premises for meetings". In
such cases the Law provides for a simplified procedure for the
implementation of the right of assembly. Part 4 of Article 9 of
the Law prescribes: "In cases when a meeting is arranged in the
permanent place or premises and the permanent time set by the
local government, and the number of the participants of the
meeting is limited (100 people or less), the chief officer of
the executive body of the local government council or his
authorised representative shall be informed about the
arrangement of the meeting, however a written notice shall not
be necessary. The notice regarding pickets where 10 or less
people participate shall not be necessary."
11. Summarising the legal regulation of the implementation
of the right of assembly as provided in the Law, one is to note
that under the Law meetings may be arranged: first, in the
permanent places set by the local governments when, in case the
meetings are arranged in such places, prior assessment whether
the security of the State or the community, public order,
people's health or morals, or the rights and freedoms of other
persons indicated in Part 2 of Article 36 of the Constitution
would not be violated is not necessary, and, second, in other
places where one has to assess in every particular case whether
the said requirements of the Constitution would not be
violated. The organisers of the meeting decide by themselves as
to what alternative to choose. They may, at their own
discretion, choose the permanent place set by the local
government and only inform the representative of the executive
body of the local government about the arranged meeting (Part 4
of Article 9 of the Law) or to submit a written notice (Parts 2
and 3 of Article 9 of the Law) concerning another place of the
meeting. The establishment of places or premises for meetings
simplifies the procedure for arrangement of meetings, however,
organisers of meetings are not obligated in any way to arrange
their meetings only at these places or on these premises, while
the local governments have no right to demand that meetings be
arranged only at the permanent places set by them.
12. Taking account of the relation of the norm of Part 2
of Article 6 of the Law with the other norms of the Law, it is
to be concluded that the disputed norms of the Law whereby
local governments may set permanent places or premises for
meetings may not be interpreted as granting the right to the
local governments not to allow people to assemble to peaceful
meetings in other places which are not set by the local
government.
Alongside, it needs to be noted that it is impossible to
interpret the norm of the Law as prohibiting the citizens to
assemble to peaceful meetings in other places which are not set
by the local government.
Thus, disputed Part 2 of Article 6 of the Law does not
restrict the freedom of assembly enshrined in Article 36 of the
Constitution but establishes one of the ways of its
implementation which may, under certain circumstances, be more
favourable for organisers of meetings as the option for any
other place for the arrangement of the meeting.
On the grounds of the motives set forth, one is to
conclude that Part 2 of Article 6 of the Meetings Law is in
compliance with Article 36 of the Constitution.
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:
To recognise that Part 2 of Article 6 of the Republic of
Lithuania Meetings Law is 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.