Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Sub-item 4.7 of the
Regulations for Operational Activities of the
System of Internal Affairs of the Republic of
Lithuania approved by 30 September 1993 Government
of the Republic of Lithuania Resolution No. 731-19
"On the Approval of the Regulations for
Operational Activities of the System of Internal
Affairs of the Republic of Lithuania" with the
Constitution of the Republic of Lithuania and Item
7 of Part 3 of Article 7 of the Republic of
Lithuania Law on Operational Activities
Vilnius, 5 April 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-the Government
of the Republic of Lithuania-Olegas Rimanas, a commissioner of
the Operational Service of the Police Department under the
Ministry of Internal Affairs, a deputy senior commissioner,
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
April 2000 in its closed hearing conducted the investigation of
Case No. 24/99 subsequent to the petition submitted to the
Court by the petitioner-the Higher Administrative
Court-requesting to investigate if Sub-item 4.7 of the
Regulations for Operational Activities of the System of
Internal Affairs of the Republic of Lithuania approved by 30
September 1993 Government of the Republic of Lithuania
Resolution No. 731-19 "On the Approval of the Regulations for
Operational Activities of the System of Internal Affairs of the
Republic of Lithuania" was in compliance with Items 2 and 7 of
Article 94 of the Constitution of the Republic of Lithuania and
Item 7 of Part 3 of Article 7 of the Republic of Lithuania Law
on Operational Activities.
The Constitutional Court
has established:
I
1.1. The petitioner-the Higher Administrative Court-was
investigating an administrative case wherein it was requested
to investigate the lawfulness of orders of the Minister of
Internal Affairs.
By its ruling the said court suspended the investigation
of the case and appealed to the Constitutional Court with a
petition requesting to investigate whether Sub-item 4.7 of the
Regulations for Operational Activities of the System of
Internal Affairs of the Republic of Lithuania (hereinafter
referred to as the Regulations) approved by 30 September 1993
Government Resolution No. 731-19 "On the Approval of the
Regulations for Operational Activities of the System of
Internal Affairs of the Republic of Lithuania" was in
compliance with Items 2 and 7 of Article 94 of the Constitution
and Item 7 of Part 3 of Article 7 of the Law on Operational
Activities (hereinafter also referred to as the Law).
The aforesaid Government resolution is marked "top
secret". This legal act has not been published in the official
gazette Valstybės žinios. The Constitutional Court received the
said Government resolution together with the petition of the
Higher Administrative Court.
1.2. The request of the petitioner is grounded on the
following arguments.
Item 7 of Part 3 of Article 7 of the Law on Operational
Activities provides that under the procedure established by the
Government, the operational entities shall have the right to
compile an operative record file and make use of it. It is
established in Sub-item 4.7 of the Regulations approved by the
30 September 1993 Government resolution that the operational
entities shall have the right to compile an operative record
file and make use of it under the procedure established by the
Minister of Internal Affairs. In the opinion of the petitioner,
there is a conflict between these legal norms.
The petitioner also points out that under Items 2 and 7 of
Article 94 of the Constitution, the Government shall implement
laws and resolutions of the Seimas concerning the
implementation of laws and also discharge other duties
prescribed to the Government by the Constitution and other
laws. The petitioner is of the opinion that the Constitution
does not grant the right to the Government to delegate the
duties prescribed to it by the law to other subjects.
Therefore, Sub-item 4.7 of the Regulations whereby the
Government delegates the duty to establish the procedure for
compilation and making use of an operative record file to the
Minister of Internal Affairs conflicts with Items 2 and 7 of
Article 94 of the Constitution.
II
In the course of the preparation of the case for the
Constitutional Court hearing, a written explanation of the
representatives of the party concerned-the Government-V.
Rimkus, a senior commissioner of the Advisers Service of the
Police Department under the Ministry of Internal Affairs and O.
Rimanas, a commissioner of the Operational Service of the
Police Department under the Ministry of Internal Affairs, a
deputy senior commissioner, was received. The arguments are set
down therein on the grounds of which it is maintained that the
Government was entitled to empower the Minister of Internal
Affairs to determine the procedure for compilation and making
use of an operative record file. In the opinion of the
representatives of the Government, Sub-item 4.7 of the
Regulations is in compliance with Item 7 of Part 3 of Article 7
of the Law on Operational Activities, as well as Items 2 and 7
of Article 94 of the Constitution.
III
In the Constitutional Court hearing O. Rimanas virtually
reiterated the arguments set forth in the written explanation
and informed that disputed Sub-item 4.7 of the Regulations had
been amended by the 31 March 2000 Government resolution wherein
it had been provided that the procedure for compilation and
making use of an operative record file shall be established by
the Government.
The Constitutional Court
holds that:
I
1.1. Doubting as for the compliance of Sub-item 4.7 of the
Regulations approved by the Government resolution with the
Constitution and the Law, the Higher Administrative Court
appealed to the Constitutional Court. The aforesaid court had
doubts regarding the constitutionality of the said sub-item
while it was investigating an administrative case subsequent to
an appeal of an individual concerning the lawfulness of orders
of the Minister of Internal Affairs. The court suspended the
investigation of the administrative case until the
Constitutional Court has ruled as for the compliance of
Sub-item 4.7 of the Regulations with the Constitution and the
Law.
By the 31 March 2000 Government resolution Sub-item 4.7 of
the Regulations was amended and it was provided for therein
that the procedure for compilation and making use of an
operative record file shall be established by the Government.
Thus, the legal norm set down in disputed Sub-item 4.7 of the
Regulations whereby the procedure for compilation and making
use of an operative record file shall be established by the
Ministry of Internal Affairs became null and void.
Under Part 4 of Article 69 of the Law on the
Constitutional Court, the annulment of a disputable legal act
shall be grounds to adopt a decision to dismiss the initiated
legal proceedings. The wording "shall be grounds to adopt a
decision to dismiss the initiated legal proceedings" is to be
construed as establishing the right of the Constitutional Court
to dismiss the initiated legal proceedings while taking account
of the circumstances of the case under investigation, but not
as establishing that in every case when the disputed legal act
is annulled the initiated legal proceedings are to be
dismissed.
It needs to be noted that after the Higher Administrative
Court has appealed with the petition requesting to investigate
whether Sub-item 4.7 of the Regulations is in compliance with
the Constitution and the Law (even though the said sub-item has
been amended), and unless the Constitutional Court decides the
question in essence, the doubts of the court regarding the
constitutionality of the legal act will not be removed. Unless
the doubts regarding the constitutionality of the applicable
legal act are removed and upon application of the legal act
wherein this question has not been decided in the decision of
the case, the constitutional rights and freedoms of the
individual might be violated.
Taking account of the circumstances pointed out, the
Constitutional Court will investigate whether the wording of
Sub-item 4.7 of the Regulations which was in effect at the
moment of issuance of the orders of the Minister of Internal
Affairs the lawfulness of which were appealed against by the
individual at the Higher Administrative Court are in compliance
with the Constitution and Item 7 of Part 3 of Article 7 of the
Law.
1.2. 30 September 1993 Government Resolution No. 731-19
"On the Approval of the Regulations for Operational Activities
of the System of Internal Affairs of the Republic of Lithuania"
is marked "top secret".
Article 105 of the Constitution provides that the
Constitutional Court shall consider and adopt decisions
concerning the conformity of laws of the Republic of Lithuania
and legal acts adopted by the Seimas with the Constitution, and
that of legal acts of the President of the Republic and legal
acts of the Government with the Constitution and the laws.
The Constitutional Court notes that, under Article 105 of
the Constitution, in case there is a petition grounded by legal
motives by the subjects pointed out in Article 106 of the
Constitution, the Constitutional Court enjoys the powers and
has to consider and adopt decisions concerning the conformity
of any laws and legal acts adopted by the Seimas with the
Constitution, and regarding the conformity of any legal acts of
the President of the Republic and any legal acts of the
Government with the Constitution and the laws irrespective of
the fact whether the legal act is (should be) marked "top
secret", "secret", "confidential" or marked in any other way.
1.3. Part 1 of Article 107 of the Constitution provides
that laws (or parts thereof) of the Republic of Lithuania or
any other acts (or parts thereof) of the Seimas, acts of the
President of the Republic of Lithuania, and acts (or parts
thereof) of the Government may not be applied from the day of
official promulgation of the decision of the Constitutional
Court that the act in question (or part thereof) is
inconsistent with the Constitution of the Republic of
Lithuania. Part 8 of Article 18 of the Law on the
Constitutional Court provides that "the ruling of the
Constitutional Court shall always be announced publicly in the
court room". By Article 84 of the Law on the Constitutional
Court, the rulings of the Constitutional Court shall be
officially publicised in an individual chapter of the official
gazette Valstybės žinios, a special publication of the Seimas,
and in newspapers. If necessary, the Constitutional Court may
publicise its rulings in a publication of the Constitutional
Court. Rulings of the Constitutional Court shall become
effective on the day that they are publicised in one of the
above-mentioned publications.
The Constitutional Court notes that under Part 1 of
Article 107 of the Constitution, Article 84 and Part 8 of
Article 18 of the Law on the Constitutional Court the
Constitutional Court must always announce its decisions
concerning the compliance of laws and other acts adopted by the
Seimas with the Constitution, or regarding the compliance of
the legal acts adopted by the President of the Republic or
legal acts adopted by the Government with the Constitution
irrespective of the fact whether the legal act investigated by
the Constitutional Court is (should be) marked "top secret",
"secret", "confidential" or marked in any other way.
1.4. The petitioner requests to investigate whether
Sub-item 4.7 of the Regulations approved by the Government
resolution is in compliance with Items 2 and 7 of Article 94 of
the Constitution and Item 7 of Part 3 of Article 7 of the Law.
His doubts are based on the fact that Sub-item 4.7 of the
Regulations points out another subject that has the right to
determine the procedure for compilation and making use of an
operative record file but not the one pointed out in Item 7 of
Part 3 of Article 7 of the Law.
Taking account of the arguments of the petitioner, the
Constitutional Court will investigate the compliance of
Sub-item 4.7 of the Resolution with the Constitution only from
the aspect and to the extent as pointed out in the petition of
the petitioner and in this case it will not investigate whether
the disputed Government resolution was lawfully and reasonably
marked "top secret".
Alongside, the Constitutional Court emphasises that the
legal normative acts regulating relations linked with the
constitutional human rights and freedoms as well as their
implementation should not contain any classification markings.
II
On the compliance of Sub-item 4.7 of the Regulations for
Operational Activities of the System of Internal Affairs of the
Republic of Lithuania approved by 30 September 1993 Government
Resolution No. 731-19 "On the Approval of the Regulations for
Operational Activities of the System of Internal Affairs of the
Republic of Lithuania" with Item 7 of Part 3 of Article 7 of
the Law on Operational Activities.
Item 7 of Part 3 of Article 7 of the Law on Operational
Activities provides:
"3. 3. Under the procedure established by the Government,
the operational entities shall have the right to:
<
> 7) compile an operative record file and make use of
it."
Thus, under the said norm of the Law, the procedure for
compilation and making use of an operative record file must be
established by the Government.
It was established in Sub-item 4.7 of the Regulations that
the procedure for compilation and making use of an operative
record file had to be established by the Minister of Internal
Affairs.
It needs to be noted that the law is a legal act having
the highest juridical power. The Government resolution is a
substatutory legal act, therefore it may not be in conflict
with the law, nor may it contain any legal norms competing with
those of the law. In cases when a Government resolution
containing the norms conflicting with a law is adopted prior to
the adoption of the law, such a Government resolution must be
harmonised with the norms of the subsequently adopted law.
As mentioned, Item 7 of Part 3 of Article 7 of the Law
provides that the procedure for compilation and making use of
an operative record file must be established by the Government,
meanwhile it was stipulated in Sub-item 4.7 of the Regulations
that the procedure for compilation and making use of an
operative record file shall be established by the Minister of
Internal Affairs.
Taking account of the fact that another subject was
pointed out in Sub-item 4.7 of the Regulations but not the one
indicated in Item 7 of Part 3 of Article 7 of the Law, one is
to conclude that said Sub-item 4.7 of the Regulations to the
extent that the procedure for compilation and making use of an
operative record file shall be established by the Minister of
Internal Affairs conflicted with Item 7 of Part 3 of Article 7
of the Law on Operational Activities.
III
On the compliance of Sub-item 4.7 of the Regulations for
Operational Activities of the System of Internal Affairs of the
Republic of Lithuania approved by 30 September 1993 Government
Resolution No. 731-19 "On the Approval of the Regulations for
Operational Activities of the System of Internal Affairs of the
Republic of Lithuania" with Items 2 and 7 of Article 94 of the
Constitution.
Item 2 of Article 94 of the Constitution provides that the
Government shall implement laws and resolutions of the Seimas
concerning the implementation of laws; Item 7 of the said
article establishes that the Government shall discharge other
duties prescribed to it by the Constitution and other laws.
The Government resolution was adopted on 30 September
1993, while the Law on Operational activities-on 22 May 1997.
As mentioned, in cases when a Government resolution containing
the norms conflicting with a law is adopted prior to the
adoption of the law, such a Government resolution must be
harmonised with the norms of the subsequently adopted law.
It needs to be noted that the norms of Items 2 and 7 of
Article 94 of the Constitution providing that the Government
shall implement laws and discharge other duties prescribed to
it by the Constitution and other laws are to be interpreted as
establishing a duty to the Government to amend and supplement
its previously adopted acts so that they might be in conformity
with subsequently adopted laws or to repeal its previously
adopted acts in case the legal norms established therein are in
conflict with those of the law.
As mentioned, Item 7 of Part 3 of Article 7 of the 22 May
1997 Law on Operational Activities provides that the
operational entities shall have the right to compile an
operative record file and make use of it under the procedure
established by the Government. After this law had gone into
effect, Sub-Item 4.7 of the Regulations approved by the 30
September 1993 Government resolution which provided that the
procedure for compilation and making use of an operative record
file shall be established by the Ministry of Internal Affairs
ought to have been amended so that it would be in conformity
with the requirements of Item 7 of Part 3 of Article 7 of the
Law on Operational Activities. However, Sub-item 4.7 of the
Regulations was amended only by the 31 March 2000 Government
resolution. Until then the legal norms set down in Sub-item 4.7
of the Regulations, even though they were in conflict with the
legal norms established in the Law, were in effect.
Thus, there existed such a legal situation when the legal
norm established in Sub-item 4.7 of the Regulations approved by
the Government resolution was in effect and, at the same time,
conflicted with the legal norm established in Item 7 of Part 3
of Article 7 of the Law on Operational Activities. Taking
account of this, one is to conclude that Sub-item 4.7 of the
Regulations to the extent that the procedure for compilation
and making use of an operative record file shall be established
by the Minister of Internal Affairs conflicted with Items 2 and
7 of Article 94 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 Sub-item 4.7 of the Regulations for
Operational Activities of the System of Internal Affairs of the
Republic of Lithuania approved by 30 September 1993 Government
of the Republic of Lithuania Resolution No. 731-19 "On the
Approval of the Regulations for Operational Activities of the
System of Internal Affairs of the Republic of Lithuania"
conflicted with Items 2 and 7 of Article 94 of the Constitution
of the Republic of Lithuania and Item 7 of Part 3 of Article 7
of the Republic of Lithuania Law on Operational Activities.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.