Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Part 12 of Article 2, Item 3
of Part 2 of Article 7, Part 1 of Article 11 of
the Republic of Lithuania Law on Operational
Activities and Parts 1 and 2 of Article 1981 of
the Republic of Lithuania Code of Criminal
Procedure with the Constitution of the Republic of
Lithuania
Vilnius, 8 May 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 petitioner-Judge Kęstutis Jucys,
Chairman of the College of Criminal Cases Division of the
Vilnius Regional Court which by its 12 October 1999 ruling
appealed to the Constitutional Court,
the representative of the party concerned-the Seimas of
the Republic of Lithuania-Dr. Gintaras Goda, a senior
consultant to the Law Department of the Office of the Seimas of
the Republic of Lithuania,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the
Republic of Lithuania Law on the Constitutional Court, on 6
April 2000 in its public hearing conducted the investigation of
Case No. 12/99-27/99-29/99-1/2000-2/2000 subsequent to the
following petitions:
The petition of a group of members of the Seimas of the
Republic of Lithuania requesting to investigate whether Article
11 of the Republic of Lithuania Law on Operational Activities
was in compliance with Part 1 of Article 86 and Part 1 of
Article 62 of the Constitution of the Republic of Lithuania;
The petition of 8 October 1999 of the Vilnius Regional
Court requesting to investigate whether Part 12 of Article 2,
Item 3 of Part 2 of Article 7 and Article 11 of the Republic of
Lithuania Law on Operational Activities were in compliance with
Parts 1, 2, 3 and 4 of Article 22, Part 1 of Article 29, Part 1
of Article 30, Part 2 of Article 31, Part 1 of Article 109 and
Part 1 of Article 118 of the Constitution of the Republic of
Lithuania;
The petition of 21 October 1999 of the Vilnius Regional
Court requesting to investigate whether Part 12 of Article 2,
Item 3 of Part 2 of Article 7 and Article 11 of the Republic of
Lithuania Law on Operational Activities were in compliance with
Parts 1, 2, 3 and 4 of Article 22, Part 1 of Article 29, Part 1
of Article 30, Part 2 of Article 31 and Part 1 of Article 109
of the Constitution of the Republic of Lithuania;
The petition of 10 November 1999 of the Vilnius City Court
of the First District requesting to investigate whether Item 3
of Part 2 of Article 7 and Part 1 of Article 11 of the Republic
of Lithuania Law on Operational Activities were in compliance
with Part 3 of Article 22 of the Constitution of the Republic
of Lithuania, and whether Part 12 of Article 2, Item 3 of Part
2 of Article 7 and Article 11 of the same law were in
compliance with Article 28 of the Constitution of the Republic
of Lithuania;
The petition of 16 November 1999 of the Vilnius City Court
of the First District requesting to investigate whether Item 3
of Part 2 of Article 7 and Part 1 of Article 11 of the Republic
of Lithuania Law on Operational Activities were in compliance
with Part 3 of Article 22 of the Constitution of the Republic
of Lithuania, and whether Part 1 of Article 11 of the same law
was in compliance with Part 1 of Article 29 of the
Constitution, and whether Parts 1 and 2 of Article 1981 of the
Republic of Lithuania Code of Criminal Procedure were in
compliance with Part 3 of Article 22 of the Constitution of the
Republic of Lithuania.
By the Constitutional Court decision of 10 February 2000,
all these petitions were joined into one case.
The Constitutional Court
has established:
I
1. On 22 May 1997, the Seimas adopted the Law on
Operational Activities (Official Gazette Valstybės žinios,
1997, No. 50-1190; hereinafter also referred to as the Law)
Part 12 of Article 2 whereof provides: "Mode of conduct
simulating a criminal act means authorised acts exhibiting
criminal characteristics aimed at protecting the key interests
of the state, the public, or an individual."
Item 3 of Part 2 of Article 7 of the Law prescribes:
"2. If there is probable cause pursuant to Part 2 of
Article 4 of this Law and if operational entities have received
authorisation as provided in Articles 10 and 11 of this Law,
they shall have the right to: <
> 3) model conduct simulating a
criminal act."
Article 11 of the Law provides:
"1. The mode of conduct simulating a criminal act shall be
authorised by the Prosecutor General or the Deputy Prosecutor
General designated by him on the reasoned written request by
the operational entity. The request shall contain:
1) the surname and position of the officer who submitted
the request;
2) the facts warranting a request to employ the mode of
conduct simulating a criminal act;
3) the limits of concrete actions performed during the
application of the mode of conduct simulating a criminal act in
accordance with the appropriate article of the Criminal Code of
the Republic of Lithuania;
4) information about the person, who will use the mode of
conduct simulating a criminal act;
5) the targeted objective, indicating the interim and
ultimate goals of the mode of conduct simulating a criminal
act;
6) the anticipated duration of the mode of conduct
simulating a criminal act.
2. The mode of conduct simulating a criminal act devised
by an operational entity shall be authorised for a one-year
period. It may be extended after the expiration of the said
term."
Parts 1 and 2 of Article 1981 of the Code of Criminal
Procedure (hereinafter referred to as the CCP) provide:
"In the course of conduct of operational actions, the
officer of the interrogative body may take photographs, film,
make video or audio recordings of a crime prepared, being
committed or committed.
The officer of the interrogative body shall draw up a
protocol as regards the use of technical facilities, recording
a crime prepared, being committed or committed. In the protocol
the technical data of the technical facilities used, as well as
the time, place and contents of the recorded action, shall be
entered. The negatives and pictures of the photographs, films,
video and audio recordings shall be attached to the protocol.
The protocol together with its additions shall be attached to
the criminal case and shall have the power of evidence."
3. The petitioners-a group of Seimas members, the Vilnius
Regional Court, the Vilnius City Court of the First
District-appealed to the Constitutional Court with petitions
requesting to investigate whether Part 12 of Article 2, Item 3
of Part 2 of Article 7, Part 1 of Article 11 of the Law on
Operational Activities were in conformity with Articles 22, 28,
Part 1 of Article 29, Part 1 of Article 30, Part 2 of Article
31, Part 1 of Article 109 and Part 1 of Article 118 of the
Constitution, whether Part 1 of Article 11 of the said law was
in conformity with Part 1 of Article 62 and Part 1 of Article
86 of the Constitution, and whether Parts 1 and 2 of Article
1981 of the Code of Criminal Procedure were in conformity with
Part 3 of Article 22 of the Constitution.
II
The arguments of the petitioners are based on the
following arguments.
1. In its request, the group of Seimas members points out
that under the meaning of Article 11 of the Law the mode of
conduct simulating a criminal act (hereinafter also referred to
as the mode) may be used against any person. The Law ignores
personal immunity guarantees conferred to certain categories of
persons. Under the Law, the mode of conduct simulating a
criminal act may be applied to the President of the Republic as
well as Seimas members, meanwhile the provisions of the
Constitution regarding immunity of these persons guarantee
their protection against possible provocation (unlawful ways of
political fight). In the opinion of the petitioner, Article 11
of the Law unreasonably narrows the immunity of the President
of the Republic or that of a Seimas member. The group of Seimas
members maintains that the deficiency of the said article is
increased by the fact that the mode of conduct simulating a
criminal act is authorised by the Prosecutor General or the
Deputy Prosecutor General designated by him but not by the
court-an impartial institution administering justice.
2. The petitioner-the Vilnius Regional Court-points out in
its petition of 8 October 1999 that Part 12 of Article 2 of the
Law provides that by the mode of conduct simulating a criminal
act it is aimed at protecting the key interests of the state,
the public, or an individual. Article 8 of the Law stipulates
that the operational entities must collect, store, and analyse
information, protect the rights and legitimate interests of
citizens, protect persons from active inducement against their
will to commit criminal deeds. The petitioner doubts whether
under such conditions the mode could be carried out at all, as
the situation of the parties is different, which conflicts with
the principle of equality before the law as established in Part
1 of Article 29 of the Constitution.
In the opinion of the petitioner, the application of Item
3 of Part 2 of Article 7 and Article 11 of the Law conflicts
with Part 1 of Article 109 of the Constitution wherein it is
established that in the Republic of Lithuania the courts shall
have the exclusive right to administer justice. In the course
of carrying out of the said norms of the Law, the Office of the
Prosecutor General, by authorising the mode, exonerates the
person applying it from criminal responsibility and punishment,
i.e. it administers justice.
The petitioner maintains that the procedure for
authorisation of the mode is in conflict with Part 1 of Article
118 of the Constitution wherein it is established that public
prosecutors shall prosecute criminal cases on behalf of the
State, shall carry out criminal prosecutions, and shall
supervise the activities of the interrogative bodies. The
authorisation to apply the mode may not be equated with
criminal prosecution as such prosecution is bound by
institution of a criminal case and it is regulated by the rules
for criminal procedure. Therefore, the petitioner is of the
opinion that the mode might be authorised only by a court or a
judge.
The petitioner maintains that as the Law has not defined
the contents, intensity, mechanism of accomplishment of the
actions carried out at the time of the application of the mode,
as well as other issues: this is left for the person and
officers conducting the mode. Therefore, the disputed norms of
the Law do not protect the person to whom the mode is applied
from provocation and active inducement in attempt that the
latter either performed or did not perform certain actions,
either uttered certain words, phrases or did not utter them
etc. Nor does the Law regulate the beginning of the carrying
out of the mode, i.e., it is not linked with the beginning of
the crime which one attempts to detect, therefore one begins to
carry out the mode earlier than the crime is committed. This
instigates the commission of a crime which, otherwise, might
never have been committed if artificial conditions had not been
created for it to happen. In this way the freedom of an
individual to act independently is restricted. Therefore the
individual is brought to criminal responsibility and punished
not for the crime committed but for a possibility to commit the
crime as the crime itself is committed under artificial
circumstances and is instigated.
The petitioner points out that, under Part 1 of Article 30
of the Constitution, any person whose constitutional rights or
freedoms are violated shall have the right to appeal to court.
The person to whom the mode is applied is made act against the
Constitution and accomplish actions contrary to the
Constitution. Subsequently these actions become evidence
accusing the person.
The petitioner maintains that the disputed norms of the
Law are also in conflict with Part 1 of Article 30 and Part 2
of Article 31 of the Constitution.
In the opinion of the petitioner, the accomplishment of
the mode does not cover tapping of telephone conversations. The
authorisation of the Prosecutor General or his deputy to carry
out the mode may not be likened to the authorisation of the
judge which is given under the procedure of Article 1982 of the
CCP. Under Article 10 of the Law, the authorisation of the
judge is necessary in order to accomplish actions provided for
in Part 1 of the same article. By tapping telephone
conversations, recording telephone or direct conversations, one
interferes with private life of individuals in an arbitrary and
unlawful manner. The disclosure of such conversations violates
the inviolability of private life of individuals, which
conflicts with Article 22 of the Constitution.
3. The petitioner-the Vilnius Regional Court- in its
petition of 21 October 1999 virtually reiterated the arguments
pointed out in the petition of 8 October 1999, however it did
not raise the question as to the compliance of the disputed
provisions of the Law with Part 1 of Article 118 of the
Constitution.
4. Motivating its petitions of 10 November 1999 and 16
November 1999 requesting to investigate whether Item 3 of Part
2 of Article 7 and Part 1 of Article 11 of the Law are in
conformity with the Constitution, the petitioner-the Vilnius
City Court of the First District-virtually set forth the same
legal motives as the Vilnius Regional Court in its appeals to
the Constitutional Court did.
The petitioner maintains that the whole of the norms of
Part 12 of Article 2, Item 3 of Part 2 of Article 7 and Article
11 of the Law constitute legal grounds for a certain person
lawfully to commit a crime. This conflicts with Article 28 of
the Constitution wherein it is established that, while
exercising their rights and freedoms, persons must observe the
Constitution and the laws of the Republic of Lithuania, and
must not impair the rights and interests of other people.
In the opinion of the petitioner, the person applying the
mode is aware of his non-punishment. On the grounds of the
application of the mode, there appears information as regards
the person who commits a criminal deed, and which becomes the
evidence in the case. Thus, Part 1 of Article 11 of the Law
constitutes grounds to form an advantageous situation for the
person applying the mode if compared to the situation of the
accused. Therefore the court has doubts as for the compliance
of Part 1 of Article 11 of the Law with Part 1 of Article 29 of
the Constitution.
Doubting as for the conformity of Parts 1 and 2 of Article
1981 of the CCP with Part 3 of Article 22 of the Constitution,
the petitioner pointed out that special technology may be used
not only for tapping telephone conversations but also in the
course of conduct of other operational actions by which the
principle of the inviolability of private life of may be
violated.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations of the
representative of the party concerned-the Seimas-G. Goda were
received.
1. The representative of the party concerned noted that
Articles 62 and 86 of the Constitution establish a certain
guarantee, i.e. immunity, for the activity of the President of
the Republic and that of a Seimas member. Part 1 of Article 62
of the Constitution provides that the person of a Seimas member
shall be inviolable, while Part 1 of Article 86 of the
Constitution establishes the inviolability of the person of the
President of the Republic. Part 2 of Article 62 of the
Constitution provides for a special procedure for bringing a
Seimas member to criminal responsibility or restriction of his
personal freedom. While in office, the President of the
Republic may neither be arrested nor charged with criminal or
administrative proceedings (Part 1 of Article 86 of the
Constitution). Thus, Articles 62 and 86 of the Constitution
provide for additional guarantees of the inviolability of
person and freedom of Seimas members and the President of the
Republic.
G. Goda is of the opinion that there are not any grounds
to discern any possible conflict of Article 11 of the Law with
Articles 62 and 86 of the Constitution, however, the compliance
of Article 11 of the Law with Article 22 of the Constitution
which protects the private life of individuals and Part 2 of
Article 31 of the Constitution guaranteeing the right to a fair
hearing of the case is to be investigated.
2. According to the representative of the party concerned,
the mode of conduct simulating a criminal act is not to be
directly linked with restriction of the inviolability of the
private life of individuals (Article 22 of the Constitution).
The European Court of Human Rights has ruled that operations of
undercover agents are in line with Article 8 of the Convention
for the Protection of Human Rights and Fundamental Freedoms
(hereinafter also referred to as the Convention) which ensures
the inviolability of private life of individuals. In the course
of the application of the mode certain information concerning
the private life of an individual may be recorded. In such a
case there might appear problems as for the compliance of this
operational measure with Part 3 of Article 22 of the
Constitution which provides that information concerning the
private life of an individual may be collected only upon a
justified court order. The application of the mode does not
encompass tapping of telephone conversations. Tapping of
telephone conversations is an individual action which is to be
authorised by an individual procedure. The authorisation for
the application of the mode by the prosecutor may not be
treated as a permission for tapping of telephone conversations.
Tapping of telephone conversations requires the authorisation
of a higher level, i.e. that of a judge. In the opinion of the
representative of the party concerned, cases which occur in
reality when telephone conversations are tapped without the
authorisation of a judge are to be assessed as violation of the
CCP and the Law. The information received in such a way may not
be used as evidence in criminal procedure as the principle of
permissiveness of evidence has been violated.
3. According to G. Goda, the persons to whom the mode is
applied are not discriminated on the basis of their sex, race,
nationality, language nor on any other grounds. Therefore a
conclusion is to be drawn that in the course of the application
of the Law, the principle of equality of all persons
established in Part 1 of Article 29 of the Constitution is not
violated.
4. In the opinion of the representative of the party
concerned, the disputed norms of the Law are also in compliance
with Part 1 of Article 30 of the Constitution establishing that
any person whose constitutional rights or freedoms are violated
shall have the right to appeal to court. The mode is an action
which is carried out when the person to whom it is applied is
unaware of it. It is possible to file a complaint against such
an action only after such a measure has been accomplished and
in case the person is informed about it. However, it does not
mean that a complaint against the application of the mode is
impossible at all. In the course of the judicial investigation
complaints and appeals may be filed requesting that the
information acquired during the application of the mode be not
used as evidence.
5. G. Goda points out that the application of the mode to
a particular person does not deprive him of his right to a fair
and public hearing by an independent and impartial court. The
fact that the mode has been applied in the case does not in any
way change the duty of the court to elucidate thoroughly and
consistently the factual circumstances of the case, justly to
apply the laws and decide the criminal case in a fair manner.
Thus, the disputed norms of the Law are in conformity with Part
2 of Article 31 of the Constitution.
6. According to the representative of the party concerned,
there exist no grounds to assert that the disputed provisions
of the Law are in conflict with Part 1 of Article 109 and Part
1 of Article 118 of the Constitution. These articles of the
Constitution correspondingly establish the main functions of
courts and the prosecutor's office. When the mode is applied,
the separation of these functions is not violated. The
authorisation and application of the mode is not administration
of justice, and from this aspect it is impossible to perceive
any conflict with Part 1 of Article 109 of the Constitution.
Authorising the mode, the prosecutor does not violate Part 1 of
Article 118 of the Constitution, either. By means of the mode
one attempts to detect crimes and bring the offenders to
criminal responsibility. Therefore, in the opinion of G. Goda,
it is possible to maintain that authorisation of the mode is
linked with implementation of functions of criminal
prosecution. Alongside, one should not disregard the opinion
that the evidence upon which one bases oneself while passing
judgements must be collected under procedure of procedural
laws.
7. The representative of the party concerned points out
that Parts 1 and 2 of Article 1981 of the Code of Criminal
Procedure regarding an opportunity to use technical facilities
in the course of operational actions and recording the results
of these actions are co-ordinated with the Law. The procedure
of carrying out operative actions is regulated in the Law. It
is established therein that the operational actions which may
be assessed as collection of information regarding the private
life of an individual must be carried out by a decision of the
judge (Part 1 of Article 10 of the Law). The interpretation and
application of Article 1981 of the CCP are inseparable from
these provisions of the Law concerning operational actions.
Thus, both the Law and Article 1981 of the CCP retain the
requirements raised to collection of information about the
private life of individuals which are established in Part 3 of
Article 22 of the Constitution: 1) the information is collected
under the procedure provided for in the Law; 2) this is done in
case there is a court decision. The nature of the actions
authorised by the judge indicates that the authorisation to
perform these actions also means the permission to record the
performance of these actions. Therefore, an opportunity to
record the performance of operative actions as provided for in
Article 1981 of the CCP may not be regarded as a circumstance
permitting to violate Article 22 of the Constitution.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the following persons: E. Zingeris, Chairman of
the Seimas Human Rights Committee, A. Katkus, Chairman of the
Seimas National Security Committee, Dr. K. Šimkus, a national
security and foreign policy deputy advisor to the President of
the Republic of Lithuania, Head of the Operational Tactics
Department of the Law Academy of Lithuania, Č. Stankevičius,
the Minister of Defence, Č. Blažys, the Minister of Internal
Affairs, S. Liutkevičius, Director of the Investigation
Department under the Ministry of Internal Affairs, V.
Grigaravičius, the Criminal Police Chief Commissioner, Deputy
Commissioner General, Dr. G. Švedas, a vice-minister of
justice, K. Pėdnyčia, the Prosecutor General, R. Jancevičius,
the chief prosecutor of the Vilnius region prosecutor's office,
M. Laurinkus, Director General of the State Security
Department, V. Junokas, the Chief Commissioner of the Special
Investigation Service under the Ministry of Internal Affairs,
Habil. Dr. V. Vadapalas, Director General of the European Law
Department under the Government of the Republic of Lithuania,
Dr. P. Ancelis, the Dean of the Police Faculty of the Law
Academy of Lithuania, Assoc. Prof. Dr. K. Stungys, the Dean of
the Law Faculty of the Law Academy of Lithuania, Assoc. Prof.
Dr. T. Birmontienė, the Dean of the Public Administration
Faculty of the Law Academy of Lithuania, A. Dapšys, Director of
the Law Institute, the employees of the Law Institute Dr. K.
Jovaišas and J. Misiūnas, S. Kaušinis, the secretary-in-chief
of the Human Rights Association, J. Jasaitis, a member of the
Board of the Lithuanian Lawyers' Society, K. Motieka, Chairman
of the Lithuanian Bar Council.
V
In the Constitutional Court hearing the representative of
the petitioner-the Vilnius Regional Court-Judge Kęstutis Jucys
virtually reiterated the arguments set forth in the 12 October
1999 ruling of the Vilnius Regional Court.
In the Constitutional Court hearing the representative of
the party concerned G. Goda virtually reiterated the arguments
set forth in his written explanations to the Constitutional
Court.
The Constitutional Court
holds that:
I
Part 12 of Article 2 of the Law on Operational Activities
provides:
"Mode of conduct simulating a criminal act means
authorised acts exhibiting criminal characteristics aimed at
protecting the key interests of the state, the public, or an
individual."
Item 3 of Part 2 of Article 7 of the Law prescribes:
"2. If there is probable cause pursuant to Part 2 of
Article 4 of this Law and if operational entities have received
authorisation as provided in Articles 10 and 11 of this Law,
they shall have the right to: <
> 3) model conduct simulating a
criminal act."
Article 11 of the Law provides:
"1. The mode of conduct simulating a criminal act shall be
authorised by the Prosecutor General or the Deputy Prosecutor
General designated by him on the reasoned written request by
the operational entity. The request shall contain:
1) the surname and position of the officer who submitted
the request;
2) the facts warranting a request to employ the mode of
conduct simulating a criminal act;
3) the limits of concrete actions performed during the
application of the mode of conduct simulating a criminal act in
accordance with the appropriate article of the Criminal Code of
the Republic of Lithuania;
4) information about the person, who will use the mode of
conduct simulating a criminal act;
5) the targeted objective, indicating the interim and
ultimate goals of the mode of conduct simulating a criminal
act;
6) the anticipated duration of the mode of conduct
simulating a criminal act.
2. The mode of conduct simulating a criminal act devised
by an operational entity shall be authorised for a one-year
period. It may be extended after the expiration of the said
term."
Parts 1 and 2 of Article 1981 of the Code of Criminal
Procedure provide:
"In the course of conduct of operational actions, the
officer of the interrogative body may take photographs, film,
make video or audio recordings of a crime prepared, being
committed or committed.
The officer of the interrogative body shall draw up a
protocol as regards the use of technical facilities, recording
a crime prepared, being committed or committed. In the protocol
the technical data of the technical means used, as well as the
time, place and contents of the fixed action, shall be entered.
The negatives and pictures of the photographs, films, video and
audio recordings shall be attached to the protocol. The
protocol together with its additions shall be attached to the
criminal case and shall have the power of evidence" (28 January
1993 wording of the law).
3. It needs to be noted that the petitioners in their
appeals to the Constitutional Court formulate their request
concerning the compliance of Article 11 of the Law with the
Constitution to different extents. The group of the Seimas
members requests to investigate whether Article 11 of the Law
to the extent of its application is in compliance with the
Constitution, the Vilnius Regional Court requests to decide
whether the content of Article 11 is in compliance with the
Constitution, the Vilnius City Court of the First District
requests to determine whether Article 11 of the Law is in
compliance with Part 3 of Article 22 of the Constitution, while
Part 1 of Article 11 of the Law is in conformity with Article
28 of the Constitution.
It is evident from the legal arguments set down in the
petitions of the petitioners-the Vilnius Regional Court and the
Vilnius City Court of the First District-that the doubts of the
petitioners concerning the compliance of Article 11 of the Law
with the Constitution are essentially linked with the provision
of Part 1 of Article 11 whereby the conduct simulating a
criminal act shall be authorised by the Prosecutor General or
the Deputy Prosecutor General designated by him. Therefore the
Constitutional Court will investigate the compliance of Part 1
of Article 11 of the Law to the extent that the conduct
simulating a criminal act shall be authorised by the Prosecutor
General or the Deputy Prosecutor General designated by him with
Articles 22, 28, Part 1 of Article 29, Part 1 of Article 30,
Part 2 of Article 31, Part 1 of Article 109, Part 1 of Article
118 of the Constitution.
II
1. The strife for an open, just, and harmonious civil
society and law-governed state established in the Preamble to
the Constitution pre-supposes that every individual and the
whole society must be safe from unlawful attempts against them.
One of duties of the state and one of its priority tasks is to
ensure such safety. This is necessary as crime violates the
main rights and freedoms of persons, safe conditions of life,
it has a negative effect on the public welfare and the bases of
state economic, cultural and political life. With the spread of
crime, especially organised crime and corruption, the
confidence in state authority and laws is ruined, lack of
respect for them and for the established order increases.
Therefore the state is compelled to undertake various lawful
means permitting to curb crime.
The laws prohibit deeds by which essential harm is
inflicted on the interests of persons, society and those of the
state or in case there occurs a threat that such damage will be
inflicted; they define as to what deeds are considered crimes
and establish punishment for their commission; by threatening
with criminal punishments, they protect individuals and society
from criminal attempts against them and establish bases on the
grounds of which the persons who have committed crimes are
punished in attempt to correct them.
2. By norms of laws it is attempted to create conditions
to detect crimes promptly, to incarcerate the culprits and to
apply the law in an appropriate manner so that everyone who has
committed a crime would be justly punished and that no innocent
person would be brought to criminal responsibility and
convicted (Article 2 of the CCP). By norms of criminal
procedure it is attempted to create conditions to protect
society by lawful means from criminal deeds. Alongside, another
aim of the criminal procedure which is of no less importance is
to be noted-to ensure the protection of the rights and freedoms
of the person suspected of commission of a crime, to avoid
groundless criminal prosecution and unjust punishment.
Therefore in democratic states the system of norms regulating
investigation of criminal cases is based on the principles of
equality before law and court, presumption of innocence, public
and fair trial, impartiality and independence of court and
judges, separation of the functions of the court and those of
other entities of criminal procedure, guarantee of the right to
defence, as well as other principles.
3. Penal laws and criminal procedure laws establish that
every person who has committed a crime must answer for it
according to the laws. Criminal prosecution of persons who
committed crimes is one of the ways of enforcement of the norms
of the Constitution ensuring the right of an individual to life
(Article 19), the inviolability of his person and dignity
(Article 21), inviolability of his dwelling place (Article 24)
and other rights and freedoms.
When criminal prosecution is carried out, the laws grant
rights to apply various specific measures. They have to be
efficient and modern. It needs to be noted that combat against
crime must be conducted by lawful means and that they may not
violate the constitutional rights and freedoms of individuals.
Combating crime of various forms, states apply various
special methods of investigation. The character and forms of
such methods are determined by dangerousness, complexity and
spread of individual categories of crimes. It is justifiable
and necessary to design such special measures and methods and
use them in order to detect crimes and establish the culprits
as it is often impossible to discover certain crimes by means
of ordinary ways and methods of investigation, or to do so is
extremely difficult. As a rule, these are the most serious,
well organised or latent crimes posing threat to the security
of a great number of people, that of society or even that of
the state.
International legal acts also recognise special forms and
methods of crime investigation as lawful and indispensable, for
example, the United Nations Convention Against Illicit Traffic
in Narcotic Drugs and Psychotropic Substances adopted on 19
December 1988 (ratified by the Republic of Lithuania on 12
March 1998, came into force on 6 September 1998), the European
Convention on Laundering, Search, Seizure and Confiscation of
the Proceeds from Crime adopted on 8 November 1990 (ratified by
the Republic of Lithuania on 22 December 1994, came into force
on 1 October 1995). In 1996 the intergovernmental body FATF
(Financial Action Task Force on Money Laundering) presented 40
recommendations for member states and other states regarding
efficient fight against money laundering.
On 27 January 1999, the Council of Europe promulgated the
Criminal Law Convention on Corruption (ESS No. 173) for public
signing. Article 23 thereof promulgates that each party to the
Convention must resort to all measures as may be necessary to
enable them to fight corruption, including "those permitting
the use of special investigative techniques". It is pointed out
in the explanatory note to the Convention that special
investigative techniques are the use of special or infiltrated
agents, installation of tapping equipment, access to personal
computer files and other means.
4. Under the Law adopted on 22 May 1997, operational
activities mean intelligence and counter-intelligence
activities conducted by institutions authorised by the state to
combat crime (Part 1 of Article 2). One of the forms of
operational activities is the mode of conduct simulating a
criminal act. As mentioned, under Part 12 of Article 2 of the
Law, the mode of conduct simulating a criminal act means
authorised acts exhibiting criminal characteristics aimed at
protecting the key interests of the state, the public, or an
individual. The mode is a special form of operational
activities. The covert participants of operative activities
implementing the mode perform actions which formally correspond
to indications of crime. In applying the mode, one creates more
favourable conditions to detect or investigate serious or
complex crimes. Certain crimes, e.g. cases of corruption, would
be extremely difficult to detect without the application of the
mode.
5. By its essence and purpose, the mode established in the
Law is similar to the use of undercover investigators/agents
provided in the laws (as a rule, criminal procedural laws) of
other states in the course of investigation and detection of
crimes of certain categories. Therefore in the context of the
case at issue the case-law practice of the European Court of
Human Rights linked with the use of undercover
investigators/agents as well as the use of secret means and
methods in the course of detection of crimes is important. It
needs to be noted that in these cases the said court
investigated whether there had been any violations of Articles
6 and 8 of the Convention for the Protection of Human Rights
and Fundamental Freedoms, which is a constituent part of the
legal system of the Republic of Lithuania.
According to the case-law practice of the European Court
of Human Rights, in themselves secret methods of detection of
crimes and offenders do not violate Article 8 of the
Convention. In its judgement of 6 September 1978, in the Case
of Klass and others vs. Germany (European Court of Human
Rights, Case of Klass and others, Judgment of 6 September 1978,
Series A No. 28) noted that the use of secret means is not
incompatible with Article 8 of the Convention, since it is the
fact of not informing the individual that ensures the efficacy
of this measure.
The case-law practice of the European Court of Human
Rights also indicates that restriction and limitation of the
rights and freedoms provided for in Paragraph 1 of Article 8 of
the Convention are justifiable if the requirements established
in Paragraph 2 of the same article are followed. First, such
restrictions and limitations must be provided for in the law
and when they are necessary in protection of the interests of a
democratic society. Second, such a law must provide detailed
guarantees and protection against arbitrary interference. The
Court noted that the domestic law must be sufficiently clear in
its terms to give citizens an adequate indication as to the
circumstances in and conditions on which public authorities are
empowered to resort to any such secret measures. The European
Court of Human Rights noted that the laws permitting
interference into the sphere protected by Article 8 of the
Convention are lawful as long as such interference is necessary
for the purpose of national security and public order and for
attempt to fight criminal crime. States must have an
opportunity for secret surveillance of various subversive
activities in their territory as well as that of choice of
forms of secret surveillance. On the other hand, the states do
not dispose of unrestricted freedom of application of measures
of secret surveillance. The states must ensure that their laws
contained guarantees against possible misuse in the course of
secret surveillance of persons (European Court of Human Rights,
judgment of 25 March 1998 in the case of Kopp vs. Switzerland).
In its judgment of 9 June 1998 in the Case of Teixeira de
Castro vs. Portugal, the European Court of Human Rights held
that the right to a fair administration of justice holds such a
prominent place that it cannot be sacrificed for the sake of
expedience. The Court noted that the general requirements of
fairness embodied in Article 6 apply to proceedings concerning
all types of criminal offence, from the most straightforward to
the most complex. On the grounds of public interest one may not
justify such evidence that is obtained when the actions of
police officers go beyond those of undercover agents, i.e. when
the undercover agents incite the commission of the offence. The
public interest cannot justify the use of evidence obtained as
a result of police incitement. The European Court of Human
Rights noted that there had been a violation of Paragraph 1 of
Article 6 of the Convention as the undercover agents instituted
operational activities against the petitioner who had not been
known to them before.
It needs to be noted that the jurisprudence of the
European Court of Human Rights as a source of construction of
law is also important to construction and applicability of
Lithuanian law.
The Constitutional Court also underlines that the
obligation of the state and its institutions is prevention of
crime. The mode of conduct simulating a criminal act may only
serve as one of the measures in detection of a crime prepared
by a person or in that of a crime at an early stage of its
commission. The state institutions may not establish such legal
regulation which would permit state special services to incite
or provoke a person to commit a crime so that after it there
would appear grounds to prosecute the said person.
III
On the compliance of Part 12 of Article 2, Item 3 of Part
2 of Article 7, Part 1 of Article 11 of the Law on Operational
Activities to the extent that the conduct simulating a criminal
act shall be authorised by the Prosecutor General or the Deputy
Prosecutor General designated by him and that of Parts 1 and 2
of Article 1981 of the Republic of Lithuania Code of Criminal
Procedure with Article 22 of the Constitution.
1. Article 22 of the Constitution provides:
"The private life of an individual shall be inviolable.
Personal correspondence, telephone conversations,
telegraph messages, and other intercommunications shall be
inviolable.
Information concerning the private life of an individual
may be collected only upon a justified court order and in
accordance with the law.
The law and the court shall protect individuals from
arbitrary or unlawful interference in their private or family
life, and from encroachment upon their honour and dignity."
The norms established in this article of the Constitution
protect the individuals' right to privacy. This right
encompasses private, family and home life, physical and
psychological inviolability of individuals, his honour and
reputation, secrecy of personal facts, prohibition to publicise
received or acquired confidential information etc. In case the
private life of an individual is interfered with in an
arbitrary an unlawful manner, then, alongside, his honour and
dignity are encroached upon (Constitutional Court ruling of 21
October 1999).
2. The human right to inviolability of private life is
entrenched in international legal acts. Article 12 of the
Universal Declaration of Human Rights promulgates: "No one
shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attacks upon his honour
and reputation. Everyone has the right to the protection of the
law against such interference or attacks."
Article 8 of the Convention for the Protection of Human
Rights and Fundamental Freedoms provides:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of his right except such as is in accordance
with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others."
3. In the context of the case at issue the concept of
privacy (private life) as a value to which an individual has a
right as established in the Constitution is of importance.
In its judgment of 16 December 1992 in the Case of
Niemietz vs. Germany (European Court of Human Rights, judgment
of 16 December 1992 in the case of Niemietz vs. Germany, Series
A No. 251), the European Court of Human Rights did not consider
it possible or necessary to attempt an exhaustive definition of
the notion "private life". It emphasised that it would be too
restrictive to limit the notion to an "inner circle" in which
the individual may live his personal life as he chooses and to
exclude therefrom entirely the outside world not encompassed
within that circle. In the opinion of the Court, respect for
private life must also comprise to a certain degree the right
to establish and develop relationships with other human beings.
The European Court of Human Rights concluded that even in his
professional or commercial activities an individual has a
certain right to privacy, which is especially in the case of a
person exercising a liberal profession the private residence of
whom may also function as his working place, i.e. the
"activities which are related to a profession or business may
well be conducted from a person's private residence and
activities which are not so related may well be carried on in
an office or commercial premises".
The legal concept of private life is linked with the state
of an individual when the individual may expect privacy, or
with legitimate expectations of private life. When the person
caries out actions of public character and comprehends it or
must comprehend it or is capable of understanding it, whether
at home or other private premises, then such actions of public
character will not enjoy protection under Article 22 of the
Constitution and Article 8 of the Convention and the person may
not expect privacy.
The activities of state and local government officials
linked with implementation of functions of state and local
government authority and administration always are of public
character. In a democratic state the public performance of
duties by state officials and office workers is one of
essential principles protecting from their arbitrariness or
abuse.
Neither may the person expect complete privacy in cases
when he violates the norms of private law which regulate
commercial or any other secrets of private nature. For example,
a covenantee to an agreement containing a commercial secret
appeals either to court or another institution of settling
disputes, he reveals the content of the agreement and requests
that the party that breached it should fulfil its conditions
and pay damages. In such a case the party that breached the
agreement may not expect that after it has breached the
conditions of the agreement the other party to the agreement
will not defend its rights in court or another institution of
settling disputes.
The Constitutional Court notes that a person who commits
criminal deeds or those contrary to law must not and may not
expect privacy. The limits of the protection of private life of
an individual disappear in cases when by his actions in a
criminal or any other unlawful manner he violates the interests
protected by law, inflicts damage on particular persons,
society or the state.
Under Part 3 of Article 7 of the Constitution, ignorance
of the law shall not exempt a person from responsibility. The
laws of the Republic of Lithuania prohibiting certain deeds and
providing for responsibility in case of their commission are
accessible and known to society. All laws and legal acts are
officially publicised in the official gazette Valstybės žinios.
Therefore, it is presumed that every individual, by violating
prohibitions established in laws, is aware of the fact that
this will cause corresponding reaction of state institutions of
law and order and comprehends that for the crime committed the
state will apply strict measures and that by such measures his
unlawful behaviour will be corrected, hindered or stopped.
The concept of expectable privacy is also established in
the case-law of the European Court of Human Rights. For
instance, the Court pointed out in its judgment of 15 June 1992
in the Case of L(di vs. Switzerland (European Court of Human
Rights, judgment of 15 June 1992 in the Case of L(di vs.
Switzerland, Series A No. 238) that "Mr L(di must therefore
have been aware from then on that he was engaged in a criminal
act punishable under Article 19 of the Drugs Law and that
consequently he was running the risk of encountering an
undercover police officer whose task would in fact be to expose
him", and emphasised that "in the present case the use of an
undercover agent did not, either alone or in combination with
the telephone interception, affect private life". Thus a person
suspected of committing crimes refuses himself from the right
to private life to the extent that is determined by the crime
committed by him. The principle of protection of the private
life of an individual is not applicable to criminal deeds.
4. It is provided in the Universal Declaration of Human
Rights that everyone has duties to the community in which alone
the free and full development of his personality is possible.
In the exercise of his rights and freedoms, everyone shall be
subject only to such limitations as are determined 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 (Paragraphs 1 and 2 of Article 29).
Thus, it is universally recognised that human rights and
freedoms may be restricted in case of necessity and in case the
procedure and limitations of such restriction are established
by the law. The same meaning is expressed in Article 28 of the
Constitution wherein it is established that "while exercising
their rights and freedoms, persons must observe the
Constitution and the laws of the Republic of Lithuania, and
must not impair the rights and interests of other people".
5. Part 3 of Article 22 of the Constitution provides that
information concerning the private life of an individual may be
collected only upon a justified court order and in accordance
with the law. These constitutional provisions are in line with
the standards set in Paragraph 2 of Article 8 of the Convention
providing when the right of an individual to private life may
be restricted. Such restrictions are possible
1) when this is necessary in a democratic society in the
interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others;
2) when cases of restriction of the right to private life
are provided for in laws while information concerning the
private life of an individual may be collected only upon a
justified court order and in accordance with the law.
6. In the opinion of the petitioners (the Vilnius Regional
Court and the Vilnius City Court of the First District), in the
course of the application of the mode there appear grounds for
entities of operational activities to interfere in the private
life of individuals without a court order. This is done in the
course of performance of certain operational actions, for
instance, tapping of telephone conversations. In the petitions
of the petitioners it is pointed out that such situation occurs
due to the fact that the process of carrying out of the mode is
not sufficiently regulated by the Law, while the whole-complex
of the norms of Part 12 of Article 2, Item 3 of Part 2 of
Article 7 and Article 11 of the Law constitutes grounds to
perform the actions provided in Part 1 of Article 10 also
without the authorisation of the judge.
7. The limits of the mode, i.e. acts imitating criminal
deeds, are circumscribed by the system of norms established in
the Law. This system is composed of the purpose of the mode,
bases for performing of the mode, the procedure of the
authorisation of the mode etc. as formulated in the Law. These
actions are performed by the confidential full-time staff of
the operational entities-respective state services-whose work
for operational entities is encoded and co-operating natural
persons with whom operational entities have concluded a written
or verbal agreement on confidential co-operation (Articles 5
and 6 of the Law). The actions constituting the mode imitating
a crime, from the formal point of view, correspond with the
characteristics of body of crime (corpus delicti) as provided
for in the Criminal Code (hereinafter referred to as the CC),
however, under Part 12 of Article 2 of the Law these acts of
covert participants of operational activities are performed
with the aim of detection of crimes, establishment of persons
that committed them, protection of the key interests of the
state, the public, or an individual.
It needs to be noted that by means of the mode it is only
permitted to "connect oneself" to permanent or lasting crimes
as well as the crimes that are taking place but are not
finished. Such criminal deeds continue without the efforts of
covert participants of operational activities. The covert
participants only imitate actions of preparation of a crime or
those of a crime which is being committed. It is not permitted
that by means of the mode commission of a new crime be incited
or provoked nor that commission of a criminal deed which was
only prepared and later such action was terminated by an
individual be incited. Thus under the Law the actions performed
within the mode are held lawful in case the established limits
of actions established in the mode are not overstepped.
Disregard of the limits of the application of the mode
established in the Law, provocation of commission of a crime or
any other abuse by means of the mode makes the mode unlawful.
The investigation and assessment of these circumstances are a
matter of judicial consideration.
8. The logical, systematic and comparative investigation
of the notion "mode" established in Part 12 of Article 2 of the
Law together with the other provisions of same Article 2
indicates that the mode is an independent form of operational
activities imitating a criminal deed. The mode is also singled
out from among other forms of operational activities in Part 5
of Article 4, Item 3 of Part 2 of Article 7 and Part 1 of
Article 10 of the Law. Under the Law, the mode does not cover
the following operational actions: covert monitoring of private
correspondence, telegraph and other communications, mail and
electronic communications, wiretapping and recording of
telephone conversations, use of special equipment and covert
monitoring of residential premises. Under Part 1 of Article 10
of the Law, these operational actions by which private life may
be interfered with, dignity and honour may be encroached upon,
shall be authorised by chairmen of regional courts and chairmen
of the criminal divisions of those courts on the reasoned
written request of the Prosecutor General or the Deputy
Prosecutor General designated by him.
Elucidating whether the disputed norms of the Law are in
compliance with Article 22 of the Constitution, the fact is of
essential importance that under Part 2 of Article 4 of the Law
the mode of conduct simulating a criminal act shall be applied
when 1) the identity of an individual who is planning or has
engaged in criminal activity has not yet been established; 2)
preliminary verified information about an individual's criminal
activity is available; 3) preliminary verified information
about an individual's association with a criminal organisation
is available; 4) data about the activities of foreign
intelligence services are available; 5) the suspect, the
defendant, or the convicted person goes into hiding. Under Item
3 of Part 1 of Article 11 of the Law, the limits of concrete
actions performed during the application of the mode of conduct
simulating a criminal act are in accordance with the
appropriate article of the CC. By means of the mode crimes are
detected or criminal deeds are prevented, as well as the person
committing the crime is found out. Under the Law, by actions
constituting the mode information about the private life of
individuals is not collected. Therefore the requirements
provided for in Part 3 of Article 22 and other articles of the
Constitution are not applicable to the mode of conduct
simulating a criminal act, i.e. for the application of the mode
a motivated court order is not necessary. Under Part 1 of
Article 11 of the Law, the mode of conduct simulating a
criminal act shall be authorised by the Prosecutor General or
the Deputy Prosecutor General designated by him on the reasoned
written request by the operational entity when there are bases
provided for in Part 2 of Article 4 of the Law.
On the other hand, the mode is applied together with
operative actions. As mentioned, the Law provides that covert
monitoring of private correspondence, telegraph and other
communications, mail and electronic communications, wiretapping
of telephone conversations, use of special equipment and covert
monitoring of residential premises require an authorisation by
court (Part 1 of Article 10 of the Law).
Assessing the legal regulation established in Part 1 of
Article 10 and Part 1 of Article 11 of the Law in a systematic
manner, one is to conclude that the Law provides that in cases
when the mode does not include covert monitoring of private
correspondence, telegraph and other communications, mail and
electronic communications, wiretapping of telephone
conversations, use of special equipment and covert monitoring
of residential premises, i.e. the actions pointed out in Part 1
of Article 10 of the Law, the mode is authorised by the
Prosecutor General or the Deputy Prosecutor General designated
by him. In cases when in course of the application of the mode
the above-mentioned covert monitoring of private
correspondence, telegraph and other communications, mail and
electronic communications, wiretapping of telephone
conversations, use of special equipment or other actions
pointed out in Part 1 of Article 10 of the Law are performed,
such actions, under Part 1 of Article 10 of the Law, must be
authorised by chairmen of regional courts and chairmen of the
criminal divisions of those courts.
Thus, interpreting the legal regulation established in the
Law, it is to be concluded that the norms of Part 1 of Article
11 of the Law establishing the procedure for the authorisation
of the mode do not violate the provisions of Article 22 of the
Constitution. A different interpretation of the norms of Part 1
of Article 10 and Part 1 of Article 11 of the Law, especially
one whereby upon authorisation of the mode by the prosecutor,
the authorisation by court for covert monitoring of private
correspondence, telegraph and other communications, mail and
electronic communications, wiretapping of telephone
conversations, use of special equipment and covert monitoring
of residential premises would be unnecessary, would distort the
legal regulation of the mode established in the Law.
Taking account of the motives set forth above, one is to
draw a conclusion that Part 12 of Article 2, Item 3 of Part 2
of Article 7, Part 1 of Article 11 of the Law to the extent
that the conduct simulating a criminal act shall be authorised
by the Prosecutor General or the Deputy Prosecutor General
designated by him are in conformity with Article 22 of the
Constitution.
Alongside, the Constitutional Court notes that the legal
regulation whereby in all cases decisions on the mode of
conduct simulating a criminal act, in case there are bases for
it established in laws, are adopted by courts would be more in
line with the principles of constitutional protection of human
rights.
9. In its ruling of 16 November 1999, the petitioner-the
Vilnius City Court of the First District-points out that in the
course of conduct of operational actions it is permitted to
take photographs, to film, make video or audio recordings of a
crime prepared, being committed or committed. Under Article
1982 of the CCP, an authorisation by court is necessary for
tapping of telephone conversations. The technical facilities
pointed out in Part 1 of Article 1981 of the CCP may be used
not only for tapping of telephone conversations but also they
may be used in the course of performing of other actions by
which the principle of inviolability of the private life of an
individual established in Part 1 of Article 22 of the
Constitution might be violated. The authorisation of the court
is not necessary for the use of the technical facilities
pointed out in Article 1981 of the CCP in the course of
performing of operational actions. Therefore, in the opinion of
the petitioner, Parts 1 and 2 of Article 1981 of the CCP
conflict with Part 3 of Article 22 of the Constitution.
As mentioned in this Ruling, the limits of the protection
of private life of an individual disappear in cases when by his
criminal actions he violates the interests protected by law.
Therefore, it is established in the laws as to what is
considered evidence in a criminal case, and it is provided
therein as for the procedure for its collection and record in
order to detect crimes and the persons that committed them.
Part 2 of Article 13 of the Law provides that the
information obtained in the course of operational actions may
be used as evidence in a criminal case in accordance with the
instances and procedure established by the CCP. Part 2 of
Article 74 of the CCP stipulates that sources of evidence in a
criminal case are also protocols of tapping of telephone
conversations and audio recordings, protocols of the use of
technical facilities in the course of performance of
operational actions, as well as photographs, films, video or
audio recordings.
Parts 1 and 2 of Article 1981 of the CCP provide that
technical facilities are used in the course of operational
actions. Under the Law, operational actions are the use of
facilities (including technical facilities) and methods of
operational activities in attempt to detect crimes and persons
who committed them (Part 3 of Article 2, Parts 1 and 4 of
Article 10 of the Law). The bases and procedure for performing
of operational actions are regulated by the Law on Operational
Activities. Therefore the provisions of Parts 1 and 2 of
Article 1981 of the CCP are inseparable from the Law wherein
the procedure for performing of operational actions is
regulated.
Part 1 of Article 10 of the Law provides that for covert
monitoring of private correspondence, telegraph and other
communications, mail and electronic communications, wiretapping
of telephone conversations, use of special equipment and covert
monitoring of residential premises an authorisation of the
court is necessary. Thus it is presumed in the Law that by
these operational actions the private life of individuals may
be interfered with. Therefore, implementing the provisions of
Part 3 of Article 22 of the Constitution the Law provides for
such a procedure for authorisation of these operational
actions. The information obtained during operational actions
may be recognised as evidence when it is duly established (Part
2 of Article 74 of the CCP). Therefore it is provided in Part 2
of Article 1981 of the CCP that a protocol shall be drawn up as
regards the use of technical facilities recording a crime
prepared, being committed or committed, in the protocol the
technical data of the technical facilities used, as well as the
time, place and contents of the recorded action, shall be
entered. The negatives and pictures of the photographs, films,
video and audio recordings are to be attached to the protocol.
The protocol has the power of evidence.
Thus the authorisation of the court permitting to perform
respective operational actions provided in Part 1 of Article 10
of the Law encompasses the establishment of the information
obtained in the course of the operational actions by technical
facilities as this is, as a rule, an inseparable element of
these actions.
Taking account of the arguments set forth above, it is to
be concluded that Parts 1 and 2 of Article 1981 of the Code of
Criminal Procedure are in compliance with Article 22 of the
Constitution.
IV
On the compliance of Part 12 of Article 2, Item 3 of Part
2 of Article 7, Part 1 of Article 11 of the Law on Operational
Activities to the extent that the conduct simulating a criminal
act shall be authorised by the Prosecutor General or the Deputy
Prosecutor General designated by him with Article 28 of the
Constitution.
1. In its petition of 10 November 1999, the petitioner-the
Vilnius City Court of the First District-asserts that the
whole-complex of the disputed norms of the Law creates legal
grounds for a certain person to commit a crime lawfully,
therefore the respective norms of the Law conflict with Article
28 of the Constitution.
2. Article 28 of the Constitution prescribes: "While
exercising their rights and freedoms, persons must observe the
Constitution and the laws of the Republic of Lithuania, and
must not impair the rights and freedoms of other people."
By this constitutional article one of essential principles
is established which means that lawful behaviour of an
individual is not unrestricted and absolutely free. A human
being, as he or she is a social being, lives in society among
like human beings who are equal in their dignity and rights.
Every human being has duties to society in which his or her
person may develop freely and completely, while the main of
these duties is not to impair the rights and freedoms of other
people.
Article 28 of the Constitution establishes the limits of
behaviour of people but not those of state institutions. Under
Part 2 of Article 5 of the Law, the mode is implemented only by
members of the confidential full-time staff of the operational
entities whose work for operational entities is encoded, and
co-operating natural persons with whom operational entities
have concluded a written or verbal agreement on confidential
co-operation. As mentioned, the mode is not a criminal deed.
The mode only simulates a criminal act in attempt to detect
crimes. In other words, covert participants only carry out
special functions which are within the competence of
institutions of law and order and which are useful to society
and the state. Their activities are not covered by the sphere
regulated by Article 28 of the Constitution.
As already mentioned in this Ruling, the principle of the
protection of private life of an individual is not applicable
to criminal deeds. Thus the activity of persons applying the
mode simulating a criminal act and those committing a crime is
not private and is not regulated by Article 28 of the
Constitution.
Taking account of the motives set forth, it is to be
concluded that Part 12 of Article 2, Item 3 of Part 2 of
Article 7, Part 1 of Article 11 of the Law to the extent that
the conduct simulating a criminal act shall be authorised by
the Prosecutor General or the Deputy Prosecutor General
designated by him are in compliance with Article 28 of the
Constitution.
V
On the compliance of Part 12 of Article 2, Item 3 of Part
2 of Article 7, Part 1 of Article 11 of the Law on Operational
Activities to the extent that the conduct simulating a criminal
act shall be authorised by the Prosecutor General or the Deputy
Prosecutor General designated by him with Part 1 of Article 29
of the Constitution.
1. In the opinion of the petitioners, the disputed norms
of the Law conflict with Part 1 of Article 29 of the
Constitution as the covert participants of operational
activities are permitted to commit a crime and they are not
prosecuted for it, while the persons to whom the mode is
applied are brought to criminal responsibility.
2. Part 1 of Article 29 of the Constitution provides: "All
persons shall be equal before the law, the court, and other
State institutions and officers."
By these constitutional norms the principle of equality of
all persons is established. This principle must be followed in
the course of enactment and application of laws and
administration of justice. This principle obligates to legally
assess homogeneous facts in a uniform manner and prohibits to
arbitrarily assess essentially homogeneous facts in a varied
manner (Constitutional Court ruling of 24 January 1996). This
is the principle of a formal legal equality. This
constitutional principle does not deny the fact that different
legal regulation may be established in respect to categories of
certain persons that are in different situations. The legal
situation of persons applying the mode is essentially different
from the legal situation of those to whom this mode is applied.
3. As mentioned, the mode is lawful actions even though
exhibiting elements of crime. These actions are aimed at
protecting the key interests of the state, the public, or an
individual. In case these actions are properly carried out,
i.e. when the person to whom the mode is applied is not put
under pressure, when he is neither incited nor provoked to
commit a crime, then they are lawful, and the covert
participants carrying it out may not be brought to criminal
responsibility. The question whether the person to whom the
mode was applied was not put under pressure, incited or
provoked to commit a crime is decided by the court
investigating that case.
The situation of the persons to whom the mode is applied
is completely different. They commit crimes, they comprehend
the danger of their deeds and that their deeds are in conflict
with law, then they know or must know or are able to know that
society and the state do not tolerate and that they prohibit
such deeds for commission whereof criminal punishment is
established. These persons know that various forms of
operational activities, including the mode, might be applied to
them. Besides, the person who is committing a crime may always
refuse of his own will to finish it-in such a case, under penal
laws, he is liable only if his deeds that actually have been
performed constitute the body of another crime (corpus delicti)
(Article 17 of the CC).
It needs to be noted that the authorisation of the mode
does not mean permission to commit a crime. The prosecutor
authorises simulation of a deed exhibiting elements of crime
and only in order to detect a crime or the person that
committed it but it never authorises a crime. Thus the disputed
provisions of the Law are not linked with the regulation
established in Article 29 of the Constitution.
Taking account of the motives set forth, it is to be
concluded that Part 12 of Article 2, Item 3 of Part 2 of
Article 7, Part 1 of Article 11 of the Law to the extent that
the conduct simulating a criminal act shall be authorised by
the Prosecutor General or the Deputy Prosecutor General
designated by him are in compliance with Part 1 of Article 29
of the Constitution.
VI
On the compliance of Part 12 of Article 2, Item 3 of Part
2 of Article 7, Part 1 of Article 11 of the Law on Operational
Activities to the extent that the conduct simulating a criminal
act shall be authorised by the Prosecutor General or the Deputy
Prosecutor General designated by him with Part 1 of Article 30
of the Constitution.
1. It is possible to conclude that the doubt of the
petitioner-the Vilnius Regional Court-whether the disputed
provisions of the Law are in conformity with Part 1 of Article
30 of the Constitution is based on the fact that under the Law
the person to whom the mode is applied is unaware of this and,
therefore, in the opinion of the petitioner, does not have an
opportunity to appeal to court.
2. Part 1 of Article 30 of the Constitution stipulates
that "any person whose constitutional rights or freedoms are
violated shall have the right to appeal to court".
By these provisions the right of a person to judicial
protection of his violated rights and freedoms is established.
The constitutional norms guarantee the right of the person to
an independent and impartial arbiter which, under the
Constitution and laws, might settle in essence the legal
dispute that has arisen. It needs to be noted that every person
has such a right. A person is guaranteed protection of his
violated right in court regardless of the legal status of this
person. The violated rights and legitimate interests of persons
must be protected in court irrespective of the fact whether
they are directly established in the Constitution or not. It
needs to be emphasised that the rights of a person must be
protected not in a formal manner but in actual and effective
manner from unlawful actions of private persons as well as
those of state institutions.
The right of a person to protection of his violated rights
is also established in international legal acts. Article 8 of
the Universal Declaration of Human Rights promulgates that
"everyone has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights
granted him by the constitution or by law". Article 13 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms provides that "everyone whose rights and freedoms as
set forth in this Convention are violated shall have an
effective remedy before a national authority notwithstanding
that the violation has been committed by persons acting in an
official capacity".
3. Performing the actions exhibiting elements of crime the
covert participants of operational activities may not use
physical or psychological compulsion against persons suspected
of commission of crime, put them under any active pressure,
incite or provoke them to commit a crime. Thus, in the course
of application of the mode the requirements of the Law must be
followed and the limits of the behaviour permitted by the Law
and established in the mode may not be overstepped. The Law
provides that officers and persons who have violated this shall
be liable pursuant to the Criminal Code of the Republic of
Lithuania and other laws (Part 1 of Article 14 of the Law).
4. The mode is carried out in a covert manner, i.e. the
person to whom it is applied is unaware of it as otherwise it
would become ineffective. The persons to whom lawful actions,
no matter that they exhibit elements of crime, are applied
acquire a real opportunity to lodge a complaint against, in
their opinion, unreasonable and unlawful actions of the covert
participants of operative activities only after they become
aware of the mode applied to them, however, this is
justifiable. In the aforesaid Case of Klass and others vs.
Germany, the European Court of Human Rights noted that an
effective remedy under Article 13 of the Convention must mean a
remedy that is as effective as can be having regard to the
restricted scope for recourse inherent in any system of secret
surveillance.
Taking account of the motives set forth, it is to be
concluded that Part 12 of Article 2, Item 3 of Part 2 of
Article 7, Part 1 of Article 11 of the Law to the extent that
the conduct simulating a criminal act shall be authorised by
the Prosecutor General or the Deputy Prosecutor General
designated by him are in compliance with Part 1 of Article 30
of the Constitution.
VII
On the compliance of Part 12 of Article 2, Item 3 of Part
2 of Article 7, Part 1 of Article 11 of the Law on Operational
Activities to the extent that the conduct simulating a criminal
act shall be authorised by the Prosecutor General or the Deputy
Prosecutor General designated by him with Part 2 of Article 31
of the Constitution.
1. Part 2 of Article 31 of the Constitution provides:
"Every indicted person shall have the right to a fair and
public hearing by an independent and impartial court."
The Constitutional Court notes that the provisions of Part
2 of Article 31 of the Constitution directly indicate to
judicial investigation of a case. However, these provisions
pre-suppose the right to impartial judicial protection not only
during the investigation of the case in court but also during
the whole procedure of investigation of the criminal case. Only
in the presence of impartial procedure for investigation of
crimes guarantees are created for objective, comprehensive and
public investigation and fair judgement of the case in court.
The requirements of impartial procedure are also applicable
when actions of operative investigations are performed as the
information obtained by means of operational actions may be
used as evidence in a criminal case in accordance with the
instances and procedure established by the Code of Criminal
Procedure (Part 2 of Article 13 of the Law).
It is provided for in the Code of Criminal Procedure that
not only the court but also the public prosecutor, investigator
and interrogator must resort to all measures provided by law so
that all circumstances pertaining to the case might be
investigated comprehensively, thoroughly, objectively and
within a reasonable time, as well as prohibitions are
established therein to collect evidence by unlawful means
(Article 18 of the CCP).
It needs to be noted that Article 10 of the Universal
Declaration of Human Rights provides that "everyone is entitled
in full equality to a fair and public hearing by an independent
and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him." Paragraph
1 of Article 6 of the Convention for the Protection of Human
Rights and Fundamental Freedoms establishes the same provisions
as to their essence and meaning. In the aforesaid case of
Teixeira de Castro vs. Portugal, the European Court of Human
Rights noted that the proceedings as a whole, including a way
of collection of evidence, must be independent and impartial.
2. The Constitutional Court notes that application of the
mode in the course of the investigation of crime does not
restrict the independence and impartiality of the court in the
procedure of a criminal case. It is established in the
Constitution that in the Republic of Lithuania, the courts
shall have the exclusive right to administer justice. While
administering justice, judges and courts shall be independent.
While investigating cases, judges shall obey only the law
(Parts 1, 2, 3 of Article 109 of the Constitution). It is
provided for in the Code of Criminal Procedure that the court
must resort to all measures provided by law so that all
circumstances pertaining to the case might be investigated
comprehensively, thoroughly and objectively and it must
ascertain circumstances indicting and those vindicating the
suspect (Part 1 of Article 18 of the CCP). The criminal
procedure must help to strengthen lawfulness and law and order,
prevent crime, protect the rights and freedoms of citizens and
interests of society and the state (Article 2 of the CCP).
These as well as other provisions of the CCP pre-suppose the
duty of courts to check and assess lawfulness, reliability,
certainty and admissibility of all the evidence, including that
collected in the course of application of the mode, which is
presented to them. These duties of courts are not denied by the
application of the mode in a particular case.
Taking account of the motives set forth, it is to be
concluded that Part 12 of Article 2, Item 3 of Part 2 of
Article 7, Part 1 of Article 11 of the Law to the extent that
the conduct simulating a criminal act shall be authorised by
the Prosecutor General or the Deputy Prosecutor General
designated by him are in compliance with Part 2 of Article 31
of the Constitution.
VIII
On the compliance of Part 12 of Article 2, Item 3 of Part
2 of Article 7, Part 1 of Article 11 of the Law on Operational
Activities to the extent that the conduct simulating a criminal
act shall be authorised by the Prosecutor General or the Deputy
Prosecutor General designated by him with Part 1 of Article 109
and Part 1 of Article 118 of the Constitution.
1. In the opinion of the petitioner-the Vilnius Regional
Court-the prosecutor, by authorising the mode, pardons the
person who will apply the mode from criminal liability and
punishment. This is a function of administration of justice
provided for in Part 1 of Article 109 of the Constitution. The
petitioner also maintains that authorisation of the mode is not
criminal prosecution. Such prosecution begins at the time of
institution of a criminal case and is regulated by the rules of
criminal procedure. Therefore the petitioner doubts whether the
fact that the mode is authorised by the prosecutor is in
compliance with Part 1 of Article 109 and Part 1 of Article 118
of the Constitution.
2. Part 1 of Article 109 of the Constitution provides: "In
the Republic of Lithuania, the courts shall have the exclusive
right to administer justice."
The Constitutional Court notes that this provision in
criminal procedure law means that a person may not be held
guilty of commission of a crime nor be given criminal
punishment otherwise than by a court judgement and under the
law. Discharging this function, during the trial the court must
investigate the circumstances of the case comprehensively,
thoroughly and objectively and decide the case in essence. It
is only the court that may recognise a person guilty and
administer punishment to him. (Part 1 of Article 31 of the
Constitution).
The disputed provisions of the Law define the mode,
establish the bases of its application and the procedure for
its authorisation. Under the Law, the mode of conduct
simulating a criminal act is authorised acts exhibiting
criminal characteristics aimed at protecting the key interests
of the state, the public, or an individual. The Law does not
recognise these actions as crime. Therefore the person carrying
out the mode may not be brought to responsibility if he does
not violate the Law. What has been stated does not give grounds
to assert that the officials authorising the mode and the
entities carrying it out administer justice.
3. Part 1 of Article 118 of the Constitution provides:
"Public prosecutors shall prosecute criminal cases on behalf of
the State, shall carry out criminal prosecutions, and shall
supervise the activities of the interrogative bodies."
By this constitutional provision the functions of public
prosecutors are established in the procedure of criminal cases.
Article 1 of the Law on the Prosecutor's Office
establishes the following guidelines for activities of public
prosecutors: initiation and conduct of criminal prosecution,
control of the activities of the agencies of preliminary
inquiry, conduct of preliminary investigation, coordination of
the actions of the agencies of preliminary inquiry and
preliminary investigation directed against crime, prosecution
of criminal cases on behalf of the state etc. Thus, the
prosecutor is an official who is in charge of pre-trial
investigation, who supervises it, is responsible for that a
person suspected of commission of a crime would reasonably be
brought to criminally responsibility. It needs to be noted that
pre-trial investigation covers operational activities as well.
The information obtained by means of operational actions may be
used as evidence in a criminal case in accordance with the
instances and procedure established by the Code of Criminal
Procedure (Part 2 of Article 74 of the CCP, Part 2 of Article
13 of the Law). Thus Part 1 of Article 118 of the Constitution
does not prohibit the prosecutor from authorising the mode as
one form of operational activities in the course of application
of which the information is collected which has the power of
evidence in the case.
4. The constitutional function of the court, i.e.
administration of justice, is essentially different from being
in charge of pre-trial investigation of the case, supervision
of this investigation, prosecution of criminal cases on behalf
of the state etc. In the course of administration of justice
the court investigates already prepared criminal cases, decides
the question of guilt of the suspect, either administers
punishment to him or acquits him. On the other hand, the court
and the judge, in the course of administration of justice, are
not bound by the evidence obtained during pre-trial
investigation of the case, including that obtained by applying
the mode. The constitutional obligation of the court is
comprehensive, thorough and objective investigation of all the
matter of the case and adoption of a fair judgement.
Taking account of the motives set forth above, it is to be
concluded that Part 12 of Article 2, Item 3 of Part 2 of
Article 7, Part 1 of Article 11 of the Law to the extent that
the conduct simulating a criminal act shall be authorised by
the Prosecutor General or the Deputy Prosecutor General
designated by him are in compliance with Part 1 of Article 109
and Part 1 of Article 118 of the Constitution.
IX
On the compliance of Article 11 of the Law on Operational
Activities with Part 1 of Article 86 and Part 1 of Article 62
of the Constitution.
1. The petitioner-a group of Seimas members-appealed to
the Constitutional Court with a petition requesting to
investigate whether certain provisions of Article 11 of the Law
are in conformity with Part 1 of Article 86 and Part 1 of
Article 62 of the Constitution.
In the opinion of the group of Seimas members, the
provisions of Article 11 of the Law whereby the mode of conduct
simulating a criminal act may be applied to every person
groundlessly restrict the guarantees of personal security of
the President of the Republic and Seimas members which are
established in the Constitution. Besides, the petitioner
maintains that the said provisions of the Law are also vicious
due to the fact that the mode of conduct simulating a criminal
act is authorised by the Prosecutor General or the Deputy
Prosecutor General designated by him but not by the court as
the prosecutor's office is not an impartial institution
administering justice.
2. In this ruling the Constitutional Court has already
analysed the questions of authorisation of the mode linked with
the powers of the prosecutors, therefore they will not be
analysed in this part. The Court will investigate whether
Article 11 of the Law to the extent that it does not prohibit
the application of the mode to the President of the Republic
and Seimas members is in compliance with Part 1 of Article 86
and Part 1 of Article 62 of the Constitution.
3. Part 1 of Article 86 of the Constitution provides:
"The person of the President of the Republic shall be
inviolable: while in office, the President may neither be
arrested nor charged with criminal or administrative
proceedings."
Part 1 of Article 62 of the Constitution provides:
"The person of a Seimas member shall be inviolable."
By these constitutional norms the immunity of the
President of the Republic and that of a Seimas member are
established. Immunity is additional guarantees of protection of
the person which are necessary and indispensable for proper
performance of the duties of the said person. The immunity of
the President of the Republic as the Head of State and that of
Seimas members as representatives of the People who discharge
their duties commissioned to them by the Constitution and laws
must ensure that the President of the Republic and the Seimas
might discharge the functions established in the Constitution
without any hindrance, and that a possible exertion of negative
influence on the President of the Republic or Seimas members by
officials of the executive might be prevented. For these
purposes the establishment of additional immunity guarantees
for the President of the Republic and Seimas members is
permissible and does not deny the principle of equality of all
persons entrenched in the Constitution (Article 29).
Under Article 77 of the Constitution, the President of the
Republic is the Head of State, he shall represent the State of
Lithuania and shall perform all the duties which he or she is
charged with by the Constitution and laws. Only one person
acquires the status of the Head of State for the period
determined in the Constitution, i.e. the President of the
Republic who is elected by citizens of the Republic of
Lithuania. The legal status of the President of the Republic as
the Head of State is an individual one, different from that of
the rest of the citizens.
Seimas members have their own status also: under Article
55 of the Constitution, they are representatives of the People.
The status of a representative of the People is also different
from that of the rest of the citizens, including that of the
President of the Republic.
The peculiarities of the status of the President of the
Republic and a Seimas member determine different guarantees to
immunity as well as the extent of the immunity of these
persons.
The Constitutional Court notes that in the case at issue
it is necessary to establish as to what immunity of the
President of the Republic and that of a Seimas member is
determined by the Constitution, as well as the extent of this
immunity, and the relation of the immunity of the President of
the Republic and that of the immunity of a Seimas member with
the human rights guaranteed by the Constitution.
4. The human right to inviolability of person is enshrined
in Part 1 of Article 21 of the Constitution. The content of
inviolability of person as a value protected by law is composed
of physical and psychological inviolability. It means that laws
must guarantee that an individual will be protected from any
unreasonable, outward encroachment upon his life, health,
freedom of physical activity and against any attempt on his
psychological or mental state, his intellectual or creative
expression which might be carried out by the state, local
government institutions, their officials or employees, as well
as any other persons.
The human right to physical freedom which is established
in Part 1 of Article 20 of the Constitution is tightly
connected with the human right to inviolability of person. The
inviolability of freedom of an individual is the pre-requisite
of freedom of decision making; it creates pre-conditions to
perform any lawful actions and implement legal opportunities in
various spheres of life. It is possible to maintain that
inviolability of person establishes the limits of freedom of
other persons, i.e. the behaviour of the latter is permissible
as long as it is not harmful to inviolability of person of
other individuals. It needs to be noted that Article 5 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms, too, provides that the aforementioned values are to
be protected as a whole: "Everyone has the right to liberty and
security of person."
It needs to be emphasised that the human right to freedom
and inviolability of person may be restricted when it is
necessary. This may be done only on the grounds and under the
procedure established in laws. Part 2 of Article 20 of the
Constitution provides: "No person may be arbitrarily arrested
or detained. No person may be deprived of freedom except on the
bases, and according to the procedures, which have been
established in laws."
5. Part 1 of Article 86 of the Constitution provides that
while in office, the President of the Republic may neither be
arrested nor charged with criminal or administrative
proceedings. Thus, while the President of the Republic is in
office, his immunity is very broad, i.e. his right of immunity
may be restricted only after he leaves office. On the other
hand, this immunity is temporary: it is applicable from the
moment when the President of the Republic enters office until
the moment he leaves office. It needs to be noted that the
Constitution provides for the constitutional liability of the
President of the Republic: for gross violation of the
Constitution, breach of the oath of office, or commission of an
offence he may be prematurely removed from office by the Seimas
under impeachment proceedings (Part 2 of Article 86 of the
Constitution), and then his right of inviolability of the
person may be restricted on the same grounds and procedure as
for the other persons.
6. While investigating whether the disputed norms of the
Law are in compliance with Part 1 of Article 62 of the
Constitution, one is to note that said Part 1 of Article 62 of
the Constitution is linked with Part 2 of the same article
whereby Seimas members may not be brought to criminal
responsibility, may not be arrested, and may not be subjected
to any other restriction of personal freedom without the
consent of the Seimas. Thus, although, if compared with
inviolability of person of individuals, the Constitution
provides for additional guarantees of inviolability of a Seimas
member, the extent of immunity of a Seimas member is narrower
than that of the President of the Republic, i.e. the right to
freedom and inviolability of person of a Seimas member may be
restricted during his office. As mentioned, under Part 2 of
Article 62 of the Constitution, this may be done only with the
consent of the Seimas.
7. When it is investigated whether the immunity guarantees
for the President of the Republic and those of a Seimas member
are not violated in the course of application of the mode, the
fact that by means of the mode one attempts to detect crimes,
to collect evidence so that criminal prosecution may be
instituted against the respective person, and also the fact
that the Constitution establishes different immunity for the
President of the Republic and a Seimas member, are of essential
importance.
As mentioned, immunity of the President of the Republic is
very broad while he is in office. Its content is composed of
the following: while in office, the President of the Republic
may not be subjected to criminal prosecution as he may not be
brought to criminal responsibility, nor may one resort to any
measures (save the impeachment proceedings) which might create
conditions for institution of criminal prosecution. Thus, it is
to be concluded that no forms of operational activities,
including the mode of conduct simulating a criminal act, may be
applied to the President of the Republic. Meanwhile, the
disputed provisions of the Law do not prohibit (i.e. they
permit) to apply the mode to the President of the Republic.
Such legal regulation violates the immunity of the President of
the Republic established in Part 1 of Article 86 of the
Constitution.
Immunity of a Seimas member is narrower than that of the
President of the Republic: in case there is a consent of the
Seimas, a Seimas member may be brought to criminal
responsibility. Therefore the provisions of the Constitution do
not prohibit such legal regulation whereby application of the
mode and other forms of operational activities to a Seimas
member as well as other persons are permissible. It needs to be
noted that on 16 March 2000 Article 4 of the Law was amended
under the provisions whereof operational entities are granted
the right to use special technical facilities against Seimas
and Government members, covertly to monitor their residential
premises, correspondence, telegraph and other messages.
8. Taking account of the motives set forth above, it is to
be concluded that Article 11 of the Law to the extent that it
is permitted to apply the mode to the President of the Republic
conflicts with Part 1 of Article 86 of the Constitution.
Article 11 of the Law to the extent that it is permitted
to apply the mode to Seimas members is in compliance with 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:
1. To recognise that Part 12 of Article 2, Item 3 of Part
2 of Article 7, Part 1 of Article 11 of the Republic of
Lithuania Law on Operational Activities to the extent that the
conduct simulating a criminal act shall be authorised by the
Prosecutor General or the Deputy Prosecutor General designated
by him are in compliance with the Constitution of the Republic
of Lithuania.
2. To recognise that Parts 1 and 2 of Article 1981 of the
Republic of Lithuania Code of Criminal Procedure are in
compliance with the Constitution of the Republic of Lithuania.
3. To recognise that Article 11 of the Republic of
Lithuania Law on Operational Activities to the extent that it
is permitted to apply the mode to Seimas members is in
compliance with the Constitution of the Republic of Lithuania.
4. To recognise that Article 11 of the Republic of
Lithuania Law on Operational Activities to the extent that it
is permitted to apply the mode to the President of the Republic
conflicts with Part 1 of Article 86 of 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.