Case No. 40/03
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PRESIDENT OF THE REPUBLIC OF LITHUANIA
DECREE NO. 40 "ON GRANTING CITIZENSHIP OF THE REPUBLIC LITHUANIA
BY WAY OF EXCEPTION" OF 11 APRIL 2003 TO THE EXTENT THAT IT
PROVIDES THAT CITIZENSHIP OF THE REPUBLIC LITHUANIA IS GRANTED TO
JURIJ BORISOV BY WAY OF EXCEPTION WITH THE CONSTITUTION OF THE
REPUBLIC OF LITHUANIA AND PARAGRAPH 1 OF ARTICLE 16 OF THE
REPUBLIC OF LITHUANIA LAW ON CITIZENSHIP
30 December 2003
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 hearingDaiva Pitrėnaitė,
in the presence of:
the representatives of the petitioner, the Seimas of the
Republic of Lithuania, who were Raimondas Šukys, a member of the
Seimas, and Mindaugas Girdauskas, a senior consultant of the
Legal Department of the Office of the Seimas,
President Rolandas Paksas of the Republic of Lithuania, the
party concerned,
the representatives of the President of the Republic of
Lithuania, the party concerned, who were the advocates Gediminas
Baublys, Evaldas Rapolas, and Kęstutis Švirinas,
pursuant to Articles 102 and 105 of the Constitution of the
Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, on 4, 10, and
16 December 2003, in its public hearing heard Case No. 40/03
which originated in the 6 November 2003 petition of the Seimas of
the Republic of Lithuania, the petitioner, requesting to
investigate as to whether President of the Republic of Lithuania
Decree No. 40 "On Granting Citizenship of the Republic Lithuania
by Way of Exception" of 11 April 2003, to the extent that it
provided that citizenship of the Republic Lithuania is granted to
Jurij Borisov by way of exception, was not in conflict with the
principle of a state under the rule of law entrenched in the
Constitution of the Republic of Lithuania, Paragraph 1 of Article
29, Item 21 of Article 84 and Paragraph 1 of Article 82 of the
Constitution as well as with Paragraph 1 of Article 16 of the
Republic of Lithuania Law on Citizenship.
The Constitutional Court
has established:
I
1. On 11 April 2003, the President of the Republic issued
Decree No. 40 "On Granting Citizenship of the Republic Lithuania
by Way of Exception" (Official Gazette Valstybės žinios, No. 36-
1562, No. 43 (correction)). By the said decree, citizenship of
the Republic Lithuania was inter alia granted to Jurij Borisov,
born on 17 May 1956 in Russia, residing in Lithuania, by way of
exception.
2. The Seimas, the petitioner, by its Resolution "On the
Application to the Constitutional Court of the Republic of
Lithuania with the Request to Investigate whether Part of
President of the Republic Decree 'On Granting Citizenship of the
Republic Lithuania by Way of Exception' is not in Conflict with
the Constitution of the Republic of Lithuania and the Republic of
Lithuania Law on Citizenship" of 6 November 2003 requests to
investigate as to whether the part of President of the Republic
Decree No. 40 "On Granting Citizenship of the Republic Lithuania
by Way of Exception" whereby citizenship of the Republic
Lithuania is granted to Jurij Borisov by way of exception is not
in conflict with the principle of a state under the rule of law
entrenched in the Constitution of the Republic of Lithuania,
Paragraph 1 of Article 29, Item 21 of Article 84 and Paragraph 1
of Article 82 of the Constitution as well as with Paragraph 1 of
Article 16 of the Republic of Lithuania Law on Citizenship.
3. On 10 November 2003, the Constitutional Court adopted the
Decision "On the request set forth in the Seimas of the Republic
of Lithuania Resolution 'On the Application to the Constitutional
Court of the Republic of Lithuania with the Request to
Investigate whether Part of President of the Republic Decree "On
Granting Citizenship of the Republic Lithuania by Way of
Exception" is not in Conflict with the Constitution of the
Republic of Lithuania and the Republic of Lithuania Law on
Citizenship' of 6 November 2003 whether President of the Republic
of Lithuania Decree No. 40 'On Granting Citizenship of the
Republic Lithuania by Way of Exception' of 11 April 2003 to the
extent that it provides that citizenship of the Republic
Lithuania is granted to Jurij Borisov, born on 17 May 1956 in
Russia, residing in Lithuania, by way of exception, is not in
conflict with the Constitution of the Republic of Lithuania and
the Republic of Lithuania Law on Citizenship" whereby the request
set forth in the Seimas resolution of 6 November 2003 was
accepted for consideration. On 12 November 2003, on the grounds
of the said decision of the Constitutional Court, the President
of the Constitutional Court officially announced in the official
gazette Valstybės žinios (Official Gazette Valstybės žinios,
2003, No. 106-4756, No. 107 (correction)) that, under Article 106
of the Constitution, as of the day of the official publication of
this announcement, the validity of President of the Republic
Decree No. 40 "On Granting Citizenship of the Republic Lithuania
by Way of Exception" of 11 April 2003 to the extent that it
provides that citizenship of the Republic Lithuania is granted to
Jurij Borisov born on 17 May 1956 in Russia, residing in
Lithuania, by way of exception, shall be suspended.
II
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from the representative of the petitioner, the Seimas, who was R.
Šukys.
1. In the opinion of R. Šukys, the part of President of the
Republic Decree No. 40 of 11 April 2003 whereby citizenship of
the Republic Lithuania is granted to Jurij Borisov (born on 17
May 1956 in Russia, residing in Lithuania) by way of exception,
is in conflict with the principle of a state under the rule of
law entrenched in the Constitution, the provision of Paragraph 1
of Article 29 of the Constitution that all persons shall be equal
before the law, the court, and other state institutions and
officials, the provision of Item 21 of Article 84 of the
Constitution that the President of the Republic shall grant
citizenship of the Republic of Lithuania in accordance with the
procedure established by law, the provision of Paragraph 1 of
Article 82 of the Constitution that the President of the Republic
will take an oath to the Nation to be faithful to the Republic of
Lithuania and the Constitution, to conscientiously fulfil the
duties of his office, and to be equally just to all, and the
provision of Paragraph 1 of Article 16 of the Law on Citizenship
that the President of the Republic, in pursuance of this law, may
grant citizenship of the Republic of Lithuania to citizens of
foreign states or stateless persons with merits to the Republic
of Lithuania by way of exception without applying with respect to
them conditions for the granting of citizenship provided for in
Article 12 of this law.
2. According to R. Šukys, citizenship is a permanent legal
link between the person and the state. On the basis of this link,
the person acquires civil and political rights and makes use of
the protection of this state. One of rare ways of acquisition of
citizenship is acquisition of citizenship by way of exception. By
way of exception citizenship is granted for special merits to the
state.
Paragraph 1 of Article 16 of the Law on Citizenship contains
a provision that that the President of the Republic, in pursuance
of this law, may grant citizenship of the Republic of Lithuania
to citizens of foreign states or stateless persons with merits to
the Republic of Lithuania without applying with respect to them
conditions for the granting of citizenship provided for in
Article 12 of this law. According to R. Šukys, Article 16 of the
Law on Citizenship is to be treated by one's taking account into
the entire law and its purposes. The purpose of the way of
exception is creation of an opportunity for granting citizenship
to citizens of other countries who are with special merits to the
Republic of Lithuania.
The representative of the petitioner noted that in the
disputed case there should have been legal grounds, merits of J.
Borisov to the Republic of Lithuania, to grant citizenship of the
Republic of Lithuania by way of exception. However, it is not
clear as to which merits of J. Borisov to the Republic of
Lithuania during the short time period when he was not a citizen
of the Republic of Lithuania determined granting of citizenship
to him by way of exception. The decree of the President of the
Republic does not contain such information, nor was it presented
to the public in any other way. It is not clear whether such
information had been presented to and considered at the
Citizenship Commission. R. Šukys believes that there were no
legal grounds to grant citizenship of the Republic of Lithuania
to J. Borisov by way of exception.
3. In the opinion of R. Šukys, the disputed part of the
decree of the President of the Republic whereby citizenship of
the Republic of Lithuania was granted to J. Borisov by way of
exception is legally deficient and is in conflict with the
principle of a state under the rule of law entrenched in the
Constitution, Paragraph 1 of Article 29, Item 21 of Article 84
and Paragraph 1 of Article 82 of the Constitution as well as with
Paragraph 1 of Article 16 of the Law on Citizenship also due to
the fact that Paragraph 1 of Article 16 of the Law on Citizenship
provides for an opportunity for the President of the Republic to
grant citizenship of the Republic of Lithuania only to citizens
of foreign states or stateless persons with merits to the
Republic of Lithuania without applying with respect to them
conditions for the granting of citizenship provided for in
Article 12 of this law; the law does not establish the right of
the President of the Republic to restore citizenship of the
Republic of Lithuania to a person who lost citizenship of the
Republic of Lithuania by the grounds provided for in Paragraphs 1
and 3 of Article 18 of the same law. In the opinion of the
representative of the party concerned, citizenship of the
Republic of Lithuania can be restored to the person who lost
citizenship of the Republic of Lithuania by the grounds provided
for in Paragraphs 1 and 3 of Article 18 of this law only under
the special procedure established in Article 20 of the Law on
Citizenship. Paragraph 1 of Article 20 of the law points out
additional conditions for such a person: at the moment of filing
of the application the person is permanently residing in the
territory of the Republic of Lithuania and meets the conditions
established in Items 2, 3 and 5 of Paragraph 1 of Article 12 of
this law. According to R. Šukys, all exceptions permissible in
the course of the application of the procedure of restoration of
citizenship are established in Paragraph 2 of Article 20 of the
Law on Citizenship.
In the opinion of the representative of the party concerned,
with respect to J. Borisov one ought to have applied the
procedure of restoration of citizenship, but not that of granting
of citizenship by way of exception, i.e. one ought to have
fulfilled all the conditions established in Article 20 of the Law
on Citizenship.
4. R. Šukys also noted that J. Borisov lost citizenship of
the Republic of Lithuania because he had sought to acquire
citizenship of the Russian Federation. The legal situation that a
person might acquire citizenship of the Republic of Lithuania
again and retain citizenship of another state (it was precisely
this that happened in this case, since one did not apply the
procedure of restoration of citizenship) would be clearly
deficient. R. Šukys believes that the said actions of J. Borisov
show his attitude towards citizenship of the Republic of
Lithuania and prevent him from making use of the opportunity
provided for in Article 16 of the Law on Citizenship.
5. Under Article 13 of the Law on Citizenship, citizenship
of the Republic of Lithuania shall not be granted to persons who
have committed international crimes provided for by the
international treaties to which the Republic of Lithuania is a
party or by international customary law, such as: aggression,
acts of genocide, crimes against humanity, war crimes; have taken
part in criminal activities against the State of Lithuania;
before coming to Lithuania, have been imposed a custodial
sentence for a premeditated crime for which laws of the Republic
of Lithuania also prescribe criminal liability, or have been
convicted in Lithuania for a premeditated crime punishable by a
custodial sentence. Therefore, according to R. Šukys, in the
course of verifying the candidacy of the person seeking to
acquire citizenship of the Republic of Lithuania by way of
exception, one must acquire information from corresponding
institutions of law and order, ascertaining whether the
circumstances which do not permit to grant citizenship of the
Republic of Lithuania to such a person are absent.
According to R. Šukys, one applied to the State Security
Department concerning all the rest of the persons to whom
citizenship of the Republic of Lithuania was granted by way of
exception by President of the Republic Decree No. 40 "On Granting
Citizenship of the Republic Lithuania by Way of Exception" of 11
April 2003. One did not apply to the State Security Department
concerning J. Borisov. The representative of the party concerned
is of the opinion that thereby one violated the constitutional
principle of equality of all persons.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations from M.
Girdauskas, a representative of the party concerned, the Seimas,
were received.
1. The representative of the petitioner pointed out that the
Constitution is an integral act (Paragraph 1 of Article 6 of the
Constitution), therefore, in the course of the investigation
whether President of the Republic Decree No. 40 "On Granting
Citizenship of the Republic Lithuania by Way of Exception" of 11
April 2003 (to the extent pointed out by the petitioner) is in
compliance with the constitutional provisions indicated in the
Seimas Resolution "On the Application to the Constitutional Court
of the Republic of Lithuania with the Request to Investigate
whether Part of President of the Republic Decree 'On Granting
Citizenship of the Republic Lithuania by Way of Exception' is not
in Conflict with the Constitution of the Republic of Lithuania
and the Republic of Lithuania Law on Citizenship" of 6 November
2003, one has also to assess whether the decree is in compliance
with other principles and norms of the Constitution related with
the said provisions.
2. According to M. Girdauskas, Paragraph 2 of Article 12 of
the Constitution provides that with the exception of individual
cases provided for by law, no one may be both a citizen of the
Republic of Lithuania and another state at the same time. The
Constitution establishes a principle of single citizenship and,
although not absolutely, prohibits double citizenship. The
discretion of the legislator to change the number of cases when a
citizen of the Republic of Lithuania may also be a citizen of
another state is limited. In other words, the Constitution
establishes the principle of exceptionality of double
citizenship. M. Girdauskas noted that double citizenship is not a
constitutional value, since in Paragraph 2 of Article 12 of the
Constitution it is assessed in a negative manner. Therefore,
according to M. Girdauskas, citizenship of the Republic of
Lithuania can be granted to a citizen of another state only
without violating the principle of exceptionality of double
citizenship entrenched in the Constitution, i.e. in objectively
justified exceptional cases. Otherwise, the constitutional
principle of a state under the rule of law would be violated.
3. Under Paragraph 1 of Article 16 of the Law on
Citizenship, the President of the Republic, in pursuance of this
law, may grant citizenship of the Republic of Lithuania to
citizens of foreign states or stateless persons with merits to
the Republic of Lithuania without applying with respect to them
conditions for the granting of citizenship provided for in
Article 12 of this law. According to M. Girdauskas, Item 21 of
Article 84 of the Constitution grants the right to the President
of the Republic to grant citizenship of the Republic of Lithuania
only without violating the procedure established in the law.
Therefore, in the course of the investigation whether President
of the Republic Decree No. 40 "On Granting Citizenship of the
Republic Lithuania by Way of Exception" of 11 April 2003 is in
compliance with Paragraph 1 of Article 16 of the Law on
Citizenship, one is also to assess whether this decree is in
compliance with other provisions of this law which are related to
Paragraph 1 of Article 16 the Law on Citizenship, including those
established in Article 13 of the Law on Citizenship.
In the opinion of the representative of the petitioner, at
the time of the issuance of President of the Republic Decree No.
40 "On Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003, Item 2 of Article 13 of the Law on
Citizenship clearly prohibited (and does so at present) to grant
citizenship of the Republic of Lithuania to a person who has
taken part in criminal activities against the State of Lithuania.
Item 2 of Article 13 of the Law on Citizenship, together with the
constitutional principle of exceptionality of double citizenship,
reasonably requires that citizenship of the Republic of Lithuania
be not granted to a person in connection of whose participation
in criminal activities against the State of Lithuania criminal
proceedings or operational activities are being conducted, since
the data acquired by such investigation can, under the laws, be
used by charging the person with commission of criminal deeds. In
case of entry into effect of a court judgement in respect with
such a person after he has been granted citizenship of the
Republic of Lithuania, it might become evident that this person,
prior to granting citizenship of the Republic of Lithuania, had
participated in criminal activities against the State of
Lithuania. Due to this, Item 2 of Article 13 of the Law on
Citizenship and the constitutional principle of exceptionality of
double citizenship would not be implemented, requiring that
before issuing the decree of the President of the Republic on
granting of citizenship, one should apply to competent state
institutions and verify whether operational investigation or
criminal proceedings are not being conducted with respect to
participation of the citizen of another state, who seeks to
acquire citizenship of the Republic of Lithuania, in criminal
activities against the State of Lithuania. M. Girdauskas thinks
that one of such institutions is the State Security Department.
In the opinion of M. Girdauskas, there are grounds to
believe that before issuing President of the Republic Decree No.
40 "On Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003, one did not apply to the state
Security Department so that one could verify whether operational
investigation or criminal proceedings were not conducted
concerning possible participation of J. Borisov in criminal
activities against the State of Lithuania; this permits to doubt
whether the aforesaid decree of the President of the Republic of
Lithuania is in compliance with the constitutional principle of
exceptionality of double citizenship and Item 21 of Article 84 of
the Constitution.
4. The representative of the petitioner pointed out that the
principle of equality of all persons before the law, court and
other state institutions entrenched in Article 29 of the
Constitution obligates to legally assess homogeneous facts in the
same manner and prohibits to arbitrarily assess facts, which are
the same in essence, in a varied manner; the principle of
equality of all persons also includes prohibition of
discrimination and privileges. The constitutional principle of
equality of all persons before the law would be violated if a
certain group of persons to whom a legal norm is designed, if
compared to the other addressees of the same norm, would be
treated in a different manner, although there are not any
differences in the character and extent between these groups so
that such different treatment might be objectively justified.
The representative of the petitioner believes that the
provision of Paragraph 1 of Article 82 of the Constitution that
the President of the Republic will take an oath to the Nation to
be faithful to the Republic of Lithuania and the Constitution, to
conscientiously fulfil the duties of his office, and to be
equally just to all reflects a duty of the President of the
Republic, in the course of granting citizenship or refusing to
grant it, to adhere to the principle of equality of all persons,
the principle of justice (together with the principle of a state
under the rule of law), and not to violate other norms and
principles of the Constitution.
M. Girdauskas is of the opinion that there are grounds to
believe that as far as the other persons are concerned, to whom
citizenship of the Republic of Lithuania was granted by way of
exception by President of the Republic Decree No. 40 "On Granting
Citizenship of the Republic Lithuania by Way of Exception" of 11
April 2003, differently from the case of J. Borisov, one applied
to the State Security Department; in addition, there are grounds
to believe that certain persons seeking to acquire citizenship of
the Republic of Lithuania by way of exception, were not granted
citizenship on the grounds of information submitted by the State
Security Department about possible participation of the said
persons in preparation or commission of criminal deeds, or
operational investigation or criminal proceedings were being
conducted against them. Therefore, according to M. Girdauskas,
there are grounds to doubt as to whether President of the
Republic Decree No. 40 "On Granting Citizenship of the Republic
Lithuania by Way of Exception" of 11 April 2003 (to the extent
indicated by the petitioner) is in compliance with the
constitutional principle of equality of persons, the
constitutional principle of a state under the rule of law, and
Paragraph 1 of Article 82 of the Constitution.
5. According to M. Girdauskas, one is to consider whether
the constitutional principle of exceptionality of double
citizenship does not mean a requirement that a person, when he
has committed a criminal deed for which a custodial sentence can
be imposed, be not granted citizenship of the Republic of
Lithuania in all cases. Before issuing the decree of the
President of the Republic, one must apply to competent state
institution and verify whether operational investigation or
criminal proceedings are not being conducted in connection with
the participation of the citizen of another state who seeks to
acquire citizenship of the Republic of Lithuania in criminal
deeds for which the penal law provides for a custodial
punishment.
In the opinion of M. Girdauskas, there are grounds to
believe that, as far as J. Borisov is concerned, this requirement
has not been fulfilled at least in part.
6. According to the representative of the petitioner, the
entirety of the provisions of the Constitution, related to
acquisition, granting, and loss of citizenship of the Republic of
Lithuania, as well as to the rights guaranteed by it, means that
citizenship of the Republic of Lithuania is a constitutional
value and conditions a requirement to respect it. In the opinion
of M. Girdauskas, in case a person does not adhere to this
requirement, the situation, no matter what other circumstances
there may be, is not the exceptional case when the person may be
granted citizenship of the Republic of Lithuania objectively and
reasonably. Otherwise, the constitutional principle of
exceptionality of double citizenship would be violated.
According to M. Girdauskas, there are grounds to suspect
that J. Borisov may have carried out actions that could be
assessed as manipulation with citizenship of the Republic of
Lithuania, which is violation of the requirement to respect this
constitutional value. This also gives grounds to doubt as to
whether President of the Republic Decree No. 40 "On Granting
Citizenship of the Republic Lithuania by Way of Exception" of 11
April 2003 (to the extent indicated by the petitioner) is in line
with the constitutional principle of exceptionality of double
citizenship.
7. Under Paragraph 1 of Article 16 of the Law on
Citizenship, the President of the Republic, in pursuance of this
law, may grant citizenship of the Republic of Lithuania to
citizens of foreign states with merits to the Republic of
Lithuania by way of exception. According to M. Girdauskas, laws
do not provide for any criteria under which it is possible to
decide that the person in question really has merits to the
state: it is the President of the Republic who decides whether
the person has such merits. However, it is important that the
person really have merits to the State of Lithuania. The
representative of the petitioner believes that the constitutional
principle of exceptionality of citizenship of the Republic of
Lithuania includes a requirement to grant citizenship only for
special merits to the State of Lithuania. Therefore, Paragraph 1
of Article 16 of the Law on Citizenship is to be construed as
providing for an opportunity to grant citizenship by way of
exception not for any merits but only for special merits to the
State of Lithuania.
In the opinion of M. Girdauskas, there are grounds to doubt
as to whether J. Borisov met this requirement: granting of
citizenship of the Republic of Lithuania is based on the fact
that he gave charity of especially big value. Alongside, there
are grounds to doubt as to whether President of the Republic
Decree No. 40 "On Granting Citizenship of the Republic Lithuania
by Way of Exception" of 11 April 2003 (to the extent indicated by
the petitioner) is in compliance with the constitutional
principle of exceptionality of double citizenship, Item 21 of
Article 84 of the Constitution, and Paragraph 1 of Article 16 of
the Law on Citizenship.
8. M. Girdauskas drew one's attention to the fact that in
the legal doctrine there is also an opinion that decrees of the
President of the Republic on granting citizenship are cognisable
by the Constitutional Court in part only, since it is possible to
investigate their constitutionality only from the aspect whether
in the course of issuing the decree one adhered to the
established procedure. However, according to M. Girdauskas, one
is to consider whether opportunities to ensure the implementation
of the constitutional principle of a state under the rule of law
would not be unreasonably restricted in case one based himself on
such an attitude. For example, if one adhered to the said
assessment, it would be impossible to call to question whether a
decision of the Head of State is not in conflict with the
Constitution, whereby, without violating the procedure
established in laws, citizenship is granted to a number of
citizens of another state, who clearly do not have any merits to
the State of Lithuania, although it would be doubtful, whether
such a decision is in line the constitutional principle of
exceptionality of double citizenship. Thus, decrees of the Head
of State on granting citizenship for merits to the State of
Lithuania ought to be subject to constitutional control and, on
the grounds of the criterion of evident unreasonableness of such
legal acts, the discretion of the Head of State to grant
citizenship for merits to the State of Lithuania could be
regarded as legally not restricted only in cases when there is no
evidence that there have not been such merits.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from President R. Paksas of the Republic of Lithuania, the party
concerned, which were his answers to the questions of the
Constitutional Court, formulated in the Constitutional Court
decision of 26 November 2003.
1. The President of the Republic, the party concerned,
replied to the question as to what activities of J. Borisov were
assessed as merits to the Republic of Lithuania in the course of
issuing President of the Republic Decree No. 40 "On Granting
Citizenship of the Republic Lithuania by Way of Exception" of 11
April 2003, whereby citizenship of the Republic of Lithuania was
granted to J. Borisov by way of exception, as follows:
While discharging the powers established in the Constitution
concerning citizenship issues, the President of the Republic
grants citizenship of the Republic of Lithuania under procedure
established in the Law on Citizenship. The President of the
Republic established the Citizenship Commission for preliminary
consideration of citizenship issues, which recommended that the
President of the Republic grant citizenship of the Republic of
Lithuania to J. Borisov. Data had been presented to the
commission that J. Borisov had had merits for the development of
sport of the Republic of Lithuania, had given significant sums to
charity and developed business in Lithuania. Since 1991, J.
Borisov has been conducting business, creating jobs, and
investing in the Lithuanian economy. An award granted by Valdas
Adamkus, President of the Republic of Lithuania whose office has
expired, testifies positive evaluation of J. Borisov's activities
and his merits to the Republic of Lithuania. The charity given by
J. Borisov and other positive actions in regard of the economy of
the Republic of Lithuania, upon assessment of the information
held at that time, in the opinion of the President of the
Republic, proved sufficient grounds to consider it his merits to
the Republic of Lithuania.
2. The President of the Republic, the party concerned,
replied to the question as to what activities of J. Borisov were
assessed as merits to the Republic of Lithuania at the time when,
as the representatives of the petitioner, the Seimas, contend, he
was not a citizen of the Republic of Lithuania, in the course of
the issuance of President of the Republic Decree No. 40 "On
Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003, whereby citizenship of the Republic
of Lithuania was granted to J. Borisov by way of exception, as
follows:
The Law on Citizenship does not reveal the content of the
evaluation criterionmerits to the Republic of Lithuania. Taking
account of this and the established practice of granting of
citizenship of the Republic of Lithuania, the President of the
Republic evaluated the merits of J. Borisov to the Republic of
Lithuania, but not his status as a citizen of a foreign state. At
the time when he was not a citizen of the Republic of Lithuania,
J. Borisov did not discontinue his factual links with the
Republic of Lithuania, he did not go to Russia for permanent
residence, he continued his economic activities in Lithuania, and
invested into the Lithuanian economy. The main factor was the
facts testifying that the activities of J. Borisov had not
changed; the activities of this person were based on the motives
regardless of his citizenship of a certain state.
3. The President of the Republic, the party concerned,
replied to the question as to how the President of the Republic
assesses the statements "Jurij Borisov lost citizenship of the
Republic of Lithuania by seeking to acquire citizenship of the
Russian Federation" and "the said actions of J. Borisov show his
attitude towards citizenship of the Republic of Lithuania and
prevent him from making use of the opportunity provided for in
Article 16 of the Law on Citizenship" made by the representatives
of the party concerned, the Seimas, as follows:
Under the Law on Citizenship, the President of the Republic
receives applications from persons, who request to be granted
citizenship of the Republic of Lithuania by way of exception,
subsequent to which he adopts decisions. Such an application by
J. Borisov was formal grounds to start the procedures provided
for in the Law on Citizenship. Under the Law on Citizenship, the
President of the Republic must consider not the attitude of the
person towards citizenship, but his application. Upon cognising
the circumstances under which J. Borisov had lost citizenship of
the Republic of Lithuania, the President of the Republic
comprehended that J. Borisov had lost citizenship of the Republic
of Lithuania not due to an alleged improper attitude towards it
or other evaluation thereof, but due to the fact that he had
acquired citizenship of the country, in which he was born,
raised, in which his close relatives reside, and with which he is
related by business ties. J. Borisov is a Russian by nationality,
and Russia is his place of birth. Therefore, the striving of J.
Borisov to acquire citizenship of the state of his nationality,
but not that of another state, did not arouse a suspicion of the
President of the Republic about an improper attitude of J.
Borisov towards citizenship of the Republic of Lithuania.
4. The President of the Republic, the party concerned,
replied to the question of the Constitutional Court whether one
ascertained, and how it was done, whether there had been any
circumstances provided for in Article 13 of the Law on
Citizenship due to which citizenship of the Republic of Lithuania
is not granted, as follows:
As a rule, for preliminary consideration of citizenship
issues, the Citizenship Commission is formed. In this case the
President of the Republic included into this commission the Vice-
minister of Justice of the Republic of Lithuania, the Deputy
Prosecutor General of the Republic of Lithuania, an official from
the Migration Department at the Ministry of the Interior of the
Republic of Lithuania, and the Director of the Consular
Department at the Ministry of Foreign Affairs of the Republic of
Lithuania. In the opinion of the President of the Republic, such
principle of formation of the commission permits it to decide the
question by working procedure (in its sittings) whether the
available data are sufficient in order to adopt a decision, or
whether it is necessary to additionally apply as to submission of
corresponding additional data. Giving of charity and its
financial amounts, also the award granted to J. Borisov by Valdas
Adamkus, President of the Republic of Lithuania whose office has
expired, testified positive evaluation of J. Borisov's activities
and his merits to the Republic of Lithuania. Legal acts did not
contain a requirement to receive a reference from the State
Security Department when citizenship is granted by way of
exception, while the fact the Vice-minister of Justice, the
Deputy Prosecutor General, an official from the Ministry of the
Interior participated in the commission, and the fact that the
decree had to be counter-signed by the head of the ministry (i.e.
Ministry of the Interior) directly responsible for gathering and
submission of information about the circumstances indicated in
Article 13 of the Law on Citizenship, then the President of the
Republic thought it sufficient measures permitting to establish
possible hindrances against granting citizenship. This attitude
and the concrete measures chosen for establishing any possible
hindrances against acquisition of citizenship were also
determined by the fact that J. Borisov had not left Lithuania in
order to reside elsewhere.
5. The President of the Republic, the party concerned,
replied to the question whether any institutions or officials of
the State of Lithuania had submitted any information describing
J. Borisov prior to issuing President of the Republic Decree No.
40 "On Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003, and what was the content of the said
information, as follows:
While discharging duties of the President of the Republic
until the issuance of Decree No. 40 "On Granting Citizenship of
the Republic Lithuania by Way of Exception" of 11 April 2003,
neither state institutions nor officials had presented him
information, which, under Article 13 of the Law on Citizenship,
might have been a hindrance to grant citizenship to J. Borisov by
way of exception.
V
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from the representatives of the party concerned, the President of
the Republic, who were Paulius Griciūnas and Edvinas Mušinskis,
advisors to the President of the Republic on legal issues.
1. P. Griciūnas and E. Mušinskis maintained that neither the
Constitution nor the laws provide for application to competent
institutions requesting to submit information about a person
seeking to acquire citizenship of the Republic of Lithuania by
way of exception. Therefore, a formal application of the
Citizenship Commission formed by the President of the Republic to
competent institutions, including the State Security Department,
cannot be treated as a necessary or obligatory condition of
acquisition of citizenship of the Republic of Lithuania by way of
exception. Paragraph 2 of Article 27 of the Law on Citizenship,
which regulates the activities of the Citizenship Commission,
provides that the said commission has the right but not a duty,
to instruct state institutions to give their opinion and to
present all the necessary documents relating to the application
or recommendation under consideration in the commission.
The representatives of the party concerned noted that
neither the provisions of the now valid Law on Citizenship, nor
those of the Law on Citizenship of the previous wording, regulate
the procedure of establishment of circumstances indicated in
Article 13 of the same law in the course of granting of
citizenship by way of exception. Thus, the application of the
Citizenship Commission to the State Security Department is only
one of the ways of verification whether there are not any
circumstances indicated in Article 13 of the Law on Citizenship
(practice of informal application to the State Security
Department appeared only in about 2001). However, such an
application by the Citizenship Commission ought to be treated not
as the execution of an imperative legislative instruction with
regard to all persons seeking to acquire citizenship by way of
exception, but as making use of the right by the commission,
while attempting to verify and ascertain whether there are not
any circumstances due to which citizenship of the Republic of
Lithuania is not granted (Article 13 of the Law on Citizenship).
While taking account of the fact that persons seeking to acquire
citizenship of the Republic of Lithuania are different in their
status, it is understandable that the application by the
Citizenship Commission to the State Security Department is not
necessary with respect to all persons.
The formal principle of equality of all persons before the
law is entrenched in Paragraph 1 of Article 29 of the
Constitution, which obligates to legally assess homogeneous facts
in the same manner and prohibits to arbitrarily assess facts,
which are the same in essence, in a varied manner. However, the
constitutional principle of equality of persons does not deny an
opportunity to treat individuals, while taking account of their
status or situation, in a different manner. P. Griciūnas and E.
Mušinskis noted that 6 persons were granted citizenship of the
Republic of Lithuania by way of exception by disputed President
of the Republic Decree No. 40 "On Granting Citizenship of the
Republic Lithuania by Way of Exception" of 11 April 2003, whose
statuses and situations were different. In the opinion of the
representatives of the party concerned, it is totally
understandable that, at the time when the question of granting
citizenship to these persons was being considered, one took into
consideration not only the formal fact that the person requests
to be granted citizenship of the Republic of Lithuania by way of
exception, but also the past of person, his links with the
Republic of Lithuania, and his merits to the Republic of
Lithuania. In the opinion of the Citizenship Commission, from
among other applicants J. Borisov clearly distinguished himself
by his links with the Republic of Lithuania and his merits to
Lithuania. J. Borisov was the only one from the applicants who
had already had citizenship of the Republic of Lithuania, who had
resided in Lithuania from his childhood, while since 1991 he had
been conducting business. The merits of J. Borisov are also
confirmed by Decree No. 1373 "On Awarding Orders and Medals of
the State of Lithuania on the Occasion of the Day of State
(Coronation of King Mindaugas of Lithuania)" of 14 June 2001,
which was issued by V. Adamkus, President of the Republic of
Lithuania whose office has expired, whereby the said person was
awarded the Medal of Darius and Girėnas for merits to Lithuanian
aviation sport. These factual data, distinguishing J. Borisov
from among the other candidates, served the grounds for the
Citizenship Commission not to formally apply to the State
Security Department, and, by working procedure in its sitting, to
decide the question whether the available data were sufficient.
It needs to be noted that the principle of formation of the
Citizenship Commission in itself, under which representatives
from the Ministry of Justice, the Office of the Prosecutor
General, the Ministry of the Interior and the Ministry of Foreign
Affairs are included in the commission, permits the commission to
decide in its sitting whether there are not any circumstances due
to which citizenship of the Republic of Lithuania cannot be
granted to a respective person. Lastly, the fact that under the
Constitution (Article 85) decrees of the President of the
Republic on granting citizenship of the Republic of Lithuania
must be counter-signed by the Minister of the Interior is also a
measure to verify whether there are not any circumstances due to
which granting of citizenship is impermissible and to confirm the
absence of such circumstances.
In the opinion of P. Griciūnas and E. Mušinskis, formal non-
application by the Citizenship Commission to the State Security
Department as for J. Borisov cannot be treated as discrimination
with respect to the other applicants in connection of whom one
made inquiries. The thorough data about J. Borisov available to
the Citizenship Commission, which confirmed his close and
uninterrupted links with the Republic of Lithuania, served
sufficient grounds for non-application to the State Security
Department, and for solving the question concerning the
circumstances under which citizenship of the Republic of
Lithuania is not granted in the sitting of the commission.
In the opinion of the representatives of the party
concerned, the part of President of the Republic Decree No. 40
"On Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003 whereby citizenship of the Republic
Lithuania is granted to J. Borisov by way of exception is not in
conflict with the provision of Paragraph 1 of Article 29 of the
Constitution that all persons shall be equal before the law, the
court, and other state institutions and officials.
2. According to P. Griciūnas and E. Mušinskis, Paragraph 1
of Article 82 of the Constitution establishes a necessary
condition of empowering of the President of the Republic, i.e.
his oath. It is established therein that, along with faithfulness
to the Republic of Lithuania and the Constitution, the President
of the Republic will take an oath to conscientiously fulfil the
duties of his office, and to be equally just to all.
The representatives of the party concerned noted that there
are not any legal grounds to assert that the part of President of
the Republic Decree No. 40 "On Granting Citizenship of the
Republic Lithuania by Way of Exception" of 11 April 2003 whereby
citizenship of the Republic Lithuania is granted to J. Borisov by
way of exception violates the principle of equality of persons,
which is entrenched in the Constitution. Since President of the
Republic Decree No. 40 "On Granting Citizenship of the Republic
Lithuania by Way of Exception" of 11 April 2003 (to the extent
pointed out by the petitioner) does not violate the
constitutional principle of equality of persons, then one is to
draw a conclusion that the said decree did not violate the
provision of Paragraph 1 of Article 82 of the Constitution that
the President of the Republic will take an oath to be faithful to
the Republic of Lithuania and the Constitution, to
conscientiously fulfil the duties of his office, and to be
equally just to all.
3. In the opinion of P. Griciūnas and E. Mušinskis, in the
course of consideration of the statement of the representatives
of the petitioner, the Seimas, that the part of President of the
Republic Decree No. 40 "On Granting Citizenship of the Republic
Lithuania by Way of Exception" of 11 April 2003 whereby
citizenship of the Republic Lithuania is granted to J. Borisov by
way of exception is in conflict with the provision of Item 21 of
Article 84 of the Constitution, one has to reveal the principle
of separation of powers entrenched in the Constitution and how it
conditions the content of the powers of the President of the
Republic.
Paragraph 1 of Article 5 of the Constitution provides: "In
Lithuania, the Seimas, the President of the Republic and the
Government, and the Judiciary, shall execute State power." It is
this norm the content of which is particularised in other
articles of the Constitution that establishes the principle of
separation of branches of state power. This is the main principle
of the organisation and activities of a democratic state under
the rule of law. Meanwhile, it is established in Paragraph 2 of
Article 5 of the Constitution that the scope of power shall be
limited by the Constitution. The principle of separation of
powers entrenched in the Constitution imperatively implies that
after the direct establishment of powers of a concrete
institution of state power, a certain institution of state power
cannot take over from or transfer such powers to another
institution, or waive such powers; such powers cannot be changed
or limited by a law. Therefore, in the course of the assessment
of the compliance of President of the Republic Decree No. 40 "On
Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003 (to the extent pointed out by the
petitioner) with Item 21 of Article 84 of the Constitution, it is
of crucial importance to reveal the legal status of the President
of the Republic and the content of the powers granted to him.
Paragraph 2 of Article 77 of the Constitution provides that
the President of the Republic the shall represent the State of
Lithuania and shall perform everything that he is charged with by
the Constitution and laws. According to P. Griciūnas and E.
Mušinskis, the status of the President of the Republic in the
Lithuanian system of institutions of state power is virtually
related to concrete powers of the President of the Republic
established in Article 84 of the Constitution. However, the
contents of constitutional powers of the President of the
Republic are not the same. There are certain powers that are
discharged by the President of the Republic virtually without any
limitations, the discharge of other powers is bound by essential
conditions or powers of other institutions of state power, which
are established in the Constitution and laws, while still other
powers, which are strictly defined, must be discharged by the
President of the Republic unconditionally. Thus, when performing
"everything that he is charged with by the Constitution and laws
", discharging the powers granted to him, in certain cases the
President of the Republic enjoys absolute discretion, in other
cases his powers are bound by essential conditions and
limitations established in the Constitution, still in other cases
he does not have any right of choice. While analysing the
relation of President of the Republic Decree No. 40 "On Granting
Citizenship of the Republic Lithuania by Way of Exception" of 11
April 2003 with Item 21 of Article 84 of the Constitution, one
must assess the content of the constitutional powers of the
President of the Republic to decide citizenship matters, which
are established in this item, in particular the limits of the
discretion of the President of the Republic in adoption of
decisions on granting citizenship of the Republic of Lithuania.
The representatives of the party concerned believe that the
provision of Item 21 of Article 84 of the Constitution that the
President of the Republic shall grant citizenship of the Republic
of Lithuania in accordance with the procedure established by law
does not establish any essential conditions permitting to
question the discretion of the President of the Republic in
adoption of decisions on granting citizenship of the Republic of
Lithuania, without taking into consideration the will of other
institutions of state power or any other constitutional
limitations. P. Griciūnas and E. Mušinskis drew a conclusion that
when one assesses in a systematic manner the provision of Item 21
of Article 84 of the Constitution and other norms of the
Constitution, which establish powers of institutions of state
power, the link and correlations of such powers with the
President of the Republic and the place of the institution of the
President of the Republic in the system of state powers, then
granting of citizenship of the Republic of Lithuania is
exclusively within the competence of the Republic of Lithuania,
that, when adopting the said decisions, the President of the
Republic is not bound by any other powers of other state
institutions or any other essential limitations.
P. Griciūnas and E. Mušinskis noted that the norm
established in Item 21 of Article 84 of the Constitution is
formally composed of two parts. One part provides for absolute
constitutional competence of the President of the Republic, as
one institution of state power, to adopt decisions on granting of
citizenship of the Republic of Lithuania, which is not bound by
powers of other state institutions; the other part of the norm
provides that this constitutional power of the President of the
Republic is realised under procedure established by the law.
However, in the opinion of the representatives of the party
concerned, this blanket norm by no means could be assessed as an
essential restriction, restricting the constitutional competence
of the President of the Republic to grant citizenship; from the
legal standpoint, the decree of the President of the Republic
simply on formal grounds cannot be in conflict with this blanket
norm entrenched in the Constitution.
P. Griciūnas and E. Mušinskis believe that the part of
President of the Republic Decree No. 40 "On Granting Citizenship
of the Republic Lithuania by Way of Exception" of 11 April 2003
whereby citizenship of the Republic Lithuania is granted to J.
Borisov by way of exception is not in conflict with the provision
of Item 21 of Article 84 of the Constitution that the President
of the Republic shall grant citizenship of the Republic of
Lithuania in accordance with the procedure established by law.
4. In the opinion of P. Griciūnas and E. Mušinskis, in the
course of consideration whether the part of President of the
Republic Decree No. 40 "On Granting Citizenship of the Republic
Lithuania by Way of Exception" of 11 April 2003 whereby
citizenship of the Republic Lithuania is granted to J. Borisov by
way of exception is not in conflict with Paragraph 1 of Article
16 of the Law on Citizenship, one must take into consideration
the provisions of the Constitution which regulate the institute
of citizenship of the Republic of Lithuania. Paragraph 3 of
Article 12 of the Constitution provides that the procedure for
the acquisition and loss of citizenship shall be established by
law. Item 21 of Article 84 of the Constitution provides that the
President of the Republic shall grant citizenship of the Republic
of Lithuania in accordance with the procedure established by law.
The representatives of the party concerned noted that it is
the Law on Citizenship that reveals the content of blanket norms
of Article 12 and Item 21 of Article 84 of the Constitution and
particularises the constitutional powers of the President of the
Republic. Article 16 of the Law on Citizenship regulates granting
of citizenship of the Republic of Lithuania by way of exception.
The norms regulating granting of citizenship by way of exception
provide for two exception in the entire constitutional institute
of granting of citizenship of the Republic of Lithuania. The
first exception stems from Paragraph 1 of Article 16 of the Law
on Citizenship: it is an opportunity for a person, to whom
citizenship of the Republic of Lithuania is granted by way of
exception, to possess citizenship of another state. Another
exception is the fact that when citizenship is granted by way of
exception, the general conditions of granting of citizenship
(naturalisation), which are established in Article 12 of the Law
on Citizenship, are not applied.
According to P. Griciūnas and E. Mušinskis, the only
condition for granting of citizenship of the Republic of
Lithuania by way of exception is merits of citizens of foreign
countries or stateless persons to the Republic of Lithuania. The
merits to the Republic of Lithuania are the only evaluation
criterion that belongs to the discretion of the President of the
Republic; the Law on Citizenship does not establish any objective
or subjective priorities or criteria on the basis of which it
would be possible to assert that a person has or does not have
any merits to the state. Therefore, the President of the Republic
is bound by neither laws nor any other legal acts other than the
constitutional principles of justice, a state under the rule of
law and harmonious civil society, while without overstepping the
limits of these principles the President of the Republic enjoys
complete discretion to assess the merits of the person to the
Republic of Lithuania. Such legal indetermination might be
explained by the fact that it is impossible for the legislator to
establish any criteria of universal character, upon which one
could base himself in all cases.
According to the representatives of the party concerned, it
is impossible to assert that the argument that, purportedly,
citizenship of the Republic of Lithuania may only be granted for
special merits and to the persons who have special merits, is a
grounded one. The Law on Citizenship employs the notion "with
merits". In other laws, for instance, in the Republic of
Lithuania Law on State Awards, the Republic of Lithuania Law on
State Pensions the notions "special merits" and "with special
merits" are employed. In the opinion of P. Griciūnas and E.
Mušinskis, it is impossible to regard the notions "special
merits" and "with special merits" as identical and having equal
value as the notion "with merits". Besides, the notion "with
merits" is defined by an exclusively evaluative criterion.
5. According to P. Griciūnas and E. Mušinskis, the President
of the Republic, while discharging his constitutional powers,
establishes commissions under procedure established by laws. On
of such commissions is the Citizenship Commission, which performs
preliminary actions necessary so that the President of the
Republic might discharge the powers established to him in Item 21
of Article 84 of the Constitution to grant citizenship of the
Republic of Lithuania. The Citizenship Commission also carries
out preliminary assessment and gives advice to the President of
the Republic. Taking account of the fact that representatives
from the Ministry of Justice, the Office of the Prosecutor
General, the Ministry of the Interior and the Ministry of Foreign
Affairs ex officio participate in the Citizenship Commission, its
advice, as that of a collegial advisory institution, might be
regarded as one of the priorities or criteria, by which the
President of the Republic would guide himself.
According to P. Griciūnas and E. Mušinskis, neither the law,
nor any other legal act establishes any objective criteria as to
what, from the point of view of the Law on Citizenship, could be
regarded as merits to the Republic of Lithuania. The Citizenship
Commission, basing itself on the constitutional principles of
justice, a state under the rule of law and harmonious civil
society, as well as on the criteria of reasonableness and benefit
to the state, in each particular case assesses facts and
circumstances, which, from the point of view of the Law on
Citizenship, may be regarded as merits to the Republic of
Lithuania. The notions "merits", "with merits" are an exclusively
evaluative feature, while the Citizenship Commission helps the
President of the Republic to establish the content of the said
feature in every particular case. Every act of granting
citizenship by way of exception is individual not only in its
form, but also by its content, it is different in every case and
is not revealed in the decree of the President of the Republic.
The Citizenship Commission keeps within laws and other legal
acts, while in the context of these legal acts it must assess all
circumstances on the basis of the criteria of justice and
reasonableness, which obligate to assess the same facts in the
same manner and prohibits to assess virtually the same facts in a
varied manner. Therefore, in attempting to give an answer to the
question whether a person seeking to acquire citizenship of the
Republic of Lithuania by way of exception is with merits to the
Republic of Lithuania, the Citizenship Commission ought to assess
other, analogous cases of granting of citizenship of the Republic
of Lithuania by way of exception. In the opinion of the
representatives of the party concerned, the practice of granting
of citizenship by way of exception could also be treated as one
of criteria of granting of citizenship by way of exception.
In the opinion of the representatives of the party
concerned, the compliance of President of the Republic Decree No.
40 "On Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003 (to the extent pointed out by the
petitioner) with Paragraph 1 of Article 16 of the Law on
Citizenship is to be assessed not so much with respect to
compliance with legal norms but rather having in mind the
standpoint of the compliance of objective facts and circumstances
with the criterion of reasonableness and justice. Therefore, in
the opinion of P. Griciūnas and E. Mušinskis, while establishing
concrete circumstances of granting of citizenship to J. Borisov
by way of exception, one must also analyse and assess other
decrees of the President of the Republic, whereby, under similar
circumstances, citizenship was granted by way of exception, since
only in this way it would be possible to form one's opinion about
the practice of evaluation of identical or similar circumstances;
it is impossible to consider this act on granting citizenship by
way of exception apart from other analogous acts, for one has to
take account of the entire context of granting of citizenship by
way of exception as well as of the established practice in this
area.
6. According to P. Griciūnas and E. Mušinskis, while
attempting to investigate the compliance of President of the
Republic Decree No. 40 "On Granting Citizenship of the Republic
Lithuania by Way of Exception" of 11 April 2003 (to the extent
pointed out by the petitioner) with Paragraph 1 of Article 16 of
the Law on Citizenship, one is to assess concrete factual
circumstances of granting of citizenship to this person: J.
Borisov has resided in Lithuania with short intervals since 1962;
since 1991 he has been conducting business; he has created more
than 200 jobs in Lithuania; he has given about LTL 6 million to
charity; by a decree of President V. Adamkus of the Republic of
Lithuania he was awarded the Medal of Darius and Girėnas for
merits to Lithuanian aviation sport.
According to the representatives of the party concerned, in
June 2002 J. Borisov lost citizenship of the Republic of
Lithuania according to Item 2 of Paragraph 1 of Article 18 of the
Law on Citizenship (upon acquisition of citizenship of another
state). The essence of citizenship is constituted by a factual
and permanent link of the person and the state, which is not
limited by time and space. After J. Borisov had lost citizenship
of the Republic of Lithuania under Item 2 of Paragraph 1 of
Article 18 of the Law on Citizenship, the legal link of this
person with the Republic of Lithuania altered, however, one is to
pay attention to the fact that his factual link with the state,
in essence, was not discontinued.
Replying to the statement made by the representatives of the
petitioner, that J. Borisov had no merits to the Republic of
Lithuania during the period when he was not a citizen of the
Republic of Lithuania because he had lost it, the representatives
of the party concerned replied that Article 16 of the Law on
Citizenship does not provide that the merits of persons who used
to be citizens of the Republic of Lithuania and had merits to the
sate are evaluated, upon their loss of citizenship, according to
the tabula rasa principle. Such a standpoint would be illogical
and would hardly be in line with the discussed criteria of
justice and reasonableness, since upon the person's loss of
citizenship of the Republic of Lithuania, his economic, social,
cultural, political or any other merits and benefits made to the
state undoubtedly persist. P. Griciūnas and E. Mušinskis also
noted that the Law on Citizenship does not provide for any
minimal time period of not being a citizen of the Republic of
Lithuania as a condition, restricting granting of citizenship of
the Republic of Lithuania by way of exception.
Taking account of the fact that the Law on Citizenship does
not provide for any principles or criteria of evaluation of
persons seeking to acquire citizenship of the Republic of
Lithuania by way of exception or any time period of not being a
citizen of the Republic of Lithuania, also of the merits of J.
Borisov to the Republic of Lithuania, the party concerned is of
the opinion that President of the Republic of Lithuania Decree
No. 40 "On Granting Citizenship of the Republic Lithuania by Way
of Exception" of 11 April 2003 to the extent that it provides
that citizenship of the Republic Lithuania is granted to J.
Borisov is in compliance with Paragraph 1 of Article 16 of the
Law on Citizenship.
7. According to P. Griciūnas and E. Mušinskis, the statement
made by the representatives of the petitioner that the part of
President of the Republic of Lithuania Decree No. 40 "On Granting
Citizenship of the Republic Lithuania by Way of Exception" of 11
April 2003 to the extent that it provides that citizenship of the
Republic Lithuania is granted to J. Borisov by way of exception
is legally deficient and is in conflict with the provision of
Paragraph 1 of Article 16 of the Law on Citizenship, is legally
groundless as well. In the opinion of the representatives of the
party concerned, this statement of the representatives of the
petitioner is based on the arguments that, allegedly, the Law on
Citizenship does not establish the right of the President of the
Republic to restore citizenship of the Republic of Lithuania to a
person who lost citizenship of the Republic of Lithuania by the
grounds provided for in Paragraphs 1 and 3 of Article 18 of the
Law on Citizenship. P. Griciūnas and E. Mušinskis pointed out
that in the course of granting of citizenship of the Republic of
Lithuania to J. Borisov, one adhered to Paragraph 1 of Article 16
of the Law on Citizenship, providing for the right of the
President of the Republic to grant citizenship of the Republic of
Lithuania to citizens of foreign states with merits to the
Republic of Lithuania by way of exception, but not to Article 20
of the Law on Citizenship, regulating cases of restoration of
citizenship of the Republic of Lithuania. In addition, it was
impossible to follow Article 20 of the Law on Citizenship which
regulates cases of restoration of citizenship of the Republic of
Lithuania also due to the unfulfilled subjective conditions. The
representatives of the party concerned noted that a person, who
wishes to be restored citizenship of the Republic of Lithuania on
the grounds of Article 20 of the Law on Citizenship, must himself
submit a corresponding application on restoration of citizenship
of the Republic of Lithuania. Besides, the person submitting an
application on restoration of citizenship of the Republic of
Lithuania alongside expresses his consent to renounce his
citizenship of another state. Thus, three main conditions ought
to be considered as the grounds of restoration of citizenship of
the Republic of Lithuania: the fact that the person who wishes to
be restored citizenship of the Republic of Lithuania used to be a
citizen of the Republic of Lithuania, but later he lost this
citizenship; an application of the interested person on
restoration of citizenship of the Republic of Lithuania; the
consent of the person who wishes to be restored citizenship of
the Republic of Lithuania that after he is restored citizenship
of the Republic of Lithuania he will renounce his citizenship of
another state.
Meanwhile, J. Borisov submitted an application on granting
him citizenship of the Republic of Lithuania by way of exception.
It is by no means possible to assess this application as an
attempt of J. Borisov to seek to be restored citizenship of the
Republic of Lithuania, by renouncing, alongside, his citizenship
of a foreign state. This application of J. Borisov had to be
regarded as that of a citizen of a foreign state with merits to
the Republic of Lithuania to grant him citizenship of the
Republic of Lithuania by way of exception, but not as that of a
former citizen of the Republic of Lithuania requesting to be
restored former citizenship. Therefore, in the course of the
granting of citizenship of the Republic of Lithuania to J.
Borisov by way of exception, one was assessing not the fact of
former citizenship of the Republic of Lithuania possessed by J.
Borisov, but his merits to the Republic of Lithuania. Therefore,
in the opinion of the representatives of the party concerned, the
statement of the representatives of the petitioner that J.
Borisov ought to have been applied the procedure of restoration
of citizenship, but not that of granting of citizenship, is
legally groundless.
VI
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations and other
papers in which information is presented linked with the case at
issue were received from V. Bulovas, Minister of the Interior of
the Republic of Lithuania, G. Švedas, Vice-minister of Justice of
the Republic of Lithuania, D. Jurgelevičius, Secretary of the
Ministry of Foreign Affairs of the Republic of Lithuania, V.
Barkauskas, Deputy Prosecutor General of the Republic of
Lithuania, A. Meškauskas, Head of the Office of the President of
the Republic, A. Pocius, Deputy Director General of the State
Security Department, Acting Director General, A. Zuokas, Mayor of
the Vilnius City Municipality, O. Buišienė, Advisor to the
President of the Republic on legal issues, Chairwoman of the
Citizenship Commission, A. Gavėnas, Director of the Migration
Department at the Ministry of the Interior of the Republic of
Lithuania, Ž. Terebeiza, Chairman of the Citizenship Commission
of the Vilnius City Municipality, S. Balčiūnienė, a senior
inspector of the Passport Sub-division of the 1st Police
Commissioner's Office at the Chief Police Commissioner's Office
for the City of Vilnius, Prof. Dr. S. Katuoka, Director of the
International and EU Law Institute at the Faculty of Law of the
Law University of Lithuania, and Assoc. Prof. Dr. E. Šileikis,
who works at the Department of Constitutional and Administrative
Law of the Faculty of Law, Vilnius University.
Also, papers with attachments were received from A. Sakalas,
Chairman of the Provisional Commission of the Seimas of the
Republic of Lithuania for Investigation into Possible Threats to
Lithuanian National Security, V. Grigaravičius, Lithuanian Police
General Commissioner, V. Latvienė, Head of the State Tax
Inspectorate at the Ministry of the Republic of Lithuania, and A.
Kliunka, Chief Prosecutor of the Department for Investigation of
Organised Crime and Corruption at the Office of the Prosecutor
General of the Republic of Lithuania.
VII
1. On 4 December 2003, at the Constitutional Court hearing
the representatives of the Seimas, the petitioner, who were R.
Šukys and M. Girdauskas, virtually reiterated the arguments set
forth in their written explanations.
1.1. In addition, R. Šukys additionally explained that
Paragraph 1 of Article 16 of the Law on Citizenship does not
contain a requirement that the person to whom citizenship may be
granted by way of exception, must have special merits to the
Republic of Lithuania. However, in his opinion, under the
Constitution the discretion of evaluation of merits is limited by
equal application of evaluation criteria. R. Šukys believes that
Paragraph 1 of Article 16 of the Law on Citizenship mentions
personal merits of the foreign citizen or stateless person to the
Republic of Lithuania. According to the representative of the
petitioner, it is not clear as to what merits during that short
period of time, when J. Borisov was not a citizen of the Republic
of Lithuania, determined granting of citizenship to him by way of
exception. R. Šukys emphasised that it is clear from the case
material that such merits are merits of an enterprise (legal
person of the Republic of Lithuania), but not of J. Borisov, who
is a citizen of the Russian Federation. Alongside, the
representative of the petitioner noted that the amount of the
sponsorship, charity given by the enterprise, which was confirmed
by the State Tax Inspectorate at the Ministry of Finance of the
Republic of Lithuania, clearly contravenes the sums indicated in
the application of J. Borisov requesting to grant him citizenship
of the Republic of Lithuania by way of exception and in the
documents of the Citizenship Commission. According to R. Šukys,
it is doubtful whether the charity or sponsorship criterion, even
if this is done from personal taxable dividends or salary, could
be a criterion in assessing merits of a person and granting him
citizenship by way of exception. R. Šukys is convinced that only
the activity, which is done by the foreign citizen in spreading
the name of the state, when he devotes his talent, creative work,
time and energy for a certain area, when he is free to choose
whether or not to do so, without expecting any recognition, may
be regarded as merits to the State of Lithuania.
R. Šukys is certain that when one assesses the Law on
Citizenship in a systematic manner, as an integral act, and also
when one assesses the Constitution as an integral and directly
applicable act, one should also assess the compliance of
Paragraph 1 of Article 16 of the Law on Citizenship with
Paragraph 2 of Article 12 of the Constitution and Item 21 of
Article 84 of the Constitution. In the opinion of the
representative of the petitioner, the provision of Paragraph 2 of
Article 12 of the Constitution, establishing exceptionality of
double citizenship, obligates the legislator to provide for clear
grounds under which persons might possess double citizenship,
while Item 21 of Article 84 of the Constitution obligates to
establish the procedure under which citizenship is granted by way
of exception.
R. Šukys also emphasised the fact that it is clear from the
case material that the Minister of the Interior had signed
President of the Republic Decree No. 40 "On Granting Citizenship
of the Republic Lithuania by Way of Exception" of 11 April 2003
before it was signed by the President of the Republic. The
representative of the party concerned pointed out that that under
Article 85 of the Constitution the President of the Republic,
implementing the powers vested in him, shall issue acts-decrees.
To be valid, the decrees of the President of the Republic,
specified in Items 3, 15, 17, and 21 of Article 84 of the
Constitution, must be signed by the Prime Minister or an
appropriate minister. In the opinion of R. Šukys, the counter-
signing of a decree of the President of the Republic is
confirmation of his powers and also assumption of responsibility;
the counter-signing may take place only after the act-decree has
been issued. The counter-signing is neither a permission nor
approval. The pre-term counter-signing restricts the right of the
President of the Republic to issue decrees, since in such a case
the minister confirms in advance that the President of the
Republic is permitted to sign only this act; if the President of
the Republic legitimately wished to supplement and amend such an
act, he would be unable to do so, since he ought to apply to the
minister repeatedly. When counter-signing the decree of the
President of the Republic, after it has been signed by the
President of the Republic, the Prime Minister or an appropriate
minister has a duty to very the lawfulness of the decree, for
their constitutional duty is granting of legal power to this act.
According to the representative of the petitioner, the fact that
the Minister of the Interior had signed President of the Republic
Decree No. 40 "On Granting Citizenship of the Republic Lithuania
by Way of Exception" of 11 April 2003 before it was signed by the
President of the Republic is in conflict with the Law on the
Government of the Republic of Lithuania, under which the Prime
Minister or an appropriate minister shall within 3 days sign a
decree of the President of the Republic after it has been signed
by the President of the Republic. R. Šukys noted that the fact
that the Minister of the Interior had signed President of the
Republic Decree No. 40 "On Granting Citizenship of the Republic
Lithuania by Way of Exception" of 11 April 2003 before it was
signed by the President of the Republic is totally independent
grounds for disputing the said decree of the President of the
Republic (at the time of the adoption of its resolution on the
application to the Constitutional Court, the Seimas was not aware
of this fact).
1.2. M. Girdauskas additionally explained that under Item 21
of Article 84 of the Constitution the President has the right to
grant citizenship only in keeping with the procedure established
by the law. Article 27 of the Law on Citizenship provides that
the President of the Republic shall form the Citizenship
Commission for preliminary consideration of issues of
citizenship, which, inter alia, considers also applications of
citizens of foreign states requesting to grant them citizenship
of the Republic of Lithuania for merits to the Sate of Lithuania
and submits proposals to the President of the Republic to grant
the applications. It means that the President of the Republic
does not have the right to grant citizenship by way of exception
in the absence of one or another decision of the Citizenship
Commission. M. Girdauskas believes that from the case material it
is possible to draw a conclusion that as regards J. Borisov,
there was not any such lawful decision; this permits to believe
that President of the Republic Decree No. 40 "On Granting
Citizenship of the Republic Lithuania by Way of Exception" of 11
April 2003 is consistent with neither Item 21 of Article 84 of
the Constitution nor Article 27 of the Citizenship Law.
2. The President of the Republic R. Paksas, the party
concerned, who spoke at the 4 December 2003 Constitutional Court
hearing, virtually reiterated the arguments set forth in his
written explanations.
Alongside, the President of the Republic R. Paksas, the
party concerned, noted that his Decree No. 40 "On Granting
Citizenship of the Republic Lithuania by Way of Exception" of 11
April 2003 had been counter-signed by the Minister of the
Interior before it was signed by the President of the Republic.
3. On 4 December 2003, at the Constitutional Court hearing
the representatives of the President of the Republic, the party
concerned, who were the advocates G. Baublys, E. Rapolas, and K.
Švirinas stated that they agreed with the arguments set forth in
the written explanations of P. Griciūnas and E. Mušinskis,
representatives of the President of the Republic, the party
concerned.
3.1. The advocate E. Rapolas, a representative of the party
concerned, also additionally explained that J. Borisov, as a
person, had merits to the Republic of Lithuania. In the opinion
of E. Rapolas, it is of no importance as to whether J. Borisov
was a citizen of the Republic of Lithuania or not, when he
acquired them. Upon the loss of citizenship of the Republic of
Lithuania by J. Borisov, his merits, as those of a person,
persisted and could be assessed when the issue of granting him
citizenship of the Republic of Lithuania by way of exception was
being decided. Since the said merits of J. Borisov have not
disappeared, then one should not emphasise the time period from
18 March 2003 till 11 April 2003, during which J. Borisov
allegedly did not acquire any special merits to the Republic of
Lithuania. Besides, having lost citizenship of the Republic of
Lithuania, J. Borisov retained all his links with Lithuania: he
remained to live here, he has his job here, here his family
resides, and his enterprises have been founded here.
E. Rapolas also maintained that no law indicates a duty of
the President of the Republic to indicate in a decree on granting
citizenship by way of exception the merits of the person and the
arguments, for which the person is granted citizenship. The
question of merits is a question of the fact, the right to decide
this belongs to the President of the Republic. When a person has
merits to the Republic of Lithuania, the right to decide whether
the merits are sufficient for granting citizenship by way of
exception belongs to the President of the Republic. The merits of
J. Borisov to the Republic of Lithuania are confirmed by the
state award awarded to him, as well as the charity given by J.
Borisov.
The advocate E. Rapolas, a representative of the party
concerned, also noted that the President of the Republic has not
been granted the right to refuse to consider an application on
granting citizenship by way of exception. Nor does the President
of the Republic have the right to choose a different procedure
for granting citizenship, e.g., the procedure of restoration of
citizenship in cases when the person requests to be granted
citizenship of the Republic of Lithuania by way of exception. J.
Borisov submitted an application requesting to be granted
citizenship of the Republic of Lithuania by way of exception,
therefore, the President of the Republic was bound by this
application and had to adopt a decision concerning this
particular application.
In the opinion of E. Rapolas, the application of the
constitutional principle of equality is bound by objective
evaluation criteria: persons who are different by objective
features may be assessed in a differentiated manner. J. Borisov
was distinguished from other persons by objective features: he
had been awarded a state award of the Republic of Lithuania, he
had been residing in Lithuania for almost 40 years. This
permitted one to draw a conclusion that J. Borisov had not had
previous convictions. In addition, all the data concerning
previous convictions of persons are accumulated at the Ministry
of the Interior, a representative from the said ministry took
part in the sitting of the Citizenship Commission, and the head
of the said ministry counter-signed President of the Republic
Decree No. 40 "On Granting Citizenship of the Republic Lithuania
by Way of Exception" of 11 April 2003. The representatives of the
state institution, which possesses all the data about previous
convictions of persons residing in the Republic of Lithuania, had
an opportunity, before the President of the Republic signed the
said decree, to present such data and evaluate them. The
Citizenship Commission recommended that citizenship of the
Republic of Lithuania be granted to J. Borisov, while the
Minister of the Interior counter-signed the decree of the
President of the Republic.
E. Rapolas also noted that the law does not provide for a
duty of the Citizenship Commission to apply to the State Security
Department. The fact whether it is necessary to receive
information as regards one or another person from the State
Security Department is decided by the Citizenship Commission
itself. According to E. Rapolas, the objective features (sate
award, his residence in Lithuania) permitted the Citizenship
Commission to decide that it was not expedient to apply to the
State Security Department concerning information about J.
Borisov. Meanwhile, the other persons in whose regard one was
deciding, at that time, whether to grant them citizenship by way
of exception, were persons residing in foreign states. The
competence of the Ministry of the Interior to present information
about previous convictions of such persons is limitedit can
present information only about previous convictions of persons
residing in the Republic of Lithuania. E. Rapolas is convinced
that it was due to this that one applied to the State Security
Department in order to receive information about the other
persons. J. Borisov was different from these persons, therefore
in order that the Citizenship Commission would adopt a decision
recommending to grant him citizenship of the Republic of
Lithuania, the data about J. Borisov collected by the Ministry of
the Interior and the Office of the Prosecutor General were
sufficient. Since there existed objective features due to which
all these persons could be evaluated differently, E. Rapolas
believes that the principle of equality before the law was not
violated.
3.2. The advocate G. Baublys, a representative of the party
concerned, additionally explained that in the entire world (as
well as in Lithuania) laws establish tax preferences for legal
persons that give charity or sponsorship, therefore charity or
sponsorship is most often rendered through various legal persons
(foundations, enterprises, etc.). Only in rare cases natural
persons give charity by themselves. G. Baublys noted that the
legal person is only a form of certain activity: in the absence
of the natural persons that act through the said legal person,
the legal person would not be able to act at all. G. Baublys is
convinced that it would not be possible to reproach famous
sponsors or philanthropists for giving charity not directly in
person but through their foundations, i.e. individual legal
persons. J. Borisov gave charity through the enterprise "Avia
Baltika" (he is its founder and head of administration). The
biggest part of sponsorship is two planes and one hot air
balloon, also the financing of certain sport events. The note of
the State Tax Inspectorate at the Ministry of Finance of the
Republic of Lithuania does not reflect what was bought or
donated, while this is the biggest part of the charity and
sponsorship (about LTL 4 million).
G. Baublys also noted that the circumstance that President
of the Republic Decree No. 40 "On Granting Citizenship of the
Republic Lithuania by Way of Exception" of 11 April 2003 had been
counter-signed by the Minister of the Interior before it was
signed by the President of the Republic was determined by the
established practice based upon the principle of respect of one
institution towards another. G. Baublys believes that this
practice does not eliminate the duty of the Minister of the
Interior to verify corresponding circumstances and assume
responsibility for the decree of the President of the Republic.
However, due to the interrelation of the institutions and because
of respect to the Head of State, a practice came into being that
the Minister of the Interior, after he has verified and has
ascertained that everything has been performed properly, signs a
decree of the President of the Republic first, i.e. counter-signs
it, thus the Head of State is completely assured this way that
everything has been verified and is lawful. G. Baublys is of the
opinion that the moment of counter-signing, the time interval,
the succession of signing in this institute are not the main
thing. The main thing is the expression of will, i.e. the fact
that the minister has expressed his will and counter-signed the
decree of the President of the Republic, thus assuming
responsibility for it.
According to G. Baublys, the counter-signature of the decree
does not abolish moral and political responsibility for the
issued decree, however, the minister who has signed the decree of
the President of the Republic, is legally liable. This is a
normal interaction between branches of power. It goes without
saying, the liability cannot be absolute, since the Minister of
the Interior does not have an opportunity to verify every
document of the Citizenship Commission.
4. On 4 December 2003, the Constitutional Court questioned
the witnesses summoned to the hearing: V. Grigaravičius,
Lithuanian Police General Commissioner, G. Bagdonas, Director of
the Second Department for Operative Services at the Ministry of
Defence of the Republic of Lithuania, L. Linkevičius, Minister of
Defence of the Republic of Lithuania, M. Laurinkus, Director
General of the State Security Department, O. Buišienė, Advisor to
the President of the Republic on legal issues, Chairwoman of the
Citizenship Commission, A. Gavėnas, Director of the Migration
Department at the Ministry of the Interior of the Republic of
Lithuania, J. Vidickas, Deputy Director of the Migration
Department at the Ministry of the Interior of the Republic of
Lithuania, D. Jankauskienė, chief specialist of the Citizenship
Group of the Office of the President of the Republic, A.
Meškauskas, Head of the Office of the President of the Republic,
J. Bernatonis, a member of the Seimas of the Republic of
Lithuania, Ž. Terebeiza, Chairman of the Citizenship Commission
of the Vilnius City Municipality, S. Balčiūnienė, a senior
inspector of the Passport Sub-division of the 1st Police
Commissioner's Office at the Chief Police Commissioner's Office
for the City of Vilnius, A. Drakšas, Head of the enterprise
"Restakas" UAB, and J. Borisov, President of the aviation company
"Avia Baltika" UAB. When the witness J. Borisov was being
questioned, the interpreter R. Dalidėnas performed
interpretation.
VIII
On 10 December 2003, the Constitutional Court questioned the
witnesses summoned to the hearing: E. Šimanauskas, a member of
the Citizenship Commission of the Administration of Vilnius City
Municipality, chief specialist of the Analysis and Strategic
Planning Division of the Administration of Vilnius City
Municipality, D. Gintautienė, Secretary of the Citizenship
Commission of the Administration of Vilnius City Municipality,
specialist of the Citizenship Sub-division, V. V. Rinkevičienė,
Deputy Chairwoman of the Citizenship Commission of the
Administration of Vilnius City Municipality, Head of the
Citizenship Sub-division, V. Barkauskas, Deputy Prosecutor
General of the Republic of Lithuania.
IX
1. When the investigation of the case began at the
Constitutional Court hearing, additional information was
received, which was presented by representatives of the President
of the Republic, the party concerned, who were the advocates K.
Švirinas, and E. Rapolas; at the request of representatives of
the President of the Republic, the party concerned, it was
attached to the case.
2. When the investigation of the case began at the
Constitutional Court hearing, additional explanations were also
received from V. Bulovas, Minister of the Interior of the
Republic of Lithuania, O. Buišienė, Advisor to the President of
the Republic on legal issues, Chairwoman of the Citizenship
Commission, and A. Gavėnas, Director of the Migration Department
at the Ministry of the Interior of the Republic of Lithuania.
They were attached to the case.
X
On 16 December 2003, at the Constitutional Court hearing
court pleadings took place, in which the representatives of the
Seimas, the petitioner, who were R. Šukys and M. Girdauskas, and
the representatives of the President of the Republic, the party
concerned, who were the advocates G. Baublys, E. Rapolas, and K.
Švirinas, presented legal evaluation of the arguments presented
by the representatives of the opposing party.
The Constitutional Court
holds that:
I
1. The petitioner, the Seimas, requests to investigate as to
whether the part of President of the Republic Decree No. 40 "On
Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003 whereby citizenship of the Republic
Lithuania is granted to J. Borisov by way of exception is not in
conflict with the principle of a state under the rule of law
entrenched in the Constitution, Paragraph 1 of Article 29, Item
21 of Article 84 and Paragraph 1 of Article 82 of the
Constitution as well as with Paragraph 1 of Article 16 of the Law
on Citizenship.
2. In this case the investigation will be conducted only
within the extent pointed out by the petitioner.
II
1. Paragraph 1 of Article 102 of the Constitution provides
that the Constitutional Court shall decide whether the laws and
other acts of the Seimas are not in conflict with the
Constitution and whether acts of the President of the Republic
and the Government are not in conflict with the Constitution or
laws.
Paragraph 2 of Article 105 of the Constitution stipulates
that the Constitutional Court shall also consider if acts of the
President of the Republic and acts of the Government of the
Republic are not in conflict with the Constitution.
Paragraph 2 of Article 106 of the Constitution provides that
not less than 1/5 of all the members of the Seimas and the courts
shall have the right to apply to the Constitutional Court
concerning the conformity of acts of the President of the
Republic with the Constitution and the laws.
Paragraph 1 of Article 107 of the Constitution provides that
a law (or part thereof) of the Republic of Lithuania or other act
(or part thereof) of the Seimas, act of the President of the
Republic, act (or part thereof) of the Government may not be
applied from the day of official promulgation of the decision of
the Constitutional Court that the act in question (or part
thereof) is in conflict with the Constitution of the Republic of
Lithuania.
2. Article 85 of the Constitution provides that the
President of the Republic, implementing the powers vested in him,
shall issue acts-decrees. The formulation "acts of the President
of the Republic" employed in Paragraph 1 of Article 102,
Paragraph 2 of Article 105, Paragraph 2 of Article 106 of the
Constitution and Paragraph 1 of Article 107 of the Constitution
is broader than the formulation "acts-decrees", therefore, under
the Constitution, the Constitutional Court has powers to
investigate the compliance of all acts of the President of the
Republic with the Constitution and laws, which are issued by the
President of the Republic, when he, as the Head of State,
implements the powers established for him in the Constitution and
laws, irrespective of how these acts are referred to in the laws
establishing the powers of the President of the Republic.
3. It also needs to be noted that, under the Constitution,
there may not be any such laws adopted by the Seimas the
compliance of which with the Constitution and constitutional laws
would not be subject to investigation by the Constitutional
Court; under the Constitution, there may not be any such other
legal acts adopted by the Seimas the compliance of which with the
Constitution, constitutional laws and laws would not be subject
to investigation by the Constitutional Court; under the
Constitution, there may not be any such acts of the President of
the Republic the compliance of which with the Constitution,
constitutional laws and laws would not be subject to
investigation by the Constitutional Court; under the
Constitution, there may not be any such acts of the Government
the compliance of which with the Constitution, constitutional
laws, laws and Seimas resolutions on implementation of laws would
not be subject to investigation by the Constitutional Court.
In its ruling of 5 April 2000, the Constitutional Court held
that under Article 105 of the Constitution, in case there is a
petition grounded by legal arguments by the subjects pointed out
in Article 106 of the Constitution, the Constitutional Court
enjoys the powers and has to consider and adopt decisions
concerning the conformity of any laws and legal acts adopted by
the Seimas with the Constitution, and regarding the conformity of
any legal acts of the President of the Republic and any legal
acts of the Government with the Constitution and the laws
irrespective of the fact whether the legal act is (should be)
marked "top secret", "secret", "confidential" or marked in any
other way.
4. Under the Constitution, the Constitutional Court enjoys
the powers to investigate the compliance of acts of the President
of the Republic with the Constitution and laws irrespective of
whether these acts are of individual, or normative character,
whether they are of one-time (ad hoc) application or of permanent
validity.
In case the Constitution or laws provide for respective
requirements that must be followed (that must be fulfilled) in
the course of issuance of an act of the President of the
Republic, the Constitutional Court, when deciding whether the act
of the President of the Republic is not in conflict with the
Constitution and laws, must also investigate whether one has
followed (fulfilled) these requirements, since in case these
factual circumstances were not established, it would not be
possible to investigate also into the compliance of the act of
the President of the Republic with the Constitution.
It needs to be noted that under the Constitution there may
not be any such acts of the President of the Republic, which have
been issued by him while implementing the powers established to
him, as the Head of State, in the Constitution and laws, that the
Constitutional Court could not investigate.
III
1. Without its citizens, the state cannot exist. Citizenship
is an attribute of the state. Citizenship is not a mere formal
legal category, it is inseparably linked with the issues of
sovereignty of the nation and the state, of national identity and
rights and freedoms of the person. As a rule, citizenship is
perceived as a permanent legal link between the person and the
state.
In its ruling of 13 April 1994, the Constitutional Court
defined citizenship as follows: citizenship is a person's
permanent political legal relation to a certain state, grounded
on mutual rights and obligations as well mutual trust, loyalty
and protection therefrom.
It needs to be noted that the conception of citizenship as a
legal link between the person and the state is also consolidated
in the 1997 European Convention on Nationality (Article 2).
2. Citizenship is a permanent, uninterrupted legal link
between the person and the state. Citizenship appears when the
person becomes a citizen, and continues until the death of the
person or until his loss of citizenship. The legal link of the
citizen with the state persists no matter where the citizen might
be: whether in the state a citizen of which he is, or outside its
borders, i.e. in another state; after the citizen has left for
another state, his legal link with the state, a citizen of which
he is, persists.
It is the permanent (uninterrupted) legal link between the
citizen and the state that permits to distinguish this special
legal link from the legal link which appears between the state
and a foreigner or a stateless person, who resides in it either
permanently or temporarily: when the foreigner or the stateless
person leaves the state, his legal link with the state
discontinues. When the citizen leaves for another state, his
legal link with the state whose citizen he is persists.
Citizenship expresses legal membership of the person in the
state, reflects legal belongingness of the person to the nation
as a community organised into a state (state community).
3. Every sate formally defines which persons are its
citizens. The link between citizens and the state is mutual.
State power can only function when there is permanent
jurisdiction over residents of this state, the absolute majority
of whom are, as a rule, citizens of that state. The legal link
with the state is necessary to citizens so that all their rights
and freedoms might be guaranteed, which are enjoyed by citizens,
in order that the person could enjoy the protection of his state
within his country as well as abroad.
It needs to be noted that citizenship is not influenced by
the fact whether or not the citizen makes use of the rights and
duties of the citizen in reality, and whether or not he fulfils
the duties of the citizen. The person is also a citizen when he
refuses to make use of the rights of the citizen or fulfil the
duties of the citizen. In regard of citizenship, such refusal is
null.
4. Citizenship is not any permanent link between the person
and the state, but it is a legal link. Citizenship relations are
always legal ones, and their presence is always stated in a legal
form. Only state institutions can decide citizenship issues, and,
when doing so, they can perform only such actions that are
provided for in the Constitution, laws and other legal acts. The
state of citizenship could be changed only in case there exist
grounds established in legal acts and only after the parties, the
citizen and the state, have performed certain legal actions and
upon adoption of a corresponding legal decision by the state
institution. In connection with citizenship issues, no agreements
are possible between a person or persons and the state
institution (its official), while in case of conclusion of such
agreements, they would not be able to create citizenship
relations; in case of conclusion of such agreements, there would
always appear the issue of constitutionality of the legal act
whereby citizenship is granted, which is issued under such
circumstances.
5. Citizenship determines the legal status of the person,
enjoyment of citizenship is a precondition for enjoyment of all
rights and freedoms entrenched in the Constitution and laws, and
that for performing established duties.
In this context one is to note that, under the Constitution,
certain rights are enjoyed only by citizens: the right to
participate in the government of the state both directly and
through their democratically elected representatives (Paragraph 1
of Article 33), the right to present to the Seimas a proposal to
alter or supplement the Constitution of the Republic of Lithuania
(Paragraph 1 of Article 147); the right to elect and be elected
to the Seimas (Paragraph 1 of Article 34, Article 56); the right
to elect and be elected President of the Republic (Paragraph 1 of
Article 34, Article 56, Paragraphs 1 and 2 of Article 78); the
right to be judges (Paragraph 1 of Article 112); the right to
enter into the state service (Paragraph 1 of Article 33); the
right to request that referendum be announced (Paragraph 3 of
Article 9); the right of legislative initiative (Paragraph 2 of
Article 68). The Constitution and laws also establish certain
other rights enjoyed only by citizens of the Republic of
Lithuania. Under the Constitution, only citizens of the Republic
of Lithuania also have certain duties: the duty to defend the
State of Lithuania against a foreign armed attack (Paragraph 1 of
Article 139 of the Constitution); the duty to perform military or
alternative national defence service (Paragraph 2 of Article 139
of the Constitution).
It also needs to be noted that Paragraph 1 of Article 3 of
the Republic of Lithuania Law on Citizenship, which was adopted
by the Seimas on 17 September 2002, provides that "citizens of
the Republic of Lithuania shall have all social and economic,
political and personal rights and freedoms that are enshrined in
and guaranteed by the Constitution and laws of the Republic of
Lithuania, and international treaties to which the Republic of
Lithuania is a party". Paragraph 2 of the same article provides
that "a citizen of the Republic of Lithuania must observe the
Constitution and laws of the Republic of Lithuania, perform the
duties prescribed thereunder, safeguard the interests of the
Republic of Lithuania, help strengthen its might and authority,
be loyal to it."
6. The permanent legal link between the person and the state
which is expressed by citizenship implies the duty of the state
to protect its citizen within the country as well as outside its
borders: under Paragraph 1 of Article 13 of the Constitution,
"the State of Lithuania shall protect its citizens abroad". The
state must take care of its citizens abroad in all cases, without
taking account of whether or not the citizen of the Republic of
Lithuania violated laws of the host state. A prohibition has also
been established in the Constitution to extradite a citizen of
the Republic of Lithuania to another statea citizen of the
Republic of Lithuania can only be extradited to another state
only in case an international treaty of the Republic of Lithuania
provides so (Paragraph 2 of Article 13 of the Constitution). Such
an international treaty ought not to be in conflict with the
Constitution.
A conclusion is to be drawn from Paragraph 1 of Article 32
of the Constitution, under which a citizen may move and choose
his place of residence in Lithuania freely, and may leave
Lithuania freely, also from Paragraph 3 of Article 32 of the
Constitution, under which a citizen may not be prohibited from
returning to Lithuania, one is to draw a conclusion that under
the Constitution a citizen of the Republic of Lithuania cannot be
sent from Lithuania.
7. Article 2 of the Constitution provides: "The State of
Lithuania shall be created by the Nation. Sovereignty shall
belong to the Nation." Under Article 4 of the Constitution, "the
Nation shall execute its supreme sovereign power either directly
or through its democratically elected representatives". Paragraph
1 of Article 33 of the Constitution provides that "citizens shall
have the right to participate in the government of the State both
directly and through their democratically elected
representatives"; under Paragraph 2 of Article 3 of the
Constitution, "the Nation and each citizen shall have the right
to resist anyone who encroaches on the independence, territorial
integrity, and constitutional order of the State of Lithuania by
force".
It follows from these and other provisions of the
Constitution that only citizens of the Republic of Lithuania, i.
e. the state communitythe civil Nationhas the right to create
the State of Lithuania, i.e. only citizens have the right to
decide as to what State of Lithuania there must be, to establish
the constitutional order of the State of Lithuania, the
organisation of institutions implementing state power, the basics
of relations between the person and the state, the system of the
country's economy, etc. While implementing the rights and
freedoms of citizens, citizens participate in executing the
sovereignty of the Nation.
8. It has been mentioned that citizenship expresses a
permanent legal link between the person and the state. It should
be noted that an absolute majority of persons are citizens not
because they have expressed their wish to be citizens of the
state but because they are linked with the state by means of a
certain objective relation: their parents (one of parents) were
citizens of that state. Acquisition of citizenship by birth
(filiation) is the main way of acquisition of citizenship; by
acquisition of citizenship by birth, continuance of citizenship
is ensured and continuance of the state community, the legal
Nation, is ensured as well.
It is possible to acquire citizenship by way of
naturalisation, i.e. citizenship is granted to a person who meets
the conditions established in the law. As a rule, such conditions
are requirements of permanent residence in the state for a
certain time period established in the law, and of knowledge of
the state language. These requirements are based on the provision
that the person whishing to acquire citizenship and the state
must be connected by a permanent factual link before citizenship
is granted, that permanent residence in the state during a
certain time period established in the law and knowledge of the
state language are necessary pre-conditions for a foreigner or a
stateless person to integrate himself into the society, to
perceive the mentality of the Nation and its strivings, the
constitutional order of the state, to get acquainted with the
history, culture, customs and traditions of the Nation and the
state, to be prepared to take responsibility for the present and
the future of the state. It is due to this that it is not
sufficient for a citizen of a foreign state or a stateless person
who wishes to acquire citizenship merely to settle in this
countryfor this reason one has to reside permanently in the
state for a longer time period, which is established in the law,
and to know the state language.
Thus, acquisition of citizenship is always to be related
with a certain objective link between the person with the state:
this link is most often determined by the fact that that children
of citizens become citizens by birth (jus sanguini), in certain
states a person who was born within its territory is considered
its citizen (jus soli), or when the permanent factual link of a
foreigner or a stateless person with the state, if this foreigner
or stateless person meets the conditions established in the law
and he is granted citizenship (naturalisation), becomes a
permanent legal link with the state.
9. While regulating citizenship relations, the state enjoys
discretion which is also recognised in international law.
However, international law also underlines that citizenship legal
regulation established by laws and concluded international
treaties must ensure the implementation of the human right to
citizenship, must be in line with international covenants,
international customary law and generally recognised legal
principles related with citizenship.
For instance, a principle has been established in
international law that every state can establish by itself as to
who are its citizens, and to establish the grounds of acquisition
and loss of citizenship. Article 1 of the 1930 Convention on
Certain Questions Relating to the Conflict of Nationality Laws
provides: "It is for each State to determine under its own law
who are its nationals. This law shall be recognised by other
States in so far as it is consistent with international
conventions, international custom, and the principles of law
generally recognised with regard to nationality." Article 3 of
the 1997 European Convention on Nationality provides: "Each State
shall determine under its own law who are its nationals. This law
shall be accepted by other States in so far as it is consistent
with applicable international conventions, customary
international law and the principles of law generally recognised
with regard to nationality."
IV
1. The constitutional grounds of citizenship of the Republic
of Lithuania are entrenched in Article 12 of the Constitution;
Item 21 of Article 84 of the Constitution provides that the
President of the Republic shall grant citizenship; under Article
85 of the Constitution, the President of the Republic decides
questions of granting of citizenship by issuing decrees and, to
be valid, the decrees of the President of the Republic on
granting citizenship must be signed by the Prime Minister or an
appropriate minister.
2. Article 12 of the Constitution provides:
"Citizenship of the Republic of Lithuania shall be acquired
by birth and other grounds established by law.
With the exception of individual cases provided for by law,
no one may be both a citizen of the Republic of Lithuania and
another state at the same time.
The procedure for the acquisition and loss of citizenship
shall be established by law."
Paragraph 1 of Article 12 of the Constitution indicates the
main way of acquisition of citizenship of the Republic of
Lithuania: citizenship of the Republic of Lithuania is acquired
by birth; the same article also contains a provision that other
grounds for acquisition of citizenship can also be established by
law.
A provision has been consolidated in Paragraph 2 of Article
12 of the Constitution that a citizen of the Republic of
Lithuania may not be a citizen of another state at the same time.
Thus, a prohibition of double citizenship is established in the
Constitution, however, this prohibition is not absolute: under
Paragraph 2 of Article 12 of the Constitution, in individual
cases provided for by law, a citizen of the Republic of Lithuania
may be a citizen of another state at the same time.
3. The provision of Paragraph 1 of Article 12 of the
Constitution that other grounds for acquisition of citizenship
can also be established by law, and the provision of Paragraph 3
of the same article that the procedure for the acquisition and
loss of citizenship shall be established by law mean that the
legislator has a duty to pass a law establishing the grounds of
acquisition of citizenship and regulating the procedure for the
acquisition and loss of citizenship.
The grounds of acquisition and loss of citizenship of the
Republic of Lithuania and the procedure for settlement of
citizenship issues are regulated by the Republic of Lithuania Law
on Citizenship adopted by the Seimas on 17 September 2002
(hereinafter also referred to as the Law on Citizenship), which
went into effect on 1 January 2003 (Paragraph 1 of Article 34 of
the Law on Citizenship).
4. In the course of establishment of the grounds of
acquisition of citizenship of the Republic of Lithuania and
regulation of the procedure of acquisition and loss of
citizenship, the legislator enjoys discretion. However, while
doing this, the legislator cannot deny the nature and meaning of
the institute of citizenship, he must pay heed to the
constitutional requirement that a citizen of the Republic of
Lithuania may also be a citizen of another state only in
individual cases established by law. It should be underlined that
the provision of Article 12 of the Constitution that a person may
be a citizen of the Republic of Lithuania and, at the same time,
a citizen of another state only in individual cases established
by law, means that such cases established by law can be very rare
(individual), that cases of double citizenship must be
extraordinarily rare, exceptional, that under the Constitution it
is not permitted to establish any such legal regulation under
which cases of double citizenship would be not extraordinarily
rare exceptions, but a widespread phenomenon. Under the
Constitution, expansive construction of the provisions of the Law
on Citizenship consolidating an opportunity to be a citizen of
the Republic of Lithuania and a citizen of another state at the
same time is impermissible, under which double citizenship would
be not individual, extraordinarily rare exceptions, but a
widespread phenomenon.
5. Under Item 21 of Article 84 of the Constitution, the
President of the Republic shall grant citizenship of the Republic
of Lithuania in accordance with the procedure established by law.
This provision means that no other subject may grant citizenship
of the Republic of Lithuania, that the President of the Republic,
when he decides an issue of granting of citizenship of the
Republic of Lithuania, must follow the requirements established
by the law, that the President of the Republic is prohibited from
granting citizenship of the Republic of Lithuania if he does not
follow the requirements established in the law and the
established procedure.
It needs to be noted that, while one takes account of the
fact that citizenship of the Republic of Lithuania expresses
legal membership of the person in the State of Lithuania and
reflects his legal belongingness to the sate community, the civil
Nation, the President of the Republic, when he decides whether to
grant citizenship of the Republic of Lithuania to a person, must
be guided by interests of the Nation and the State of Lithuania.
6. The provision of Item 21 of Article 84 of the
Constitution that citizenship of the Republic of Lithuania is
granted in accordance with the procedure established by law,
means that the President of the Republic, while deciding a
question of granting of citizenship of the Republic of Lithuania,
must follow the procedure established by the law.
Paragraph 1 of Article 27 of the Law on Citizenship provides
that the President of the Republic shall form the Citizenship
Commission for preliminary consideration of issues of citizenship
of the Republic of Lithuania and approve the rules for the
consideration of issues of citizenship in the commission. Under
Paragraph 4 of Article 27 of the Law on Citizenship, the
Citizenship Commission shall submit to the President of the
Republic proposals to grant applications for citizenship of the
Republic of Lithuania and, in case the commission refuses to
recommend granting citizenship, it shall notify the applicant
thereof in writing, setting forth the reasons for refusal;
Paragraph 5 of Article 27 provides that the commission shall
consider applications for citizenship of the Republic of
Lithuania under Article 16 of the Law on Citizenship and shall
submit to the President of the Republic proposals to grant the
applications.
Thus, under Article 27 of the Law on Citizenship, the
President of the Republic may adopt decisions to grant
citizenship of the Republic of Lithuania only in case this
question has been preliminary considered in the Citizenship
Commission formed by the President of the Republic and there is a
proposal of this commission to the President of the Republic
concerning the submitted application.
It needs to be noted that the proposal of the Citizenship
Commission is not binding to the President of the Republic: under
the Constitution, only the President of the Republic has the
powers to decide whether to grant citizenship of the Republic of
Lithuania to a person by way of exception, therefore the
President of the Republic can disregard the proposal of the
Citizenship Commission.
It should be emphasised that disregarding the requirements
established in the Law on Citizenship and the procedure for
granting of citizenship, established in the same law, in the
course of granting of citizenship is not only violation of the
Law on Citizenship, but also of Item 21 of Article 84 of the
Constitution.
7. Article 85 of the Constitution provides: "The President
of the Republic, implementing the powers vested in him, shall
issue acts-decrees. To be valid, the decrees of the President of
the Republic, specified in Items 3, 15, 17, and 21 of Article 84
of the Constitution, must be signed by the Prime Minister or an
appropriate Minister. Responsibility for such a decree shall lie
with the Prime Minister or the Minister who signed it."
8. The decrees of the President of the Republic pointed out
in Items 3, 15, 17, and 21 of Article 84 of the Constitution are
issued concerning these issues:
1) the President of the Republic appoints and recalls, upon
the presentation by the Government, diplomatic representatives of
the Republic of Lithuania to foreign states and to international
organisations; confers high diplomatic ranks and special titles
(Item 3 of Article 84 of the Constitution);
2) the President of the Republic confers high military ranks
(Item 15 of Article 84 of the Constitution);
3) the President of the Republic declares a state of
emergency in accordance with the procedure and in cases
established by law (Item 17 of Article 84 of the Constitution);
4) the President of the Republic grants citizenship of the
Republic of Lithuania in accordance with the procedure
established by law (Item 21 of Article 84 of the Constitution).
9. The formula "decrees of the President of the Republic" of
the provision "to be valid, the decrees of the President of the
Republic" of Article 85 of the Constitution means that a decree,
as a legal act, of the President of the Republic appears only
after it has been signed by the President of the Republic. Until
the President of the Republic has done so, there are no legal
grounds to state that the President of the Republic has issued a
decree. Until a document, having the name of a decree of the
President of the Republic, has not been signed, this document is
only a draft decree of the President of the Republic, but not a
decree itself. It needs to be noted that the Constitution does
not provide that draft decrees of the President of the Republic
could and should be signed by the Prime Minister or a certain
minister. If laws or other legal acts established legal
regulation under which draft decrees of the President of the
Republic ought to be signed by the Prime Minister or a minister
before they are signed by the President of the Republic, the
legal acts establishing such legal regulation would be in
conflict with the Constitution.
Thus, under Article 85 of the Constitution, the Prime
Minister or an appropriate minister signs decrees of the
President of the Republic, i.e. a legal act issued by the
President of the Republic bearing the name of a decree, which has
already been signed by the President of the Republic.
10. The provision "to be valid, the decrees of the President
of the Republic <
> must be signed by the Prime Minister or an
appropriate Minister" of Article 85 of the Constitution means
that until the decree of the President of the Republic of
Lithuania has not been signed by the Prime Minister or an
appropriate minister, such a decree cannot come into force, thus,
it cannot give rise to any legal effects.
Thus, the said provision of Article 85 of the Constitution
establishes an additional condition under which decrees of the
President of the Republic specified in Items 3, 15, 17, and 21 of
Article 84 of the Constitution can give rise to legal effects:
such decrees must be signed by the Prime Minister or an
appropriate minister. In the legal theory, such signing is called
counter-signing.
Paragraph 1 of Article 5 of the Constitution, which provides
which state institutions execute state power, also indicates that
"the President of the Republic and the Government" execute state
power. Under the Constitution, the President of the Republic is
part of the executive (Constitutional Court ruling of 10 January
1998). In Article 84 of the Constitution as well as other
articles of the Constitution various powers of the President of
the Republic are established, in the course of implementation
whereof the President of the Republic issues decrees. Most of the
decrees issued by the President of the Republic, under the
Constitution, are not signed by the Prime Minister or a minister:
under the Constitution the Prime Minister or an appropriate
minister signs only the decrees specified in Items 3, 15, 17, and
21 of Article 84 of the Constitution. Such constitutional
regulation means that the powers of the President of the Republic
specified in Items 3, 15, 17, and 21 of Article 84 of the
Constitution are considered to be an area of the executive of
special importance, and, under the Constitution, the President of
the Republic cannot solely, without approval of an appropriate
member of the Government, implement the said powers. Such
constitutional regulation reflects the consolidation of the
system of "checks and balances" in the implementation of the
executive power.
11. While revealing the content of the provision "to be
valid, the decrees of the President of the Republic, specified in
Items 3, 15, 17, and 21 of Article 84 of the Constitution, must
be signed by the Prime Minister or an appropriate Minister", one
is to note that it is impossible to construe the said provision
in isolation from another provision established in the same
article"responsibility for such a decree shall lie with the
Prime Minister or the Minister who signed it".
Taking account of the fact that responsibility for the
decrees of the President of the Republic, specified in Items 3,
15, 17, and 21 of Article 84 of the Constitution, lies with the
Prime Minister or the minister who signed it, one is to conclude
that under Article 85 of the Constitution the Prime Minister or a
respective minister has the right to decide whether or not to
sign the decree of the President of the Republic. The Prime
Minister or a respective minister is not obliged to sign a
decree, which is issued while disregarding the Constitution or
failing to follow the procedure established in corresponding laws
or other established requirements, since, otherwise, the Prime
Minister or a respective minister would be responsible for the
actions that he would have to perform without having any choice,
i.e. irrespective of his will. There may not by any such legal
regulation in a democratic state under the rule of law, for this
would not be in line with the principles of a state under the
rule of law and justice, upon which the Lithuanian Constitution
and the entire Lithuanian legal system are based.
12. From the right and duty of the Prime Minister or an
appropriate minister to decide whether or not to sign the decrees
of the President of the Republic, specified in Items 3, 15, 17,
and 21 of Article 84 of the Constitution, follows a duty of the
Prime Minister or an appropriate minister, before they sign a
corresponding decree of the President of the Republic, to
ascertain whether this decree of the Republic of Lithuania has
been issued according to the Constitution and in line with the
procedure established in respective laws and other established
requirements. It is due to the fact that the Prime Minister or
the appropriate minister have the said duty that responsibility
for such a decree of the President of the Republic lies, under
Article 85 of the Constitution, with the Prime Minister or an
appropriate minister.
13. Thus, the legal regulation established in Article 85 of
the Constitution, under which, to be valid, the decrees of the
President of the Republic, specified in Items 3, 15, 17, and 21
of Article 84 of the Constitution, must be signed by the Prime
Minister or an appropriate minister, consolidates the right and
duty of the Prime Minister and the appropriate minister to
participate in the implementation of the powers of the President
of the Republic, specified in Items 3, 15, 17, and 21 of Article
84 of the Constitution, also the right and duty of the Prime
Minister and the appropriate minister not to permit that a decree
of the President of the Republic come into force, which has been
issued with disregard to the Constitution or the requirements
established in laws and the established procedure. This is a
counter-balance to decisions of the President of the Republic in
case they disregard the requirements set in the Constitution and
laws, if one abused the powers of the President of the Republic
that have been established for him in the Constitution and laws.
On the other hand, the fact that responsibility for the decree of
the President of the Republic lies not with the President of the
Republic himself, but with the Prime Minister or an appropriate
minister is grounded on the provision that the President of the
Republic, while in office, is not responsible for his decisions,
save the cases directly established in the Constitution, i.e. for
the decisions by which the President of the Republic grossly
violates the Constitution, breaches his oath, commits a crime. In
such cases the issue of constitutional responsibility of the
President of the Republic is decided (Article 74 of the
Constitution).
14. The provision "to be valid, the decrees of the President
of the Republic <
> must be signed by the Prime Minister or an
appropriate Minister" of Article 85 of the Constitution also
implies that the law ought to establish which decrees of the
President of the Republic must be signed by the Prime Minister,
and which must be signed by an appropriate minister.
As mentioned, under Item 21 of Article 84 and Article 85 of
the Constitution, the President of the Republic grants
citizenship by issuing a decree. Item 5 of Article 16 of the Law
on the President of the Republic provides that decrees of the
President of the Republic concerning granting of citizenship of
the Republic of Lithuania are also signed by the Minister of the
Interior. Under Article 19 of the Law on the Government, a
minister signs decrees of the President of the Republic within
three days.
It needs to be noted that a duty for the Minister of the
Interior arises from the legal regulation established in Article
85 of the Constitution to ascertain, before signing a decree of
the President of the Republic on granting of citizenship, as well
as a decree of the President of the Republic on granting of
citizenship by way of exception, whether the decree of the
President of the Republic has been issued by paying heed to the
Constitution and following the grounds of citizenship acquisition
established in the Law on Citizenship, also following the
procedure for granting of citizenship established in the Law on
Citizenship. Under Article 85 of the Constitution, responsibility
for such a decree of the President of the Republic lies with the
Minister of the Interior who has signed it.
15. Revealing the content of the provision "responsibility
for such a decree shall lie with the Prime Minister or the
Minister who signed it" of Article 85 of the Constitution, one is
to note that this provisions cannot be construed in isolation
from Articles 86 and 74 of the Constitution.
Article 86 of the Constitution provides:
"The person of the President of the Republic shall be
inviolable: while in office, he may neither be arrested nor be
held criminally or administratively liable.
The President of the Republic may be removed from office
ahead of time only for gross violation of the Constitution or
breach of oath or upon disclosure of the commission of a crime.
The Seimas shall decide the issue concerning the removal of the
President of the Republic from office in accordance with the
procedure for impeachment proceedings."
Under Article 74 of the Constitution, for gross violation of
the Constitution, breach of oath, or upon disclosure of the
commission of a crime the President of the Republic may be
removed from office according to the procedure for impeachment
proceedings.
Taking account of the fact that, under Articles 86 and 74 of
the Constitution, for gross violation of the Constitution, breach
of oath, or upon disclosure of the commission of a crime the
President of the Republic may be brought to constitutional
responsibilityremoved from office according to the procedure for
impeachment proceedingsone is to draw a conclusion that the
provision "responsibility for such a decree shall lie with the
Prime Minister or the Minister who signed it" of Article 85 of
the Constitution cannot be construed as establishing that the
President of the Republic in all cases is not responsible for the
decrees issued by him, specified in Items 3, 15, 17, and 21 of
Article 84 of the Constitution, which were signed by the Prime
Minister or a respective minister.
While construing Articles 85, 86 and 74 of the Constitution
in a systematic manner, one is to draw a conclusion that
responsibility for a decree, specified in Items 3, 15, 17, and 21
of Article 84 of the Constitution, by which Constitution is
grossly violated or the oath is breached, or a crime is
committed, lies not only with the Prime Minister or the
respective minister that counter-signed such a decree, but also
with the President of the Republic, who has issued such a decree.
Alongside, it should be noted that a mere fact that a decree
of the President of the Republic is recognised as being in
conflict with the Constitution or a law, in itself does not mean
that the President of the Republic grossly violated the
Constitution, or breached the oath, or committed a crime.
Deciding whether the President of the Republic, having issued a
decree that is in conflict with the Constitution or a law, has
grossly violated the Constitution or breached the oath, or
committed a crime, one has to assess not only the content of the
decree of the President of the Republic, but also the fact
whether, in the course of the issuance of the decree of the
President of the Republic, the requirements established in the
Constitution and corresponding laws were fulfilled, whether the
established procedure was being followed, and also it is
necessary to assess other factual circumstances of the issuance
of such a decree.
16. It needs to be noted that all decrees of the President
of the Republic, including those on granting of citizenship, are
substatutory legal acts. According to the Constitution, a decree
of the President of the Republic on granting of citizenship, as
well as any other substatutory legal act, should not be in
conflict with the Constitution, constitutional laws and laws.
V
1. Persons that are citizens of the Republic of Lithuania
are indicated in Article 1 of the Law on Citizenship, which
provides:
"The following persons shall be citizens of the Republic of
Lithuania:
1) persons who held citizenship of the Republic of Lithuania
prior to 15 June 1940, their children, grandchildren and great-
grandchildren (provided that the persons, their children,
grandchildren or great-grandchildren did not repatriate);
2) persons who permanently resided in the present-day
territory of the Republic of Lithuania in the period from 9
January 1919 to 15 June 1940, as well as their children,
grandchildren and great-grandchildren, provided that on the day
of coming into force of the Law on Citizenship they were and at
the present time permanently reside in the territory of the
Republic of Lithuania and are not citizens of any other state;
3) persons of Lithuanian descent if they are not citizens of
any other state. A person whose parents or grandparents or one of
the parents or grandparents is or was Lithuanian and the person
considers himself Lithuanian shall be considered as being a
person of Lithuanian descent;
4) persons who acquired citizenship of the Republic of
Lithuania prior to 4 November 1991 under the Law on Citizenship
adopted on 3 November 1989;
5) other persons who have acquired citizenship of the
Republic of Lithuania under the Law on Citizenship adopted on 5
December 1991."
2. As mentioned, under Article 12 of the Constitution,
citizenship of the Republic of Lithuania shall be acquired by
birth and other grounds established by law.
Article 7 of the Law on Citizenship provides that
Citizenship of the Republic of Lithuania shall be acquired: (1)
by birth; (2) by exercising the right to citizenship of the
Republic of Lithuania; (3) by being granted citizenship of the
Republic of Lithuania (naturalisation); (4) by voicing one's
option or on other grounds, as provided for by international
treaties of the Republic of Lithuania; (5) on other grounds
provided for by this law.
3. One of the grounds for acquisition of citizenship of the
Republic of Lithuania is provided for in Article 16 of the Law on
Citizenship:
"1. The President of the Republic, in pursuance of this Law,
may grant citizenship of the Republic of Lithuania to citizens of
foreign states or stateless persons with merits to the Republic
of Lithuania without applying with respect to them conditions for
the granting of citizenship provided for in Article 12 of this
Law.
2. The granting of citizenship of the Republic of Lithuania
by way of exception shall by itself have no legal consequences
for the family members of the person who acquired citizenship."
The following provisions have been consolidated in Paragraph
1 of Article 16 of the Law on Citizenship: (1) the President of
the Republic has the right to grant citizenship of the Republic
of Lithuania by way of exception, i.e. without applying with
respect to the person general conditions (of naturalisation) for
granting of citizenship provided for in Article 12 of the Law on
Citizenship; (2) citizenship of the Republic of Lithuania may be
granted to a citizen of a foreign state or a stateless person by
way of exception; (3) citizenship of the Republic of Lithuania
may only be granted to such a citizen of a foreign state or a
stateless person by way of exception, who has merits to the
Republic of Lithuania; (4) the President of the Republic has the
right to decide whether or not to grant citizenship of the
Republic of Lithuania to a citizen of a foreign state or a
stateless person; even if a citizen of a foreign state or a
stateless person has merits to the Republic of Lithuania, the
President of the Republic does not have a duty to grant
citizenship of the Republic of Lithuania to the citizen of a
foreign state or the stateless person; (5) the President of the
Republic, in the course of granting citizenship of the Republic
of Lithuania to a citizen of a foreign state or a stateless
person, who has merits to the Republic of Lithuania, must follow
the Law on Citizenship.
4. It needs to be noted that neither the Constitution, nor
the Law on Citizenship provides as to what ought to be considered
merits to the State of Lithuania. Under the valid legal
regulation, only the President of the Republic decides whether
the citizen of a foreign state or the stateless person is with
merits to the State of Lithuania.
5. Under Paragraph 2 of Article 77 of the Constitution, the
President of the Republic shall perform everything that he is
charged with by the Constitution and laws. Thus, when he decides
whether to grant citizenship by way of exception, the President
of the Republic is bound by the Constitution and the Law on
Citizenship: citizenship of the Republic of Lithuania may be
granted only the citizen of a foreign state or the stateless
person who has merits to the Republic of Lithuania (Article 16 of
the Law on Citizenship), and only in keeping with the procedure
for granting of citizenship as established in the law (Item 21 of
Article 84 of the Constitution).
6. It needs to be noted that the formula "to citizens of
foreign states or stateless persons with merits to the Republic
of Lithuania" of Paragraph 1 of Article 16 of the Law on
Citizenship means that a citizen of a foreign state or a
stateless person, who requests to be granted citizenship of the
Republic of Lithuania by way of exception, must have merits not
to any subject, but to the State of Lithuania itself.
It is universally recognised in constitutional law that the
state is a political organisation of the entire society, whose
power covers all the territory of the state, and which is
designated for ensuring of human rights and freedoms and
guaranteeing of the public interest. While deciding whether a
citizen of a foreign state or a stateless person is with merits
to the State of Lithuania, one is to take account of the fact
that under Paragraph 1 of Article 16 of the Law on Citizenship
merits to the sate are a necessary condition so that not any but
a special link between the person and the state would appear, i.
e. a permanent link between the person and the state, membership
of the person in the Nation and the state, which are expressed by
citizenship, therefore, in the sense of the Law on Citizenship,
the person must be with merits not to any subject but the State
of Lithuania itself; thus, virtually, the person must be with
merits to the state community of Lithuaniathe civil Nation
which, under the Constitution, enjoys sovereign powers and is the
creator of the State of Lithuania and a member of which the said
citizen of a foreign state or stateless person aspires to become.
7. In the context of the case at issue, one is to note that
financial, material or any other support by the citizen of a
foreign state or stateless person, rendered to a certain citizen
or a group of citizens of the Republic of Lithuania, a state
official, a certain enterprise, establishment or organisation may
be considered only support of the citizen of a foreign state or
stateless person to the said citizen or the group of citizens of
the Republic of Lithuania, the state official, the respective
enterprise, establishment or organisation, but this support is
not to be considered merits to the subject indicated in Article
16 of the Law on Citizenship, i.e. it is not to be considered to
be merits to the Republic of Lithuania.
It also needs to be noted that in the sense of the Law on
Citizenship, in general merits of a citizen of a foreign state or
a stateless person to the State of Lithuania cannot be evaluated
by the mere amount of sum of money or the amount of material and
other support rendered by the citizen of a foreign state or
stateless person to a certain citizen or a group of citizens of
the Republic of Lithuania, a state official, a certain
enterprise, establishment or organisation or even to the State of
Lithuania itself. It follows neither from the Constitution, nor
the Law on Citizenship, nor other laws that citizenship of the
Republic of Lithuania can be acquired for financial, material or
any other support, i.e. bought. In the context of appearance of
citizenship relations, merits to the state cannot be evaluated
only by the money transferred (donated) to a certain subject or
by other support. In the sense of the Law on Citizenship, only
the activity of the person is to be considered merits to the
Republic of Lithuania, when the person very significantly
contributes to strengthening of Lithuanian statehood, to the
increase of power of Lithuania and its authority in the
international community, when it is evident that the person has
already been integrated into the Lithuanian society. Only in such
cases there may appear pre-conditions for consideration and
decision whether the citizen of a foreign state or stateless
person is with merits to the Republic of Lithuania, as required
by the Law on Citizenship.
8. The Constitutional Court notes that by means of laws or
other legal acts one cannot establish a final list of merits, for
which a citizen of a foreign state or a stateless person can be
granted citizenship of the Republic of Lithuania by way of
exception: as mentioned, only the President of the Republic
decides whether the citizen of a foreign state or the stateless
person is with merits to the State of Lithuania. However, when
deciding this, the President of the Republic cannot disregard the
requirement established in the Law on Citizenship that the
citizen of a foreign state or stateless person must have merits
not to any subject, but to the State of Lithuania itself. The
merits of the person who requests to be granted citizenship of
the Republic of Lithuania by way of exception must be such and
grounded in such a way so that it would not cause any doubts as
to their presence.
9. The formula "to citizens of foreign states or stateless
persons with merits" employed in Paragraph 1 of Article 16 of the
Law on Citizenship also means that not any person, but a citizen
of a foreign state or a stateless person must have merits to the
State of Lithuania. Thus, deciding whether the citizen of a
foreign state or the stateless person has merits to the Republic
of Lithuania, one should, under Paragraph 1 of Article 16 of the
Law on Citizenship, assess only the very significant activity to
the State of Lithuania itself that it was performed when the
person was a citizen of a foreign state or a stateless person.
In the context of the case at issue, one is to note that it
is impossible to construe Paragraph 1 of Article 16 of the Law on
Citizenship as permitting to regard merits of citizens of a
foreign state or stateless persons to the Republic of Lithuania
also the merits that the said persons had to the State of
Lithuania at the time when they were not citizens of a foreign
state or stateless persons, but when they used to be citizens of
the Republic of Lithuania. For merits to the State of Lithuania,
citizens of the Republic of Lithuania may be awarded awards of
the State of Lithuania (orders, medals and other decorations),
however, the former merits of citizens of the Republic of
Lithuania to the State of Lithuania, upon their renunciation or
loss of citizenship otherwise, may not become merits of the
citizen of a foreign state or the stateless person to the
Republic of Lithuania, on the grounds of which citizenship of the
Republic of Lithuania could be granted by way of exception. A
different construction of Paragraph 1 of Article 16 of the Law on
Citizenship would mean that the same activity, which is merits of
a citizen of the Republic of Lithuania to the State of Lithuania
and for which the citizen of the Republic of Lithuania can be
awarded state awards, is, alongside, merits of the citizen of a
foreign state or the stateless person to the State of Lithuania
for which, in case the citizen of the Republic lost citizenship
of the Republic of Lithuania and became a citizen of a foreign
state or a stateless person, he could be granted citizenship of
the Republic of Lithuania by way of exception. It is clear that
such construction of Paragraph 1 of Article 16 of the Law on
Citizenship would be absolutely groundless from the legal
standpoint only because of the fact that granting of citizenship
of the Republic of Lithuania to a foreign citizen or a stateless
person is not and may not be a state award.
10. It has been mentioned that citizenship is a permanent
legal link between the person and the state, that citizenship may
be granted to the person who meet the conditions established in
the law.
The general conditions for granting of citizenship of the
Republic of Lithuania are established in Paragraph 1 of Article
12 of the Law on Citizenship, under which, upon submitting an
application, a person may be granted citizenship of the Republic
of Lithuania, provided that he agrees to take an oath to the
Republic of Lithuania and meets the following conditions: (1) has
passed the examination in the Lithuanian language; (2) for the
last ten years has been permanently residing in the territory of
the Republic of Lithuania; (3) has a legal source of support in
the territory of the Republic of Lithuania; (4) has passed the
examination in the basic provisions of the Constitution of the
Republic of Lithuania; (5) is a stateless person or is a citizen
of a state under the laws of which he loses citizenship of the
said state upon acquiring citizenship of the Republic of
Lithuania and notifies in writing of his decision to renounce
citizenship of another state held by him after he is granted
citizenship of the Republic of Lithuania.
11. One of the conditions for granting citizenship of the
Republic of Lithuania is requirement for permanent residence in
Lithuania for the last ten years. Although Paragraph 1 of Article
16 of the Law on Citizenship provides that in the course of
granting of citizenship of the Republic of Lithuania by way of
exception the conditions provided for in Article 12 of the Law on
Citizenship are not applied (one of such conditions, as
mentioned, is requirement that one reside in Lithuania for the
last ten years), however, it is impossible to construe Paragraph
1 of Article 16 of the Law on Citizenship as permitting one to
grant citizenship of the Republic of Lithuania to the citizen of
a foreign state or stateless person by way of exception, who has
merits to the Republic of Lithuania, who, however, is not linked
with the State of Lithuania by permanent factual links, who is
not integrated into the Lithuanian society. A different
construction of Paragraph 1 of Article 16 of the Law on
Citizenship would deny the nature and essence of citizenship of
the Republic of Lithuania itself: the legal link between a
citizen of a foreign state or a stateless person and the State of
Lithuania can appear only on the basis of a prior and the
continuing legislatively established factual permanent link
between the citizen of a foreign state or stateless person and
the State of Lithuania. Citizens of foreign states or stateless
persons, who are with merits to the Republic of Lithuania, but
who are not linked with the State of Lithuania by permanent
factual links, who are not integrated into the Lithuanian
society, may be awarded awards of the State of Lithuania (orders,
medals, and other decorations). As mentioned, citizenship of the
Republic of Lithuania is not and may not be a state award.
Therefore, if a citizen of a foreign state or a stateless person,
who is with merits to the Republic of Lithuania, is not linked
with the State of Lithuania by permanent factual links, who is
not integrated into the Lithuanian society, there cannot appear a
specialpermanent and legallink between such a person and the
State of Lithuania, which is expressed by citizenship.
12. It has been mentioned that the procedure for granting of
citizenship of the Republic of Lithuania is established by the
Law on Citizenship. This law also provides that there are persons
to whom citizenship of the Republic of Lithuania may not be
granted.
Under Article 13 of the Law on Citizenship, citizenship of
the Republic of Lithuania shall not be granted to persons who (1)
have committed international crimes provided for by the
international treaties to which the Republic of Lithuania is a
party or by international customary law, such as: aggression,
acts of genocide, crimes against humanity, war crimes; (2) have
taken part in criminal activities against the State of Lithuania;
(3) before coming to Lithuania, have been imposed a custodial
sentence for a premeditated crime for which laws of the Republic
of Lithuania also prescribe criminal liability, or have been
convicted in Lithuania for a premeditated crime punishable by a
custodial sentence.
13. The legal regulation established in Article 13 of the
Law on Citizenship means that before the President of the
Republic issues a decree on granting citizenship, one must verify
and ascertain in all cases, including those when citizenship of
the Republic of Lithuania is granted to citizens of a foreign
state or stateless persons, who have merits to the Republic of
Lithuania, by way of exception, that there are not any
circumstances present, indicated in Article 13 of the Law on
Citizenship, due to which citizenship of the Republic of
Lithuania is not granted. To state the fact that there are not
any such circumstances is a duty arising from Article 13 of the
Law on Citizenship, which falls upon the institutions preparing
documents for granting of citizenship. However, as mentioned,
although the said duty falls upon the institutions preparing
documents for granting of citizenship, it does not mean that the
President of the Republic does not have a duty to demand
confirmation from the institutions (their officials) preparing
documents for granting of citizenship that there are not any such
circumstances due to which citizenship of the Republic of
Lithuania may not be granted: the President of the Republic must
ascertain this prior to the issuing of the decree on granting
citizenship of the Republic of Lithuania, including that on
granting citizenship to a citizen of a foreign state or a
stateless person who has merits to the Republic of Lithuania.
14. It also needs to be noted that in the course of granting
citizenship of the Republic of Lithuania by way of exception, it
is not enough to assess only whether the person has merits to the
Republic of Lithuania and whether there are not any circumstances
indicated in Article 13 of the Law on Citizenship due to which
citizenship of the Republic of Lithuania is not granted to the
person. Granting of citizenship means that one holds that there
has appeared a permanent legal link between the person and the
state, that such a person has become a member of the state
communitythe legal Nation. The state, as the organisation of the
entire society, cannot be indifferent as to what persons become
its citizens. Therefore, even in cases when a citizen of a
foreign state or a stateless person has merits to the Republic of
Lithuania and is linked with the State of Lithuania by permanent
factual links, is integrated into the Lithuanian society, when
one decides whether to grant citizenship of the Republic of
Lithuania to such a person by way of exception, one must assess
all the circumstances characterising such a person, one must
follow the interests of the Nation and the State of Lithuania.
15. While disclosing the legal regulation established in
Paragraph 1 of Article 16 of the Law on Citizenship, under which
citizenship of the Republic of Lithuania may be granted by way of
exception, one must take account of other articles of the Law on
Citizenship, inter alia of those that regulate loss and
restoration of citizenship of the Republic of Lithuania.
16. The bases of loss of citizenship of the Republic of
Lithuania are established in Article 18 of the Law on
Citizenship, which provides:
"1. Citizenship of the Republic of Lithuania shall be lost:
1) upon renunciation of citizenship of the Republic of
Lithuania ;
2) upon acquisition of citizenship of another state;
3) on the grounds provided for by international agreements
to which the Republic of Lithuania is a party.
2. Item 2 of Paragraph 1 of this Article shall not be
applicable to:
1) persons who held citizenship of the Republic of Lithuania
prior to 15 June 1940, their children, grandchildren and great-
grandchildren (provided that the said persons, their children,
grandchildren or great-grandchildren did not repatriate);
2) persons of Lithuanian descent whose parents or
grandparents are or were or one of parents or grandparents is or
was Lithuanian and the person considers himself Lithuanian.
3. A person may be recognised as having lost citizenship of
the Republic of Lithuania if he is in the military service of
another state or is employed in the public service of another
state without having been granted authorisation by relevant
institutions of the Republic of Lithuania."
17. One of the grounds for loss of citizenship of the
Republic of Lithuania is acquisition of citizenship of another
state (Item 2 of Paragraph 1 of Article 18 of the Law on
Citizenship).
It needs to be noted that, as a rule, a citizen of the
Republic of Lithuania can acquire citizenship of another state in
case he himself requests to be granted citizenship of that state,
or himself performs actions, under which citizenship of that
state is granted to him, i.e. when the citizen of the Republic of
Lithuania himself expresses his willingness to acquire
citizenship of another state, thus, also to lose citizenship of
the Republic of Lithuania.
Paragraph 2 of Article 28 of the Law on Citizenship
provides: "If it transpires that the person has acquired
citizenship of another state, the Minister of the Interior or the
institution authorised by him shall state the fact of the loss of
citizenship of the Republic of Lithuania under Item 1 of
Paragraph 2 of Article 18 of this Law. Such a person shall be
considered to have lost citizenship of the Republic of Lithuania
as of the day of acquisition of citizenship of another state."
18. Under the Law on Citizenship, a person, who lost
citizenship of the Republic of Lithuania, may be restored
citizenship of the Republic of Lithuania.
The bases of restoration of citizenship of the Republic of
Lithuania are established in Article 20 of the Law on
Citizenship, which provides:
"1. A person who has lost citizenship of the Republic of
Lithuania under Paragraphs 1 or 3 of Article 18 of this Law may
have citizenship of the Republic of Lithuania restored to him
upon his application, provided that at the moment of filing of
the application the person is permanently residing in the
territory of the Republic of Lithuania and meets the conditions
established in Items 2, 3 and 5 of Paragraph 1 of Article 12 of
this Law.
2. A person who has lost citizenship of the Republic of
Lithuania under Paragraphs 1 or 3 of Article 18 of this Law and
who meets the conditions established in Items 1, 2 or 3 of
Paragraph 1 of Article 1 of this Law, may be restored citizenship
of the Republic of Lithuania upon such person's application
without applying to the person conditions established in Article
12 of this Law."
19. It is clear from the legal regulation established in
Article 20 of the Law on Citizenship that conditions of
restoration of citizenship of the Republic of Lithuania depend on
whether the person had possessed citizenship of the Republic of
Lithuania, which he subsequently lost.
The persons who meet the conditions established in Items 1,
2 or 3 of Paragraph 1 of Article 1 of the Law on Citizenship may
be restored citizenship of the Republic of Lithuania upon their
application, without applying to them conditions established in
Article 12 of the Law on Citizenship. By this way, the following
persons may be restored citizenship of the Republic of Lithuania:
(1) persons who held citizenship of the Republic of Lithuania
prior to 15 June 1940, their children, grandchildren and great-
grandchildren (provided that the persons, their children,
grandchildren or great-grandchildren did not repatriate); (2)
persons who permanently resided in the present-day territory of
the Republic of Lithuania in the period from 9 January 1919 to 15
June 1940, as well as their children, grandchildren and great-
grandchildren, provided that on the day of coming into force of
the Law on Citizenship they were and at the present time
permanently reside in the territory of the Republic of Lithuania
and are not citizens of any other state; (3) persons of
Lithuanian descent if they are not citizens of any other state.
Thus, without applying the conditions of naturalisation
indicated in Article 12 of the Law on Citizenship, citizenship of
the Republic of Lithuania may be restored to citizens of the
Republic of Lithuania that lost it, who either used to be
citizens of the Republic of Lithuania by descent, or used to be
linked with Lithuania by permanent factual links prior to 15 June
1940 (are children, grandchildren and great-grandchildren of such
persons), or are of Lithuanian descent.
To other persons who lost citizenship subsequent to the
grounds indicated in Paragraph 1 or 3 of Article 18 of the Law on
Citizenship, citizenship of the Republic of Lithuania may be
restored upon their request, provided at the time of filing of
the application this person permanently resides in the Republic
of Lithuania and meets the following conditions of Paragraph 1 of
Article 12 of the Law on Citizenship: (1) for the last ten years
has been permanently residing in the territory of the Republic of
Lithuania (Item 2 of Paragraph 1 of Article 12); (2) has a legal
source of support in the territory of the Republic of Lithuania
(Item 3 of Paragraph 1 of Article 12); (3) is a stateless person
or is a citizen of a state under the laws of which he loses
citizenship of the said state upon acquiring citizenship of the
Republic of Lithuania and notifies in writing of his decision to
renounce citizenship of another state held by him after he is
granted citizenship of the Republic of Lithuania (Item 5 of
Paragraph 1 of Article 12).
20. By construing the provisions of Articles 18 and 20 of
the Law on Citizenship in a systematic manner, one is to hold
that in the Law on Citizenship the legal regulation is
established, under which the persons who lost citizenship of the
Republic of Lithuania subsequent to the grounds set in Article 18
of the Law on Citizenship can repeatedly acquire citizenship of
the Republic of Lithuania only if citizenship of the Republic of
Lithuania is restored to them, i.e. in the course of the
application of the institute of restoration of citizenship.
It needs to be noted that the legislator, while taking
account of how the person had acquired citizenship of the
Republic of Lithuania, which he subsequently lost, enjoys
discretion to establish varied conditions of restoration of
citizenship of the Republic of Lithuania. While establishing such
conditions, one must pay heed to the norms and principles of the
Constitution, inter alia, not to violate the constitutional
principle of equality of persons before the law, state
institutions and officials, which also means that a certain group
of persons distinguished by the same characteristics can be
treated differently in legal norms, if compared to the other
addressees of the said legal norm, only in the case when if there
exist differences of such nature and extent so that such unequal
treatment might be objectively justified (Constitutional Court
ruling of 20 November 1996).
21. While construing in a systematic manner the provisions
of Article 20 of the Law on Citizenship which establishes
restoration of citizenship of the Republic of Lithuania and of
Article 16 of the same law which establishes granting of
citizenship of the Republic of Lithuania by way of exception, one
is to conclude that each of these articles establishes a
different legal institute, linked with different legal situations
and different categories of persons, and giving rise to different
legal effects.
In Article 20 of the Law on Citizenship the institute of
restoration of citizenship of the Republic of Lithuania is
consolidated. This institute is applied to all persons that used
to be citizens of the Republic of Lithuania and lost citizenship
of the Republic of Lithuania subsequent to the grounds
established in Article 18 of the Law on Citizenship, and who seek
to acquire citizenship of the Republic of Lithuania once again.
The institute of granting of citizenship of the Republic of
Lithuania consolidated in Article 16 of the Law on Citizenship is
linked with a different legal situation and is applicable to
other persons. The legal norms which constitute this institute
establish more favourable conditions for acquisition of
citizenship of the Republic of Lithuania to citizens of foreign
states and stateless persons who are with merits to the Republic
of Lithuania, who have never been citizens of the Republic of
Lithuania.
22. It needs to be noted that the institute of restoration
of citizenship of the Republic of Lithuania and the institute of
granting of citizenship of the Republic of Lithuania by way of
exception are linked with different legal effects. In itself,
granting of citizenship of the Republic of Lithuania by way of
exception does not give rise to legal effects as regards family
members of the person who has acquired citizenship (Paragraph 2
of Article 16 of the Law on Citizenship), meanwhile, in itself,
restoration of citizenship of the Republic of Lithuania gives
rise to legal effects to children under 14 years of age of these
persons: if both parents are restored citizenship of the Republic
of Lithuania, then their children under 14 years of age also
become citizens of the Republic of Lithuania (Paragraph 1 of
Article 22 of the Law on Citizenship); if one of the parents is
restored citizenship of the Republic of Lithuania, then, in case
there is a corresponding request of both or one of the parents,
citizenship of the child is changed (Article 23 of the Law on
Citizenship).
Article 16 of the Law on Citizenship cannot be construed so
that to the subjects, citizens of foreign states or stateless
persons, pointed out therein, who can be granted citizenship of
the Republic of Lithuania by way of exception, also the citizens
of foreign states or stateless persons could be attributed, who
used to be citizens of the Republic of Lithuania and who have
lost citizenship of the Republic of Lithuania subsequent to the
grounds established in Article 18 of the Law on Citizenship.
Thus, under Paragraph 1 of Article 16 of the Law on
Citizenship, citizenship of the Republic of Lithuania may be
granted by way of exception only to those citizens of foreign
states or stateless persons, who have never been citizens of the
Republic of Lithuania.
23. Under Paragraph 1 of Article 28 of the Law on
Citizenship, the issues of restoration of citizenship of the
Republic of Lithuania are resolved by the President of the
Republic. The formula "may be restored citizenship of the
Republic of Lithuania" employed in Article 20 of the Law on
Citizenship means that the President of the Republic has the
right to decide whether or not to restore citizenship of the
Republic of Lithuania. While deciding whether the person may be
restored citizenship of the Republic of Lithuania, one must
assess not only the grounds subsequent to which the person lost
citizenship of the Republic of Lithuania, but also all the
circumstances characterising the person who requests to be
restored citizenship. While deciding whether the person can be
restored citizenship, one must follow only the interests of the
Nation and the State of Lithuania.
VI
1. Under the Constitution, the issues of granting of
citizenship are resolved by the President of the Republic (Item
21 of Article 84, Article 85 of the Constitution).
2. Paragraph 1 of Article 77 of the Constitution provides
that the President of the Republic shall be Head of State. While
construing Article 77 of the Constitution, in its ruling of 8 May
2000 the Constitutional Court held that "only one person acquires
the status of the Head of State for the period determined in the
Constitution, i.e. the President of the Republic who is elected
by citizens of the Republic of Lithuania. The legal status of the
President of the Republic as the Head of State is an individual
one, different from that of the rest of the citizens". Under the
Constitution, the legal status of the President of the Republic
as Head of State is different from that of the rest of state
officials (Constitutional Court ruling of 19 June 2002).
It was also held in Constitutional Court ruling of 19 June
2002 that the exceptional legal status of the President of the
Republic as Head of State is revealed in various provisions of
the Constitution which establish: the inviolability of the person
of the President of the Republic; impossibility for the President
of the Republic to be a Seimas member or to hold another office,
or receive any remuneration other than the salary established for
the President of the Republic as well as compensation for
creative activities; a duty for the person elected President of
the Republic to suspend his or her activities in political
parties and political organisations; requirements for the
candidates seeking the post of the President of the Republic and
the bases and procedure of the elections of the President of the
Republic; the oath of the President of the Republic; the powers
of the President of the Republic, their commencement and
termination, etc.
3. Under Paragraph 2 of Article 77 of the Constitution, the
President of the Republic shall represent the State of Lithuania.
It needs to be noted that the State of Lithuania shall be
created by the Nation, sovereignty shall belong to the Nation
(Article 2 of the Constitution). Article 4 of the Constitution
provides that "the Nation shall execute its supreme sovereign
power either directly or through its democratically elected
representatives". Under Paragraph 1 of Article 55 of the
Constitution, members of the Seimas are representatives of the
Nation. Thus, only the Seimas is representation of the Nation.
As mentioned, the President of the Republic is Head of State
and represents the State of Lithuania. Although representation of
the Nation and representation of the state cannot be opposed,
however, representation of the Nation and representation of the
state are not identical legal categories, each of them has the
content characteristic of it only.
4. It has been mentioned that the Seimas, the petitioner,
requests to investigate as to whether President of the Republic
of Lithuania Decree No. 40 "On Granting Citizenship of the
Republic Lithuania by Way of Exception" of 11 April 2003 to the
extent that it provides that citizenship of the Republic
Lithuania is granted to J. Borisov by way of exception is not in
conflict with the provisions entrenched in Paragraph 1 of Article
82 of the Constitution. Although the petitioner requests to
investigate into the compliance of the disputed part of the
decree with all provisions of Paragraph 1 of Article 82 of the
Constitution, however, it is clear from the explanations of the
representatives of the Seimas, the petitioner, that one requests
to investigate whether the disputed part of the said decree of
the President of the Republic is not in conflict with the
provision "the elected President of the Republic <
> will take an
oath <
> to be equally just to all" of Paragraph 1 of Article 82
of the Constitution.
5. Article 82 of the Constitution provides:
"The elected President of the Republic shall take office on
the day following the expiration of the term of office of the
President of the Republic; on that day, in Vilnius and in the
presence of the representatives of the Nation, the members of the
Seimas, he will take an oath to the Nation to be faithful to the
Republic of Lithuania and the Constitution, to conscientiously
fulfil the duties of his office, and to be equally just to all.
The President of the Republic, upon being re-elected, shall
retake the oath.
The act of oath of the President of the Republic shall be
signed by him and by the President of the Constitutional Court,
or in the absence of the latter, by a justice of the
Constitutional Court."
6. A provision is consolidated in Paragraph 1 of Article 82
of the Constitution that the elected President of the Republic
takes office only after he takes an oath to the Nation.
When one takes account of the fact that representatives of
the Nation, members of the Seimas, sit in the House of the
Seimas, this implies that the formula "in Vilnius and in the
presence of the representatives of the Nation, the members of the
Seimas" of Paragraph 1 of Article 82 of the Constitution means
that the elected Present of the Republic must take an oath not
anywhere, but in the House of the Seimas, which, under the
Constitution, must be only in Vilnius, the capital of the
Republic of Lithuania.
7. Paragraph 1 of Article 82 of the Constitution establishes
the content of the oath of the elected President of the Republic
to the Nation: the elected President of the Republic must swear
to be faithful to the Republic of Lithuania and the Constitution,
to conscientiously fulfil the duties of his office, and to be
equally just to all.
It needs to be noted that the oath of the elected President
of the Republic reflects the main values enshrined in the
Constitution, which are linked by the Nation with the office of
the President of the Republic.
8. The Constitution provides that before taking office,
members of the Seimas must take an oath (Paragraph 2 of Article
59 of the Constitution, Article 5 of the Law on the Procedure of
Entry Into Effect of the Constitution of the Republic of
Lithuania), also the Prime Minister and ministers (Article 93 of
the Constitution), justices of the Constitutional Court
(Paragraph 2 of Article 104 of the Constitution), judges of other
courts (Paragraph 6 of Article 112 of the Constitution).
It needs to be noted that the oath of the elected President
of the Republic is different from the oath taken by a member of
the Seimas, the Prime Minister and ministers, a justice of the
Constitutional Court, or of a judge of another court. The elected
President of the Republic is the only person pointed out in the
Constitution that takes an oath to a special entity to whom
sovereignty belongs: the elected President of the Republic takes
an oath to the Nation. The peculiarity of the oath of the elected
President of the Republic is that in the oath to the Nation the
most important and universal constitutional values are reflected,
from which, when in office, the President of the Republic cannot
deviate; these constitutional values are inseparable from one
another, the content of these values is very voluminous,
including a great many of other constitutional commitments, which
are of no less importance.
9. The oath of the elected President of the Republic is not
a mere formal or symbolic act. Taking account of the fact that
the institute of the oath of the President of the Republic and
the content of the oath are established in the Constitution, the
oath of the President of the Republic has a constitutional
significance and gives rise to constitutional legal effects.
The provisions of Paragraph 1 of Article 82 of the
Constitution that the elected President of the Republic shall
take office on the day following the expiration of the term of
office of the President of the Republic after he takes an oath to
the Nation, mean that until the elected President of the Republic
has not taken oath to the Nation, he cannot take office. The
elected President of the Republic begins his office at the moment
after he takes an oath to the Nation.
The act of the oath of the elected President of the Republic
is legally significant also due to the fact that from the moment
that the elected President of the Republic takes the oath, the
powers of the former President of the Republic expire.
It needs to be noted that refusal of the elected President
of the Republic to take an oath to the Nation in the Seimas at
the time prescribed by the Constitution, taking the oath with
reservations or changing the text of the oath, as well as refusal
of the elected President of the Republic to sign the text of the
oath, mean, under the Constitution, that the elected President of
the Republic may not take office and that new elections of the
President of the Republic must be announced.
The act of the oath of the President of the Republic is
legally significant also due to the fact that from the moment of
taking the oath a duty arises to the President of the Republic to
act only so as the oath taken to the Nation obligates. Breach of
the oath is one of the grounds under which the President of the
Republic may be removed from office according to the procedure
for impeachment proceedings (Article 74 of the Constitution). It
needs to be noted that breach of the oath is, alongside, a gross
violation of the Constitution, while a gross violation of the
Constitution is, alongside, breach of the oath.
10. It has been mentioned that the elected President of the
Republic, under Article 82 of the Constitution, takes an oath to
the Nation to be faithful to the Republic of Lithuania and the
Constitution, to conscientiously fulfil the duties of his office,
and to be equally just to all.
The requirement consolidated in Paragraph 1 of Article 82 of
the Constitution that the President of the Republic must be
equally just to all is to be construed by taking into
consideration the provision of Paragraph 1 pf Article 29 of the
Constitution that all persons shall be equal before the law, the
court, and other state institutions and officials.
11. Article 29 of the Constitution consolidates the
principle of equality of all persons before the law, the court,
and other state institutions and officials. The Constitutional
Court has held in its rulings for more than once that this is the
principle of formal equality of persons. While construing the
content of Article 29 of the Constitution, the Constitutional
Court has held for many a time that this principle must be
followed in the course of passing of laws and in their
application. This principle obligates one to legally assess
homogenous facts in the same manner and prohibits to arbitrarily
assess virtually the same facts in a varied manner.
The principle of equality of all persons also means that the
same law or other legal act, the same measure, common and equal
to all subjects of this category, must be applied to subjects of
corresponding type of relations, to all persons (groups thereof)
characteristic of the same features. The legal norms of
substantive as well as of procedural law must be applied in equal
manner.
The constitutional principle of equality of all persons
before the law would be violated if a certain group of people to
which the legal norm is ascribed, if compared to other addressees
of the same legal norm, was treated differently, even though
there are not any differences in their character and extent
between these groups so that such uneven treatment would be
objectively justified (Constitutional Court ruling of 20 November
1996).
12. The requirement established in Paragraph 1 of Article 82
of the Constitution that the President of the Republic must be
equally just to all, when one takes account of the provision of
Paragraph 2 of Article 77 of the Constitution that the President
of the Republic performs everything that he is charged with by
the Constitution and laws, means that the President of the
Republic, while implementing the powers established for him in
the Constitution and laws, must follow only the Constitution and
laws, cannot violate them, that the President of the Republic
must act only in the interests of the Nation and the State of
Lithuania, that the President of the Republic, while implementing
the powers established for him in the Constitution and laws,
cannot act with aims and interests, which are inconsistent with
the Constitution and laws, as well as with public interests. The
constitutional requirement to be equally just to all obligates
the President of the Republic to act so that there would not be a
conflict between the interests of the President of the Republic,
as a private person, and his constitutional duty, as of the Head
of State, to represent the State of Lithuania, and to follow only
the interests of the Nation and the State of Lithuania.
13. The provision of Paragraph 1 of Article 82 of the
Constitution that the President of the Republic must be equally
just to all, together with the provision of Article 29 of the
Constitution that all persons are equal before state institutions
and officials, mean not only that the President of the Republic
has a duty to treat all persons, to whom this provision is
ascribed, equally, but also that the President of the Republic
has a duty to apply this legal norm equally justly to all
persons. The provision of Paragraph 1 of Article 29 of the
Constitution that all persons shall be equal before state
institutions and officials, the provision of Paragraph 1 of
Article 82 that the President of the Republic must be equally
just to all cannot be construed as meaning that, purportedly,
according to these provisions, the President of the Republic
would be equally just to all even in a situation when a legal
norm is applied to all persons equally unjustly. Such
construction of the said provisions of Paragraph 1 of Article 29
and Paragraph 1 of Article 82 of the Constitution would not be in
line with the constitutional principles of a state under the rule
of law and justice, upon which the Constitution itself and the
entire legal system of Lithuania are based.
It has been held in this Ruling of the Constitutional Court
that a mere fact that a decree of the President of the Republic
is recognised as being in conflict with the Constitution or a
law, in itself does not mean that the President of the Republic
grossly violated the Constitution, or breached the oath, or
committed a crime, and that in deciding whether the President of
the Republic, having issued a decree that is in conflict with the
Constitution or a law, has grossly violated the Constitution or
breached the oath, or committed a crime, one has to assess not
only the content of the decree of the President of the Republic,
but also the fact whether, in the course of the issuance of the
decree of the President of the Republic, the requirements
established in the Constitution and corresponding laws were
fulfilled, whether the established procedure was being followed,
and also to assess other factual circumstances of the issuance of
such a decree.
It needs to be noted that violation of Paragraph 1 of
Article 29 of the Constitution is in all cases violation of the
principle of the formal equality of persons. Meanwhile, the
provision of Paragraph 1 of Article 82 of the Constitution that
the President of the Republic must be equally just to all
consolidates not only the duty of the President of the Republic
not to violate the principle of the formal equality of persons,
but also his duty not to act, in the course of implementation of
the powers established to him in the Constitution and laws, so
that the persons (their groups), in whose regard the President of
the Republic adopts decisions, would knowingly be treated not
equally justly. Thus, the provision of Paragraph 1 of Article 82
of the Constitution that the President of the Republic must be
equally just to all would be violated not in all cases when
Paragraph 1 of Article 29 of the Constitution (the principle of
the formal equality of persons) is violated, but only when the
President of the Republic, while implementing the powers
established for him in the Constitution and laws, knowingly acts
so that that the persons (their groups), in whose regard the
President of the Republic adopts decisions, would be treated not
equally justly.
Thus, the mere fact that a decree of the President of the
Republic is recognised to be in conflict with Paragraph 1 of
Article 29 of the Constitution, in itself, does not mean that,
while issuing such a decree, the President of the Republic
violated the provision of Paragraph 1 of Article 82 of the
Constitution that the President of the Republic must be equally
just to all. While deciding, whether, when issuing a decree,
which is in conflict with Paragraph 1 of Article 29 of the
Constitution, the President of the Republic, alongside, did not
violate the provision of Paragraph 1 of Article 82 of the
Constitution that the President of the Republic must be equally
just to all, one must assess not only the content of the decree
of the President of the Republic, but also the factual
circumstances of issuance of such a decree.
14. The formula "all persons shall be equal" of Paragraph 1
of Article 29 of the Constitution means that the principle of
equality before the law, the court, and other state institutions
and officials must be followed not only in regard of citizens of
the Republic of Lithuania, but also of citizens of foreign states
and stateless persons.
In the context of the case at issue, one is to note that the
provision of Paragraph 1 of Article 82 of the Constitution that
the President of the Republic must be equally just to all means
that the President of the Republic must be equally just not only
to citizens of the Republic of Lithuania that constitute the
state communitythe civil Nationbut also to all other persons,
i.e. to citizens of foreign states and stateless persons in whose
regard the President of the Republic adopts decisions.
15. In the context of the case at issue one is to note that
if the law provides that citizenship of the Republic of Lithuania
may be granted to a citizen of a foreign state or a stateless
person who has merits to the Republic of Lithuania, it means that
this requirement must be applied to all citizens of foreign
states or stateless persons, who request to be granted
citizenship of the Republic of Lithuania by way of exception. In
case citizenship of the Republic of Lithuania is granted to a
citizen of a foreign state or a stateless person, who has no
merits to the Republic of Lithuania, one would disregard the
principle of equality of persons entrenched in Paragraph 1 of
Article 29 of the Constitution that includes the equality of
persons before state institutions or officials, also, one would
disregard the provision of Paragraph 1 of Article 82 of the
Constitution that the President of the Republic must be equally
just to all.
In case the law established the grounds under which
citizenship of the Republic of Lithuania cannot be granted, the
principle of equality of all persons as well as the
constitutional imperative that the President of the Republic must
be equally just to all would require that one should verify in
all cases, before the issuance of the decree of the President of
the Republic on granting of citizenship of the Republic of
Lithuania (as well as on granting of citizenship to citizens of
foreign states or stateless persons who have merits to the
Republic of Lithuania by way of exception) whether there are not
any grounds established by the law under which citizenship of the
Republic of Lithuania cannot be granted. Otherwise, one would
disregard the principle of equality of persons entrenched in
Article 29 of the Constitution, as well as the provision of
Paragraph 1 of Article 82 of the Constitution that the President
of the Republic must be equally just to all.
The requirements established in Article 29 and Paragraph 1
of Article 82 of the Constitution would be disregarded also in
case the President of the Republic, when implementing the powers
established to him in the Constitution and laws to grant
citizenship of the Republic of Lithuania, would apply the legal
norm to all persons (or their individual groups and individual
persons) addressed to these persons equally unjustly.
16. It needs to be noted that the duty of the President of
the Republic to be equally just to all arising from the
Constitution when he implements the powers established to him in
the Constitution and laws to decide citizenship issues has
certain peculiarities. These peculiarities are determined by the
fact that under Article 16 of the Law on Citizenship the
President of the Republic has the right but not the duty to grant
citizenship to citizens of foreign states or stateless persons
who have merits to the Republic of Lithuania by way of exception:
even if a citizen of a foreign state or a stateless person has
merits to the Republic of Lithuania, citizenship of the Republic
of Lithuania may not necessarily be granted by way of exception.
This is decided at the discretion of the President of the
Republic. However, the circumstance that only the President of
the Republic has the right to decide whether a citizen of a
foreign state or a stateless person can be granted citizenship of
the Republic of Lithuania by way of exception, cannot be
interpreted as meaning that the President of the Republic, when
deciding whether to grant citizenship of the Republic of
Lithuania to the citizen of a foreign state or stateless person
who has merits to the Republic of Lithuania, may disregard the
requirements established in the Constitution and the Law on
Citizenship, and that he may be clearly partial and non-
objective. Nor can the circumstance that, under the Law on
Citizenship, the issues of granting of citizenship of the
Republic of Lithuania are decided by the President of the
Republic at his discretion, be interpreted as meaning that, prior
to issuing the decree of the President of the Republic on
granting of citizenship of the Republic of Lithuania by way of
exception the equal legal procedures established in the law to
all persons may be applied unequally, that, prior to issuing the
decree on granting of citizenship of the Republic of Lithuania,
the President of the Republic does not have a duty to receive
confirmation from the institutions (their officials) preparing
citizenship documents so that all the requirements established in
the Law on Citizenship have been accomplished (all procedures
established in the Law on Citizenship have been accomplished),
and that there are not any legal obstacles to issue a
corresponding decree of the President of the Republic.
The unequal application of the equal legal procedures
established in the law to all persons not only places citizens of
foreign states or stateless persons that seek to be granted
citizenship of the Republic of Lithuania by way of exception in
an unequal situation, but it also means that all persons are not
equal before the state institutions or their officials that
unequally apply the equal legal procedures established in the law
to all persons, and if the President of the Republic does so, he
deviates from the constitutional requirement to be equally just
to all.
VII
1. The petitioner, the Seimas, requests to investigate
whether the part of President of the Republic Decree No. 40 "On
Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003 whereby citizenship of the Republic
Lithuania is granted to J. Borisov by way of exception is not in
conflict with, inter alia, the constitutional principle of a
state under the rule of law.
2. The Constitutional Court has held for more than once that
the constitutional principle of a state under the rule of law is
a universal principle upon which the entire legal system of
Lithuania and the Constitution itself are based. The Constitution
is an integral act, thus the content of the principle of a state
under the rule of law reveals itself in various provisions of the
Constitution and is to be construed inseparably from the striving
for an open, just and harmonious civil society that is proclaimed
in the Constitution. The constitutional principle of a state
under the rule of law implies, along with other requirements,
that human rights and freedoms must be ensured, that one pay heed
to natural justice, that all institutions implementing state
power must act on the basis of law and in compliance with law,
that the Constitution has the supreme legal power and that all
legal acts must be in compliance with the Constitution.
It needs to be noted that the constitutional principle of a
state under the rule of law implies also a hierarchy of legal
acts, inter alia the fact that substatutory legal acts cannot be
in conflict with laws, constitutional laws, and the Constitution,
that substatutory legal acts must be adopted on the basis of
laws, that a substatutory legal act is an act of application of
legislative norms irrespective of whether this act is of one-time
(ad hoc) application, or of permanent validity.
3. The legal acts passed by the President of the Republic
are substatutory legal acts, therefore, they, as all other
substatutory legal acts, may not be in conflict with the
Constitution, constitutional laws and laws.
VIII
The following factual circumstances have been established in
this case:
1. Jurij Aleksandrovič Borisov was born on 17 May 1956 in
the Primorski Region, Russia. In 1962, after his father, a
serviceman of the Soviet Union, had been moved to his new place
of service in the territory of Lithuania which had been occupied
by the Soviet Union, the family moved to Lithuania for residence.
In 1990, upon restoration of the independent State of
Lithuania, J. Borisov was a regular officer of the occupation
army of the Soviet Union that was in the territory of Lithuania
on unlawful basis. By Minister of Defence of the Soviet Union
Order No. 0889 of 27 May 1991, J. Borisov was dismissed from the
actual military service to the reserve (Migration Department
under the Ministry of the Interior Reference No. (15/2-2)-6K-147
of 28 March 2003). J. Borisov finished his service in the army of
the Soviet Union with the rank of major.
2. Under the 3 November 1989 Law on Citizenship, there was a
necessary condition of acquisition of Lithuanian citizenship for
the persons who resided in Lithuania on the day of the entry of
this law into effect, i.e. on 3 November 1989, but who had not
been born in Lithuania (save cases when at least one of their
parents or grandparents had been born in the territory of
Lithuania or if they had been citizens of Lithuania), which was
their permanent residence in the territory of Lithuania and their
permanent place of work or permanent legal source of support in
Lithuania (Item 3 of Article 1). Only such persons, under Item 3
of Article 1 of the Law on Citizenship, were granted the right to
freely decide, within two years, i.e. till 4 November 1991, on
citizenship.
As mentioned, J. Borisov, on the day of the entry of this
law into effect, was a regular officer of the occupation army of
the Soviet Union that was in the territory of Lithuania on
unlawful basis.
3. On 1 November 1991, J. Borisov wrote a pledge to the
Republic of Lithuania and he was issued the certificate of a
citizen of the Republic of Lithuania (Migration Department under
the Ministry of the Interior Note 15-1-10K-44356 of 28 November
2003, a copy of the pledge of J. Borisov to the Republic of
Lithuania). On 20 October 1992, J. Borisov was issued the
passport of a citizen of the Republic of Lithuania (Migration
Department under the Ministry of the Interior Reference No. (15/
2-2)-6K-147 of 28 March 2003).
4. In its ruling of 13 April 1994, the Constitutional Court
held that soldiers of the Soviet Union, who used to serve in the
former occupational military forces of the Soviet Union that were
in the territory of Lithuania on unlawful basis could not be
regarded as ones permanently residing and working in Lithuania.
At the time when the 3 November 1989 Law on Citizenship was
adopted, J. Borisov was an officer of the Soviet Union military,
therefore Item 3 of Article 1 of the 3 November 1989 Law on
Citizenship was not applicable in his regard, i.e. J. Borisov
could not be regarded as one permanently residing and working in
Lithuania. Thus, it was not permissible that J. Borisov be issued
the certificate of a citizen of the Republic of Lithuania and the
passport of a citizen of the Republic of Lithuania. They were
issued to J. Borisov on unlawful grounds.
5. By President of the Republic Decree No. 41 "On the
Establishment of Citizenship Commission and Procedure of Its
Work" of 15 April 1998, the Citizenship Commission was
established, which, on 4 November 1999, on the basis of Article 4
of the Law "On the Procedure for Implementation of the Republic
of Lithuania Law on Citizenship", which was adopted by the Seimas
on 19 October 1995, considered the question of lawfulness of
granting of citizenship of the Republic of Lithuania to J.
Borisov and issuance of the passport of a citizen of the Republic
of Lithuania to him. The commission recognised that the passport
of a citizen of the Republic of Lithuania had been issued to J.
Borisov on unlawful grounds, however, it adopted a conclusion of
recommendation character that J. Borisov be considered a citizen
of the Republic of Lithuania and that he be permitted to keep the
passport of a citizen of the Republic of Lithuania issued to him
(Protocol No. 16 of the 4 November 1999 Citizenship Commission
sitting; Deputy Director of the Migration Department under the
Ministry of the Interior Decision No. 113 "On the Legitimacy of
the Issuance of the Passport of a Citizen of the Republic of
Lithuania to Jurij Borisov" of 11 November 1999).
On 11 November 1999, the Migration Department under the
Ministry of the Interior, on the grounds of Article 4 of the 19
October 1995 Law "On the Procedure for Implementation of the
Republic of Lithuania Law on Citizenship" and upon assessment of
the conclusion of recommendation character adopted by the
Citizenship Commission on 4 November 1999, decided that the
passport of a citizen of the Republic of Lithuania had been
issued to J. Borisov on unlawful grounds, however, it decided to
consider J. Borisov a citizen of the Republic of Lithuania and to
permit him to keep the passport of a citizen of the Republic of
Lithuania (Protocol No. 16 of the 4 November 1999 Citizenship
Commission sitting; Deputy Director of the Migration Department
under the Ministry of the Interior Decision No. 113 "On the
Legitimacy of the Issuance of the Passport of a Citizen of the
Republic of Lithuania to Jurij Borisov" of 11 November 1999;
Migration Department under the Ministry of the Interior Reference
No. (15/2-2)-6K-147 of 28 March 2003).
6. According to J. Borisov, at the end of the year 2000 he
applied to the President of the Russian Federation, requesting to
grant him citizenship of the Russian Federation. J. Borisov
pointed out that his request was determined by the fact that he
had business both in the Republic of Lithuania and the Russian
Federation. J. Borisov maintained that he comprehended that upon
acquisition of citizenship of the Russian Federation he would,
according to laws of the Republic of Lithuania, lose citizenship
of the Republic of Lithuania (testimony of the witness J.
Borisov).
7. By President of the Republic Decree No. 1373 "On Awarding
Orders and Medals of the State of Lithuania on the Occasion of
the Day of State (Coronation of King Mindaugas of Lithuania)" of
14 June 2001, for merits to the State of Lithuania and for
efforts to spread the name of Lithuania in the world and for help
to integrate it into the community of states of the world, J.
Borisov was awarded the Medal of Darius and Girėnas. J. Borisov
was recommended for the award by Rimas Kurtinaitis, Director
General of the Department of Physical Education and Sports under
the Government of the Republic of Lithuania (the 4 June 2001
Paper by Director General of the Department of Physical Education
and Sports under the Government of the Republic of Lithuania to
the President of the Republic Valdas Adamkus).
8. By President of the Russian Federation Ordinance No. 616
"On Granting of Citizenship of the Russian Federation" of 18 June
2002, Borisov Jurij Aleksandrovič, born in 1956 in the Primorski
Region, Russia, residing in the Republic of Lithuania, was
granted citizenship of the Russian Federation. Aforementioned
Ordinance No. 616 "On Granting of Citizenship of the Russian
Federation" of 18 June 2002 issued by the President of the
Russian Federation was officially published in the collection of
legal acts of the Russian Federation Sobranie zakonodatel'stva
Rossijskoj Federacii, No. 25 (24 June 2002).
According to legal acts of the Russian Federation, the
ordinances of the President of the Russian Federation whereby
persons are granted citizenship of the Russian Federation come
into force as of the day that they are signed.
President of the Russian Federation Ordinance No. 616 "On
Granting of Citizenship of the Russian Federation" of 18 June
2002 whereby J. Borisov was granted citizenship of the Russian
Federation went into effect on 18 June 2002. Thus, under legal
acts of the Russian Federation, as of 18 June 2002 J. Borisov is
a citizen of the Russian Federation.
9. As of June 2002, J. Borisov, already being a citizen of
the Russian Federation, participated in the 2002 President of the
Republic of Lithuania election campaign by way of financial and
other notably solid support for the candidate for the President
of the Republic R. Paksas (testimony of the witness J. Borisov).
The candidate for the President of the Republic R. Paksas
officially declared to the Central Electoral Commission that the
enterprise "Avia Baltika" UAB donated LTL 1,205,000 to his
election campaign (The Elections of the President of the Republic
of 22 December 2002, 5 January 2003. Results. Biographies of
Candidates for the President of the Republic. Election
Programmes. Financial Accounts. - Vilnius, The Central Electoral
Commission, 2003, pp. 514-516).
In the summer of 2002, the candidate for the President of
the Republic R. Paksas promised J. Borisov that in case he was
elected President of the Republic, he would appoint J. Borisov
his advisor (testimony of the witness J. Borisov).
10. By its resolution "On the Establishment of the Seimas
Provisional Commission for Investigation into the Problems of
Export of Controlled Goods and the Related Activity of the
Enterprise 'Avia Baltika'" of 10 December 2002, the Seimas formed
the Provisional Commission for Investigation into the Problems of
Export of Controlled Goods and the Related Activity of the
Enterprise "Avia Baltika".
11. On 5 January 2003, R. Paksas was elected President of
the Republic of Lithuania.
12. Prior to 11 April 2003, when the decree of the President
of the Republic was issued the provision whereof is being
disputed in the case at issue, M. Laurinkus, Director General of
the State Security Department, had informed the President of the
Republic R. Paksas for several times that an operational
investigation was being conducted in regard of J. Borisov and the
aviation company "Avia Baltika" UAB that was headed by him. On 17
March 2003, M. Laurinkus, Director General of the State Security
Department, informed the President of the Republic R. Paksas that
J. Borisov had pledged that in case of failure by R. Paksas to
fulfil his promises to J. Borisov, he would disseminate
information which would be unfavourable in regard to R. Paksas
and discrediting him (testimony of the witness M. Laurinkus).
13. On 18 March 2003, the Embassy of the Russian Federation
in Lithuania issued the passport of a citizen of the Russian
Federation to J. Borisov at his request (a copy of the passport
of the citizen of the Russian Federation J. Borisov).
14. The Provisional Commission for Investigation into the
Problems of Export of Controlled Goods and the Related Activity
of the Enterprise "Avia Baltika", after it has investigated the
activities of the aviation company "Avia Baltika" UAB,
established that, in 2001, the aviation company "Avia Baltika"
UAB (headed by J. Borisov) without a licence exported to Sudan a
helicopter Mi-8T. The commission stated that "the actions when,
in 2001, the helicopter Mi-8T was exported to Sudan, did not
violate the laws of the Republic of Lithuania that were valid at
that time, however, they were not in line with the European Union
embargo provisions and sanctions applied by the UNO" (Data and
conclusions of the investigation of the Provisional Commission
for Investigation into the Problems of Export of Controlled Goods
and the Related Activity of the Enterprise "Avia Baltika").
By its Resolution "On the Seimas Provisional Commission for
Investigation into the Problems of Export of Controlled Goods and
the Related Activity of the Enterprise 'Avia Baltika'" of 20
March 2003, the Seimas approved of the conclusions of the
Provisional Commission for Investigation into the Problems of
Export of Controlled Goods and the Related Activity of the
Enterprise "Avia Baltika" and discontinued the activity of this
commission.
15. On 24 March 2003, J. Borisov informed the Minister of
the Interior of the Republic of Lithuania in writing that on 18
March 2003 he had acquired citizenship of the Republic of
Lithuania and received the passport of a citizen of the Russian
Federation and presented copies of passport of a citizen of the
Russian Federation 51 No. 1696062 and passport of a citizen of
the Republic of Lithuania LJ 598788 (the 24 March 2003 paper of
J. Borisov to the Minister of the Interior).
16. On the same day, i.e. on 24 March 2003, J. Borisov
applied to the President of the Republic, requesting to be
granted citizenship of the Republic of Lithuania by way of
exception.
In J. Borisov's application of 24 March 2003 on granting him
citizenship of the Republic of Lithuania by way of exception it
is pointed out that on 18 March 2003 he acquired citizenship of
the Russian Federation and received the passport of a citizen of
the Russian Federation, that since 1991 he has been conducting
business, that he has created more than 200 jobs, that, in
addition, there are 600 people who work in enterprises providing
services or otherwise related to the enterprise headed by him,
that since 1991, the enterprises headed by him have paid more
than LTL 17 million in taxes to the budget of the Republic of
Lithuania, and that, in addition to that, he donated about LTL 6
million to charity. To this application of J. Borisov only copies
of J. Borisov's passports of a citizen of the Republic of
Lithuania and a citizen of the Russian Federation and copies of
the passports of citizens of the Republic of Lithuania of J.
Borisov's family members were attached. J. Borisov did not
present any documents confirming his merits to the Republic of
Lithuania, his state awards, or any recommendations from
politicians of the Republic of Lithuania or famous citizens of
the Republic of Lithuania (J. Borisov's application of 24 March
2003 to the President of the Republic on granting him citizenship
of the Republic of Lithuania by way of exception).
17. After the Office of the President of the Republic had
received J. Borisov's application of 24 March 2003 on granting
him citizenship of the Republic of Lithuania by way of exception,
the Citizenship Group, on the grounds of solely the 24 March 2003
application of J. Borisov, began to prepare material concerning
granting of citizenship to J. Borisov by way of exception
(testimony of the witnesses D. Jankauskienė and A. Meškauskas).
18. According to the established practice, in the course of
the preparation of the material concerning granting of
citizenship by way of exception, the Office of the President of
the Republic used to apply to the State Security Department,
requesting for information about persons seeking to acquire
citizenship of the Republic of Lithuania. Such an application, as
a rule, used to be filed with the official of the State Security
Department who was responsible for cooperation with the Office of
the President of the Republic on citizenship issues, by sending
him a draft decree of the President of the Republic on granting
citizenship to a corresponding person (persons) by way of
exception. The information of the State Security Department
concerning persons who seek to acquire citizenship of the
Republic of Lithuania is of recommendation character for the
Office of the President of the Republic and the Citizenship
Commission. When operational investigation is conducted in regard
of the person who seeks to acquire citizenship of the Republic of
Lithuania, the State Security Department does not recommend that
such a person be granted citizenship of the Republic of
Lithuania. When a question of granting of citizenship by way of
exception used to be decided, one used always to take account of
such recommendation, i.e., in case the State Security Department
would not recommend that a person be granted citizenship of the
Republic of Lithuania, one used to drop the deliberation of the
question of granting citizenship of the Republic of Lithuania to
such a person, and one used not to grant citizenship of the
Republic of Lithuania to such a person (testimony of the witness
M. Laurinkus).
19. On 28 March 2003, D. Jankauskienė, chief specialist of
the Citizenship Group of the Office of the President of the
Republic, by means of e-mail, sent a draft decree of the
President of the Republic on granting citizenship to three
persons by way of exception, among whom J. Borisov, born on 17
May 1956 in Russia, was also indicated. Several hours later,
following an instruction by A. Meškauskas, Head of the Office of
the President of the Republic, D. Jankauskienė made a telephone
call to the same official of the State Security Department and
recalled the request of the Office of the President of the
Republic for available information about J. Borisov. After the
official of the State Security Department had asked to confirm
the changed position of the Office of the President of the
Republic in writing, one the same day, i.e. on 28 March 2003, a
paper was received from A. Meškauskas, Head of the Office of the
President of the Republic, requesting for information about the
persons who were wishing to acquire citizenship of the Republic
of Lithuania by way of exception, in which the name of J. Borisov
was absent (testimony of the witnesses M. Laurinkus, D.
Jankauskienė, A. Meškauskas).
20. At the Constitutional Court hearing, A. Meškauskas, Head
of the Office of the President of the Republic, explained that he
had withdrawn the request that the Department of State Security
present available information about J. Borisov on the basis of a
statement made by a certain advisor to the President of the
Republic that one, purportedly, would not consider the issue of
granting of citizenship of the Republic of Lithuanian to J.
Borisov by way of exception, thus, it was not necessary to check
him.
21. At the Constitutional Court hearing, M. Laurinkus,
Director General of the State Security Department, pointed out
that according to the established practice such requests for
information about persons seeking to acquire citizenship of the
Republic of Lithuania used not to be withdrawn. Such a case, when
the Office of the President of the Republic applied to the State
Security Department for information about a person to whom one
intended to grant citizenship of the Republic of Lithuania by way
of exception, and later withdrew this request, although the issue
of granting citizenship to this person continued to be considered
and he was granted citizenship of the Republic of Lithuania by
way of exception, was the first and the only one.
22. In the course of the preparation of the material for the
Citizenship Commission sitting, concerning granting of
citizenship to J. Borisov by way of exception, one did not verify
or otherwise elucidate the circumstances which are provided for
in Article 13 of the Law on Citizenship, due to which citizenship
of the Republic of Lithuania was not to be granted to him.
23. By his decree No. 36 "On the Establishment of the
Citizenship Commission and the Procedure of Its Work" of 2 April
2003, the President of the Republic formed the Citizenship
Commission: the Advisor to the President of the Republic on legal
issuesHead of the Law Department (Chairman of the Commission),
the Head of the Office of the President, the Vice-minister of
Justice, a Deputy Prosecutor General of the Republic of
Lithuania, the Director of the Migration Department at the
Ministry of the Interior of the Republic of Lithuania, the
Director of the Consular Department at the Ministry of Foreign
Affairs of the Republic of Lithuania, the chief specialist of the
Citizenship Group of the Office of the President of the Republic
(secretary of the commission). The said decree of the President
of the Republic also approved the Rules for Consideration of
Issues at the Citizenship Commission.
Under Paragraph 1 of Article 8 of the Republic of Lithuania
Law "On the Procedure of Publishing and Entry into Effect of Laws
and Other Legal Acts of the Republic of Lithuania" (wording of 10
December 2002), decrees of the President of the Republic shall
come into force on the next day after they are published in the
official gazette "Valstybės žinios" provided a different day of
their entry into force is not indicated in the decrees
themselves. President of the Republic Decree No. 36 "On the
Establishment of the Citizenship Commission and the Procedure of
Its Work" of 2 April 2003 does not indicate a day of its entry
into effect. This decree of the President of the Republic was
published in the official gazette "Valstybės žinios" on 9 April
2003. Thus, according to Paragraph 1 of Article 8 of the Republic
of Lithuania Law "On the Procedure of Publishing and Entry into
Effect of Laws and Other Legal Acts of the Republic of Lithuania"
(wording of 10 December 2002) went into effect on 10 April 2003.
At the same time, President of the Republic Decree No. 41 "On the
Establishment of Citizenship Commission and Procedure of Its
Work" of 15 April 1998 became no longer valid.
Thus, the Citizenship Commission established by President of
the Republic of Lithuania Decree No. 36 "On the Establishment of
the Citizenship Commission and the Procedure of Its Work" of 2
April 2003 acquired powers to act on 10 April 2003.
24. By his paper of 3 April 2003, J. Borisov informed the
Migration Department at the Ministry of the Interior of the
Republic of Lithuania that on 18 March 2003 he had received the
passport of a citizen of the Russian Federation and returned the
passport of a citizen of the Republic of Lithuania held by him
(J. Borisov's paper of 3 April 2003 to the Migration Department
at the Ministry of the Interior of the Republic of Lithuania).
25. At the Constitutional Court hearing, the President of
the Republic, the party concerned, explained that he had
established a new Citizenship Commission and that it was that
commission that recommended that he grant citizenship of the
Republic of Lithuania to J. Borisov by way of exception.
26. The Citizenship Commission established by President of
the Republic of Lithuania Decree No. 36 "On the Establishment of
the Citizenship Commission and the Procedure of Its Work" of 2
April 2003 in its sittings of 9 April 2003 considered the issue
of granting of citizenship of the Republic of Lithuania to J.
Borisov by way of exception. On that day two sittings of the
Citizenship Commission took place: the firstaround 13 o'clock,
the second onearound 15 o'clock; the second from the said
sittings was held with the President of the Republic.
At the first sitting, O. Buišienė, Advisor to the President
of the Republic on legal issuesHead of the Law Department
(Chairwoman of the Citizenship Commission) participated in the
sitting and presided over it. Taking account of the fact that in
the first sitting of the Citizenship Commission that took place
on 9 April 2003 O. Buišienė, Advisor to the President of the
Republic on legal issuesHead of the Law Department participated,
presided over it and signed the protocol of this sitting as the
Chairwoman of the Citizenship Commission, who had not been a
member of the previous commission established by President of the
Republic Decree No. 41 "On the Establishment of Citizenship
Commission and Procedure of Its Work" of 15 April 1998, also of
the fact that the protocol of the 9 April 2003 Citizenship
Commission sitting bears number 1, one is to draw a conclusion
that on 9 April 2003 the Citizenship Commission held its sitting,
which had been established by President of the Republic of
Lithuania Decree No. 36 "On the Establishment of the Citizenship
Commission and the Procedure of Its Work" of 2 April 2003 and
which, as mentioned, acquired its powers to act on 10 April 2003,
thus, on 9 April 2003 it had no powers to act yet.
The protocol number of the 9 April 2003 Citizenship
Commission sitting that was held with the President of the
Republic is also 1. Thus, the Citizenship Commission that held
its sitting on 9 April 2003 with the President of the Republic
was that established by President of the Republic of Lithuania
Decree No. 36 "On the Establishment of the Citizenship Commission
and the Procedure of Its Work" of 2 April 2003 and which, as
mentioned, on that day had no powers to act yet.
27. Until the 9 April 2003 Citizenship Commission sittings
took place, there had been no ordinance issued by the Migration
Department at the Ministry of the Interior of the Republic of
Lithuania whereby it would have been stated that J. Borisov lost
citizenship of the Republic of Lithuania.
28. It has been mentioned that no documents were attached to
Borisov's application of 24 March 2003 to the President of the
Republic of Lithuania requesting to grant him citizenship of the
Republic of Lithuania by way of exception, confirming his merits
to the Republic of Lithuania.
A. Meškauskas, Head of the Office of the President of the
Republic, applied to the aviation company "Avia Baltika" UAB,
asking for information about the charity donated by J. Borisov.
Just before the 9 April 2003 Citizenship Commission sitting
(i.e. approximately one hour before the sitting), the Office of
the President of the Republic received a reference from the
aviation company "Avia Baltika" UAB, in which, inter alia, it was
pointed out that since 1991 the aviation company "Avia Baltika"
UAB, headed by J. Borisov, the President of the enterprise, had
been donating funds to charity and sponsorship, and had helped to
stage various events. The same reference also indicated the
recipients of the charity donated and sponsorship rendered by the
aviation company "Avia Baltika" UAB during the last five years
(reference No. 30/2003 of 9 April 2003 by the aviation company
"Avia Baltika" UAB).
The aforesaid reference by the aviation company "Avia
Baltika" UAB does not particularise as to when and how much funds
the aviation company "Avia Baltika" UAB allocated to the events,
organisations and establishments indicated in the reference.
29. The members of the Citizenship Commission were notified
about the sitting to be taken place on 9 April 2003 several hours
before the beginning of the sitting. The members of the
commission had not been informed in advance about the issues
intended to be considered at the sitting, they had not been
supplied with any material about the issues that were intended to
be considered in the sitting. This material was supplied to the
members of the commission only after they came to the sitting
(testimony of the witnesses V. Barkauskas, J. Vidickas).
30. Protocol No. 1 of the 9 April 2003 Citizenship
Commission sitting which took place around 13.00 o'clock
indicates that the following issues were considered in this
sitting: (1) concerning applications received at the Migration
Department (207 applications); (2) concerning granting of
citizenship of the Republic of Lithuania by way of exception (8
applications); (3) concerning granting of citizenship of the
Republic of Lithuania (117 applications); (4) concerning
additionally supplied applications requesting to grant
citizenship of the Republic of Lithuania (25 applications); (5)
concerning restoration of citizenship of the Republic of
Lithuania (21 applications); (6) concerning retaining citizenship
of the Republic of Lithuania (21 applications). Thus, during this
sitting, which continued for no longer than 2 hours,
approximately 400 issues were considered and decided.
31. At the said (first) 9 April 2003 Citizenship Commission
sitting inter alia the issue of granting of citizenship of the
Republic of Lithuania to J. Borisov by way of exception was
considered.
In the course of the consideration of this issue, the
members of the Citizenship Commission were supplied only with the
information presented by J. Borisov himself in his 24 March 2003
application to the President of the Republic on granting
citizenship of the Republic of Lithuania to him by way of
exception and a reference prepared by the Citizenship Group of
the Office of the President of the Republic on the basis of this
information, in which it was stated: "Jurij BORISOV, born on 17
May 1956 in Russia. Citizen of Russia. Russian by nationality. He
has been residing in Lithuania, with short intervals, since 1962.
Since 1999 has been conducting business, has created more than
200 jobs, in addition, there are 600 people who work in
enterprises providing services or otherwise related to the
enterprise headed by him. Enterprises headed by him have paid
more than LTL 17 million in taxes to the budget of Lithuania,
donated about LTL 6 million to charity. Awarded the Medal of
Darius and Girėnas for merits to Lithuanian aviation sport (by
President of the Republic Decree No. 1373 of 14 June 2001)."
The material of the first 9 April 2003 Citizenship
Commission sitting also contained the reference, received just
before the sitting began, from the aviation company "Avia
Baltika" UAB about the charity donated and sponsorship rendered
by the aviation company "Avia Baltika" UAB, which is headed by J.
Borisov.
At the first 9 April 2003 Citizenship Commission sitting the
members of the commission were not supplied with any documents
confirming the information indicated in the reference prepared by
the Citizenship Group of the Office of the President and the
paper of the aviation company "Avia Baltika" UAB.
At the first 9 April 2003 Citizenship Commission sitting,
when the issue of granting of citizenship of the Republic of
Lithuania to J. Borisov by way of exception was being
deliberated, one did not consider the circumstance that, on 11
November 1999, the Migration Department under the Ministry of the
Interior decided that the passport of a citizen of the Republic
of Lithuania had been issued to J. Borisov on unlawful grounds,
however, it decided to consider J. Borisov a citizen of the
Republic of Lithuania and to permit him to keep the passport of a
citizen of the Republic of Lithuania; one did not elucidate as to
when J. Borisov acquired citizenship of the Russian Federation;
one did not take account of the fact that it had not been stated,
under procedure established by the law, that J. Borisov had lost
citizenship of the Republic of Lithuania; one did not verify
whether there were not any circumstances specified in Article 13
of the Law on Citizenship due to which citizenship of the
Republic of Lithuania may not be granted (testimony of the
witnesses J. Vidickas, D. Jankauskienė, A. Meškauskas, V.
Barkauskas).
32. By general consent, at the first 9 April 2003
Citizenship Commission sitting, it was decided (not a single
member of the commission expressed a different opinion) to
recommend that the President of the Republic grant citizenship of
the Republic of Lithuania to J. Borisov.
33. As mentioned, on the same day, i.e. on 9 April 2003,
around 15 o'clock, one more sitting of the Citizenship Commission
established by President of the Republic of Lithuania Decree No.
36 "On the Establishment of the Citizenship Commission and the
Procedure of Its Work" of 2 April 2003 took place; it was held
with the President of the Republic. It has also been mentioned
that on 9 April 2003 this commission had no powers to act yet.
In this sitting only issues related to granting of
citizenship of the Republic of Lithuania by way of exception were
considered.
34. At the 9 April 2003 Citizenship Commission sitting with
the President of the Republic one inter alia considered the issue
of granting of citizenship of the Republic of Lithuania to J.
Borisov by way of exception.
As well as at the first 9 April 2003 Citizenship Commission
sitting, at the sitting of the same commission with the President
of the Republic, which took place on the same day, when one
considered the issue of granting of citizenship of the Republic
of Lithuania to J. Borisov by way of exception, one did not
consider the circumstance that, on 11 November 1999, the
Migration Department under the Ministry of the Interior decided
that the passport of a citizen of the Republic of Lithuania had
been issued to J. Borisov on unlawful grounds, however, it
decided to consider J. Borisov a citizen of the Republic of
Lithuania and to permit him to keep the passport of a citizen of
the Republic of Lithuania; one did not elucidate as to when J.
Borisov acquired citizenship of the Russian Federation; one did
not take account of the fact that it had not been stated, under
procedure established by the law, that J. Borisov had lost
citizenship of the Republic of Lithuania; one did not verify
whether there were not any circumstances specified in Article 13
of the Law on Citizenship due to which citizenship of the
Republic of Lithuania may not be granted. Except for the
information presented by J. Borisov himself in his 24 March 2003
application to the President of the Republic on granting
citizenship of the Republic of Lithuania to him by way of
exception and the reference prepared by the Citizenship Group of
the Office of the President of the Republic on the basis of this
information, and the reference from the aviation company "Avia
Baltika" UAB about the charity donated and sponsorship rendered
by the aviation company "Avia Baltika" UAB, which is headed by J.
Borisov, no other material was presented as regards the issue in
question (testimony of the witnesses J. Vidickas, D.
Jankauskienė, A. Meškauskas, V. Barkauskas).
35. At the 9 April 2003 Citizenship Commission sitting which
took place with the President of the Republic, without any
discussions (without expressing any objections or doubts by any
member of the commission), it was decided "by way of exception,
to grant citizenship of the Republic of Lithuania to <
> Jurij
BORISOV".
36. At the Constitutional Court hearing the President of the
Republic maintained that he had long known J. Borisov "from the
times when he practiced piloting planes". The President of the
Republic asserted that his decision to grant citizenship of the
Republic of Lithuania to J. Borisov by way of exception had not
been determined by the fact that J. Borisov rendered him support
during the campaign of election of the President of the Republic.
The President of the Republic stated that "no matter whether the
support had been rendered or not, the decision would have been
the same", while all other issues related to the granting of
citizenship of the Republic of Lithuania to J. Borisov by way of
exception had to be elucidated by the Citizenship Commission.
At the Constitutional Court hearing, the President of the
Republic also maintained that before the signing of Decree No. 40
"On Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003 he had not received any official
material that might hinder granting of citizenship of the
Republic of Lithuania to J. Borisov by way of exception, while
the material that had been presented to the President of the
Republic was not of the kind so that a different decision could
have been taken.
37. On 10 April 2003, at the request of the Office of the
President of the Republic, J. Vidickas, Acting Director of the
Migration Department at the Ministry of the Interior of the
Republic of Lithuania, issued Order No. MD-3K-32 "On the Loss of
Citizenship of the Republic of Lithuania" whereby inter alia it
was held that J. Borisov lost citizenship of the Republic of
Lithuania under Item 2 of Paragraph 1 of Article 18 and Paragraph
3 of Article 21 of the Law on Citizenship. On the same day, by
means of fax the Office of the President of the Republic and the
Citizenship Commission were informed about the fact that J.
Borisov lost citizenship of the Republic of Lithuania which had
been stated in the order of 10 April 2003 issued by the Acting
Director of the Migration Department at the Ministry of the
Interior of the Republic of Lithuania (testimony of the witness
J. Vidickas).
38. On 10 April 2003, i.e. at the time when the President of
the Republic had not yet issued the decree whereby citizenship of
the Republic of Lithuania was granted to J. Borisov by way of
exception, a representative of J. Borisov was making arrangements
by telephone with V. V. Rinkevičienė, Deputy Chairwoman of the
Citizenship Commission of the Administration of Vilnius City
Municipality, Head of the Citizenship Sub-division, so that on
the next day, i.e. on 11 April 2003, J. Borisov could take an
oath to the Republic of Lithuania. V. V. Rinkevičienė informed
about this members of the Citizenship Commission of the
Administration of Vilnius City Municipality and asked them to be
at the places of their work in the morning of 11 April 2003. The
members of the Citizenship Commission of the Administration of
Vilnius City Municipality, having gathered in the morning of 11
April 2003, considered the issue of the oath of J. Borisov,
waited for his arrival so that he might take an oath to the
Republic of Lithuania (testimony of the witnesses of Ž.
Terebeiza, E. Šimanauskas, D. Gintautienė, V. V. Rinkevičienė).
39. For several times, right up to 11 April 2003, J.
Borisov, via A. Drakšas (his and the President of the Republic R.
Paksas mutual acquaintance), attempted to speed up the granting
of citizenship of the Republic of Lithuania to him by way of
exception: he asked A. Drakšas to pass his request to the
President of the Republic R. Paksas to be granted citizenship of
the Republic of Lithuania as soon as possible. A. Drakšas passed
the request of J. Borisov to the President of the Republic R.
Paksas to grant citizenship of the Republic of Lithuania to J.
Borisov as soon as possible, so that he might go abroad with the
passport of a citizen of the Republic of Lithuania (testimony of
the witnesses of J. Borisov and A. Drakšas).
40. On 11 April 2003, after the decree had been signed by
the Minister of the Interior, the President of the Republic
signed Decree No. 40 "On Granting Citizenship of the Republic
Lithuania by Way of Exception" whereby citizenship of the
Republic Lithuania was granted to Jurij Borisov, born on 17 May
1956 in Russia, residing in Lithuania, by way of exception
(testimony of the witnesses J. Bernatonis, D. Jankauskienė).
41. On the same day, i.e. on 11 April 2003, before noon, A.
Meškauskas, Head of the Office of the Office of the President,
signed an extract of President of the Republic Decree No. 40 "On
Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003, in which it was indicated that by
this decree, by way of exception citizenship of the Republic of
Lithuania is granted to Jurij Borisov, born on 17 May 1956 in
Russia, residing in Lithuania, and this extract was given over to
J. Borisov via the third party (copy of the extract of President
of the Republic Decree No. 40 "On Granting Citizenship of the
Republic Lithuania by Way of Exception" of 11 April 2003;
testimony of the witness A. Meškauskas).
42. On the same day, i.e. on 11 April 2003, before noon, J.
Borisov, having presented the aforesaid extract of President of
the Republic Decree No. 40 "On Granting Citizenship of the
Republic Lithuania by Way of Exception" of 11 April 2003 to the
members of the Citizenship Commission of the Administration of
Vilnius City Municipality who were waiting for him, took an oath
to the Republic of Lithuania (testimony of the witnesses J.
Borisov, Ž. Terebeiza, E. Šimanauskas, D. Gintautienė, V. V.
Rinkevičienė).
43. On the same day, i.e. on 11 April 2003, before noon, J.
Borisov applied to the Passport Sub-division of the 1st Police
Commissioner's Office at the Chief Police Commissioner's Office
for the City of Vilnius, requesting to be issued the passport of
a citizen of the Republic of Lithuania and, on the same day, he
received the passport of a citizen of the Republic of Lithuania
(testimony of the witnesses J. Borisov, S. Balčiūnienė).
44. President of the Republic Decree No. 40 "On Granting
Citizenship of the Republic Lithuania by Way of Exception" of 11
April 2003 whereby citizenship of the Republic Lithuania was
granted to J. Borisov, born on 17 May 1956 in Russia, residing in
Lithuania, by way of exception, was published in the official
gazette "Valstybės žinios" on 16 April 2003.
IX
On the compliance of President of the Republic of Lithuania
Decree No. 40 "On Granting Citizenship of the Republic Lithuania
by Way of Exception" of 11 April 2003 to the extent that it
provides that citizenship of the Republic Lithuania is granted to
Jurij Borisov, born on 17 May 1956 in Russia, residing in
Lithuania, by way of exception with Paragraph 1 of Article 16 of
the Law on Citizenship.
1. Paragraph 1 of Article 16 of the Law on Citizenship
provides: "The President of the Republic, in pursuance of this
Law, may grant citizenship of the Republic of Lithuania to
citizens of foreign states or stateless persons with merits to
the Republic of Lithuania without applying with respect to them
conditions for the granting of citizenship provided for in
Article 12 of this Law."
2. It has been held in this Ruling of the Constitutional
Court that in the Law on Citizenship the legal regulation is
established, under which the persons who lost citizenship of the
Republic of Lithuania subsequent to the grounds set in Article 18
of the Law on Citizenship can acquire citizenship of the Republic
of Lithuania only if citizenship of the Republic of Lithuania is
restored to them, i.e. in the course of the application of the
institute of restoration of citizenship (Article 20 of the Law on
Citizenship). It has also been held that, under Paragraph 1 of
Article 16 of the Law on Citizenship, citizenship of the Republic
of Lithuania may be granted by way of exception only to those
citizens of foreign states or stateless persons (with merits to
the Republic of Lithuania), who have never been citizens of the
Republic of Lithuania.
3. It has been established in this case that the certificate
of a citizen of the Republic of Lithuania was issued on unlawful
grounds to J. Borisov on 1 November 1991, while on 20 October
1992, he was issued the passport of a citizen of the Republic of
Lithuania on unlawful grounds. Thus, J. Borisov acquired
citizenship of the Republic of Lithuania on unlawful grounds.
However, on 11 November 1999 the Migration Department under the
Ministry of the Interior decided to consider J. Borisov a citizen
of the Republic of Lithuania and to permit him to keep the
passport of a citizen of the Republic of Lithuania.
It has also been established in this case that, by the 18
June 2002 ordinance of the President of the Russian Federation,
J. Borisov was granted citizenship of the Russian Federation;
that on 18 March 2003 he was issued the passport of a citizen of
the Russian Federation; that on 10 April 2003 the Acting Director
of the Migration Department at the Ministry of the Interior of
the Republic of Lithuania, issued an order in which inter alia
stated that J. Borisov lost citizenship of the Republic of
Lithuania under Item 2 of Paragraph 1 of Article 18 and Paragraph
3 of Article 21 of the Law on Citizenship.
It has also been established that by Decree No. 40 "On
Granting Citizenship of the Republic Lithuania by Way of
Exception" citizenship of the Republic Lithuania was granted to
J. Borisov by way of exception subsequent to Article 16 of the
Law on Citizenship.
4. While granting citizenship of the Republic of Lithuania
to J. Borisov by way of exception, who used to enjoy citizenship
of the Republic of Lithuania and had lost it due to that fact
that had acquired citizenship of another state (on the basis
established in Item 2 of Paragraph 1 of Article 18 of the Law on
Citizenship) one disregarded Paragraph 1 of Article 16 of the Law
on Citizenship, under which citizenship of the Republic of
Lithuania may be granted by way of exception only to those
citizens of foreign states or stateless persons (with merits to
the Republic of Lithuania), who have never been citizens of the
Republic of Lithuania.
5. Taking account of the arguments set forth, one is to
conclude that President of the Republic of Lithuania Decree No.
40 "On Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003 to the extent that it provides that
citizenship of the Republic Lithuania is granted to Jurij
Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by
way of exception is in conflict with Paragraph 1 of Article 16 of
the Law on Citizenship.
X
On the compliance of President of the Republic of Lithuania
Decree No. 40 "On Granting Citizenship of the Republic Lithuania
by Way of Exception" of 11 April 2003 to the extent that it
provides that citizenship of the Republic Lithuania is granted to
Jurij Borisov, born on 17 May 1956 in Russia, residing in
Lithuania, by way of exception with Item 21 of Article 84 of the
Constitution and the constitutional principle of a state under
the rule of law.
1. Under Item 21 of Article 84 of the Constitution, the
President of the Republic shall grant citizenship of the Republic
of Lithuania in accordance with the procedure established by law.
2. It has been held in this Ruling of the Constitutional
Court that Item 21 of Article 84 of the Constitution means that
the President of the Republic, when he decides an issue of
granting of citizenship of the Republic of Lithuania, must follow
the requirements established by the law, also that the President
of the Republic is prohibited from granting citizenship of the
Republic of Lithuania if he does not follow the requirements
established in the law and the established procedure.
3. It has been held in this Ruling of the Constitutional
Court that President of the Republic of Lithuania Decree No. 40
"On Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003 to the extent that it provides that
citizenship of the Republic Lithuania is granted to Jurij
Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by
way of exception is in conflict with Paragraph 1 of Article 16 of
the Law on Citizenship.
4. Having held this, one is also to hold that President of
the Republic of Lithuania Decree No. 40 "On Granting Citizenship
of the Republic Lithuania by Way of Exception" of 11 April 2003
to the extent that it provides that citizenship of the Republic
Lithuania is granted to Jurij Borisov, born on 17 May 1956 in
Russia, residing in Lithuania, by way of exception is in conflict
with Item 21 of Article 84 of the Constitution.
5. It has been mentioned that the constitutional principle
of a state under the rule of law means, along with other
requirements, that all institutions implementing state power must
act on the basis of law and in compliance with law, that the
Constitution has the supreme legal power and that all legal acts
must be in compliance with the Constitution, that substatutory
legal acts cannot be in conflict with laws, constitutional laws,
and the Constitution, and that substatutory legal acts must be
adopted on the basis of laws.
Decrees of the President of the Republic are substatutory
legal acts.
6. Having held that President of the Republic of Lithuania
Decree No. 40 "On Granting Citizenship of the Republic Lithuania
by Way of Exception" of 11 April 2003 to the extent that it
provides that citizenship of the Republic Lithuania is granted to
Jurij Borisov, born on 17 May 1956 in Russia, residing in
Lithuania, by way of exception is in conflict with Item 21 of
Article 84 of the Constitution and Paragraph 1 of Article 16 of
the Law on Citizenship, one is also to hold that the same decree
to the said extent is in conflict with the constitutional
principle of a state under the rule of law.
XI
On the compliance of President of the Republic of Lithuania
Decree No. 40 "On Granting Citizenship of the Republic Lithuania
by Way of Exception" of 11 April 2003 to the extent that it
provides that citizenship of the Republic Lithuania is granted to
Jurij Borisov, born on 17 May 1956 in Russia, residing in
Lithuania, by way of exception with Paragraph 1 of Article 29 and
the provision "the elected President of the Republic <
> shall
take an oath <
> to be equally just to all" of Paragraph 1 of
Article 82 of the Constitution.
1. Paragraph 1 of Article 29 of the Constitution provides:
"All persons shall be equal before the law, the court, and other
State institutions and officials."
It has been mentioned that in Article 29 of the Constitution
the principle of equality of all persons before the law, the
court, and other state institutions and officials is
consolidated, that this principle must be followed in the course
of passing of laws and in their application.
It has also been mentioned that the principle of equality of
all persons also means that the same law or other legal act must
be applied to all persons (groups thereof) characteristic of the
same features, that legal norms of substantive as well as of
procedural law must be applied in equal manner.
In this Ruling of the Constitutional Court it has also been
held that the formula "all persons shall be equal" of Paragraph 1
of Article 29 of the Constitution means that the principle of
equality before the law, the court, and other state institutions
and officials must be followed not only in regard of citizens of
the Republic of Lithuania, but also of citizens of foreign states
and stateless persons.
2. Paragraph 1 of Article 82 of the Constitution provides:
"The elected President of the Republic shall take office on the
day following the expiration of the term of office of the
President of the Republic; on that day, in Vilnius and in the
presence of the representatives of the Nation, the members of the
Seimas, he will take an oath to the Nation to be faithful to the
Republic of Lithuania and the Constitution, to conscientiously
fulfil the duties of his office, and to be equally just to all."
It has been held in this Ruling of the Constitutional Court
that the requirement established in Paragraph 1 of Article 82 of
the Constitution that the President of the Republic must be
equally just to all, when one takes account of the provision of
Paragraph 2 of Article 77 of the Constitution that the President
of the Republic performs everything that he is charged with by
the Constitution and laws, means that the President of the
Republic, while implementing the powers established for him in
the Constitution and laws, must follow the Constitution and laws,
cannot violate them; that the President of the Republic must act
only in the interests of the Nation and the State of Lithuania;
that the President of the Republic, while implementing the powers
established for him in the Constitution and laws, cannot act with
aims and interests, which are inconsistent with the Constitution
and laws, as well as with public interests. The constitutional
requirement to be equally just to all obligates the President of
the Republic to act so that there would not be a conflict between
the interests of the President of the Republic, as a private
person, and his constitutional duty, as of the Head of State, to
represent the State of Lithuania, and to follow only the
interests of the Nation and the State of Lithuania.
It has also been held in this Ruling of the Constitutional
Court that the requirement established in Paragraph 1 of Article
82 of the Constitution that the President of the Republic must be
equally just to all is to be construed together with the
provision of Paragraph 1 of Article 29 of the Constitution that
all persons shall be equal before the law, the court, and other
state institutions and officials.
It has also been held that the provision of Paragraph 1 of
Article 82 of the Constitution that the President of the Republic
must be equally just to all, together with the provision of
Article 29 of the Constitution that all persons are equal before
state institutions and officials, means not only that the
President of the Republic has a duty to treat all persons, to
whom this provision is ascribed, equally, but also that the
President of the Republic has a duty to apply this legal norm
equally justly to all persons; the provision of Paragraph 1 of
Article 29 of the Constitution that all persons shall be equal
before state institutions and officials, the provision of
Paragraph 1 of Article 82 that the President of the Republic must
be equally just to all cannot be construed as meaning that,
purportedly, according to these provisions, the President of the
Republic would be equally just to all even in a situation when a
legal norm would be applied to all persons equally unjustly.
It has also been held in this Ruling of the Constitutional
Court that if the law provides that citizenship of the Republic
of Lithuania may be granted to a citizen of a foreign state or a
stateless person who has merits to the Republic of Lithuania, it
means that this requirement must be applied to all citizens of
foreign states or stateless persons, who request to be granted
citizenship of the Republic of Lithuania by way of exception; in
case citizenship of the Republic of Lithuania is granted to a
citizen of a foreign state or a stateless person, who has no
merits to the Republic of Lithuania, one would disregard the
principle of equality of all persons entrenched in Paragraph 1 of
Article 29 of the Constitution that includes the equality of
persons before state institutions or officials, also, one would
disregard the provision of Paragraph 1 of Article 82 of the
Constitution that the President of the Republic must be equally
just to all.
As mentioned, the circumstance that, under the Law on
Citizenship, the issues of granting of citizenship of the
Republic of Lithuania are decided by the President of the
Republic at his discretion, cannot be interpreted as meaning
that, prior to issuing the decree of the President of the
Republic on granting of citizenship of the Republic of Lithuania
by way of exception the equal legal procedures established in the
law to all persons may be applied unequally, that, prior to
issuing the decree on granting of citizenship of the Republic of
Lithuania, the President of the Republic does not have a duty to
receive confirmation from the institutions (their officials)
preparing citizenship documents that all the requirements
established in the Law on Citizenship have been accomplished (all
procedures established in the Law on Citizenship have been
accomplished), and that there are not any legal obstacles to
issue a corresponding decree of the President of the Republic. It
means that due to unequal application of the equal legal
procedures which are established in the law to all persons, it
happens that not only the situation of citizens of foreign states
or stateless persons who seek to acquire citizenship of the
Republic of Lithuania by way of exception becomes unequal, but
also that the state institutions or their officials, when they
unequally apply the equal legal procedures established to all
persons, are not equally just to all.
It has also been held in this Ruling of the Constitutional
Court that the provision of Paragraph 1 of Article 82 of the
Constitution that the President of the Republic must be equally
just to all would be violated not in all cases when Paragraph 1
of Article 29 of the Constitution (the principle of the formal
equality of persons) is violated, but only when the President of
the Republic, while implementing the powers established for him
in the Constitution and laws, knowingly acts so that that the
persons (their groups), in whose regard the President of the
Republic adopts decisions, would be treated not equally justly.
3. While deciding whether President of the Republic of
Lithuania Decree No. 40 "On Granting Citizenship of the Republic
Lithuania by Way of Exception" of 11 April 2003 to the extent
that it provides that citizenship of the Republic Lithuania is
granted to Jurij Borisov, born on 17 May 1956 in Russia, residing
in Lithuania, by way of exception is not in conflict with
Paragraph 1 of Article 29 and the provision "the elected
President of the Republic <
> shall take an oath <
> to be
equally just to all" of Paragraph 1 of Article 82 of the
Constitution, one must establish not only the factual
circumstances related to the granting of citizenship of the
Republic of Lithuania to J. Borisov by way of exception, but also
how the President of the Republic took into consideration these
circumstances when he adopted the decision to grant citizenship
of the Republic of Lithuania to J. Borisov by way of exception.
4. It has been established in this case that
- in 1991, J. Borisov acquired citizenship of the Republic
of Lithuania on unlawful grounds: on 1 November 1991 he was
issued the certificate of a citizen of the Republic of Lithuania
on unlawful grounds, while on 20 October 1992 he was issued the
passport of a citizen of the Republic of Lithuania on unlawful
grounds;
- even though J. Borisov acquired citizenship of the
Republic of Lithuania on unlawful grounds and he was issued the
passport of a citizen of the Republic of Lithuania on unlawful
grounds, on 11 November 1999, the Migration Department under the
Ministry of the Interior decided to consider J. Borisov a citizen
of the Republic of Lithuania and to permit him to keep the
passport of a citizen of the Republic of Lithuania;
- in adopting the decision to consider J. Borisov a citizen
of the Republic of Lithuania and to permit him to keep the
passport of a citizen of the Republic of Lithuania, even though
J. Borisov had acquired citizenship of the Republic of Lithuania
on unlawful grounds and he had been issued the passport of a
citizen of the Republic of Lithuania on unlawful grounds, the
institutions of the State of Lithuania made an exception in
regard of J. Borisov and in this way showed special benevolence
to him;
- already at the end of 2000, i.e. only after one year had
passed when the institutions of the State of Lithuania made the
said exception in regard of J. Borisov, J. Borisov applied to the
President of the Russian Federation, requesting to grant him
citizenship of the Russian Federation; applying to the President
of the Russian Federation, requesting to grant him citizenship of
the Russian Federation, J. Borisov was aware of the fact that in
case he had been granted citizenship of the Russian Federation,
he, according to the laws of the Republic of Lithuania, would
have lost citizenship of the Republic of Lithuania; thus, only
after one year had passed when the institutions of the State of
Lithuania, adopting a decision to consider J. Borisov a citizen
of the Republic of Lithuania and to permit him to keep the
passport of a citizen of the Republic of Lithuania, made an
exception in regard of J. Borisov and in this way showed special
benevolence to him, J. Borisov, while permanently residing in
Lithuania, knowingly began to seek to acquire citizenship of
another statethe Russian Federationand knowingly performed
actions due to which citizenship of the Republic of Lithuania is
lost; by such actions J. Borisov clearly showed that citizenship
of the Republic of Lithuania was of less value to him than
citizenship of the Russian Federation, that it was citizenship of
the Russian Federation to which he showed preference, but not
citizenship of the Republic of Lithuania;
- by the 18 June 2002 ordinance of the President of the
Russian Federation, J. Borisov was granted citizenship of the
Russian Federation; according to legal acts of the Russian
Federation, J. Borisov became a citizen of the Russian Federation
on 18 June 2002, i.e. on the day of issuance (signing) of the
corresponding ordinance of the President of the Russian
Federation; upon J. Borisov's request, on 18 March 2003, the
Embassy of the Russian Federation in the Republic of Lithuania
issued him the passport of a citizen of the Russian Federation.
- under the Republic of Lithuania Law on Citizenship, J.
Borisov had to lose citizenship of the Republic of Lithuania as
of 18 June 2002, i.e. as of the day when he acquired citizenship
of another state;
- from June 2002, i.e. when he already was a citizen of the
Russian Federation, J. Borisov participated in the election
campaign of the candidate to the President of the Republic R.
Paksas and notably supported this candidate financially and in
other ways: according to the data of the Central Electoral
Commission, the candidate for the President of the Republic R.
Paksas officially declared that the enterprise "Avia Baltika" UAB
(headed by J. Borisov) donated LTL 1,205,000 to his election
campaign;
- in the summer of 2002, the candidate for the President of
the Republic R. Paksas promised J. Borisov, in case of election
of the former President of the Republic, to appoint him an
advisor to the President of the Republic;
- on 5 January 2003, R. Paksas was elected President of the
Republic of Lithuania;
- on 24 March 2003, J. Borisov filed an application with the
President of the Republic, requesting to grant him citizenship of
the Republic of Lithuania by way of exception; in his application
of 24 March 2003, J. Borisov points out that he gave charity and
rendered sponsorship to various enterprises, establishments and
organisations in Lithuania in value of about LTL 6 million; no
documents were attached to Borisov's application of 24 March 2003
requesting to grant him citizenship of the Republic of Lithuania
by way of exception, testifying his merits to the Republic of
Lithuania, nor were there any recommendations from persons that
J. Borisov be granted citizenship of the Republic of Lithuania by
way of exception;
- prior to 11 April 2003, when the decree of the President
of the Republic was issued the provision whereof is being
disputed in the case at issue, M. Laurinkus, Director General of
the State Security Department, had informed the President of the
Republic R. Paksas for several times that an operational
investigation was being conducted in regard of J. Borisov and the
aviation company "Avia Baltika" UAB that was headed by him; on 17
March 2003, M. Laurinkus, Director General of the State Security
Department, informed the President of the Republic R. Paksas that
J. Borisov had pledged that in case of failure by R. Paksas to
fulfil his promises to J. Borisov, he would disseminate
information which would be unfavourable in regard to R. Paksas
and discrediting him;
- on 9 April 2003, the Citizenship Commission held its
sitting with the President of the Republic, although this
commission had no powers to act yet, since President of the
Republic Decree No. 36 "On the Establishment of the Citizenship
Commission and the Procedure of Its Work" of 2 April 2003,
whereby this commission had been established, had not gone in
effect yet (the said decree of the President of the Republic went
into effect on 10 April 2003); in this Citizenship Commission
sitting one inter alia considered the issue of granting of
citizenship of the Republic of Lithuania to J. Borisov by way of
exception;
- at the 9 April 2003 Citizenship Commission sitting with
the President of the Republic one did not consider the
circumstance that, on 11 November 1999, the Migration Department
under the Ministry of the Interior decided that the passport of a
citizen of the Republic of Lithuania had been issued to J.
Borisov on unlawful grounds, however, it decided to consider J.
Borisov a citizen of the Republic of Lithuania and to permit him
to keep the passport of a citizen of the Republic of Lithuania;
one did not elucidate as to when J. Borisov acquired citizenship
of the Russian Federation; one did not take account of the fact
that it had not been stated, under procedure established by the
law, that J. Borisov had lost citizenship of the Republic of
Lithuania; one did not verify whether there were not any
circumstances specified in Article 13 of the Law on Citizenship
due to which citizenship of the Republic of Lithuania may not be
granted; except for the information presented by J. Borisov
himself in his 24 March 2003 application to the President of the
Republic on granting citizenship of the Republic of Lithuania to
him by way of exception and the reference prepared by the
Citizenship Group of the Office of the President of the Republic
on the basis of this information, and the reference from the
aviation company "Avia Baltika" UAB about the charity donated and
sponsorship rendered by the aviation company "Avia Baltika" UAB,
which is headed by J. Borisov, no other material was presented as
regards the issue in question;
- for several times, right up to 11 April 2003, J. Borisov,
via A. Drakšas (his and the President of the Republic R. Paksas
mutual acquaintance), attempted to speed up the granting of
citizenship of the Republic of Lithuania to him by way of
exception: he asked A. Drakšas to pass his request to the
President of the Republic R. Paksas to be granted citizenship of
the Republic of Lithuania as soon as possible. A. Drakšas passed
the request of J. Borisov to the President of the Republic R.
Paksas to grant citizenship of the Republic of Lithuania to J.
Borisov as soon as possible, so that he might go abroad with the
passport of a citizen of the Republic of Lithuania;
- on 11 April 2003, the President of the Republic issued
Decree No. 40 "On Granting Citizenship of the Republic Lithuania
by Way of Exception" whereby, by way of exception, citizenship of
the Republic Lithuania was granted to Jurij Borisov, born on 17
May 1956 in Russia, residing in Lithuania.
5. The entirety of the factual circumstances of the issuance
of President of the Republic issued Decree No. 40 "On Granting
Citizenship of the Republic Lithuania by Way of Exception" of 11
April 2003 " whereby, by way of exception, citizenship of the
Republic Lithuania was granted to J. Borisov, clearly shows that
the President of the Republic R. Paksas, when adopting a decision
to grant citizenship of the Republic Lithuania to J. Borisov,
ignored the following:
- by the decisions adopted in 1999, the institutions of the
State of Lithuania had already made an exception in regard of J.
Borisov and in this way showed special benevolence to him: it was
decided to consider J. Borisov a citizen of the Republic of
Lithuania and permit him to keep the passport of a citizen of the
Republic of Lithuania issued to him, even though in 1991 J.
Borisov acquired citizenship of the Republic on unlawful grounds;
- after only one year had passed when the institutions of
the State of Lithuania adopted the decision to consider J.
Borisov a citizen of the Republic of Lithuania and to permit him
to keep the passport of a citizen of the Republic of Lithuania,
even though in 1991 J. Borisov acquired citizenship of the
Republic on unlawful grounds, J. Borisov, while permanently
residing in Lithuania, knowingly began to seek to acquire
citizenship of another statethe Russian Federationand knowingly
performed actions due to which citizenship of the Republic of
Lithuania is lost;
- by such actions J. Borisov clearly showed that citizenship
of the Republic of Lithuania was of less value to him than
citizenship of the Russian Federation, that it was citizenship of
the Russian Federation to which he showed preference, but not
citizenship of the Republic of Lithuania;
- M. Laurinkus, Director General of the State Security
Department, had informed the President of the Republic R. Paksas
for several times that an operational investigation was being
conducted in regard of J. Borisov and the aviation company "Avia
Baltika" UAB that was headed by him; on 17 March 2003, M.
Laurinkus, Director General of the State Security Department,
informed the President of the Republic R. Paksas that J. Borisov
had pledged that in case of failure by R. Paksas to fulfil his
promises to J. Borisov, he would disseminate information which
would be unfavourable in regard to R. Paksas and discrediting
him.
The fact that, while issuing Decree No. 40 "On Granting
Citizenship of the Republic Lithuania by Way of Exception" of 11
April 2003 whereby citizenship of the Republic Lithuania was
granted to J. Borisov by way of exception, the President of the
Republic knowingly disregarded the aforementioned circumstances
that are of essential importance in deciding whether to grant
citizenship of the Republic of Lithuania to J. Borisov by way of
exception, especially when one takes account of the fact that J.
Borisov notably supported R. Paksas financially and in other ways
when the latter participated in the 2002 elections of the
President of the Republic of Lithuania, testifies that the
decision of the President of the Republic R. Paksas to grant
citizenship of the Republic of Lithuania to J. Borisov by way of
exception was determined not by certain merits of J. Borisov to
the State of Lithuania, but his notable financial and other
support rendered to R. Paksas in the 2002 elections of the
President of the Republic. Thus, the granting of citizenship to
J. Borisov by way of exception was but a reward by the President
of the Republic R. Paksas to J. Borisov for the aforesaid
support.
Therefore, one is to hold that the President of the Republic
R. Paksas, when issuing Decree No. 40 "On Granting Citizenship of
the Republic Lithuania by Way of Exception" of 11 April 2003
whereby citizenship of the Republic Lithuania was granted to J.
Borisov by way of exception, was following neither the
Constitution of the Republic of Lithuania, nor the laws, nor the
interests of the Nation and the State of Lithuania, but his
personal interests.
Thus, in granting citizenship of the Republic Lithuania to
J. Borisov by way of exception by Decree No. 40 "On Granting
Citizenship of the Republic Lithuania by Way of Exception" of 11
April 2003, the President of the Republic R. Paksas treated this
person, as a person who sought to acquire citizenship of the
Republic of Lithuania, in an exceptional manner and knowingly
disregarded the requirement consolidated in Paragraph 1 of
Article 29 of the Constitution that all persons shall be equal
before state institutions and officials, and the requirement
consolidated in Paragraph 1 of Article 82 of the Constitution
that the President of the Republic must be equally just to all.
6. Taking account of the arguments set forth, one is to
conclude that President of the Republic of Lithuania Decree No.
40 "On Granting Citizenship of the Republic Lithuania by Way of
Exception" of 11 April 2003 to the extent that it provides that
citizenship of the Republic Lithuania is granted to Jurij
Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by
way of exception is in conflict with Paragraph 1 of Article 29
and the provision "the elected President of the Republic <
>
shall take an oath <
> to be equally just to all" of Paragraph 1
of Article 82 of the Constitution.
XII
The Constitutional Court notes that it is clear from the
case material that when one used to grant citizenship of the
Republic of Lithuania by way of exception (without applying
general conditions of naturalisation) to citizens of foreign
states or stateless persons, one often used to interpret and
apply the norms of the Law on Citizenship which establish the
powers of the President of the Republic to grant citizenship of
the Republic of Lithuania by way of exception in a legally
deficient manner, without taking account of the essence and
nature of citizenship of the Republic of Lithuania enshrined in
the Constitution.
As mentioned, under Paragraph 1 of Article 16 of the Law on
Citizenship (also, according to the legal regulation that used to
be prior the entry into effect of the Law on Citizenship adopted
by the Seimas on 17 September 2002), citizenship of the Republic
of Lithuania may (might) be granted only to a citizen of a
foreign state or stateless person who was with merits not to any
subject, but to the State of Lithuania itself, i.e. the state
communitythe civil Nation, that only the activity of the person
is to be considered merits to the Republic of Lithuania, when the
person very significantly contributes to strengthening of
Lithuanian statehood, to the increase of power of Lithuania and
its authority in the international community. Merits of a citizen
of a foreign state or a stateless person to the State of
Lithuania cannot be evaluated on the mere amount of sum of money
or the amount of material and other support rendered by the
citizen of a foreign state or stateless person to a certain
citizen or a group of citizens of the Republic of Lithuania, a
state official, a certain enterprise, establishment or
organisation or even to the State of Lithuania itself.
Citizenship of the Republic of Lithuania cannot be acquired for
financial, material or any other support, i.e. bought. It has
also been mentioned that in case a citizen of a foreign state or
stateless person is with merits to the Republic of Lithuania, it
is permitted to consider and decide whether to grant citizenship
of the Republic of Lithuania to such a person by way of exception
only when this person has already been integrated into the
Lithuanian society.
It is clear from the decrees of the President of the
Republic issued in 1995-2003 (until the issuance of the decree of
the President of the Republic the provision of which is being
disputed in the case at issue) attached to the case that
sometimes one used to consider persons under age as those with
merits to the Republic of Lithuania, who actually were unable to
have merits to the Republic of Lithuania, that one sometimes used
to regard individual persons to be with merits to the Republic of
Lithuania only due to the fact that they had made investments in
Lithuania into enterprises that belonged to them, or rendered
financial or other support to individual organisations etc.
It is also clear from the case material that one used to
grant citizenship of the Republic of Lithuania by way of
exception also to the citizens of foreign states who had
possessed citizenship of the Republic of Lithuania and had lost
it because they had acquired citizenship of another state.
Such conception of the legal regulation consolidated in the
Law on Citizenship virtually means that granting of citizenship
of the Republic of Lithuania by way of exception (without
application of general conditions of naturalisation) often used
to be understood not as a statement of the factual, permanent
link that had been established between the person seeking to
acquire citizenship of the Republic of Lithuania and the State of
Lithuania and transformation of such a link into the permanent
legal link between the person and the State of Lithuania, but as
a way to create legal grounds for a citizen of a foreign state or
stateless person to acquire the passport of a citizen of the
Republic of Lithuania so that the said person could easier arrive
in Lithuania and stay in Lithuania, to arrange his property,
business and other dealings in Lithuania, also, to go to many
European and other states without a visa.
The Constitutional Court emphasises that such conception of
Article 16 of the Law on Citizenship, which had been in practice
until now, distorts the institute of citizenship of the Republic
of Lithuania established in the Constitution and virtually
devalues citizenship of the Republic of Lithuania, denies its
nature and meaning.
XIII
1. Paragraph 1 of Article 107 of the Constitution provides:
"A law (or part thereof) of the Republic of Lithuania or other
act (or part thereof) of the Seimas, act of the President of the
Republic, act (or part thereof) of the Government may not be
applied from the day of official promulgation of the decision of
the Constitutional Court that the act in question (or part
thereof) is in conflict with the Constitution of the Republic of
Lithuania."
The provision of Paragraph 1 of Article 107 of the
Constitution that a legal act (or part thereof) may not be
applied from the day of official promulgation of the decision of
the Constitutional Court that the act in question (or part
thereof) is in conflict with the Constitution, means that until
the Constitutional Court has not adopted a decision that the act
in question (or part thereof) is in conflict with the
Constitution, it is presumed that such legal act (part thereof)
is in compliance with the Constitution and that the legal effects
that appeared on the basis of the act in question (part thereof)
are legitimate.
Thus, a general rule has been established in Paragraph 1 of
Article 107 of the Constitution that the power of Constitutional
Court decisions is prospective. However, this rule is not an
absolute one.
2. The Constitution shall be an integral act (Paragraph 1 of
Article 6 of the Constitution), therefore, when construing the
content of Paragraph 1 of Article 107 of the Constitution, one is
to take account of the other provisions of the Constitution,
inter alia, of Paragraph 1 of Article 7 of the Constitution,
Article 110 of the Constitution, as well as of the constitutional
principle of a state under the rule of law.
Article 110 of the Constitution provides:
"A judge may not apply a law, which is in conflict with the
Constitution.
In cases when there are grounds to believe that the law or
other legal act applicable in a concrete case is in conflict with
the Constitution, the judge shall suspend the consideration of
the case and shall apply to the Constitutional Court requesting
it to decide whether the law or other legal act in question is in
compliance with the Constitution."
Thus, Article 110 of the Constitution has established a
prohibition to apply a law which is in conflict with the
Constitution and a duty of a judge considering a case, in case
there are doubts whether the law or other legal act applicable in
the case is not in conflict with the Constitution, to suspend the
consideration of the case and to apply to the Constitutional
Court requesting it to decide whether the law or other legal act
in question is in compliance with the Constitution. By such
constitutional regulation, one seeks to attain that a
corresponding legal act (part thereof) which is in conflict with
the Constitution be not applied, that there would not appear
anti-constitutional legal effects due to the application of such
legal act (part thereof), that the rights of the person be not
violated, that a person in whose regard a legal act inconsistent
with the Constitution or the law was applied would not
unreasonably acquire, due to this, any rights or corresponding
legal status that does not belong to him.
Under Paragraph 1 of Article 7 of the Constitution, any law
or other act, which is inconsistent with the Constitution, shall
be invalid.
The constitutional principle of a state under the rule of
law, which is a universal principle and upon which the
Constitution of Republic of Lithuania itself and the entire legal
system of Lithuania are based, means that all institutions
implementing state power must act on the basis of law and in
compliance with law. The Constitutional Court has held in its
rulings for many a time that no law (right) can appear not on the
basis of law.
3. In the context of the case at issue, one is to note that
in all cases granting of citizenship of the Republic of Lithuania
is an individual actan act of application of law. The person to
whom citizenship of the Republic of Lithuania is granted can
acquire citizenship of the Republic of Lithuania only in case a
corresponding decree of the President of the Republic on granting
citizenship of the Republic of Lithuania (thus, also one on
granting citizenship of the Republic of Lithuania by way of
exception) has been issued without violating the Constitution and
the laws. If a decree of the President of the Republic on
granting citizenship of the Republic of Lithuania has been issued
in violation of the Constitution and the laws, the person cannot
acquire citizenship of the Republic of Lithuania on the grounds
of such a decree of the President of the Republic which violates
the Constitution and the laws. A different construction of
Paragraph 1 of Article 107 of the Constitution would be
inconsistent with the principle of the supremacy of the
Constitution, the constitutional principle of a state under the
rule of law, and with the guaranteeing of constitutional justice.
4. It has been held in this Ruling of the Constitutional
Court that President of the Republic Decree No. 40 "On Granting
Citizenship of the Republic Lithuania by Way of Exception" of 11
April 2003 to the extent that it provides that citizenship of the
Republic Lithuania is granted to Jurij Borisov, born on 17 May
1956 in Russia, residing in Lithuania, by way of exception is in
conflict with Paragraph 1 of Article 29, the provision "the
elected President of the Republic <
> shall take an oath <
> to
be equally just to all" of Paragraph 1 of Article 82, Item 21 of
Article 84 of the Constitution, the constitutional principle of a
state under the rule of law, and Paragraph 1 of Article 16 the
Law on Citizenship.
Taking account of the fact that that President of the
Republic of Lithuania Decree No. 40 "On Granting Citizenship of
the Republic Lithuania by Way of Exception" of 11 April 2003 to
the extent that it provides that citizenship of the Republic
Lithuania is granted to Jurij Borisov, born on 17 May 1956 in
Russia, residing in Lithuania, by way of exception is recognised
to be in conflict with the Constitution and the Law on
Citizenship, on the basis of such a decree of the President of
the Republic J. Borisov cannot acquire citizenship of the
Republic of Lithuania.
Thus, as of the day of the entry into effect of this Ruling
of the Constitutional Court, Jurij Borisov, possessing
citizenship of the Russian Federation, shall not be a citizen of
the Republic of Lithuania, since citizenship of the Republic of
Lithuania was granted to him by way of exception by the said
decree of the President of the Republic in violation of the
Constitution and the Law on Citizenship.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
To recognise that President of the Republic of Lithuania
Decree No. 40 "On Granting Citizenship of the Republic Lithuania
by Way of Exception" of 11 April 2003 to the extent that it
provides that citizenship of the Republic Lithuania is granted to
Jurij Borisov, born on 17 May 1956 in Russia, residing in
Lithuania, by way of exception is in conflict with Paragraph 1 of
Article 29, the provision "the elected President of the Republic
<
> shall take an oath <
> to be equally just to all" of
Paragraph 1 of Article 82, Item 21 of Article 84 of the
Constitution of the Republic of Lithuania, the constitutional
principle of a state under the rule of law, and Paragraph 1 of
Article 16 the Republic of Lithuania Law on Citizenship.
This Constitutional Court ruling is final and not subject to
appeal.
The ruling is promulgated in the name 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