Lietuviškai
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 27 OF
THE REPUBLIC OF LITHUANIA LAW ON
TELECOMMUNICATIONS (WORDING OF 11 JULY 2000),
PARAGRAPH 1 OF ARTICLE 2 OF THE REPUBLIC OF
LITHUANIA LAW ON THE AMENDMENT OF ARTICLE 27 OF
THE LAW ON TELECOMMUNICATIONS, PARAGRAPH 4 OF
ARTICLE 57 OF THE REPUBLIC OF LITHUANIA LAW ON
TELECOMMUNICATIONS (WORDING OF 5 JULY 2002), ITEM
4 OF PARAGRAPH 3 OF ARTICLE 7 OF THE REPUBLIC OF
LITHUANIA LAW ON OPERATIONAL ACTIVITIES (WORDING
OF 22 MAY 1997), ITEM 6 OF PARAGRAPH 3 OF ARTICLE
7 OF THE REPUBLIC OF LITHUANIA LAW ON OPERATIONAL
ACTIVITIES (WORDING OF 20 JUNE 2002), PARAGRAPH 1
OF ARTICLE 48 (WORDING OF 26 JUNE 1961) AND
PARAGRAPH 1 OF ARTICLE 75 (WORDING OF 29 JANUARY
1975) OF THE CODE OF CRIMINAL PROCEDURE OF THE
REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE
REPUBLIC OF LITHUANIA
19 September 2002
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas
Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of a group of members of the Seimas of
the Republic of Lithuania, the petitioner, who was Vasilijus
Popovas, a Seimas member,
the representatives of the Seimas of the Republic of
Lithuania, the party concerned, who were Algirdas Bloznelis,
the Head of the Board of the State Security Department of the
Republic of Lithuania, Mindaugas Girdauskas, a senior
consultant to the Legal Department of the Office of the Seimas,
Vaidotas Bacevičius, an advisor to the Committee on National
Security and Defence of the Seimas of the Republic of
Lithuania,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Republic of
Lithuania Law on the Constitutional Court, on 22 August 2002 in
its public hearing heard Case No. 34/2000-28/01 which
originated in the following petitions:
1) the 3 October 2000 petition of a group of members of
the Seimas of the Republic of Lithuania, the petitioner,
requesting to consider whether the second section of Article 1
of the Republic of Lithuania Law on the Amendment of Article 27
of the Law on Telecommunications was in compliance with Article
22 of the Constitution of the Republic of Lithuania, also
whether the second section of Article 1 and Paragraph 1 of
Article 2 of the same law were in compliance with Article 23 of
the Constitution;
2) the 8 May 2001 petition of a group of members of the
Seimas of the Republic of Lithuania, the petitioner, requesting
to consider whether the provision "telecommunications operators
must <...> under procedure established by the Government,
supply gratis information in the scope established by the
Government to entities of operational activities, interrogative
and investigating bodies for restraint, investigation and
solution of crimes about objects of operational activities and
other subscribers and their telecommunications which are
necessary for investigation" of Article 1 of the Republic of
Lithuania Law on the Amendment of Article 27 of the Law on
Telecommunications, the provision "carrying out the preparatory
investigations, the investigator shall independently adopt all
decisions regarding the course of the investigations and
performance of investigatory acts save the cases when the law
provides that a sanction from the prosecutor is necessary" of
Article 48 of the Code of Criminal Procedure of the Republic of
Lithuania, the provision "the interrogator, investigator,
prosecutor <...> shall have the right, in the cases at their
command, <...> to demand that the enterprises, establishments,
organisations and citizens submit items and documents which
might be important in the case, to demand that audits be
carried out. These requirements must be carried out by all
citizens, enterprises, establishments and organisations" of
Article 75 of the Code of Criminal Procedure of the Republic of
Lithuania, the provision of "Item 4 of Paragraph 3 of the
Republic of Lithuania Law on Operational Activities" that,
under the procedure established by the Government, the entities
of operational activities shall have the right to make use of
information held by enterprises, establishments and
organisations, were in compliance with the principles of an
open, just, civil society and a law-governed state entrenched
in the Preamble to the Constitution of the Republic of
Lithuania, Articles 1, 22 and 23 of the Constitution of the
Republic of Lithuania.
By its decision of 27 May 2002, the Constitutional Court
joined the petitions into one case.
The Constitutional Court
has established:
I
1. On 11 July 2000, the Seimas of the Republic of
Lithuania enacted the Republic of Lithuania Law on the
Amendment of Article 27 of the Law on Telecommunications
(Official Gazette Valstybės žinios, 2000, No. 61-1830).
2. On 22 May 1997, the Seimas of the Republic of Lithuania
enacted the Republic of Lithuania Law on Operational Activities
(Official Gazette Valstybės žinios, 1997, No. 50-1190).
3. On 26 June 1961 the Code of Criminal Procedure was
adopted (Official Gazette Valstybės žinios, 1961, No. 18-148).
On 29 January 1975, the disputed provision of Paragraph 1 of
Article 75 of the Code of Criminal Procedure (Official Gazette
Valstybės žinios, 1975, No. 3-22) was changed.
4. The petitioners, groups of the members of the Seimas of
the Republic of Lithuania, request to consider whether:
the second section of Article 1 of the Law on the
Amendment of Article 27 of the Law on Telecommunications is in
compliance with Article 22 of the Constitution, also whether
the second section of Article 1 and Paragraph 1 of Article 2 of
the same law are in compliance with Article 23 of the
Constitution,
the provision "telecommunications operators must <...>
under procedure established by the Government, supply gratis
information in the scope established by the Government to
entities of operational activities, interrogative and
investigating bodies for restraint, investigation and solution
of crimes about objects of operational activities and other
subscribers and their telecommunications which are necessary
for investigation" of Article 1 of the Law on the Amendment of
Article 27 of the Law on Telecommunications,
the provision "carrying out the preparatory
investigations, the investigator shall independently adopt all
decisions regarding the course of the investigations and
performance of investigatory acts save the cases when the law
provides that a sanction from the prosecutor is necessary" of
Article 48 of the Code of Criminal Procedure,
the provision "the interrogator, investigator, prosecutor
<...> shall have the right, in the cases at their command,
<...> to demand that the enterprises, establishments,
organisations and citizens submit items and documents which
might be important in the case, to demand that audits be
carried out. These requirements must be carried out by all
citizens, enterprises, establishments and organisations" of
Article 75 of the Code of Criminal Procedure,
the provision of Item 4 of Paragraph 3 of the Republic of
Lithuania Law on Operational Activities that "under the
procedure established by the Government, the entities of
operational activities shall have the right to make use of
information held by enterprises, establishments and
organisations",
are in compliance with the principles of an open, just,
civil society and a law-governed state entrenched in the
Preamble to the Constitution, Articles 1, 22 and 23 of the
Constitution.
II
The requests of the petitioners are based on the following
arguments.
1. The Law on the Amendment of Article 27 of the Law on
Telecommunications amended Paragraph 2 of Article 27 of the Law
on Telecommunications and set it forth as follows:
"Telecommunications operators must trace all telecommunications
events and their participants, ensure and constantly maintain,
at their expense and by their facilities, the technical
opportunity for entities of operational activities in order to
control, under procedure established by laws, the content of
the information transmitted via telecommunication networks,
also, under procedure established by the Government, supply
gratis information in the scope established by the Government
to entities of operational activities, interrogative and
investigating bodies for restraint, investigation and solution
of crimes about objects of operational activities and other
subscribers and their telecommunications which are necessary
for investigation. When the entities of operational activities
need additional information, if compared with the scope
established by the Government, they shall compensate the
telecommunications operators the necessary expenditures of
supply of such information." Paragraph 1 of Article 2 of the
Law on the Amendment of Article 27 of the Law on
Telecommunications prescribes: "The Government shall finance
the acquisition of the facilities, designated to control the
content of the information transmitted via the
telecommunication networks, for the telecommunications
operators which received licences prior to the entry into
effect of this Law. The telecommunications operators shall
renew the said facilities and maintain their technological
capacities at their expense."
In the opinion of the petitioner (petition of 3 October
2000), under the provision established in the second section of
Article 1 of the Law on the Amendment of Article 27 of the Law
on Telecommunications, the telecommunications operators are
obligated to trace all their subscribers. Until the adoption of
the disputed law, the telecommunications operators were
permitted to accumulate, use and store the data regarding the
network subscribers only inasmuch as it was necessary for the
service of the subscribers or for the needs of the
communication network. According to the petitioner, the Law on
the Amendment of Article 27 of the Law on Telecommunications
obligates telecommunications operators to trace all
telecommunications events, meanwhile, taking account of the
fact that under the existing GSM 900 and GSM (or DCS) 1800
technologies, the stations of the operators and the mobile
telephones continually and regularly send each other the
information about their status, the operators, while tracing
all telecommunications events, would collect the data about the
life of the subscriber, i.e. the information about the private
life of the person.
2. The petitioner (petition of 3 October 2000) points out
that under Article 22 of the Constitution, 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 decision 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 petitioner asserts that the second section of Article
1 of the Law on the Amendment of Article 27 of the Law on
Telecommunications obligates telecommunications operators to
collect information about the private life of individuals in
the absence of a court decision.
3. In the opinion of the petitioner (petition of 8 May
2001), the striving for an open, just and harmonious civil
society and law-governed state entrenched in the Constitution
also implies the security of every individual as well as the
entire society from criminal attempts. In the course of their
restraint and prosecution, the state institutions of law and
order are granted, by law, the rights to apply various specific
measures. However, one must combat crime by legal means, they
may not violate the constitutional rights and freedoms of a
person. The petitioner notes that Article 22 of the
Constitution establishes a principal requirement that
information concerning the private life of an individual may be
collected only upon a justified court decision. Since the
Constitution is an integral act, this constitutional human
right, in the opinion of the petitioner, must be treated as the
consequence of the striving for and principles of an open, just
and harmonious civil society and law-governed state.
The petitioner (petition of 8 May 2001) asserts that the
data about telecommunications, including the telephone number
of a person or belonging of a telephone number, the numbers of
the subscribers who made calls and who were called, the
messages sent and received or other information about the
rendered services, their time, place and duration, but not
confining to them, is information about the private life of a
person, therefore, without a court sanction, telecommunications
operators do not have the right to supply these data to the
entities of operational activities, interrogative and
investigating bodies about the subscribers and their
telecommunications which are necessary for the investigation;
in the opinion of the petitioner, the entities of operational
activities, only upon receiving a court sanction, have the
right to make use of the information held at enterprises,
establishments and organisations concerning the private life of
a person; the interrogator, investigator and prosecutor, only
upon receiving a court sanction, have the right, in the cases
at their command, to demand that the enterprises,
establishments, organisations and citizens submit documents
about the private life of a person.
According to the petitioner, the provision "carrying out
the preparatory investigations, the investigator shall
independently adopt all decisions regarding the course of the
investigations and performance of investigatory acts save the
cases when the law provides that a sanction from the prosecutor
is necessary" of Article 48 of the Code of Criminal Procedure,
the provision "the interrogator, investigator, prosecutor <...>
shall have the right, in the cases at their command, <...> to
demand that the enterprises, establishments, organisations and
citizens submit items and documents which might be important in
the case, to demand that audits be carried out. These
requirements must be carried out by all citizens, enterprises,
establishments and organisations" of Article 75 of the Code of
Criminal Procedure, the provision of Item 4 of Paragraph 3 of
Article 7 of the Law on Operational Activities that "under the
procedure established by the Government, the entities of
operational activities shall have the right to make use of
information held by enterprises, establishments and
organisations" and the provision "telecommunications operators
must <...> under procedure established by the Government,
supply gratis information in the scope established by the
Government to entities of operational activities, interrogative
and investigating bodies for restraint, investigation and
solution of crimes about objects of operational activities and
other subscribers and their telecommunications which are
necessary for investigation" of Article 1 of the Law on the
Amendment of Article 27 of the Law on Telecommunications are
not in line with the requirement of the Constitution that
information concerning the private life of an individual may be
collected only upon a justified court decision.
In the opinion of the petitioner (petition of 8 May 2001),
the disputed provisions of the said laws conflict with the
principles of an open, just, harmonious civil society and
law-governed state entrenched in the Preamble to the
Constitution as well as Articles 1 and 22 of the Constitution
since the information concerning the subscribers and their
telecommunications is as inviolable as information concerning
the private life of an individual.
4. The petitioner (petition of 3 October 2000) points out
that, under Article 23 of the Constitution, property shall be
inviolable; the rights of ownership shall be protected by law;
property may only be seized for the needs of society according
to the procedure established by law and must be adequately
compensated for.
The petitioner maintains (petition of 8 May 2001) that the
disputed laws also establish a duty for enterprises,
establishments, organisations and citizens, in the absence of a
court decision, to collect, store and supply the information
held by them to respective institutions of law and order,
however, no compensation is provided for such restrictions of
the right of ownership. Therefore, in the opinion of the
petitioner, the disputed laws violate Article 23 of the
Constitution, as well as the principles of an open, just, civil
society and a law-governed state, and Article 1 of the
Constitution.
5. The petitioner (petition of 3 October 2000) maintains
that after one established the provision in Article 1 of the
Law on the Amendment of Article 27 of the Law on
Telecommunications that the telecommunications operators must,
under procedure established by the Government, supply gratis
information in the scope established by the Government to
entities of operational activities, interrogative and
investigating bodies for restraint, investigation and solution
of crimes about objects of operational activities and other
subscribers and their telecommunications which are necessary
for investigation, as well as after one consolidated the
provision in Paragraph 1 of Article 2 of the same law that the
telecommunications operators shall renew the facilities
designated to control the content of the information
transmitted via the telecommunication networks and maintain
their technological capacities at their expense, one
established seizure of the funds of the operators for the needs
of society.
III
In the course of the preparation of the case for the
judicial investigation, written explanations were received from
the representatives of the Seimas, the party concerned,
Algirdas Bloznelis, the Head of the Board of the State Security
Department, M. Girdauskas, a senior consultant to the Legal
Department of the Office of the Seimas, and Vaidotas
Bacevičius, an advisor to the Seimas Committee on National
Security and Defence.
1. The representative of the party concerned A. Bloznelis
maintains that the Law on the Amendment of Article 27 of the
Law on Telecommunications regulated in a new manner the
relations of content control of the information transmitted via
telecommunications network. In the opinion of A. Bloznelis, the
previously effective provision of the law concerning reception
of compensation by telecommunications operators had to be
altered as it conflicted with the fundamental principle of law
and order regarding the obligation of persons to render gratis
all the information prescribed by laws about a committed or
prepared violation of law.
A. Bloznelis notes that effective Article 27 of the Law on
Telecommunications is a compromise solution of three trends:
(1) capabilities of the state to ensure sufficient financing of
the activities of the institutions of law and order; (2)
preparation and maintenance of the telecommunications operators
operating in the market in the course of their performance of
their obligations to society, connected with ensuring of
security of society; (3) creation of non-discriminatory
conditions for new operators.
2. The representative of the party concerned M. Girdauskas
explained that the provision "carrying out the preparatory
investigations, the investigator shall independently adopt all
decisions regarding the course of the investigations and
performance of investigatory acts save the cases when the law
provides that a sanction from the prosecutor is necessary" of
Article 48 of the Code of Criminal Procedure is a norm of
common character, regulating the powers of the investigator. In
itself, this provision does not grant the right to the
investigator to collect information about the private life of
an individual, also without the sanction of the court (judge).
The legitimate conditions of collection of information are
established by other, special norms of the Code of Criminal
Procedure, individually regulating the performance of
investigatory actions, for example, Articles 188, 196 and 1982
of the Code of Criminal Procedure link the lawfulness of
search, sequester and seizure of post-telegraph correspondence,
tapping of telephone conversations performed by the
investigator with the existence of a corresponding sanction of
the judge. Therefore, in the opinion of the representative of
the party concerned, the said provision of Article 48 of the
Code of Criminal Procedure may not be assessed as being not in
line with the provision of Article 22 of the Constitution that
information concerning the private life of an individual may be
collected only upon a justified court decision.
M. Girdauskas maintains that Paragraph 3 of Article 22 of
the Constitution requires a court decision as to the collection
of information concerning the private life of an individual
only. Therefore, the disputed provisions of Article 75 of the
Code of Criminal Procedure are in compliance with the said
paragraph to the extent that it grants the right to the
interrogator, investigator and prosecutor to demand items and
documents that do not reflect the private life of the
individual.
The representative of the party concerned notes that the
right to the inviolability of private life is not absolute. For
instance, a person committing criminal and other deeds which
are contrary to law does not have and may not expect privacy.
The limits of the protection of the private life of the
individual end at the point when he, by his actions in a
criminal manner or otherwise in an unlawful manner, infringes
the interests protected by law, inflicts damage on individual
persons, society and the state. The opportunity to restrict the
right of the person to inviolability of the private life in the
course of collecting information about him is also established
in Article 22 of the Constitution. M. Girdauskas notes that
establishments of power may and have the right to collect
information about the persons who are about to commit or who
have committed criminal deeds. Therefore, the provisions of
Article 75 of the Code of Criminal Procedure providing for the
ways of collecting of information of significance to the case,
i.e. for investigation and consideration of criminal cases, may
not be assessed as conflicting with Article 22 of the
Constitution to the entire extent providing for the right to
demand items and documents reflecting the private life of the
person.
M. Girdauskas maintains that the legislature, while
establishing the powers for the establishments of law and order
to collect information, including that on the private lives of
persons, may not overstep the limits established in the
Constitution. Therefore, in the opinion of the representative
of the party concerned, one is to consider whether the
provision "the interrogator, investigator, prosecutor <...>
shall have the right, in the cases at their command, <...> to
demand that the enterprises, establishments, organisations and
citizens submit items and documents which might be important in
the case, to demand that audits be carried out. These
requirements must be carried out by all citizens, enterprises,
establishments and organisations" of Article 75 of the Code of
Criminal Procedure is in compliance with Article 22 of the
Constitution to the extent that it does not require that the
documents and items the content of which is information about
the private life of the person, be collected in the presence of
a justified court decision only.
M. Girdauskas notes that it is to be considered whether
the disputed provision of the Law on Operational Activities is
in compliance with Article 22 of the Constitution not to its
entire extent but to the extent that it does not establish that
the entities of operational activities shall have the right to
make use of information about the private life of the person
which is held by enterprises, establishments and organisation
only upon a court decision.
In the opinion of the representative of the party
concerned, information about objects of operational activities
and other subscribers and their telecommunications which are
necessary for investigation may include information about the
private lives of persons, therefore, it is to be considered
whether the disputed provision of Article 1 of the Law on the
Amendment of Article 27 of the Law on Telecommunications is in
compliance with Article 22 of the Constitution not to its
entire extent but to the extent that it does not establish that
telecommunications operators must supply all information about
the private lives of persons to entities of operational
activities, interrogative and investigating bodies only upon a
justified court decision.
M. Girdauskas maintains that the provisions of Article 1
of the Law on the Amendment of Article 27 of the Law on
Telecommunications restrict the right of telecommunications to
ownership, however, the said right is not absolute. The
striving for an open, just and harmonious civil society and
law-governed state enshrined in the Preamble to the
Constitution and the general interest expressed in Article 28
of the Constitution require that one should bar the way to
crimes, that the crimes committed be solved and that the
culprits be brought to responsibility. Telecommunications
operators render telecommunications services to other persons,
which create conditions to intercommunicate during the
preparation for and in the course of commission of crimes as
well as their concealment. In the absence of the conditions to
intercept the telecommunications, in certain cases it would be
too complicated or even impossible to implement the said
general interest. Therefore, the law may provide for an
obligation for the telecommunications operators to contribute
to blocking the way to possible negative effects of their
activities.
In the opinion of the representative of the party
concerned, while establishing the scope of such an obligation,
one should take account of the fact that telecommunications
operators attempt to get income from their activities, in other
words, from their property rights. However, according to the
principle of the unity of rights and obligations, the reception
of rights is inseparable from reception of obligations. In
other words, the state may establish certain conditions for the
persons who wish to engage in certain business. The activity of
the telecommunications operators may create conditions to
violate the said general interest, therefore an obligation may
be established for the operators to take measures also so that
the general interest would not be violated. This obligation may
include the obligation to install and maintain the facilities
designated to store the information about the subscribers and
their telecommunications, which is necessary to implement the
obligation to provide the information to the institutions of
law and order, which is provided for in the disputed provision
of Article 1 of the Law on the Amendment of Article 27 of the
Law on Telecommunications. However, in the opinion of M.
Girdauskas, taking account of the principle of proportionality
conditioned by the principles of a law-governed state and
justice, which are enshrined in the Constitution, one is to
consider whether the disputed provision of the law is in
compliance with the Constitution to the extent that it provides
for an obligation of the telecommunications operators to cover
all the expenses necessary to implement it. In this respect,
one is to consider, whether a reasonable conformity between
such restriction of the scope of the right of ownership of the
telecommunications operators and the objectives of the general
interest sought by this was retained.
The representative of the party concerned M. Girdauskas
maintains that the question of the compliance of Articles 48
and 75 of the Code of Criminal Procedure, Item 4 of Paragraph 3
of Article 7 of the Law on Operational Activities, Article 1 of
the Law on the Amendment of Article 27 of the Law on
Telecommunications with the principles of an open, just, civil
society and a law-governed state entrenched in the Preamble to
the Constitution and Article 1 of the Constitution may be
considered after one has established at least one case of
conflict of the disputed laws with Articles 22 and 23 of the
Constitution.
3. The representative of the party concerned V.
Bacevičius, while assessing the compliance of the disputed
provisions of the Law on the Amendment of Article 27 of the Law
on Telecommunications with Article 22 of the Constitution,
notes that the operators rendering telecommunications services
used to trace all telecommunications sessions and their
participants, the time and duration of telecommunications
sessions, other parameters (data) also prior to the entry into
effect of the disputed law, however, to collect data about the
participants of telecommunications sessions in such a manner is
necessary for the operators rendering telecommunications
services, therefore this may not be treated as violation of the
private life of the individual. In the opinion of V.
Bacevičius, the adopted law does not obligate the
telecommunications operators to spy on their subscribers
(entities of telecommunications events), while the information
which is required to be supplied (the surname of the person,
the subscription number etc.) does not violate the privacy of
the person since it is not connected with the control of the
content of telecommunications. In addition, V. Bacevičius
emphasises that the information connected with a violation of
law (crime) being committed or committed is supplied while
taking into consideration the public interest, i.e. in attempt
to block the way to the violation of law or to solve it and
this is in line with the provisions of Articles 48 and 75 of
the Code of Criminal Procedure. The interests of ensuring the
state security (public interest) require that one should be
able, under procedure established by the law, to restrict the
rights and freedoms of individual persons, to guarantee public
order, to apprehend a criminal, to save the life, health or
property of the individual.
In the opinion of the representative of the party
concerned, the principles are entrenched in the Constitution
that the rights and freedoms of the person may be restricted by
law only, when it is necessary for the safeguard of the health,
honour and dignity, private life, or morals of an individual,
or for the protection of constitutional order. Under Article 28
of the Constitution, 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, i.e. they may not commit criminal
actions. Thus, the person who has committed a criminal deed,
does not enjoy complete inviolability of the personal life,
and, in the course of the investigation of his criminal deeds
under procedure established by laws, his rights and freedoms
may be restricted.
V. Bacevičius maintains that the provisions of the Law on
the Amendment of Article 27 of the Law on Telecommunications do
not provide for alienation of such technical facilities
installed at the expense of the operators, therefore there are
no grounds to maintain that the requirements of Article 23 of
the Constitution are violated. These obligations of the
telecommunications operators are to be linked with the specific
nature of the licensed activity and the rights of the state to
establish rules for carrying out the licensed
commercial-economic activity. In the opinion of the
representative of the party concerned, the telecommunications
operators do not conduct the telecommunications content
control: they merely create opportunities for an institution
empowered by the Government to do so, therefore it is
purposeless to raise the question of compensation for the
telecommunications operators for the services rendered.
In the opinion of the representative of the party
concerned, the Law on the Amendment of Article 27 of the Law on
Telecommunications has taken account of the provisions of the
Constitution which guarantee the inviolability of the private
life of an individual and protection of ownership, the
Convention for the Protection of Human Rights and Fundamental
Freedoms which was ratified by the Republic of Lithuania, as
well as the interests of society, in attempt to protect the
general interest, the security of the state, to ensure the
protection of society and bar the way to violations of public
order and crimes, also, while taking into consideration to
protect the health and lives of people, the rights and freedoms
of persons. Therefore, in the opinion of V. Bacevičius, the
disputed provisions of the law are in compliance with Article
23 of the Constitution.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from M. Laurinkus, Director General of the State
Security Department of the Republic of Lithuania, J. Ūsas,
Director of the Communications Department of the Ministry of
Communications of the Republic of Lithuania, O. Jakštaitė,
Director of the State Inspectorate of Data Protection, V.
Valeckaitė, Acting Director of the Institute of Law, and T.
Birmontienė, Director of the Lithuanian Centre for Human
Rights.
V
1. At the Constitutional Court hearing, V. Popovas, the
representative of the group of Seimas members, the petitioner,
virtually reiterated the arguments set forth in the petition.
2. At the Constitutional Court hearing, V. Bacevičius, A.
Bloznelis and M. Girdauskas, the representatives of the Seimas,
the party concerned, virtually reiterated the arguments set
forth in their written explanations to the Constitutional
Court.
The Constitutional Court
holds that:
I
1. The first petitioner, a group of Seimas members,
requests, by its petition of 3 October 2000, to consider
whether the second section of Article 1 of the Law on the
Amendment of Article 27 of the Law on Telecommunications is in
compliance with Article 22 of the Constitution, also whether
the second section of Article 1 and Paragraph 1 of Article 2 of
the same law are in compliance with Article 23 of the
Constitution.
The second petitioner, a group of Seimas members,
requests, by its petition of 8 May 2001 to consider whether the
provision "telecommunications operators must <..> under
procedure established by the Government, supply gratis
information in the scope established by the Government to
entities of operational activities, interrogative and
investigating bodies for restraint, investigation and solution
of crimes about objects of operational activities and other
subscribers and their telecommunications which are necessary
for investigation" of Article 1 of the Law on the Amendment of
Article 27 of the Law on Telecommunications, the provision
"carrying out the preparatory investigations, the investigator
shall independently adopt all decisions regarding the course of
the investigations and performance of investigatory acts save
the cases when the law provides that a sanction from the
prosecutor is necessary" of Article 48 of the Code of Criminal
Procedure, the provision "the interrogator, investigator,
prosecutor <...> shall have the right, in the cases at their
command, <...> to demand that the enterprises, establishments,
organisations and citizens submit items and documents which
might be important in the case, to demand that audits be
carried out. These requirements must be carried out by all
citizens, enterprises, establishments and organisations" of
Article 75 of the Code of Criminal Procedure, the provision of
Item 4 of Paragraph 3 of the Republic of Lithuania Law on
Operational Activities that under the procedure established by
the Government, the entities of operational activities shall
have the right to make use of information held by enterprises,
establishments and organisations, are in compliance with the
principles of an open, just, civil society and a law-governed
state entrenched in the Preamble to the Constitution, Articles
1, 22 and 23 of the Constitution.
2. On 11 July 2000, the Seimas enacted the Law on the
Amendment of Article 27 of the Law on Telecommunications by
Article 1 whereof Paragraphs 2 and 3 of Article 27 of the Law
on Telecommunications were altered and set forth as follows:
"2. Telecommunications operators must trace all
telecommunications events and their participants, ensure and
constantly maintain, at their expense and by their facilities,
the technical opportunity for entities of operational
activities in order to control, under procedure established by
laws, the content of the information transmitted via
telecommunication networks, also, under procedure established
by the Government, supply gratis information in the scope
established by the Government to entities of operational
activities, interrogative and investigating bodies for
restraint, investigation and solution of crimes about objects
of operational activities and other subscribers and their
telecommunications which are necessary for investigation. When
the entities of operational activities need additional
information, if compared with the scope established by the
Government, they shall compensate the telecommunications
operators the necessary expenditures of supply of such
information.
3. An institution empowered by the Government-an entity of
operational activities-shall organise and, under procedure
established by the Government, create the technical
opportunities for every entity of operational activities to
independently conduct the control of the content of information
transmitted via telecommunications networks."
Article 2 titled "The Implementation of the Law" of the
Law on the Amendment of Article 27 of the Law on
Telecommunications provides:
"1. The Government shall finance the acquisition of the
facilities, designated to control the content of the
information transmitted via the telecommunication networks, for
the telecommunications operators which received licences prior
to the entry into effect of this Law. The telecommunications
operators shall renew the said facilities and maintain their
technological capacities at their expense.
2. All the telecommunications facilities the exploitation
of which began after this law went into effect must comply with
the requirements of Article 1 of this Law."
2.1. The first petitioner (petition of 3 October 2000)
requests to consider whether the second section of Article 1 of
the Law on the Amendment of Article 27 of the Law on
Telecommunications is in compliance with Article 22 of the
Constitution, also whether the second section of Article 1 and
Paragraph 1 of Article 2 of the same law are in compliance with
Article 23 of the Constitution. The second petitioner (petition
of 8 May 2001) requests to consider whether the provision
"telecommunications operators must <...> under procedure
established by the Government, supply gratis information in the
scope established by the Government to entities of operational
activities, interrogative and investigating bodies for
restraint, investigation and solution of crimes about objects
of operational activities and other subscribers and their
telecommunications which are necessary for investigation" of
Article 1 of the Law on the Amendment of Article 27 of the Law
on Telecommunications is in compliance with the principles of
an open, just, civil society and a law-governed state
entrenched in the Preamble to the Constitution, Articles 1, 22
and 23 of the Constitution.
Although the first petitioner (petition of 3 October 2000)
requests to consider whether the second section of Article 1 of
the Law on the Amendment of Article 27 of the Law on
Telecommunications is in compliance with Articles 22 and 23 of
the Constitution, however, it is clear from the motives of the
petitioner that he doubts whether the provision
"telecommunications operators must trace all telecommunications
events and their participants, ensure and constantly maintain,
at their expense and by their facilities, the technical
opportunity for entities of operational activities in order to
control, under procedure established by laws, the content of
the information transmitted via telecommunication networks,
also, under procedure established by the Government, supply
gratis information in the scope established by the Government
to entities of operational activities, interrogative and
investigating bodies for restraint, investigation and solution
of crimes about objects of operational activities and other
subscribers and their telecommunications which are necessary
for investigation" of Article 1 of the aforementioned law is in
compliance with Articles 22 and 23 of the Constitution.
It has been mentioned that the first petitioner (petition
of 3 October 2000) doubts as to the compliance of the aforesaid
provision of Article 1 of the Law on the Amendment of Article
27 of the Law on Telecommunications with Articles 22 and 23 of
the Constitution, while the second petitioner (petition of 8
May 2001) doubts as to the compliance of the provision of
Article 1 of the Law on the Amendment of Article 27 of the Law
on Telecommunications with the principles of an open, just,
civil society and a law-governed state entrenched in the
Preamble to the Constitution, Articles 1, 22 and 23 of the
Constitution.
Thus, the 3 October 2000 petition of a group of Seimas
members to consider the compliance of the second section of
Article 1 of the Law on the Amendment of Article 27 of the Law
on Telecommunications with Article 22 of the Constitution also
encompasses the 8 May 2001 petition of the second petitioner, a
group of Seimas members, to consider the compliance of the
disputed provision of Article 1 of the Law on the Amendment of
Article 27 of the Law on Telecommunications with the
Constitution.
2.2. On 5 July 2002, the Seimas enacted the Republic of
Lithuanian Law on the Amendment of the Law on
Telecommunications (Official Gazette Valstybės žinios, 2002,
No. 75-3215) whereby the Law on Telecommunications was amended
and set forth in a new wording. The Law on the Amendment of the
Law on Telecommunications was published in Valstybės žinios on
26 July 2002. Article 2 of the said law provides that this Law
on Telecommunications shall go into effect as of 1 January
2003. Thus, Article 2 of the Law on the Amendment of the Law on
Telecommunications sets the date of the commencement of the
application of the Law on Telecommunications (wording of 5 July
2002) which is 1 January 2003.
2.3. Under Article 105 of the Constitution, the
Constitutional Court shall consider and adopt decisions
concerning the conformity of laws and other legal acts adopted
by the Seimas with the Constitution. Article 7 of the
Constitution prescribes that only laws which are published
shall be valid.
The formula "laws and other legal acts adopted by the
Seimas" employed in Paragraph 1 of Article 105 of the
Constitution means that the Constitutional Court has the powers
to consider the compliance of the laws and other acts (parts
thereof) adopted by the Seimas and officially published with
the Constitution irrespective of the established date of the
commencement of the application of such laws or other acts
(parts thereof).
2.4. Paragraph 4 of Article 57 of the Law on
Telecommunications (wording of 5 July 2002) provides:
"Telecommunications operators and providers of
telecommunications services must, under procedure established
by legal acts, trace telecommunications events and their
participants, ensure and constantly maintain, at their expense
and by their facilities, the technical opportunity for entities
of operational activities, interrogative and investigating
bodies, in order to control, under procedure established by
laws and upon a sanction issued by court, the content of the
information transmitted via telecommunication networks, also,
under procedure established by the Government, supply gratis
the information established by the Government to entities of
operational activities, interrogative and investigating bodies
for restraint, investigation and solution of crimes about
objects of operational activities and other subscribers and
their telecommunications which are necessary for investigation.
When the entities of operational activities need additional
information, if compared with that established by the
Government, they shall compensate the telecommunications
operators the necessary expenditures of supply of such
information."
2.5. Comparing Paragraph 4 of Article 57 of the Law on
Telecommunications (wording of 5 July 2002) with Paragraph 2 of
Article 27 of the Law on Telecommunications (wording of 11 July
2000), one is to hold that their formulations are different in
that Paragraph 4 of Article 57 of the Law on Telecommunications
(wording of 5 July 2002) employs the word "established" instead
of the words "the scope established", it does not contain the
word "all", it contains the words "and providers of
telecommunications services", "under procedure established by
legal acts", "interrogative and investigating bodies", "upon a
sanction issued by court". The indicated differences do not
change in essence the content of the provisions disputed by the
petitioners. Thus, the disputed provision of Paragraph 2 of
Article 27 of the Law on Telecommunications (wording of 11 July
2000) is virtually repeated in Paragraph 4 of Article 57 of the
Law on Telecommunications (wording of 5 July 2002).
2.6. Taking account of the fact that, under Article 105 of
the Constitution, the Constitutional Court shall consider and
adopt decisions concerning the conformity of laws and other
legal acts adopted by the Seimas with the Constitution
irrespective of what date of the commencement of their
application is established, the Constitutional Court has the
powers to consider the compliance of the provisions of the Law
on Telecommunications (wording of 5 July 2002) the date of
commencement of the application whereof is 1 January 2003
irrespective of the fact that at the time of the consideration
of the case at issue the said law is not applicable yet.
3. On 22 May 1997, the Seimas enacted the Law on
Operational Activities (Official Gazette Valstybės žinios,
1997, No. 50-1190) Item 4 of Paragraph 3 of Article 7 whereof
provides that, under the procedure established by the
Government, the entities of operational activities shall have
the right to make use of information held by enterprises,
establishments and organisations.
One of the petitioners (petition of 8 May 2001) requests
to consider whether the provision "under the procedure
established by the Government, the entities of operational
activities shall have the right <...> to make use of
information held by enterprises, establishments and
organisations" of "Item 4 of Paragraph 3 of the Law on
Operational Activities" is in compliance with the principles of
an open, just, civil society and a law-governed state
entrenched in the Preamble to the Constitution, Articles 1, 22
and 23 of the Constitution. The petitioner does not indicate
what article of the Law on Operational Activities contains the
provision disputed by him. The provision disputed by the
petitioner is in Item 4 of Paragraph 3 of Article 7 of the Law
on Operational Activities.
3.1. On 20 June 2002, the Seimas enacted a new Law on
Operational Activities (Official Gazette Valstybės žinios, No.
65-2633) which went into effect on 28 June 2002. Upon the entry
into effect of the said law, the 22 May 1997 Law on Operational
Activities became null and void. Item 6 of Paragraph 3 of
Article 7 of the Law on Operational Activities (wording of 20
June 2002) provides that, under the procedure established by
the Government or the institutions empowered by the latter, the
entities of operational activities shall have the right to
receive the information from enterprises, establishments and
organisations which is necessary for operational activities.
3.2. Comparing Item 6 of Paragraph 3 of Article 7 of the
Law on Operational Activities (wording of 20 June 2002) with
Item 4 of Paragraph 3 of Article 7 of the Law on Operational
Activities (wording of 22 May 1997), one is to hold that their
formulations differ in that Item 6 of Paragraph 3 of Article 7
of the Law on Operational Activities (wording of 20 June 2002)
employs the word "receive" instead of the words "make use of",
the word "held" is absent, it contains the words "or the
institutions empowered by the latter" and "which is necessary
for operational activities". The indicated differences in
essence do not change the content of the provision disputed by
the petitioner. Thus, the disputed provision of Item 4 of
Paragraph 3 of Article 7 of the Law on Operational Activities
(wording of 22 May 1997) is virtually repeated in Item 6 of
Paragraph 3 of Article 7 of the Law on Operational Activities
(wording of 20 June 2002).
4. Paragraph 1 of Article 48 of the Code of Criminal
Procedure (wording of 26 June 1961) inter alia provides that,
while carrying out the preparatory investigations, the
investigator shall independently adopt all decisions regarding
the course of the investigations and performance of
investigatory acts save the cases when the law provides that a
sanction from the prosecutor is necessary; Paragraph 1 of
Article 75 of the same code (wording of 29 January 1975) inter
alia provides that the interrogator, investigator, prosecutor
shall have the right, in the cases at their command, to demand
that the enterprises, establishments, organisations and
citizens submit items and documents which might be important in
the case, to demand that audits be carried out, and that these
requirements must be carried out by all citizens, enterprises,
establishments and organisations.
4.1. On 14 March 2002, the Seimas enacted the Law on the
Approval, Entry into Effect and Implementation of the Code of
Criminal Procedure (Official Gazette Valstybės žinios, 2002,
No. 37-1341, see corrections Official Gazette Valstybės žinios,
No. 46, p. 127). Article 2 of the said law provides that the
date of the entry into effect of the new Code of Criminal
Procedure will be established by a separate law.
4.2. The Code of Criminal Procedure (wording of 14 March
2002) provides for virtually new rules of investigation of
crimes. For instance, one has introduced the institute of the
judge of pre-trial investigation, this judge is granted the
powers to impose and sanction the application of procedural
forcible measures, to accomplish certain procedural actions, to
approve certain decisions of the prosecutor etc. It is clear
from the total legal regulation established in the Code of
Criminal Procedure (wording of 14 March 2002) that it does not
repeat the provisions of Paragraph 1 of Article 48 (wording of
26 June 1961) and Paragraph 1 of Article 75 (wording of 29
January 1975) of the Code of Criminal Procedure which are
disputed by the petitioner: the said provisions have undergone
qualitative changes.
5. It has been mentioned that one of the petitioners
(petition of 8 May 2001) requests to consider whether the
disputed provisions of Article 1 of the Law on the Amendment of
Article 27 of the Law on Telecommunications, Articles 48 and 75
of the Code of Criminal Procedure, Item 4 of Paragraph 3 of
Article 7 of the Law on Operational Activities are in
compliance with the principles of an open, just, civil society
and a law-governed state entrenched in the Preamble to the
Constitution and Article 1 of the Constitution.
5.1. The Preamble of the Constitution proclaims the
striving for an open, just, harmonious civil society and a
law-governed state. The Constitution shall be an integral act
(Paragraph 1 of Article 6 of the Constitution). The values and
strivings enshrined in the Constitution are expressed in the
constitutional norms and principles (Constitutional Court
ruling of 11 July 2002). Thus, the striving for an open, just,
harmonious civil society and a law-governed state is to be
construed inseparably from the norms and principles of the
Constitution, including the principle of a law-governed state.
The constitutional principle of a law-governed state is a
universal one upon which the whole Lithuanian legal system as
well as the Constitution of the Republic of Lithuania itself
are based (Constitutional Court ruling of 23 February 2000).
This constitutional principle also embodies the striving for an
open, just, harmonious civil society and a law-governed state
entrenched in the Preamble to the Constitution.
Therefore the Constitutional Court will consider, whether
the disputed provisions of the laws pointed out by the
petitioner (petition of 8 May 2001) are in compliance with the
constitutional principle of a law-governed state.
5.2. Article 1 of the Constitution provides: "The State of
Lithuania shall be an independent and democratic republic."
In Article 1 of the Constitution the fundamental
principles of the Lithuanian State are established: the
Lithuanian State is free and independent; the republic is the
form of governance of the Lithuanian State; the state power
must be organised in a democratic way, and there must be a
democratic political regime in this country (Constitutional
Court ruling of 23 February 2000).
It is clear from the motives of the petitioner (petition
of 8 May 2001) that he doubts whether the disputed provisions
of the aforementioned laws are in compliance with the provision
of Article 1 of the Constitution that the State of Lithuania
shall be democratic.
Therefore the Constitutional Court will consider whether
the disputed provisions of the laws pointed out by the
petitioner are in compliance with the provision of Article 1 of
the Constitution that the State of Lithuania shall be
democratic.
6. Subsequent to the petitions of the petitioners, groups
of Seimas members, the Constitutional Court will consider
whether:
1) the provision "telecommunications operators must trace
all telecommunications events and their participants, ensure
and constantly maintain, at their expense and by their
facilities, the technical opportunity for entities of
operational activities in order to control, under procedure
established by laws, the content of the information transmitted
via telecommunication networks, also, under procedure
established by the Government, supply gratis information in the
scope established by the Government to entities of operational
activities, interrogative and investigating bodies for
restraint, investigation and solution of crimes about objects
of operational activities and other subscribers and their
telecommunications which are necessary for investigation" of
Paragraph 2 of Article 27 of the Law on Telecommunications
(wording of 11 July 2000) is in compliance with the provision
of Article 1 of the Constitution that the State of Lithuania
shall be democratic, Articles 22 and 23 of the Constitution,
and the principle of a state under the rule of law;
2) Paragraph 1 of Article 2 of the Law on the Amendment of
Article 27 of the Law on Telecommunications is in compliance
with Article 23 of the Constitution;
3) the provision "telecommunications operators and
providers of telecommunications services must, under procedure
established by legal acts, trace telecommunications events and
their participants, ensure and constantly maintain, at their
expense and by their facilities, the technical opportunity for
entities of operational activities, interrogative and
investigating bodies, in order to control, under procedure
established by laws and upon a sanction issued by court, the
content of the information transmitted via telecommunication
networks, also, under procedure established by the Government,
supply gratis the information established by the Government to
entities of operational activities, interrogative and
investigating bodies for restraint, investigation and solution
of crimes about objects of operational activities and other
subscribers and their telecommunications which are necessary
for investigation" of Paragraph 4 of Article 57 of the Law on
Telecommunications (wording of 5 July 2002) with the provision
of Article 1 of the Constitution that the State of Lithuania
shall be democratic, Articles 22 and 23 of the Constitution,
and the principle of a law-governed state;
4) the provision of Item 4 of Paragraph 3 of Article 7 of
the Law on Operational Activities (wording of 22 May 1997)
that, under the procedure established by the Government, the
entities of operational activities shall have the right to make
use of information held by enterprises, establishments and
organisations was in compliance with the provision of Article 1
of the Constitution that the State of Lithuania shall be
democratic, Articles 22 and 23 of the Constitution, and the
principle of a law-governed state;
5) the provision of Item 6 of Paragraph 3 of Article 7 of
the Law on Operational Activities (wording of 20 June 2002)
that, under the procedure established by the Government or the
institutions empowered by the latter, the entities of
operational activities shall have the right to receive the
information from enterprises, establishments and organisations
which is necessary for operational activities is in compliance
with the provision of Article 1 of the Constitution that the
State of Lithuania shall be democratic, Articles 22 and 23 of
the Constitution, and the principle of a law-governed state;
6) the provision "carrying out the preparatory
investigations, the investigator shall independently adopt all
decisions regarding the course of the investigations and
performance of investigatory acts save the cases when the law
provides that a sanction from the prosecutor is necessary" of
Paragraph 1 of Article 48 of the Code of Criminal Procedure
(wording of 26 June 1961) is in compliance with the provision
of Article 1 of the Constitution that the State of Lithuania
shall be democratic, Articles 22 and 23 of the Constitution,
and the principle of a law-governed state;
7) the provision "the interrogator, investigator,
prosecutor <...> shall have the right, in the cases at their
command, <...> to demand that the enterprises, establishments,
organisations and citizens submit items and documents which
might be important in the case, to demand that audits be
carried out. These requirements must be carried out by all
citizens, enterprises, establishments and organisations" of
Paragraph 1 of Article 75 of the Code of Criminal Procedure
(wording of 29 January 1975) is in compliance with the
provision of Article 1 of the Constitution that the State of
Lithuania shall be democratic, Articles 22 and 23 of the
Constitution, and the principle of a law-governed state.
II
On the compliance of Paragraph 2 of Article 27 of the Law
on Telecommunications (wording of 11 July 2000), Paragraph 4 of
Article 57 of the Law on Telecommunications (wording of 5 July
2002), Item 4 of Paragraph 3 of Article 7 of the Law on
Operational Activities (wording of 22 May 1997), Item 6 of
Paragraph 3 of Article 7 of the Law on Operational Activities
(wording of 20 June 2002), Paragraph 1 of Article 48 of the
Code of Criminal Procedure (wording of 26 June 1961) and
Paragraph 1 of Article 75 of the Code of Criminal Procedure
(wording of 29 January 1975) 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 decision 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."
2. The private life of an individual is the personal life
of an individual, i.e. the way of life, marital status, living
surroundings, relations with other persons, the views,
convictions, habits of the individual, his physical and
psychological state, his health, honour, dignity etc.
The Constitution establishes inviolability of the private
life of an individual from which stems the right of a person to
privacy. In its ruling of 21 October 1999, the Constitutional
Court held that right of the person to privacy encompasses
private, family and house life, physical and psychological
inviolability of individuals, his honour and reputation,
secrecy of personal facts and prohibition to publicise received
or acquired confidential information etc.
The provision "information concerning the private life of
an individual may be collected only upon a justified court
decision and in accordance with the law" of Paragraph 3 as well
as the provision "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" of Paragraph 4 of Article 22 of the Constitution
are some of the most important guarantees of the inviolability
of the private life of a person. By the said provisions the
private life of the individual is protected against unlawful
interference by the state, other institutions, their officers
and other persons.
3. Article 28 of the Constitution provides 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 freedoms of other people".
Under the Constitution, it is permitted to restrict the
constitutional rights and freedoms of the individual in case
the following conditions are observed: this is done by law; the
restrictions are necessary in a democratic society in attempt
to protect the rights and freedoms of other persons and the
values entrenched in the Constitution as well as the
constitutionally important objectives; the restrictions do not
deny the nature and essence of the rights and freedoms; the
constitutional principle of proportionality is followed.
4. Article 8 of the Convention for the Protection of Human
Rights and Fundamental Freedoms provides that "there shall be
no interference by a public authority with the exercise of this
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 the rights and freedoms of others".
In the context of the case at issue, it is noteworthy that
the European Court of Human Rights held in the Malone case
(European Court of Human Rights, Malone Case judgment of 2
August 1984, series A vol. 82) that the interference with the
private life of an individual must be grounded on domestic law,
however, the domestic law must be in line with the principle of
supremacy of law in a democratic state.
The Constitutional Court 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 (Constitutional Court ruling of 8 May 2000).
5. Paragraph 2 of Article 27 of the Law on
Telecommunications (wording of 11 July 2000) provides:
"Telecommunications operators must trace all telecommunications
events and their participants, ensure and constantly maintain,
at their expense and by their facilities, the technical
opportunity for entities of operational activities in order to
control, under procedure established by laws, the content of
the information transmitted via telecommunication networks,
also, under procedure established by the Government, supply
gratis information in the scope established by the Government
to entities of operational activities, interrogative and
investigating bodies for restraint, investigation and solution
of crimes about objects of operational activities and other
subscribers and their telecommunications which are necessary
for investigation."
5.1. In the opinion of the petitioner (petition of 3
October 2000), under the provision established in Paragraph 2
of Article 27 of the Law on Telecommunications (wording of 11
July 2000), the telecommunications operators are obligated to
trace all their subscribers. Until the adoption of the said
law, the telecommunications operators were permitted to
accumulate, use and store the data regarding the network
subscribers only inasmuch as it was necessary for the service
of the subscribers or for the needs of the communication
network. In the opinion of the petitioner, the Law on the
Amendment of Article 27 of the Law on Telecommunications
obligates telecommunications operators to trace all
telecommunications events, meanwhile, taking account of the
fact that under the existing GSM 900 and GSM (or DCS) 1800
technologies, the stations of the operators and the mobile
telephones continually and regularly send each other the
information about their status, the operators, while tracing
all telecommunications events, would collect the data about the
life of the subscriber, i.e. the information about the private
life of the person.
5.2. In the course of the investigation whether the
provisions of Paragraph 2 of Article 27 of the Law on
Telecommunications (wording of 11 July 2000) are in compliance
with Article 22 of the Constitution, it needs to be noted that
the following duties of the telecommunications operators are
established in this article: (1) to trace all
telecommunications events and their participants; (2) to ensure
and constantly maintain the technical opportunity for entities
of operational activities in order to control, under procedure
established by laws, the content of the information transmitted
via telecommunication networks; 3) under procedure established
by the Government, supply information in the scope established
by the Government to entities of operational activities,
interrogative and investigating bodies for restraint,
investigation and solution of crimes about objects of
operational activities and other subscribers and their
telecommunications which are necessary for investigation.
5.2.1. Paragraph 2 of Article 27 of the Law on
Telecommunications (wording of 11 July 2000) establishes the
duty for telecommunications operators to "trace all
telecommunications events and their participants".
Under Article 2 of the Law on Telecommunications (wording
of 11 July 2000), telecommunications are transmission, sending,
receiving of signs, signals, written texts, images and sounds
or other information via wire, radio, optical, and other
electromagnetic systems. The said information circulates among
the persons who use telecommunications services. The law refers
to such persons as subscribers, consumers, recipients and users
of telecommunications services. Thus, on the basis of the
overall legal regulation of the Law on Telecommunications
(wording of 11 July 2000), a telecommunications event is to be
described as a fact of transmitting, sending and receiving of
information via telecommunications networks, while a
participant of telecommunications-as a person who makes use of
telecommunications services.
It needs to be noted that it is necessary to trace certain
telecommunications events in order to ensure the management of
accounting of telecommunications services, computation of
payment for the services rendered, solution of the settling
accounts disputes, payment of taxes to the state budget etc.
Thus, certain data concerning telecommunications participants
are collected because this is necessary to ensure the economic
activity of the telecommunications operators as well as to
ensure the rights of consumers of telecommunications services.
The disputed provision of Paragraph 2 of Article 27 of the
Law on Telecommunications (wording of 11 July 2000) is
contained in the article "Extraordinary Circumstances". It
means that this article is designated to regulate not the
economic activity of the telecommunications operators but the
relations which occur in certain extraordinary circumstances.
The formula "must trace all telecommunications events and
their participants" of Paragraph 2 of Article 27 of the Law on
Telecommunications (wording of 11 July 2000) means that a duty
has been established for telecommunications operators to trace
not only something which is necessary to ensure their economic
activity but all telecommunications events and their
participants in general, i.e. something more than necessary to
ensure the economic activity of the telecommunications
operators. After the duty to trace more information than
necessary to ensure the economic activity had been established,
conditions were created to collect information also concerning
the private life of an individual without a justified court
decision.
As it has been mentioned, under Article 22 of the
Constitution, information concerning the private life of an
individual may be collected only upon a justified court
decision and in accordance with the law only.
Taking account of the arguments set forth, one is to
conclude that the provision "telecommunications operators must
trace all telecommunications events and their participants" of
Paragraph 2 of Article 27 of the Law on Telecommunications
(wording of 11 July 2000) to the extent that it establishes a
duty for telecommunications operators to trace the
telecommunications events and their participants more than it
is necessary to ensure the economic activity of the
telecommunications operators, thus interfering with the private
life of an individual, conflicts with Article 22 of the
Constitution.
5.2.2. Paragraph 2 of Article 27 of the Law on
Telecommunications (wording of 11 July 2000) establishes the
duty for telecommunications operators to ensure and constantly
maintain the technical opportunity for entities of operational
activities in order to control, under procedure established by
laws, the content of the information transmitted via
telecommunication networks. It means that the
telecommunications operators must always take care of the
technical state of the facilities held by them so that in case
of need the entities of operational activities, under procedure
established by laws, might be able to control the content of
the information transmitted via telecommunications networks.
The duty of the telecommunications operators, which is
established in the disputed provision, to ensure and constantly
maintain the technical opportunity for entities of operational
activities in order to control, under procedure established by
laws, the content of the information transmitted via
telecommunication networks does not mean that the
telecommunications operators have the right or duty to collect
information about the private life of an individual.
The formula "under procedure established by laws" implies
that the content of the information transmitted via
telecommunications networks may be controlled by law only and
upon a justified court decision only.
Taking account of the arguments set forth, one is to
conclude that the provision "telecommunications operators must
<..> ensure and constantly maintain <...> the technical
opportunity for entities of operational activities in order to
control, under procedure established by laws, the content of
the information transmitted via telecommunication networks" of
Paragraph 2 of Article 27 of the Law on Telecommunications
(wording of 11 July 2000) is in compliance with Article 22 of
the Constitution.
5.2.3. It has been mentioned that under Paragraph 2 of
Article 27 of the Law on Telecommunications (wording of 11 July
2000), "telecommunications operators must <...> under procedure
established by the Government, supply <...> information in the
scope established by the Government to entities of operational
activities, interrogative and investigating bodies for
restraint, investigation and solution of crimes about objects
of operational activities and other subscribers and their
telecommunications which are necessary for investigation".
Paragraphs 3 and 4 of Article 22 of the Constitution
provide:
"Information concerning the private life of an individual
may be collected only upon a justified court decision 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."
These constitutional provisions mean inter alia that the
legislature has the duty to establish by law a procedure of
collection of information about the private life of an
individual, while the law must provide that information
concerning the private life of an individual may be collected
upon a justified court decision only.
According to the disputed provision of the law, the scope
of information to be supplied to entities of operational
activities, interrogative and investigating bodies, as well as
the procedure of its supplying, is established by the
Government. The formula "telecommunications operators must
<...> under procedure established by the Government, supply
<...> information in the scope established by the Government to
entities of operational activities, interrogative and
investigating bodies for restraint, investigation and solution
of crimes about objects of operational activities and other
subscribers and their telecommunications which are necessary
for investigation" means that the Government has the powers to
establish the scope of the information to be supplied,
including that concerning the private life of an individual, as
well as the procedure of its supplying. By such legal
regulation the requirements of Article 22 of the Constitution
are violated.
Taking account of the arguments set forth, one is to
conclude that the provision "telecommunications operators must
<...> under procedure established by the Government, supply
<...> information in the scope established by the Government to
entities of operational activities, interrogative and
investigating bodies for restraint, investigation and solution
of crimes about objects of operational activities and other
subscribers and their telecommunications which are necessary
for investigation" of Paragraph 2 of Article 27 of the Law on
Telecommunications (wording of 11 July 2000) to the extent that
it establishes that the Government has the powers to establish
the scope of information to be supplied also about the private
life of a person, as well as the procedure of its supplying,
conflicts with Article 22 of the Constitution.
6. Paragraph 4 of Article 57 of the Law on
Telecommunications (wording of 5 July 2002) inter alia provides
that telecommunications operators and providers of
telecommunications services must: (1) under procedure
established by legal acts, trace telecommunications events and
their participants; (2) ensure and constantly maintain the
technical opportunity for entities of operational activities,
interrogative and investigating bodies, in order to control,
under procedure established by laws and upon a sanction issued
by court, the content of the information transmitted via
telecommunication networks; (3) under procedure established by
the Government, supply gratis the information established by
the Government to entities of operational activities,
interrogative and investigating bodies for restraint,
investigation and solution of crimes about objects of
operational activities and other subscribers and their
telecommunications which are necessary for investigation.
6.1. It has been held in this Constitutional Court Ruling
that:
1) the provision "telecommunications operators must trace
all telecommunications events and their participants" of
Paragraph 2 of Article 27 of the Law on Telecommunications
(wording of 11 July 2000) to the extent that it establishes a
duty for telecommunications operators to trace the
telecommunications events and their participants more than it
is necessary to ensure the economic activity of the
telecommunications operators, thus interfering with the private
life of an individual, conflicts with Article 22 of the
Constitution;
2) the provision "telecommunications operators must <...>
ensure and constantly maintain <...> the technical opportunity
for entities of operational activities in order to control,
under procedure established by laws, the content of the
information transmitted via telecommunication networks" of
Paragraph 2 of Article 27 of the Law on Telecommunications
(wording of 11 July 2000) is in compliance with Article 22 of
the Constitution;
3) the provision "telecommunications operators must <...>
under procedure established by the Government, supply <...>
information in the scope established by the Government to
entities of operational activities, interrogative and
investigating bodies for restraint, investigation and solution
of crimes about objects of operational activities and other
subscribers and their telecommunications which are necessary
for investigation" of Paragraph 2 of Article 27 of the Law on
Telecommunications (wording of 11 July 2000) to the extent that
it establishes that the Government has the powers to establish
the scope of information to be supplied also about the private
life of a person, as well as the procedure of its supplying
conflicts with Article 22 of the Constitution.
6.2. It has been mentioned that the disputed provision of
Paragraph 2 of Article 27 of the Law on Telecommunications
(wording of 11 July 2000) is virtually repeated in Paragraph 4
of Article 57 of the Law on Telecommunications (wording of 5
July 2002).
6.3. Taking account of the arguments set forth, one is to
conclude that:
1) the provision "telecommunications operators and
providers of telecommunications services must, under procedure
established by legal acts, trace telecommunications events and
their participants" of Paragraph 4 of Article 57 of the Law on
Telecommunications (wording of 5 July 2002) to the extent that
it establishes a duty for telecommunications operators and
providers of telecommunications services to trace the
telecommunications events and their participants more than it
is necessary to ensure the economic activity of the
telecommunications operators, thus interfering with the private
life of an individual, conflicts with Article 22 of the
Constitution;
2) the provision "telecommunications operators and
providers of telecommunications services must <...> ensure and
constantly maintain <...> the technical opportunity for
entities of operational activities, interrogative and
investigating bodies, in order to control, under procedure
established by laws and upon a sanction issued by court, the
content of the information transmitted via telecommunication
networks" of Paragraph 4 of Article 57 of the Law on
Telecommunications (wording of 5 July 2002) is in compliance
with Article 22 of the Constitution;
3) the provision "telecommunications operators and
providers of telecommunications services must <...> under
procedure established by the Government, supply gratis the
information established by the Government to entities of
operational activities, interrogative and investigating bodies
for restraint, investigation and solution of crimes about
objects of operational activities and other subscribers and
their telecommunications which are necessary for investigation"
of Paragraph 4 of Article 57 of the Law on Telecommunications
(wording of 5 July 2002) to the extent that it establishes that
the Government has the powers to establish the scope of
information to be supplied also about the private life of a
person, as well as the procedure of its supplying, conflicts
with Article 22 of the Constitution.
7. It was provided in Item 4 of Paragraph 3 of Article 7
of the Law on Operational Activities (wording of 22 May 1997)
that, under the procedure established by the Government, the
entities of operational activities shall have the right to make
use of information held by enterprises, establishments and
organisations.
One of the petitioners (petition of 8 May 2001) requests
to consider whether this provision is in compliance with
Article 22 of the Constitution.
It needs to be noted that the information held by
enterprises, establishments and organisations which is
mentioned in Item 4 of Paragraph 3 of Article 7 of the Law on
Operational Activities (wording of 22 May 1997) may also
include information about the private life of a person. The
disputed provision that, under the procedure established by the
Government, the entities of operational activities shall have
the right to make use of information held by enterprises,
establishments and organisations means that, under the
procedure established by the Government, the entities of
operational activities have the right to make use of
information held by enterprises, establishments and
organisations concerning the private life of a person also. The
formula "information held by enterprises, establishments and
organisations" employed in the disputed provision also includes
collection of such information.
It has been mentioned, that under the Constitution,
information concerning the private life of a person may be
collected only upon a justified court decision and in
accordance with the law.
Taking account of the arguments set forth, one is to draw
a conclusion that the provision of Item 4 of Paragraph 3 of
Article 7 of the Law on Operational Activities (wording of 22
May 1997) that, under the procedure established by the
Government, the entities of operational activities shall have
the right to make use of information held by enterprises,
establishments and organisations, to the extent that it
established that information may be collected under the
procedure established by the Government also about the private
life of a person, conflicted with Article 22 of the
Constitution.
8. Item 6 of Paragraph 3 of Article 7 of the Law on
Operational Activities (wording of 20 June 2002) provides that,
under the procedure established by the Government or the
institutions empowered by the latter, the entities of
operational activities shall have the right to receive the
information from enterprises, establishments and organisations
which is necessary for operational activities.
It has been mentioned that the disputed provision of Item
4 of Paragraph 3 of Article 7 of the Law on Operational
Activities (wording of 22 May 1997) is virtually repeated in
Item 6 of Paragraph 3 of Article 7 of the Law on Operational
Activities (wording of 20 June 2002).
It has been held in this Constitutional Court Ruling that
the provision of Item 4 of Paragraph 3 of Article 7 of the Law
on Operational Activities (wording of 22 May 1997) that, under
the procedure established by the Government, the entities of
operational activities shall have the right to make use of
information held by enterprises, establishments and
organisations, to the extent that it established that
information may be collected under the procedure established by
the Government also about the private life of a person,
conflicted with Article 22 of the Constitution.
Taking account of the arguments set forth, one is to
conclude that the provision of Item 6 of Paragraph 3 of Article
7 of the Law on Operational Activities (wording of 20 June
2002) that, under the procedure established by the Government
or the institutions empowered by the latter, the entities of
operational activities shall have the right to receive the
information from enterprises, establishments and organisations
which is necessary for operational activities, to the extent
that it provides that information may be collected under the
procedure established by the Government or the institutions
empowered by the latter also about the private life of a
person, conflicts with Article 22 of the Constitution.
9. In the case at issue, the Constitutional Court has
considered the provision of the Law on Operational Activities
(wording of 22 May 1997) that, under the procedure established
by the Government, the entities of operational activities shall
have the right to make use of information held by enterprises,
establishments and organisations and the provision of Law on
Operational Activities (wording of 20 June 2002) that, under
the procedure established by the Government or the institutions
empowered by the latter, the entities of operational activities
shall have the right to receive the information from
enterprises, establishments and organisations which is
necessary for operational activities, only from the aspect
pointed out by the petitioner, i.e. that of inviolability and
protection of the private life, which is entrenched in the
Constitution. The Constitutional Court has not considered
whether, under the Constitution, the Government may, in
general, be granted the powers to establish a procedure under
which the entities of operational activities might receive or
make use of the information (not only about the private life of
a person) held by enterprises, establishments and
organisations.
10. Paragraph 1 of Article 48 of the Code of Criminal
Procedure (wording of 26 June 1961) provides that, while
carrying out the preparatory investigations, the investigator
shall independently adopt all decisions regarding the course of
the investigations and performance of investigatory acts save
the cases when the law provides that a sanction from the
prosecutor is necessary.
One of the petitioners (petition of 8 May 2001) requests
to consider whether the said provision is in compliance with
Article 22 of the Constitution.
While deciding whether the disputed provision of Paragraph
1 of Article 48 of the Code of Criminal Procedure (wording of
26 June 1961) is in compliance with Article 22 of the
Constitution, it needs to be noted that this provision does not
provide for a justified court decision. Although some articles
(for instance Articles 188, 196, 1982) of the Code of Criminal
Procedure, in which individual actions of the investigator are
regulated, provide for a court sanction, however, the formula
of Paragraph 1 of Article 48 of the Code of Criminal Procedure
(wording of 26 June 1961) that, while carrying out the
preparatory investigations, the investigator shall
independently adopt all decisions regarding the course of the
investigations and performance of investigatory acts save the
cases when the law provides that a sanction from the prosecutor
is necessary, also means that the investigator adopts, either
independently or with a sanction of the prosecutor, but in the
absence of a justified court decision, certain investigatory
actions whereby the private life of the person is interfered
with, too.
It has been mentioned that, under Article 22 of the
Constitution, information concerning the private life of a
person may be collected upon a justified court decision only
and in accordance with the law only.
Taking account of the arguments set forth, one is to
conclude that the provision "while carrying out the preparatory
investigations, the investigator shall independently adopt all
decisions regarding the course of the investigations and
performance of investigatory acts save the cases when the law
provides that a sanction from the prosecutor is necessary" of
Paragraph 1 of Article 48 of the Code of Criminal Procedure
(wording of 26 June 1961) to the extent that it establishes the
powers for the investigator to adopt the decisions regarding
the investigatory acts whereby the private life of the person
is interfered with in the absence of a justified court decision
conflicts with Article 22 of the Constitution.
11. Paragraph 1 of Article 75 of the Code of Criminal
Procedure (wording of 29 January 1975) prescribes that "the
interrogator, investigator, prosecutor <...> shall have the
right, in the cases at their command, <...> to demand that the
enterprises, establishments, organisations and citizens submit
items and documents which might be important in the case, to
demand that audits be carried out. These requirements must be
carried out by all citizens, enterprises, establishments and
organisations".
One of the petitioners (petition of 8 May 2001) requests
to consider whether the said provision is in compliance with
Article 22 of the Constitution.
While deciding whether the disputed provision of Paragraph
1 of Article 75 of the Code of Criminal Procedure (wording of
29 January 1975) is in compliance with Article 22 of the
Constitution, it needs to be noted that the said article of the
Code of Criminal Procedure is set forth in the Chapter "General
Provisions" and that the said article establishes, in the most
general sense, ways of collection of the evidence necessary for
investigation of crimes and investigation of the criminal case.
Individual ways of evidence collection and the procedure of
collection thereof are particularised in other articles of the
Code of Criminal Procedure.
It needs to be noted that, under the Constitution, the
legislature has a duty to establish, by law, such ways and
procedure of evidence collection that one would demand items or
documents having information about the private life of the
person only upon a justified court decision.
The disputed provision of Paragraph 1 of Article 75 of the
Code of Criminal Procedure (wording of 29 January 1975) does
not mean that the interrogator, investigator or prosecutor have
the powers to demand that the enterprises, establishments,
organisations and citizens submit items and documents which
have information about the private life of a person in the
absence of a justified court decision.
Taking account of the arguments set forth, one is to
conclude that the provision "the interrogator, investigator,
prosecutor <...> shall have the right, in the cases at their
command, <...> to demand that the enterprises, establishments,
organisations and citizens submit items and documents which
might be important in the case, to demand that audits be
carried out. These requirements must be carried out by all
citizens, enterprises, establishments and organisations" of
Paragraph 1 of Article 75 of the Code of Criminal Procedure
(wording of 29 January 1975) is in compliance with Article 22
of the Constitution.
III
On the compliance of Paragraph 2 of Article 27 of the Law
on Telecommunications (wording of 11 July 2000), Paragraph 4 of
Article 57 of the Law on Telecommunications (wording of 5 July
2002), Paragraph 1 of Article 2 of the Law on the Amendment of
Article 27 of the Law on Telecommunications, Item 4 of
Paragraph 3 of Article 7 of the Law on Operational Activities
(wording of 22 May 1997), Item 6 of Paragraph 3 of Article 7 of
the Law on Operational Activities (wording of 20 June 2002),
Paragraph 1 of Article 48 of the Code of Criminal Procedure
(wording of 26 June 1961) and Paragraph 1 of Article 75 of the
Code of Criminal Procedure (wording of 29 January 1975) with
Article 23 of the Constitution.
1. Article 23 of the Constitution provides:
"Property shall be inviolable.
The rights of ownership shall be protected by law.
Property may only be seized for the needs of society
according to the procedure established by law and must be
adequately compensated for."
2. The inviolability and protection of ownership
entrenched in Article 23 of the Constitution mean that the
owner has the right to possess, use and dispose of the property
that belongs to him, also the right to demand that other
persons not violate his rights, while the state has a duty to
defend and safeguard ownership from unlawful encroachment upon
it. One may not establish any legal regulation whereby a
constant duty for non-state ownership entities is established
to use their property to fulfil the state functions which ought
to be financed by state funds.
Ownership obligates (Constitutional Court rulings of 21
December 2000, 14 March 2002): this provision expresses a
social function of ownership. The owner who has the right to
possess, use and dispose of his property, may not violate laws
and the rights of other persons. The social function of
ownership also implies that a duty may be established for
non-state ownership entities to contribute by means of their
property to the satisfaction of extraordinary needs of society
inasmuch as such a duty to contribute to the satisfaction of
these needs under extraordinary circumstances follows from the
Constitution.
It also needs to be noted that, under the Constitution,
the right of ownership is not absolute also in the respect that
it may be restricted by law in connection with the nature of an
object of property, deeds committed against law and/or a need
which is necessary for society and which is constitutionally
justified.
Thus, under the Constitution, restriction of the right of
ownership is not impossible, however, in all cases one must
follow these conditions: the right of ownership is restricted
by law only; the restrictions are necessary in a democratic
society in attempt to protect the rights and freedoms of other
persons, the values entrenched in the Constitution and/or
constitutionally important objectives; one follows the
proportionality principle under which the measures provided for
in laws must be in line with the sought objectives which are
necessary to society and which are constitutionally justified.
Under the Constitution, by any restriction of ownership one may
not deny the essence of the right of ownership. In its ruling
of 18 April 1996, the Constitutional Court held that if a right
were restricted so that reasonable limits were exceeded, or its
legal protection were not ensured, in that case there would be
grounds to assert that the essence itself of such a right is
violated, which would be equivalent to the denial of this
right.
The seizure of property for the needs of society only
according to the procedure established by law and with adequate
compensation as provided for in Article 23 of the Constitution
means inter alia that it is not permitted to seize property
from the owner if such seizure is not provided for in the law.
In its ruling of 2 April 2001, the Constitutional Court held
that the needs of society, for which property may be seized
according to the procedure established by law and must be
adequately compensated for indicated in Paragraph 3 of Article
23 of the Constitution are interests of either the whole or
part of society which the state, while implementing its
functions, is constitutionally obligated to secure and satisfy;
when property is seized for the needs of society, one must
strive for the balance between various legitimate interests of
society and its members; the needs of society for which
property is seized are always particular and clearly expressed
needs of society for a concrete object of property; it is
permitted to seize property (by adequately compensating for)
only for such public needs which would not be objectively met
if a certain concrete object of property were not seized; the
person whose property is being seized for the needs of society
has the right to demand that the established compensation be
equivalent in value for the property seized.
3. In the opinion of the petitioners, the disputed
provision of Paragraph 2 of Article 27 of the Law on
Telecommunications (wording of 11 July 2000) conflicts with
Article 23 of the Constitution because: (1) it is at their
expense and by their facilities that telecommunications
operators must ensure and constantly maintain the technical
opportunity for entities of operational activities in order to
control, under procedure established by laws, the content of
the information transmitted via telecommunication networks; (2)
telecommunications operators must, under procedure established
by the Government, supply information gratis in the scope
established by the Government to entities of operational
activities, interrogative and investigating bodies for
restraint, investigation and solution of crimes.
3.1. Paragraph 2 of Article 27 of the Law on
Telecommunications (wording of 11 July 2000) establishes a duty
for telecommunications operators to ensure and constantly
maintain the technical opportunity for entities of operational
activities in order to control, under procedure established by
laws, the content of the information transmitted via
telecommunication networks and to do this at their expense and
by their facilities.
Telecommunications activity is economic activity, while
telecommunications operators are entities of economic activity.
One ascribes also such facilities to the facilities to
ensure and constantly maintain the technical opportunity to
control the content of the information transmitted via
telecommunication networks which are pointed out in Paragraph 2
of Article 27 of the Law on Telecommunications (wording of 11
July 2000) which are used in the economic activity of the
telecommunications operators and must be maintained at the
expense of the telecommunications operators, and also the
facilities which are not necessary in the economic activity of
the telecommunications operators and which, should a duty for
telecommunications operators were not established to ensure and
constantly maintain the technical opportunity to control the
content of the information transmitted via telecommunication
networks for entities of operational activities at their own
expense and by their own facilities, would not be maintained at
the expense of the telecommunications operators.
Thus, Paragraph 2 of Article 27 of the Law on
Telecommunications (wording of 11 July 2000) establishes a duty
for telecommunications operators-entities of economic
activity-to ensure and constantly maintain, at their expense,
the technical opportunities of such facilities necessary to
control the content of information transmitted via
telecommunications networks which is necessary not in the
economic activity of the telecommunications operators, but to
ensure and constantly maintain the opportunity for entities of
operational activities to control the content of information
transmitted via telecommunications network.
It is clear from the legal regulation established in
Paragraph 2 of Article 27 of the Law on Telecommunications
(wording of 11 July 2000) that the content of information
transmitted via telecommunications networks is controlled under
procedure established by laws in attempt to restrain,
investigate and solve crimes. The restraint, investigation and
solution of crimes is a constant function of the state, which
must be financed by state funds.
It has been mentioned that the inviolability and
protection of property entrenched in Article 23 of the
Constitution also means that it is not permitted to establish
such legal regulation whereby a constant duty for non-state
ownership entities would be established to use their property
to fulfil the state functions which ought to be financed by
state funds; a duty may be established for non-state ownership
entities to contribute by means of their property to the
satisfaction of extraordinary needs of society inasmuch as such
a duty to contribute to the satisfaction of these needs under
extraordinary circumstances follows from the Constitution.
Thus, under the Constitution, a duty may be established
for telecommunications operators-non-state property entities-to
ensure and constantly maintain the technical opportunities of
the facilities necessary to control, under procedure
established by laws, the content of information transmitted via
telecommunications networks for entities of operational
activities, however, it is not permitted to establish a duty to
maintain the technical opportunities of such facilities which
are not necessary in the economic activity of the
telecommunications operators at their expense.
Taking account of the arguments set forth, one is to
conclude that the provision "telecommunications operators must
<...> ensure and constantly maintain, at their expense and by
their facilities, the technical opportunity for entities of
operational activities in order to control, under procedure
established by laws, the content of the information transmitted
via telecommunication networks" of Paragraph 2 of Article 27 of
the Law on Telecommunications (wording of 11 July 2000) to the
extent that a duty is established for telecommunications
operators-non-state property entities-to ensure and constantly
maintain, at their expense, the technical opportunities of the
facilities necessary to control the content of information
transmitted via telecommunications networks, but which are not
necessary in the economic activity of the telecommunications
operators, conflicts with Article 23 of the Constitution.
3.2. Paragraph 2 of Article 27 of the Law on
Telecommunications (wording of 11 July 2000) establishes a duty
for telecommunications operators to supply gratis, under
procedure established by the Government, information in the
scope established by the Government to entities of operational
activities, interrogative and investigating bodies for
restraint, investigation and solution of crimes about objects
of operational activities and other subscribers and their
telecommunications which are necessary for investigation.
It needs to be noted that the information transmitted via
telecommunications networks is not property of the
telecommunications operators.
Under the Constitution, the state must ensure the security
of society and public order. It has been mentioned, that the
restraint, investigation and solution of crimes is a public
interest, therefore, to ensure the normal activities of the
institutions of law and order that are performing the said
functions, the necessary information must be supplied gratis.
This is also implied by the constitutional striving for an
open, just and harmonious civil society and a law-governed
state.
Taking account of the arguments set forth, one is to
conclude that the provision "telecommunications operators must
<...> under procedure established by the Government, supply
gratis information in the scope established by the Government
to entities of operational activities, interrogative and
investigating bodies for restraint, investigation and solution
of crimes about objects of operational activities and other
subscribers and their telecommunications which are necessary
for investigation" of Paragraph 2 of Article 27 of the Law on
Telecommunications (wording of 11 July 2000) is in compliance
with Article 23 of the Constitution.
4. Paragraph 4 of Article 57 of the Law on
Telecommunications (wording of 5 July 2002) inter alia provides
that telecommunications operators and providers of
telecommunications services: (1) must ensure and constantly
maintain, at their expense and by their facilities, the
technical opportunity for entities of operational activities,
interrogative and investigating bodies, in order to control,
under procedure established by laws and upon a sanction issued
by court, the content of the information transmitted via
telecommunication networks; (2) must, under procedure
established by the Government, supply gratis the information
established by the Government to entities of operational
activities, interrogative and investigating bodies for
restraint, investigation and solution of crimes about objects
of operational activities and other subscribers and their
telecommunications which are necessary for investigation.
4.1. It has been mentioned that the disputed provision of
Paragraph 2 of Article 27 of the Law on Telecommunications
(wording of 11 July 2000) is virtually repeated in Paragraph 4
of Article 57 of the Law on Telecommunications (wording of 5
July 2002).
4.2. Having held that the provision "telecommunications
operators must <...> ensure and constantly maintain, at their
expense and by their facilities, the technical opportunity for
entities of operational activities in order to control, under
procedure established by laws, the content of the information
transmitted via telecommunication networks" of Paragraph 2 of
Article 27 of the Law on Telecommunications (wording of 11 July
2000) to the extent that a duty is established for
telecommunications operators-non-state property entities-to
ensure and constantly maintain, at their expense, the technical
opportunities of the facilities necessary to control the
content of information transmitted via telecommunications
networks, but which are not necessary in the economic activity
of the telecommunications operators, conflicts with Article 23
of the Constitution, one is also to hold that the provision
"telecommunications operators and providers of
telecommunications services must <...> ensure and constantly
maintain, at their expense and by their facilities, the
technical opportunity for entities of operational activities,
interrogative and investigating bodies, in order to control,
under procedure established by laws and upon a sanction issued
by court, the content of the information transmitted via
telecommunication networks" of Paragraph 4 of Article 57 of the
Law on Telecommunications (wording of 5 July 2002) to the
extent that a duty is established for telecommunications
operators and providers of telecommunications
services-non-state property entities-to ensure and constantly
maintain, at their expense, the technical opportunities of the
facilities necessary to control the content of information
transmitted via telecommunications networks, but which are not
necessary in the economic activity of the telecommunications
operators, conflicts with Article 23 of the Constitution.
4.3. Having held that that the provision
"telecommunications operators must <...> under procedure
established by the Government, supply gratis information in the
scope established by the Government to entities of operational
activities, interrogative and investigating bodies for
restraint, investigation and solution of crimes about objects
of operational activities and other subscribers and their
telecommunications which are necessary for investigation" of
Paragraph 2 of Article 27 of the Law on Telecommunications
(wording of 11 July 2000) is in compliance with Article 23 of
the Constitution, one is also to hold that the provision
"telecommunications operators and providers of
telecommunications services must <...> under procedure
established by the Government, supply gratis the information
established by the Government to entities of operational
activities, interrogative and investigating bodies for
restraint, investigation and solution of crimes about objects
of operational activities and other subscribers and their
telecommunications which are necessary for investigation" of
Paragraph 4 of Article 57 of the Law on Telecommunications
(wording of 5 July 2002) is in compliance with Article 23 of
the Constitution.
5. Paragraph 1 of Article 2 of the Law on the Amendment of
Article 27 of the Law on Telecommunications prescribes: "The
Government shall finance the acquisition of the facilities,
designated to control the content of the information
transmitted via the telecommunication networks, for the
telecommunications operators which received licences prior to
the entry into effect of this Law. The telecommunications
operators shall renew the said facilities and maintain their
technological capacities at their expense."
It needs to be noted that Article 2 of the Law on the
Amendment of Article 27 of the Law on Telecommunications
Paragraph 1 whereof is disputed by one of the petitioners is
titled "Implementation of the Law" and the provisions thereof
are inseparably linked with the provisions of Paragraph 2 of
Article 27 of the Law on Telecommunications (wording of 11 July
2000).
Paragraph 1 of Article 2 of the Law on the Amendment of
Article 27 of the Law on Telecommunications establishes a duty
for telecommunications operators-non-state property entities-to
ensure and constantly maintain, at their expense, also the
technical opportunities of such facilities which are necessary
not in the economic activity of the telecommunications
operators, but in order that the opportunity be ensured for the
entities of operational activities to control the content of
information transmitted via telecommunications networks.
It has been held in this Constitutional Court Ruling that
the provision "telecommunications operators must <...> ensure
and constantly maintain, at their expense and by their
facilities, the technical opportunity for entities of
operational activities in order to control, under procedure
established by laws, the content of the information transmitted
via telecommunication networks" of Paragraph 2 of Article 27 of
the Law on Telecommunications (wording of 11 July 2000) to the
extent that a duty is established for telecommunications
operators-non-state property entities-to ensure and constantly
maintain, at their expense, the technical opportunities of the
facilities necessary to control the content of information
transmitted via telecommunications networks, but which are not
necessary in the economic activity of the telecommunications
operators, conflicts with Article 23 of the Constitution.
Alongside, one is to hold that the provision "the
telecommunications operators shall renew the said facilities
and maintain their technological capacities at their expense"
of Paragraph 1 of Article 2 of the Law on the Amendment of
Article 27 of the Law on Telecommunications to the extent that
a duty is established for telecommunications
operators-non-state property entities-to ensure and constantly
maintain, at their expense, the technical opportunities of the
facilities necessary to control the content of information
transmitted via telecommunications networks, but which are not
necessary in the economic activity of the telecommunications
operators, conflicts with Article 23 of the Constitution.
6. One of the petitioners (petition of 8 May 2001) doubts
whether the provision of Item 4 of Paragraph 3 of Article 7 of
the Law on Operational Activities (wording of 22 May 1997)
that, under the procedure established by the Government, the
entities of operational activities shall have the right to make
use of information held by enterprises, establishments and
organisations is in compliance with Article 23 of the
Constitution.
The disputed provisions of the said law regulated
different relations from those of Article 23 of the
Constitution, therefore, one is to conclude that the provision
of Item 4 of Paragraph 3 of Article 7 of the Law on Operational
Activities (wording of 22 May 1997) that, under the procedure
established by the Government, the entities of operational
activities shall have the right to make use of information held
by enterprises, establishments and organisations was in
compliance with Article 23 of the Constitution.
7. Item 6 of Paragraph 3 of Article 7 of the Law on
Operational Activities (wording of 20 June 2002) provides that,
under the procedure established by the Government or the
institutions empowered by the latter, the entities of
operational activities shall have the right to receive the
information from enterprises, establishments and organisations
which is necessary for operational activities.
It has been mentioned that the disputed provision of Item
4 of Paragraph 3 of Article 7 of the Law on Operational
Activities (wording of 22 May 1997) is virtually repeated in
Item 6 of Paragraph 3 of Article 7 of the Law on Operational
Activities (wording of 20 June 2002).
Having held that the provision of Item 4 of Paragraph 3 of
Article 7 of the Law on Operational Activities (wording of 22
May 1997) that, under the procedure established by the
Government, the entities of operational activities shall have
the right to make use of information held by enterprises,
establishments and organisations was in compliance with Article
23 of the Constitution, one is also to hold that the provision
of Item 6 of Paragraph 3 of Article 7 of the Law on Operational
Activities (wording of 20 June 2002) that, under the procedure
established by the Government or the institutions empowered by
the latter, the entities of operational activities shall have
the right to receive the information from enterprises,
establishments and organisations which is necessary for
operational activities is in compliance with Article 23 of the
Constitution.
8. One of the petitioners (petition of 8 May 2001) doubts
whether the provision "while carrying out the preparatory
investigations, the investigator shall independently adopt all
decisions regarding the course of the investigations and
performance of investigatory acts save the cases when the law
provides that a sanction from the prosecutor is necessary" of
Paragraph 1 of Article 48 of the Code of Criminal Procedure
(wording of 26 June 1961) is in compliance with Article 23 of
the Constitution.
The disputed provisions of the said law regulate different
relations from those of Article 23 of the Constitution,
therefore, one is to conclude that the provision "while
carrying out the preparatory investigations, the investigator
shall independently adopt all decisions regarding the course of
the investigations and performance of investigatory acts save
the cases when the law provides that a sanction from the
prosecutor is necessary" of Paragraph 1 of Article 48 of the
Code of Criminal Procedure (wording of 26 June 1961) is in
compliance with Article 23 of the Constitution.
9. One of the petitioners (petition of 8 May 2001) doubts
whether the provision "the interrogator, investigator,
prosecutor <...> shall have the right, in the cases at their
command, <...> to demand that the enterprises, establishments,
organisations and citizens submit items and documents which
might be important in the case, to demand that audits be
carried out. These requirements must be carried out by all
citizens, enterprises, establishments and organisations" of
Paragraph 1 of Article 75 of the Code of Criminal Procedure
(wording of 29 January 1975) is in compliance with Article 23
of the Constitution.
The disputed provisions of the said law regulate different
relations from those of Article 23 of the Constitution,
therefore, one is to conclude that the provision "the
interrogator, investigator, prosecutor <...> shall have the
right, in the cases at their command, <...> to demand that the
enterprises, establishments, organisations and citizens submit
items and documents which might be important in the case, to
demand that audits be carried out. These requirements must be
carried out by all citizens, enterprises, establishments and
organisations" of Paragraph 1 of Article 75 of the Code of
Criminal Procedure (wording of 29 January 1975) is in
compliance with Article 23 of the Constitution.
IV
On the compliance of Paragraph 2 of Article 27 of the Law
on Telecommunications (wording of 11 July 2000), Paragraph 4 of
Article 57 of the Law on Telecommunications (wording of 5 July
2002), Item 4 of Paragraph 3 of Article 7 of the Law on
Operational Activities (wording of 22 May 1997), Item 6 of
Paragraph 3 of Article 7 of the Law on Operational Activities
(wording of 20 June 2002), Paragraph 1 of Article 48 of the
Code of Criminal Procedure (wording of 26 June 1961) and
Paragraph 1 of Article 75 of the Code of Criminal Procedure
(wording of 29 January 1975) with the provision of Article 1 of
the Constitution that the State of Lithuania shall be
democratic and with the constitutional principle of a
law-governed state.
1. Article 1 of the Constitution provides that the State
of Lithuania shall be an independent and democratic republic.
The provision that the State of Lithuania shall be democratic
means that in the state one must ensure the supremacy of the
Constitution, the protection of human rights and freedoms, the
equality of all persons before the law and the court, the right
to judicial defence, free and periodical elections, separation
and balance of powers, responsibility of authority before the
citizens, the democratic process of decision making, political
pluralism, opportunities for development of a civil society,
etc. It needs to be noted that the provision that the State of
Lithuania shall be democratic is a constitutional obligation
not to deviate from the requirements of democracy, which is
applicable to all state institutions, including the
legislature.
By the laws or other legal acts that conflict with the
Constitution, one violates the principle of supremacy of the
Constitution as well as other constitutional values, and by
such aforesaid laws and legal acts one might also encroach upon
the elements of democracy entrenched in the Constitution.
However, in itself the statement that a law or other legal act
conflicts with the Constitution does not mean that the
provision of Article 1 of the Constitution that the State of
Lithuania shall be democratic is violated. The Constitutional
Court must assess in every individual case whether the legal
regulation recognised as being in conflict with the
Constitution does not deny the provision of Article 1 of the
Constitution that the State of Lithuania shall be democratic.
It needs to be noted that in the Constitution the legal
mechanisms of its protection are established, which are
designated to protect the Constitution itself as well as the
provision of Article 1 thereof that the State of Lithuania
shall be democratic. An institute of constitutional control has
been established in the Constitution, which permits to remove
the laws and other acts which conflict with the Constitution
from the legal system. The fact is also of essential importance
that the judicial protection of the rights and freedoms is
established in the Constitution. Article 30 of the Constitution
provides that any person whose constitutional rights or
freedoms are violated shall have the right to appeal to court.
2. While deciding whether the provisions disputed by the
petitioner (petition of 8 May 2001) are in compliance with the
provision of Article 1 of the Constitution that the State of
Lithuania shall be democratic, it needs to be noted that the
said provisions do not deny the democratic essence of the State
of Lithuania, the right of a person to appeal to court on the
defence of the violated rights, therefore, one is to conclude
that they are in compliance with the provision of Article 1 of
the Constitution that the State of Lithuania shall be
democratic.
3. The principle of a law-governed state entrenched in the
Constitution also implies, along with the other requirements,
that human rights and freedoms must be ensured, that all
institutions implementing state power as well as other state
institutions must act on the basis of law and in compliance
with law, that the Constitution has the supreme legal power and
that the laws, resolutions of the Government as well as other
legal acts must be in conformity with the Constitution.
3.1. It has been held in this Constitutional Court Ruling
that:
the provision "telecommunications operators must trace all
telecommunications events and their participants" of Paragraph
2 of Article 27 of the Law on Telecommunications (wording of 11
July 2000) to the extent that it establishes a duty for
telecommunications operators to trace the telecommunications
events and their participants more than it is necessary to
ensure the economic activity of the telecommunications
operators, thus interfering with the private life of an
individual, conflicts with Article 22 of the Constitution,
the provision "telecommunications operators must <...>
under procedure established by the Government, supply <...>
information in the scope established by the Government to
entities of operational activities, interrogative and
investigating bodies for restraint, investigation and solution
of crimes about objects of operational activities and other
subscribers and their telecommunications which are necessary
for investigation" of Paragraph 2 of Article 27 of the Law on
Telecommunications (wording of 11 July 2000) to the extent that
it establishes that the Government has the powers to establish
the scope of information to be supplied also about the private
life of a person, as well as the procedure of its supplying,
conflicts with Article 22 of the Constitution,
the provision "telecommunications operators and providers
of telecommunications services must, under procedure
established by legal acts, trace telecommunications events and
their participants" of Paragraph 4 of Article 57 of the Law on
Telecommunications (wording of 5 July 2002) to the extent that
it establishes a duty for telecommunications operators and
providers of telecommunications services to trace the
telecommunications events and their participants more than it
is necessary to ensure the economic activity of the
telecommunications operators, thus interfering with the private
life of an individual, conflicts with Article 22 of the
Constitution,
the provision "telecommunications operators and providers
of telecommunications services must <...> under procedure
established by the Government, supply gratis the information
established by the Government to entities of operational
activities, interrogative and investigating bodies for
restraint, investigation and solution of crimes about objects
of operational activities and other subscribers and their
telecommunications which are necessary for investigation" of
Paragraph 4 of Article 57 of the Law on Telecommunications
(wording of 5 July 2002) to the extent that it establishes that
the Government has the powers to establish the scope of
information to be supplied also about the private life of a
person, as well as the procedure of its supplying, conflicts
with Article 22 of the Constitution,
the provision "telecommunications operators must <...>
ensure and constantly maintain, at their expense and by their
facilities, the technical opportunity for entities of
operational activities in order to control, under procedure
established by laws, the content of the information transmitted
via telecommunication networks" of Paragraph 2 of Article 27 of
the Law on Telecommunications (wording of 11 July 2000) to the
extent that a duty is established for telecommunications
operators-non-state property entities-to ensure and constantly
maintain, at their expense, the technical opportunities of the
facilities necessary to control the content of information
transmitted via telecommunications networks, but which are not
necessary in the economic activity of the telecommunications
operators, conflicts with Article 23 of the Constitution,
provision "telecommunications operators and providers of
telecommunications services must <...> ensure and constantly
maintain, at their expense and by their facilities, the
technical opportunity for entities of operational activities,
interrogative and investigating bodies, in order to control,
under procedure established by laws and upon a sanction issued
by court, the content of the information transmitted via
telecommunication networks" of Paragraph 4 of Article 57 of the
Law on Telecommunications (wording of 5 July 2002) to the
extent that a duty is established for telecommunications
operators and providers of telecommunications
services-non-state property entities-to ensure and constantly
maintain, at their expense, the technical opportunities of the
facilities necessary to control the content of information
transmitted via telecommunications networks, but which are not
necessary in the economic activity of the telecommunications
operators, conflicts with Article 23 of the Constitution,
the provision of Item 4 of Paragraph 3 of Article 7 of the
Law on Operational Activities (wording of 22 May 1997) that,
under the procedure established by the Government, the entities
of operational activities shall have the right to make use of
information held by enterprises, establishments and
organisations, to the extent that it established that
information may be collected under the procedure established by
the Government also about the private life of a person,
conflicted with Article 22 of the Constitution,
the provision of Item 6 of Paragraph 3 of Article 7 of the
Law on Operational Activities (wording of 20 June 2002) that,
under the procedure established by the Government or the
institutions empowered by the latter, the entities of
operational activities shall have the right to receive the
information from enterprises, establishments and organisations
which is necessary for operational activities, to the extent
that it provides that information may be collected under the
procedure established by the Government or the institutions
empowered by the latter also about the private life of a
person, conflicts with Article 22 of the Constitution,
the provision "while carrying out the preparatory
investigations, the investigator shall independently adopt all
decisions regarding the course of the investigations and
performance of investigatory acts save the cases when the law
provides that a sanction from the prosecutor is necessary" of
Paragraph 1 of Article 48 of the Code of Criminal Procedure
(wording of 26 June 1961) to the extent that it establishes the
powers for the investigator to adopt the decisions regarding
the investigatory acts whereby the private life of the person
is interfered with in the absence of a justified court decision
conflicts with Article 22 of the Constitution.
3.2. Having held that the aforementioned provisions (to
the extent pointed out) infringe the inviolability and
protection of the private life of a person, as well as the
protection and inviolability of ownership, which are enshrined
in the Constitution, one is to hold also that the
aforementioned provisions (to the extent pointed out) conflict
with the constitutional principle of a law-governed state.
3.3. The other provisions of the laws the compliance of
which with the constitutional principle of a law-governed state
is disputed by the petitioner (petition of 8 May 2001) and
which are not recognised as conflicting with Article 22 and/or
Article 23 of the Constitution are in compliance with the
constitutional principle of a law-governed state.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
To recognise that:
1. The provision "telecommunications operators must trace
all telecommunications events and their participants" of
Paragraph 2 of Article 27 of the Republic of Lithuania Law on
Telecommunications (wording of 11 July 2000) to the extent that
it establishes a duty for telecommunications operators to trace
the telecommunications events and their participants more than
it is necessary to ensure the economic activity of the
telecommunications operators, thus interfering with the private
life of an individual, conflicts with Article 22 the
Constitution of the Republic of Lithuania and the
constitutional principle of a law-governed state.
2. The provision "telecommunications operators must <...>
under procedure established by the Government, supply <...>
information in the scope established by the Government to
entities of operational activities, interrogative and
investigating bodies for restraint, investigation and solution
of crimes about objects of operational activities and other
subscribers and their telecommunications which are necessary
for investigation" of Paragraph 2 of Article 27 of the Republic
of Lithuania Law on Telecommunications (wording of 11 July
2000) to the extent that it establishes that the Government has
the powers to establish the scope of information to be supplied
also about the private life of a person, as well as the
procedure of its supplying, conflicts with Article 22 of the
Constitution of the Republic of Lithuania and the
constitutional principle of a law-governed state.
3. The provision "telecommunications operators must <...>
ensure and constantly maintain, at their expense and by their
facilities, the technical opportunity for entities of
operational activities in order to control, under procedure
established by laws, the content of the information transmitted
via telecommunication networks" of Paragraph 2 of Article 27 of
the Republic of Lithuania Law on Telecommunications (wording of
11 July 2000) to the extent that a duty is established for
telecommunications operators-non-state property entities-to
ensure and constantly maintain, at their expense, the technical
opportunities of the facilities necessary to control the
content of information transmitted via telecommunications
networks, but which are not necessary in the economic activity
of the telecommunications operators, conflicts with Article 23
of the Constitution of the Republic of Lithuania and the
constitutional principle of a law-governed state.
4. The provision "the telecommunications operators shall
renew the said facilities and maintain their technological
capacities at their expense" of Paragraph 1 of Article 2 of the
Law on the Amendment of Article 27 of the Republic of Lithuania
Law on Telecommunications to the extent that a duty is
established for telecommunications operators-non-state property
entities-to ensure and constantly maintain, at their expense,
the technical opportunities of the facilities necessary to
control the content of information transmitted via
telecommunications networks, but which are not necessary in the
economic activity of the telecommunications operators,
conflicts with Article 23 of the Constitution of the Republic
of Lithuania and the constitutional principle of a law-governed
state.
5. The provision "telecommunications operators and
providers of telecommunications services must, under procedure
established by legal acts, trace telecommunications events and
their participants" of Paragraph 4 of Article 57 of the
Republic of Lithuania Law on Telecommunications (wording of 5
July 2002) to the extent that it establishes a duty for
telecommunications operators and providers of
telecommunications services to trace the telecommunications
events and their participants more than it is necessary to
ensure the economic activity of the telecommunications
operators, thus interfering with the private life of an
individual, conflicts with Article 22 of the Constitution of
the Republic of Lithuania and the constitutional principle of a
law-governed state.
6. The provision "telecommunications operators and
providers of telecommunications services must <...> under
procedure established by the Government, supply gratis the
information established by the Government to entities of
operational activities, interrogative and investigating bodies
for restraint, investigation and solution of crimes about
objects of operational activities and other subscribers and
their telecommunications which are necessary for investigation"
of Paragraph 4 of Article 57 of the Republic of Lithuania Law
on Telecommunications (wording of 5 July 2002) to the extent
that it establishes that the Government has the powers to
establish the scope of information to be supplied also about
the private life of a person, as well as the procedure of its
supplying, conflicts with Article 22 of the Constitution of the
Republic of Lithuania and the constitutional principle of a
law-governed state.
7. The provision "telecommunications operators and
providers of telecommunications services must <...> under
procedure established by the Government, supply gratis the
information established by the Government to entities of
operational activities, interrogative and investigating bodies
for restraint, investigation and solution of crimes about
objects of operational activities and other subscribers and
their telecommunications which are necessary for investigation"
of Paragraph 4 of Article 57 of the Republic of Lithuania Law
on Telecommunications (wording of 5 July 2002) to the extent
that a duty is established for telecommunications operators and
providers of telecommunications services-non-state property
entities-to ensure and constantly maintain, at their expense,
the technical opportunities of the facilities necessary to
control the content of information transmitted via
telecommunications networks, but which are not necessary in the
economic activity of the telecommunications operators,
conflicts with Article 23 of the Constitution of the Republic
of Lithuania and the constitutional principle of a law-governed
state.
8. The provision of Item 4 of Paragraph 3 of Article 7 of
the Republic of Lithuania Law on Operational Activities
(wording of 22 May 1997) that, under the procedure established
by the Government, the entities of operational activities shall
have the right to make use of information held by enterprises,
establishments and organisations, to the extent that it
established that information may be collected under the
procedure established by the Government also about the private
life of a person, conflicted with Article 22 of the
Constitution of the Republic of Lithuania and the
constitutional principle of a law-governed state.
9. The provision of Item 6 of Paragraph 3 of Article 7 of
the Republic of Lithuania Law on Operational Activities
(wording of 20 June 2002) that, under the procedure established
by the Government or the institutions empowered by the latter,
the entities of operational activities shall have the right to
receive the information from enterprises, establishments and
organisations which is necessary for operational activities, to
the extent that it provides that information may be collected
under the procedure established by the Government or the
institutions empowered by the latter also about the private
life of a person, conflicts with Article 22 of the Constitution
of the Republic of Lithuania and the constitutional principle
of a law-governed state.
10. The provision "while carrying out the preparatory
investigations, the investigator shall independently adopt all
decisions regarding the course of the investigations and
performance of investigatory acts save the cases when the law
provides that a sanction from the prosecutor is necessary" of
Paragraph 1 of Article 48 of the Code of Criminal Procedure of
the Republic of Lithuania (wording of 26 June 1961) to the
extent that it establishes the powers for the investigator to
adopt the decisions regarding the investigatory acts whereby
the private life of the person is interfered with in the
absence of a justified court decision conflicts with Article 22
of the Constitution of the Republic of Lithuania and the
constitutional principle of a law-governed state.
11. The provision "the interrogator, investigator,
prosecutor <...> shall have the right, in the cases at their
command, <...> to demand that the enterprises, establishments,
organisations and citizens submit items and documents which
might be important in the case, to demand that audits be
carried out. These requirements must be carried out by all
citizens, enterprises, establishments and organisations" of
Article 75 of the Code of Criminal Procedure of the Republic of
Lithuania (wording of 29 January 1975) is in compliance with
the Constitution of the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas