Lietuviškai
Case No. 43/03-46/03
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF ITEMS 1, 2 AND 3 OF PARAGRAPH 1 OF
ARTICLE 4 (WORDING OF 3 APRIL 2003) OF THE REPUBLIC OF
LITHUANIA LAW ON SEIMAS PROVISIONAL INVESTIGATION COMMISSIONS
WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, AS WELL AS
ON THE PETITION OF A GROUP OF MEMBERS OF THE SEIMAS, THE
PETITIONER, REQUESTING TO INVESTIGATE WHETHER SEIMAS OF THE
REPUBLIC OF LITHUANIA RESOLUTION NO. IX-1868 "ON THE CONCLUSION
OF THE PROVISIONAL COMMISSION OF THE SEIMAS FOR INVESTIGATION
INTO POSSIBLE THREATS TO LITHUANIAN NATIONAL SECURITY" OF 2
DECEMBER 2003 IS NOT IN CONFLICT WITH THE CONSTITUTION OF THE
REPUBLIC OF LITHUANIA AND ARTICLES 3 AND 8 (WORDING OF 3 APRIL
2003) OF THE REPUBLIC OF LITHUANIA LAW ON SEIMAS PROVISIONAL
INVESTIGATION COMMISSIONS
13 May 2004
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas
Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of groups of members of the Seimas of
the Republic of Lithuania, the petitioner, who was Henrikas
Žukauskas, a member of the Seimas,
the representatives of the Seimas of the Republic of
Lithuania, the party concerned, who were Juozas Bernatonis, a
member of the Seimas, and Antanas Jatkevičius, a senior
consultant to the Legal Department of the Office of the Seimas,
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 28 April
2003 in its public hearing heard Case No. 43/03-46/03 which
originated in the following petitions:
1) the 24 November 2003 petition of a group of member of
the Seimas, the petitioner, requesting to investigate whether
the following is not in conflict with Articles 5, 55, 61, 67,
109, and 118 of the Constitution of the Republic of Lithuania:
- Item 1 of Paragraph 1 of Article 4 of the Republic of
Lithuania Law on Seimas Provisional Investigation Commissions
to the extent that it provides that the commission has the
right to receive documents, data or information from all state
and governance institutions, state and municipal enterprises
(including those controlled by them), establishments and
organisations, even if they comprise the commercial, bank or
official secret, also to receive primary and other documents,
in which such data or information are recorded,
- Item 2 of Paragraph 1 of Article 4 of the Law on Seimas
Provisional Investigation Commissions to the extent that it
provides that the commission has the right to receive verbal
and written explanations or notes from heads and other
employees of all state and governance institutions, state and
municipal enterprises (including those controlled by them),
establishments and organisations, concerning the issues
considered by the commission, as well as notes about the
material and documents available at state institutions,
enterprises, establishments or organisations,
- Item 3 of Paragraph 1 of Article 4 of the Law on Seimas
Provisional Investigation Commissions to the extent that it
provides that that the commission has the right to summon to
its sittings state and municipal politicians, officials,
servants as well as other persons working at state and
municipal institutions, to hear their explanations, to demand
that they present information or data concerning the issue
considered by the commission and to receive them either in
writing or orally,
- Item 5 of Paragraph 1 of Article 4 of the Law on Seimas
Provisional Investigation Commissions to the extent that it
provides that the commission has the right, upon the
coordination with the Office of the Prosecutor General or an
institution of pre-trial investigation, to familiarise,
according to the procedure established by laws, with a criminal
case or other material and documents that are at their
disposal;
2) the 16 December 2003 petition of a group of member of
the Seimas, the petitioner, requesting to investigate whether
Seimas of the Republic of Lithuania Resolution No. IX-1868 "On
the Conclusion of the Seimas Provisional Commission for
Investigation into Possible Threats to Lithuanian National
Security", which was adopted on 2 December 2003, to the extent
that it provides that "via the President or his advisors,
classified information used to reach the persons who did not
have the right to be familiarised with it, or those in whose
regard operational investigation was being conducted", "the
President and some of his advisors exerted impermissible
influence on privatisation of enterprises and individual
entities of private business", "the President being tolerant,
his advisors exceeded their competence, interfered with the
activities of other state institutions, abused their status,
thus causing confusion in state governance", is not in conflict
with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article
31, Paragraph 1 of Article 67, Paragraph 1 of Article 109,
Paragraph 1 of Article 114 of the Constitution and the
constitutional principle of a state under the rule of law, as
well as Articles 3 and 8 of the Republic of Lithuania Law on
Seimas Provisional Investigation Commissions.
The Constitutional Court
has established:
I
1. On 23 March 1999, the Seimas adopted the Republic of
Lithuania Law on Seimas Provisional Investigation Commissions
(hereinafter also referred to as the Law; Official Gazette
Valstybės žinios, 1999, No. 33-943). The said law was amended
by the 3 April 2003 Republic of Lithuania Law on the Amendment
of Articles 3, 4, and 8 of the Law on Seimas Provisional
Investigation Commissions (Official Gazette Valstybės žinios,
2003, No. 38-1716) and the 6 November 2003 Republic of
Lithuania Law on the Amendment of Article 7 of the Law on
Seimas Provisional Investigation Commissions (Official Gazette
Valstybės žinios, 2003, No. 107-4785).
2. On 2 December 2003, the Seimas adopted the Resolution
"On the Conclusion of the Provisional Commission of the Seimas
for Investigation into Possible Threats to Lithuanian National
Security" (hereinafter also referred to as the Resolution;
Official Gazette Valstybės žinios, 2003, No. 114-5122), by
Article 1 whereof it approved of the conclusion of the
Provisional Commission of the Seimas for Investigation into
Possible Threats to Lithuanian National Security (hereinafter
also referred to as the Commission) and recognised that the
Commission finished its work.
3. On 24 November 2003, a group of members of the Seimas,
the petitioner, applied to the Constitutional Court with a
petition (hereinafter referred as the 24 November 2003
petition) requesting to investigate whether the following was
not in conflict with Articles 5, 55, 61, 67, 109, and 118 of
the Constitution:
- Item 1 of Paragraph 1 of Article 4 of the Republic of
Lithuania Law on Seimas Provisional Investigation Commissions
to the extent that it provides that the commission has the
right to receive documents, data or information from all state
and governance institutions, state and municipal enterprises
(including those controlled by them), establishments and
organisations, even if they comprise the commercial, bank or
official secret, also to receive primary and other documents,
in which such data or information are recorded;
- Item 2 of Paragraph 1 of Article 4 of the Law on Seimas
Provisional Investigation Commissions to the extent that it
provides that the commission has the right to receive verbal
and written explanations or notes from heads and other
employees of all state and governance institutions, state and
municipal enterprises (including those controlled by them),
establishments and organisations, concerning the issues
considered by the commission, as well as notes about the
material and documents available at state institutions,
enterprises, establishments or organisations;
- Item 3 of Paragraph 1 of Article 4 of the Law on Seimas
Provisional Investigation Commissions to the extent that it
provides that that the commission has the right to summon state
and municipal politicians, officials, servants as well as other
persons working at state and municipal institutions, to hear
their explanations, to demand that they present information or
data concerning the issue considered by the commission and to
receive them either in writing or orally;
- Item 5 of Paragraph 1 of Article 4 of the Law on Seimas
Provisional Investigation Commissions to the extent that it
provides that the commission has the right, upon the
coordination with the Office of the Prosecutor General or an
institution of pre-trial investigation, to familiarise,
according to the procedure established by laws, with a criminal
case or other material and documents that are at their
disposal.
4. On 16 December 2003, a group of members of the Seimas,
the petitioner, applied to the Constitutional Court with a
petition (hereinafter referred as the 16 December 2003
petition) requesting to investigate whether Seimas Resolution
No. IX-1868 "On the Conclusion of the Seimas Provisional
Commission for Investigation into Possible Threats to
Lithuanian National Security" of 2 December 2003, to the extent
that it provides that "via the President or his advisors,
classified information used to reach the persons who did not
have the right to be familiarised with it, or those in whose
regard operational investigation was being conducted", "the
President and some of his advisors exerted impermissible
influence on privatisation of enterprises and individual
entities of private business", "the President being tolerant,
his advisors exceeded their competence, interfered with the
activities of other state institutions, abused their status,
thus causing confusion in state governance", was not in
conflict with Paragraphs 1 and 2 of Article 5, Paragraph 1 of
Article 31, Paragraph 1 of Article 67, Paragraph 1 of Article
109, Paragraph 1 of Article 114 of the Constitution and the
constitutional principle of a state under the rule of law, as
well as Articles 3 and 8 of the Law on Seimas Provisional
Investigation Commissions.
II
1. The 24 November 2003 petition of a group of members of
the Seimas, the petitioner, is based on the following
arguments.
1.1. The rights and powers of provisional investigation
commissions formed by the Seimas ought to be determined by the
principle of separation of powers entrenched in Paragraph 1 of
Article 5 of the Constitution and the provision of Paragraph 2
of the same article that the scope of powers shall be limited
by the Constitution. According to the petitioner, this
principle imperatively implies that after the Constitution has
established the powers of a particular state institution, then
a state institution may not take over such powers from another
state institution, nor transfer, nor waive them; such powers
may not be changed or limited by the law.
The petitioner maintains that a provisional investigation
commission formed by the Seimas may not enjoy more powers than
the institution that has formed it, i.e. the Seimas or an
individual member of the Seimas (member of the Commission).
Thus, in case it is established that one has granted more
powers, by means of the law, to the provisional investigation
commission formed by the Seimas than the Constitution grants to
the Seimas itself or an individual member of the Seimas, one
might state that the principle of separation of powers
entrenched in Article 5 of the Constitution was grossly
violated by the Law on Seimas Provisional Investigation
Commissions.
1.2. The petitioner believes that a systemic analysis of
the provisions of Articles 5, 67, 92, 96, and 101 of the
Constitution permits to assert that the Seimas may carry out
parliamentary control in regard of the Government, as well as
state institutions established by the Seimas and heads of these
institutions appointed by it (save courts and the prosecutor's
office). Meanwhile, in the opinion of the petitioner, the
content of the powers granted to the Seimas commissions by the
law distorts the constitutional structure of Lithuania, since
the commissions have been granted the function of the control
and supervision over the judiciary, i.e. the function that does
not belong to the constitutional competence of the Seimas.
Paragraph 1 of Article 55 of the Constitution provides
that the Seimas shall consist of representatives of the
Nation-141 members of the Seimas who shall be elected for a
four-year term on the basis of universal, equal, and direct
electoral right by secret ballot. Every representative of the
Nation, who is elected to the Seimas, enjoys the rights
directly linked with his participation in the work of the
Seimas and Seimas committees: voting on all questions
considered at the Seimas at all the sittings of the Seimas, the
committee, the commission whose member he is, participation in
discussions on all debated issues, proposing of issues to the
Seimas for deliberation, making of statements, drafting laws
and other legal acts and their submission to the Seimas for
deliberation, etc. Article 61 of the Constitution consolidates
the rights of members of the Seimas connected with the function
of the parliamentary control carried out by them. Paragraph 1
of this article provides that a member of the Seimas shall have
the right to present an inquiry to the Prime Minister, the
ministers, and the heads of other state institutions formed or
elected by the Seimas, while the said persons must respond
orally or in writing at the session of the Seimas in accordance
with the procedure established by the Seimas. In addition,
Paragraph 2 of Article 61 of the Constitution provides that at
a session of the Seimas, a group of not less than 1/5 of the
members of the Seimas may interpellate the Prime Minister or a
minister. Thus, according to the petitioner, the Constitution
clearly provides that members of the Seimas have the right
present inquiries only to members of the Government and heads
of the institutions which are formed or elected by the Seimas,
and hear them at the session of the Seimas. In the opinion of
the petitioner, in case these constitutional provisions are
construed expansively, it is possible to draw a conclusion that
members of the Seimas have the right to apply to the
institutions which are formed by the Seimas, and get
familiarised with the documents, data and other information
available at these institutions, as well as to summon heads of
these institutions to sittings of Seimas committees or
commissions. However, it is not permitted to construe the
provisions of Article 61 of the Constitution in separation from
Articles 5, 109, and 118 of the Constitution. The petitioner
asserts that the Seimas, having consolidated the rights of the
commission in the disputed provisions of the Law, established
the regulation whereby it violated the place and competence of
state institutions established in the Constitution, created
pre-conditions to interfere with the activities of courts and
the prosecutor's office and to violate the principle of their
independence consolidated in the Constitution.
In the opinion of the petitioner, a systemic construction
of the provisions entrenched in Items 5, 9, and 11 of Article
67 and the norms of Article 61 of the Constitution permits to
draw a conclusion that the commissions formed by the Seimas may
summon to their sittings members of the Government, the
President of the Board of the Bank of Lithuania, the State
Controller, members of the Central Electoral Commission, the
heads and other employees of other institutions established or
formed by the Seimas, to demand that they present documents and
other information. However, according to the petitioner, the
Seimas commissions are not permitted to demand documents and
information from institutions and establishments that are not
accountable to the Seimas, nor explanations from employees of
such institutions. The commissions formed by the Seimas also do
not have the right to summon to their sittings state and
municipal politicians, officials, servants, other persons
working at state and municipal institutions and demand that
they present either information or data concerning the issues
considered by the commission.
1.3. In the opinion of the petitioner, the principle of
separation of powers entrenched in Article 5 of the
Constitution is also violated by the right of the Seimas
commissions to get familiarised, upon coordination with the
Office of the Prosecutor General and an institution of
pre-trial investigation (under the Code of Criminal Procedure
of the Republic of Lithuania, these are local courts), with the
criminal case or other material and documents which are at
their disposal, which is established by Item 5 of Paragraph 1
of Article 4 of the Law. Article 109 of the Constitution
provides that in the Republic of Lithuania, justice shall be
administered solely by courts; while administering justice, the
judge and courts shall be independent. The petitioner notes
that the actions carried out in the course of the preparation
of the material for the judicial investigation are to be
treated as part of the judicial process. Therefore, in the
opinion of the petitioner, the familiarisation with the
material that is at the command of pre-trial institutions,
which is collected in the course of the actions of pre-trial
investigation and which is designated for courts to commence a
case, violates not only the principle of separation of powers
entrenched in Article 5 of the Constitution, but also the
principle of independence of the court, judges and prosecutors,
which is entrenched in Articles 109 and 118 of the
Constitution.
2. The 16 December 2003 petition of a group of members of
the Seimas, the petitioner, is based on these arguments.
2.1. Every branch of state power occupies a certain place
in the system of branches of state power and discharges the
functions characteristic of it only. The Seimas, which is
composed of representatives of the Nation, members of the
Seimas, passes laws, supervises the activity of the Government,
confirms the state budget and supervises how it is executed,
decides other issues prescribed by the Constitution. The
Constitution, establishing the competence of each branch of
state power, alongside draws its limits. This is confirmed by
Paragraph 2 of Article 5 of the Constitution which provides
that the scope of power shall be limited by the Constitution.
Administration of justice is the activity of courts in the
course of consideration of civil, criminal and administrative
cases. Thus, only the court can state whether there was a
certain violation of laws, and apply criminal, civil or
administrative liability.
The Provisional Commission of the Seimas for Investigation
into Possible Threats to Lithuanian National Security, the
conclusion of which was confirmed by the Seimas, established
that "via the President or his advisors, classified information
used to reach the persons who did not have the right to be
familiarised with it, or those in whose regard operational
investigation was being conducted". This established fact, in
the opinion of the petitioner, means recognition of the person
as guilty of the commission of the criminal deeds provided for
in Articles 125 and 126 of the Criminal Code of the Republic of
Lithuania. The other statements "the President and some of his
advisors exerted impermissible influence on privatisation of
enterprises and individual entities of private business", "the
President being tolerant, his advisors exceeded their
competence, interfered with the activities of other state
institutions, abused their status, thus causing confusion in
state governance", which were established and confirmed by the
Seimas, also stated violations of law in no uncertain terms,
due to which one is criminally liable under Articles 228, 288
and other articles of the Criminal Code, or is administratively
liable.
The petitioner noted that neither the Constitution, nor
the Statute of the Seimas provides that the Seimas may state
the presence of violations of laws and other legal acts.
According to the petitioner, Article 67 of the Constitution
provides for the final list of powers of the Seimas, however,
it does not provide that the Seimas has the right to establish
the facts having legal significance, and which may lead to
either criminal or administrative liability, or to state the
presence of violations of laws or other legal acts. Approving
of the conclusion of the Seimas Provisional Investigation
Commission, in which the facts confirming the guilt of a person
(the President and his advisors) are established, the Seimas
assessed the actions of the persons as illegal ones, although
it did not have any legal bases nor any right to do so. In the
opinion of the petitioner, thus the Seimas exceeded its
competence and violated Article 114 of the Constitution, which
provides that interference by institutions of state power and
administration, members of the Seimas and other officials,
political parties, political and public organisations, or
citizens with the activities of a judge or the court shall be
prohibited and incur liability as provided for by law.
Due to these motives, the petitioner believes that the
Resolution, as to its extent, is in conflict with the
principles of a state under the rule of law and separation of
powers, as well as with Articles 5, 67, 109, and 114 of the
Constitution.
2.2. In the opinion of the petitioner, the Seimas
provisional investigation commission ought to restrain from the
assessment of the factual circumstances which may give grounds
for beginning of pre-trial investigation, since Paragraph 2 of
Article 3 of the Law provides that the commission, while
investigating the issue assigned to it and implementing its
rights, does not interfere with the activities of the court,
the judge, the prosecutor, the official of pre-trial
investigation when they conduct the pre-trial investigation and
consider the case in court. According to the petitioner, such a
conclusion is also to be drawn on the grounds of Item 1 of
Paragraph 2 of Article 8 of the Law, providing that the
commission may transfer the collected material to institutions
of pre-trial investigation or the prosecutor's office. A
systemic analysis of the aforesaid legal norms permits to draw
a conclusion that the Seimas provisional investigation
commission, having established certain facts which could lead
to either criminal or administrative liability, ought to
restrain from their assessment and transfer the issue of the
establishment and assessment of these facts to respective
institutions of law and order. In the opinion of the
petitioner, the Seimas resolution in question confirmed the
assessment of factual circumstances by the Seimas provisional
investigation commission; due to this, in the opinion of the
petitioner, this resolution is in conflict with Article 31 of
the Constitution, which proclaims that a person shall be
presumed innocent until proven guilty and must be declared
guilty by an effective court judgement in accordance with the
procedure established by law. The petition of the petitioner
indicates that the principle of presumption of innocence is a
universal principle of law, the area of application of which is
not restricted to the criminal procedure, and which must be
followed not only by the court but also other state
institutions. According to the petitioner, the European Court
of Human Rights, by applying Article 6 of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms, pointed out that also state institutions, by taking
account of concrete circumstances, must follow the principle of
presumption of innocence.
The petitioner believes that the Seimas resolution whereby
one confirmed the conclusions of the Seimas Provisional
Investigation Commission that the state secret was revealed via
the President and his advisors, that the President and his
advisors exerted impermissible influence on privatisation of
enterprises and individual entities of private business, that,
the President being tolerant, his advisors exceeded their
competence, interfered with the activities of other state
institutions and abused their status, violate the principle of
presumption of innocence entrenched in Article 31 of the
Constitution, as virtually the Seimas resolution confirmed the
commission of the criminal deeds punishable under Articles 125,
228, 288 and other articles of the Criminal Code.
It is emphasised in the petition that under Article 109 of
the Constitution justice shall be administered solely by the
court. Thus, it is only the court that may investigate and
state that certain actions were performed for which a person is
criminally liable, and only the court may recognise a person
guilty of commission of the crime. In the opinion of the
petitioner, the facts set forth in the conclusions of the
Seimas Provisional Investigation Commission create grounds for
application of liability to persons for commission of
corresponding crimes (for example, under Articles 125, 228, 288
and other articles of the Criminal Code).
The petitioner is of the opinion that a state under the
rule of law does not permit a situation when institutions of
law and order whose aim is to detect and investigate violations
of laws and other legal acts virtually cannot reach different
conclusions as for the facts set forth in the conclusions of
the Seimas Provisional Investigation Commission and confirmed
by the Seimas resolution, since then their actions would be in
conflict with the legal act, i.e. the Seimas resolution,
whereby the conclusions of the Seimas Provisional Investigation
Commission were confirmed. According to the petitioner, thus
the constitutional principles of separation of powers and a
state under the rule of law may be violated.
The petitioner noted that it is only the court that may
establish the guilt of a person, while it is only the court or
institutions of quasi-judicial character that may state the
facts having legal significance, however, in the latter case
the person, if he disagrees with the stated fact, has an
opportunity to apply to an independent and impartial court. In
this respect, the acts adopted by the Seimas are not subject to
appeal, they are obligatory to everyone, therefore, the person,
whose activities that are contrary to law were established by a
legal act, cannot defend his rights. Thus the right of the
person to demand that his case be investigated by an
independent and impartial court is violated. These arguments
confirm that such a situation is impermissible in a state under
the rule of law and that a legal act creating preconditions for
such a situation is not in line with the provisions of the
Constitution.
Due to these motives, the petitioner thinks that the
resolution, as to its content, is in conflict with the
principle of presumption of innocence entrenched in Article 31
of the Constitution, Articles 109 and 114 of the Constitution
and Articles 3 and 8 of the Law.
2.3. The petitioner asserted that Articles 5 and 67 of the
Constitution do not provide that the Seimas could establish
either facts of circumstances. The main functions of the Seimas
are passage of laws, supervision of the activities of the
Government, confirmation of the State Budget, i.e., it means
that it establishes not individual facts, but regulates the
existing public and private legal relations. The establishment
of concrete facts and application of legal acts is within the
competence of courts (and institutions of quasi-judicial
character). Therefore, in the opinion of the petitioner, the
Seimas overstepped the limits of its competence not only in
that it established the guilt of a person, but also in that it
established facts having legal significance, even though the
said facts do not create grounds for appearance of liability of
the person. Therefore, the petitioner believes that the
resolution is in conflict with the principle of separation of
powers.
III
1. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representative of the Seimas, the party
concerned, who was the member of the Seimas J. Bernatonis,
concerning the 24 November 2003 petition of a group of members
of the Seimas.
1.1. J. Bernatonis noted that Article 76 of the
Constitution provides that the structure and procedure of
activities of the Seimas shall be established by the Statute of
the Seimas. The common issues of the structure of the Seimas
are regulated in Chapter V of Part II of the Statute of the
Seimas. Under Paragraph 3 of Article 25 of the Statute of the
Seimas, for resolving short-term issues or issues of narrower
scope, and for carrying out concrete assignments, the Seimas
may, from among its members, form investigation, control,
auditing, preparatory, drafting and other provisional
commissions. The procedure of formation and work activities,
the rights, tasks and decisions adopted by Seimas provisional
investigation commissions are regulated in a more detailed
manner by the norms of Chapter XII of the Statute of the Seimas
and the Law on Seimas Provisional Investigation Commissions.
Paragraph 1 of Article 72 of the Statute of the Seimas
provides that provisional control or investigation commissions
shall be formed for the purpose of control of how the decisions
of Seimas are being implemented, collection and presentation of
collected information and conclusions, required to analyse the
problem at hand and to adopt a decision, as well as in other
instances stipulated in this Statute.
Paragraph 1 of Article 2 of the Law provides that the
Seimas, having recognised a necessity to investigate an issue
of state importance, may form a Seimas provisional
investigation commission. Paragraph 1 of Article 3 indicates
the tasks of the commission, namely, to elucidate and establish
whether the actions were performed, decisions were adopted
related with the issues which are assigned to it to be
investigated, also to elucidate other circumstances related
with the investigated issue. Article 4 of the Law indicates the
rights of the commission.
1.2. Paragraph 1 of Article 5 of the Constitution provides
that in Lithuania, the Seimas, the President of the Republic
and the Government, and the Judiciary, shall execute state
power. This provision, the content whereof is revealed in other
articles of the Constitution in a more detailed manner,
consolidates a fundamental principle of the organisation and
activity of a state under the rule of law-the principle of
separation of state powers. The representative of the party
concerned emphasised that each branch of state power, while
occupying a certain place in the system of state powers and
implementing the functions characteristic of it only,
cooperates with other branches of power. Paragraph 2 of Article
5 of the Constitution provides that the scope of power shall be
limited by the Constitution. It means that the Constitution
directly establishes the powers of a concrete institution of
state power, no other institution may take these powers from
it, while the institution whose powers are established in the
Constitution may not transfer nor waive them. Such powers may
not be changed or restricted by means of the law.
1.3. In the opinion of the representative of the party
concerned, the provisions of Items 1, 2 and 3 of Paragraph 1 of
Article 4 of the Law, which virtually limit themselves with the
right of the commission to receive information, for this
purpose to summon to its sittings state and municipal
politicians, officials, servants and other persons (also from
the institutions with are not accountable to the Seimas) and to
familiarise with the information does not violate the principle
of separation of powers entrenched in Article 5 of the
Constitution, nor the principle consolidated in Paragraph 1 of
Article 109 of the Constitution that administration of justice
is exclusive competence of the court. J. Bernatonis believes
that this is to be assessed as exchange of information between
institutions, but not as the function of control and
supervision by the Seimas over the judiciary, as it is
maintained in the petition of the petitioner. According to the
representative of the Seimas, the rights of the commission
established in Article 4 of the Law do not create any
opportunities for the commission to control or otherwise
interfere with the activity of the judiciary. On the contrary,
the Law contains a prohibition to interfere with the activities
of courts, prosecutors and officials of pre-trial
investigation. Under Paragraph 2 of Article 3 of the Law, the
commission, while investigating an issue assigned to it and
implementing its rights, shall not interfere with the
activities of the court, the judge, the prosecutor, and the
official of pre-trial investigation, when they conduct
pre-trial investigation or investigate a case in court.
1.4. J. Bernatonis noted that the Seimas may form a Seimas
provisional investigation commission concerning not any issues,
but only upon recognising a necessity to investigate an issue
of state importance (Paragraph 1 of Article 2 of the Law). Only
in case it had the right to receive exhaustive information from
all state and governance institutions, the Bank of Lithuania,
state and municipal enterprises (including those that are
controlled by them) and to familiarise with it, also to summon
to its sittings state and municipal politicians, officials,
servants and other persons working at state and municipal
institutions, the Seimas provisional investigation commission
would be able to properly conduct the investigation concerning
the issue of state importance and, when implementing Paragraph
1 of Article 72 of the Statute of the Seimas, to collect and
present exhaustive information and conclusions to the Seimas,
which are necessary in order to consider the existing problem
and to adopt a decision. The information received only from the
Government and other state institutions, which are formed and
elected by the Seimas, would not permit to conduct a thorough
and objective investigation.
1.5. In the opinion of the representative of the party
concerned, the disputed provisions of the Law are not in
conflict with Paragraph 1 of Article 61 of the Constitution,
either, in which the right of inquiry of the Seimas member is
consolidated. The Prime Minister, a minister, heads of other
state institutions that are formed or elected by the Seimas,
must give answers either orally or in writing in the Seimas
session under the procedure established by the Seimas. An
inquiry of the member of the Seimas, as a constitutional
institute, implies that the Statute of the Seimas must
establish a duty of corresponding officials to answer to the
member of the Seimas, and that one must answer in the Seimas
session according to the procedure established by the Seimas.
The submission of inquiries and the procedure of their
consideration are regulated by Chapter XXXIV of the Statute of
the Seimas. Under Paragraph 2 of Article 213 of the Statute of
the Seimas, only the question, due to which a member of the
Seimas or their group applied to state institutions which,
however, in their opinion, has not been properly considered or
has been decided negatively, is regarded as an inquiry.
According to J. Bernatonis, it is clear from this provision
that members of the Seimas, before they present an inquiry to
the Prime Minister, a minister, heads of other state
institutions that are formed or elected by the Seimas, have the
right to apply to any state institution (including that not
accountable to the Seimas).
1.6. In the explanations of the representative of the
party concerned it is also noted that Items 1, 2, 3, and 5 of
Paragraph 1 of Article 4 of the Law cannot be in conflict with
Article 55 of the Constitution, since their provisions regulate
completely different matters.
1.7. J. Bernatonis believes that it is a debatable issue
whether there is not a conflict with Article 67 of the
Constitution, in which the functions of the Seimas are
established. According to the representative of the party
concerned, this list of the functions of the Seimas is final,
therefore he doubts whether it is permitted to expand it,
although, he notes, alongside, that in other articles of the
Constitution the competence of the Seimas is expanded. However,
in the opinion of J. Bernatonis, the rights of Seimas
provisional investigation commissions may be attributed to the
area of parliamentary supervision and control, although the
Constitution does not directly indicate that.
1.8. In the opinion of the representative of the party
concerned, the provisions of Item 5 of Paragraph 1 of Article 4
of the Law are not in conflict with Article 118 of the
Constitution, either. J. Bernatonis noted that the provision of
Item 5 of Paragraph 1 of Article 4 of the Law does not mean
that the Seimas provisional investigation commission may
unconditionally get familiarised with any criminal case or
other material or documents. While implementing this right, the
commission must, first, coordinate this question with the
Office of the Prosecutor General, the State Control, the State
Security Department or an institution of pre-trial
investigation; second, it may become familiarised with them
only in accordance with the procedure established in laws. From
this it must be concluded that the aforesaid institutions,
while following the requirements of the legal acts regulating
the procedure of getting familiarised with the material of a
criminal case, operational material etc., adopts a decision to
permit that the Seimas provisional investigation commission be
familiarised with a criminal case, material and documents or,
if this is contrary to requirements of legal acts, not to give
the permission. J. Bernatonis paid attention to the fact that
in case the Office of the Prosecutor General, the State
Control, the State Security Department or an institution of
pre-trial investigation refuse to present a criminal case,
material or documents to the commission, the commission has no
right to take them with the help of police officers.
2. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representative of the Seimas, the party
concerned, who was R. Šukys, a member of the Seimas, as regards
the 16 December 2003 petition of a group of members of the
Seimas, the petitioner.
2.1. It is noted in the explanations of R. Šukys that in
the system of powers established by the Constitution the Seimas
enjoys a special, constitutional status. According to the
representative of the Seimas, the Seimas, while implementing
the powers of governance, is independent inasmuch as its powers
are not limited by the Constitution, however, it must always
ensure the discontinued implementation of its powers that are
provided for in the Constitution. Taking account of the
constitutional status of the Seimas as legislative power, one
must create the structure of the Seimas and the work procedure
grounded on democratic principles so that the representation of
the Nation might constructively, effectively and
discontinuously implement the supreme sovereign power of the
Nation in case of any situation in this country.
In order that it might discharge legislative activities
and adopt other decisions, the Seimas must be guided by
exhaustive information. To this purpose, it is necessary that
the Seimas might have an opportunity to get familiarised with
any issue that is important to the life of the state and
society, and to analyse it. Otherwise, the duty of the Seimas,
as representation of the Nation, to constructively, effectively
and discontinuously implement the supreme sovereign power of
the Nation, would be denied.
The Seimas is composed of the representatives of the
Nation. According to the representative of the party concerned,
the responsibility of state power to the society is a principle
of a state under the rule of law, which is constitutionally
consolidated by providing that state institutions shall serve
the people, while the citizens have the right to govern their
country either directly or through democratically elected
representatives, to criticise the work of state institutions or
officials, to appeal against their decisions, also, by
guaranteeing an opportunity for citizens to defend their rights
in court, the right to criticise, the right of petition, by
regulating the procedure of consideration of requests and
complaints of citizens, etc. In the opinion of the
representative of the party concerned, since the Seimas is
representation of the Nation, it has a duty to execute public
control of any officials in a constitutional manner.
The representative of the party concerned noted that the
blanket norm formulated in Article 76 of the Constitution
permits the Seimas to formulate by itself its structure, the
procedure of work, procedures of submission, consideration and
adoption of laws and other legal acts, the competence of
structural sub-units of the Seimas, their interrelations, also
to regulate other issues of functioning of the Seimas. Under
Article 76 of the Constitution, this must be established in the
Statute of the Seimas, which has the power of the law.
It is noted in the explanations that the structure of the
Seimas is a system of its internal sub-units established in the
Statute of the Seimas, which must ensure the efficiency of the
parliament, its effective functioning, i.e. to create the
necessary conditions and preconditions for the Seimas to
discontinuously implement its functions defined in the
Constitution. Having recognised a necessity to investigate an
issue of state importance, the Seimas may form a Seimas
provisional investigation commission. The Seimas provisional
investigation commission is a structural sub-unit of the
Seimas, which helps, under established procedure, to ensure the
efficiency of the parliament and its effective functioning. The
establishment of work procedure of this commission, the
definition of its competence are a matter of the discretion of
the Seimas. The results of the investigation of the commission
are drawn up in a conclusion, in which one indicates the
elucidated circumstances during the investigation, the
collected evidence and the legal assessment of the situation.
The Seimas approves (or disapproves) of the conclusion of the
commission. According to the representative of the party
concerned, Seimas provisional investigation commissions have
the right to establish facts and to qualify them in a legal
manner.
R. Šukys drew one's attention to the fact that the Seimas
approved of the conclusion of the Seimas provisional
investigation commission, which had been formed by it, does not
mean that it administers justice and violates the
constitutional principle of separation of powers; the decision
of the Seimas is not obligating to the court. Therefore, in the
opinion of the representative of the party concerned, the
argument of the petitioners that by the disputed resolution the
Seimas established a fact having legal significance and
violated the competence of the Seimas is groundless.
2.2. In the explanations of the representative of the
party concerned R. Šukys it is also noted that neither the
Seimas nor the Seimas provisional investigation commission
decides the issue of guilt of a person. After it has considered
the results of the investigation (the circumstances elucidated
during the investigation, the collected evidence, the legal
assessment of the situation), the commission may: (1) decide to
transfer the material to institutions of pre-trial
investigation or prosecutor's office; (2) propose that state
and self-government institutions bring the persons who
committed the violations to disciplinary responsibility, or
decide whether these persons are fit to the office that they
are holding; (3) state that, in the opinion of the commission,
there have not been any actions performed or decisions adopted
which the commission is assigned to investigate, also that the
actions performed or decisions adopted are not in conflict with
laws and other legal acts.
Thus, according to the representative of the party
concerned, the decision concerning guilt of a person is adopted
not by the Seimas, nor the Seimas provisional investigation
commission. The representative of the Seimas also emphasised
that the constitutional principle of presumption of innocence
is applied in, first of all, the procedure of criminal cases
and is not characteristic of other legal relations in its pure
form. Therefore, R. Šukys believes that the argument of the
petitioners that by the disputed resolution the Seimas
established the guilt of a person and violated the competence
of the Seimas is groundless.
2.3. The representative of the party concerned is of the
opinion that the disputed resolution of the Seimas is not in
conflict with the Constitution and the Law on Seimas
Provisional Investigation Commissions.
3. In the course of the preparation of the case for the
Constitutional Court hearing written explanations were also
received from the representative of the Seimas, the party
concerned, who was A. Jatkevičius, a senior advisor to the
Legal Department of the Office of the Seimas, concerning the 16
December 2003 petition of a group of members of the Seimas, the
petitioner.
3.1. By the Seimas Resolution "On the Formation of the
Provisional Commission for Investigation into Possible Threats
to Lithuanian National Security" of 3 November 2003, as well as
the Law on Seimas Provisional Investigation Commissions and the
Statute of the Seimas, the Commission was obligated to conduct
investigation and formulate conclusions. For instance,
subsequent to Paragraph 1 of Article 3 of the Law, the
Commission had a duty to elucidate and establish whether
actions were performed, decisions were adopted concerning the
issues that it was assigned to investigate, to elucidate and
establish other circumstances connected to the investigated
issue; the circumstances established by the Commission had to
be confirmed by documents and other evidence. The Commission
also could, under Article 4 of the Law, make use of all the
rights (to become familiarised with information, receive
written and oral explanations from various institutions and
persons, documents etc.) granted to it. Under Article 8 of the
Law, the Commission had a duty to draw up the results of the
investigation in a draft conclusion, to point out the
circumstances elucidated in the course of the investigation,
the collected evidence and present a legal assessment, a
conclusion, as regards the situation, and within one day after
the conclusion was adopted to present it to the Seimas. Under
Paragraph 1 of Article 72 of the Statute of the Seimas, the
Commission was obligated to collect information and present it
and its conclusions to the Seimas, which were necessary for
consideration of the problem and adoption of the decision.
Under Article 76 of the Statute of the Seimas, the Commission
was also obligated, upon performing its work, to present the
collected and summarised data, its conclusion and a draft
resolution to the Seimas. Besides, the Commission had the right
to present its conclusions concerning the proposed impeachment
proceedings.
In the opinion of A. Jatkevičius, the Seimas has the right
to establish its structure, procedure of its work, the
procedures of submission of laws and other legal acts, those of
their deliberation and adoption, the competence of Seimas
structural sub-units, their interrelations, also to regulate
other issues of functioning of the Seimas. The Seimas regulated
the activities of provisional investigation commissions by
adopting the Statute of the Seimas and the Law on Seimas
Provisional Investigation Commissions.
The Commission carried out the requirements of the Seimas
resolution, the Law on Seimas Provisional Investigation
Commissions and the Statute of the Seimas: it elucidated and
established what actions had been performed and decisions
adopted as regards the issues that the Commission was assigned
to investigate, it confirmed the established circumstances by
documents and other evidence, it drew up the results of the
investigation in a draft conclusion, in it is indicated the
circumstances elucidated and the evidence collected in the
course of the investigation and presented a legal assessment of
the situation, the collected and summarised data, the
conclusion and a draft resolution to the Seimas on the next day
after its adoption. The conclusion of the Commission (as well
as its statements questioned by the petitioner) was based upon
the system of evidence. The evidence was presented in annexes
to the conclusion, which, as the conclusion itself indicates,
are a constituent part of the conclusion.
In the opinion of the representative of the party
concerned, the fact that the Seimas established facts
(circumstances) is not in conflict with Article 67 of the
Constitution, which provides for the functions of the Seimas,
since the list of the twenty functions of the Seimas,
consolidated in Article 67 of the Constitution, is not a final
one (for example, it does not provide for the right of the
Seimas to apply by its resolution to the Constitutional Court
in order to investigate whether a legal act is in conformity
with the Constitution, which is provided for in another
article, i.e. Article 106, of the Constitution. Seimas special
investigation commissions have the right to establish facts.
According to the representative of the party concerned,
the Seimas Resolution "On the Conclusion of the Provisional
Commission of the Seimas for Investigation into Possible
Threats to Lithuanian National Security" of 2 December 2003 was
adopted subsequent to Paragraph 2 of Article 76 of the Statute
of the Seimas, in which it is established that a resolution is
passed at the Seimas sitting regarding the issue examined by
the provisional control and investigation commission. The
Seimas Provisional Investigation Commission not only did not
violate the Constitution, the Statute of the Seimas, the Law on
Seimas Provisional Investigation Commissions and other laws,
but, on the contrary, it carried out all the requirements of
these legal acts of the Republic of Lithuania.
3.2. The explanations by A. Jatkevičius also point out
that under Paragraph 2 of Article 3 of the Law, the commission,
while investigating the question assigned to it and
implementing its rights, shall not interfere with the
activities of the court, the judge, the prosecutor, and the
official of pre-trial investigation when they conduct pre-trial
investigation or consider the case in court. In its conclusion
the Commission also held that it "has presented its assessments
and conclusions which do not compete with the assessments of
judicial institutions". Items 1 and 2 of Paragraph 2 of Article
8 of the Law also provide that, after it has considered a draft
conclusion, the commission may decide to transfer the material
to institutions of pre-trial investigation or prosecutor's
office, also it may propose that state and self-government
institutions bring the persons who committed the violations to
disciplinary responsibility, or decide whether these persons
are fit to the office that they are holding.
According to the representative of the Seimas, it is clear
from the whole text of the conclusion of the Seimas Provisional
Investigation Commission that the commission, while conducting
the investigation and formulating its conclusion subsequent to
the Law and other legal acts of the Republic of Lithuania, did
not claim to the place of a judicial institution, it did not
execute judicial power nor did it administer justice, it did
not decide the question of guilt of persons, nor did it
incriminate any deeds provided for in the Criminal Code. The
representative of the party concerned noted that in the course
of administration of justice it is not sufficient to draw up
statements similar to formulations of the Criminal Code. In
order to administer justice and state commission of a criminal
deed, the entire procedure provided for in the Code of Criminal
Procedure is necessary: pre-trial investigation, judicial
consideration, adoption, in the name of the Republic of
Lithuania, of a judgement of conviction which incriminates
deeds provided for in concrete articles of the Criminal Code,
etc. Paragraph 1 of Article 31 of the Constitution also
provides that a person shall be presumed innocent until proven
guilty and must be declared guilty by an effective court
judgement in accordance with the procedure established by law.
The representative of the party concerned also noted that
administration of justice is "a sovereign adoption of decisions
by special state institutions, courts, under a special,
judicial, procedure, in which, by applying the Constitution,
the law or other legal act, it is stated what is right in that
case. Administration of justice is an exclusive function of
courts, determining the place of this branch oh power in the
system of state institutions and the status of judges."
3.3. On 11 December 2003, the Seimas, while taking account
of the Seimas Provisional Commission for Investigation into
Possible Threats to Lithuanian National Security, adopted the
Resolution "On Applying to State and Municipal Institutions",
whereby it applied to the Seimas Commission on Ethics and
Procedures so that it would assess whether the activity of
members of the Seimas, whose names are mentioned in the
investigation material of the Commission, are in line with
valid legal acts and ethical requirements; it also applied to
the Supreme Commission for Official Ethics and some municipal
councils, so that they would assess whether the activities of
members of these municipal councils are in line with valid
legal acts and ethical requirements; it requested that
corresponding state and municipal institutions and heads of
establishments assess the actions of the officials mentioned in
the reference of the State Security Department and in the
conclusion of the Commission; it proposed that the Board of the
Seimas form working groups in order to prepare draft laws on
amending the laws on elections, the law on control of financing
of political campaigns, the law on Seimas provisional
investigation commissions and the laws that regulate the
procedure for appointment of heads of law and order
institutions, and commissioned the working groups to present
draft amendments to the said laws to the Seimas; it proposed
that the Office of the Prosecutor General and other
institutions of law and order investigate possible violations
of laws, related to the issues considered by the Commission.
Thus, the representative of the party concerned believes
that the Seimas Provisional Investigation Commission did not
administer justice nor did it execute judicial power, that it
did not violate the principles of a state under the rule of
law, separation of powers, the presumption of innocence, which
are enshrined in the Constitution, that it did not discharge
any functions that are not ascribed to the Seimas and that it
did not interfere in the activity of the court.
3.4. A. Jatkevičius also drew one's attention to the fact
that the statements questioned in the 16 December 2003 petition
of the petitioner are not in the Seimas resolution itself, but
in its annex, the conclusion of the Seimas Provisional
Investigation Commission. Under Paragraph 3 of Article 8 of the
Law and Paragraph 1 of Article 76 of the Statute of the Seimas,
the Commission was obliged to present the conclusion and a
draft Seimas resolution to the Seimas, while the latter was
obliged, by Paragraph 2 of Article 76 of the Statute of the
Seimas, to adopt a resolution concerning the issue considered
by the Commission.
On 1 December 2003, the Commission presented its confirmed
conclusion to the Seimas which, by its 2 December 2003
resolution, approved of the conclusion. According to the
representative of the party concerned, the Seimas resolution
concerning approval of the conclusion of the Commission merely
means confirmation and recognition that the Commission had
performed its work properly and carried out all the
requirements of legal acts of the Republic of Lithuania: it
established the facts, it grounded them on evidence, it drew up
a conclusion and presented it to the Seimas in time. Meanwhile,
in this case one disputes not the Seimas resolution itself, but
its annex, the conclusion of the Seimas Provisional
Investigation Commission.
According to the representative of the party concerned,
the investigation of the compliance of a Seimas resolution with
laws is not within the jurisdiction of the Constitutional
Court, therefore, the petition of the petitioners requesting to
investigate the compliance of the Seimas resolution with the
Law on Seimas Provisional Investigation Commissions is not
subject to consideration.
A. Jatkevičius is of the opinion that the conclusion of
the Seimas Provisional Investigation Commission is not a legal
act of the Seimas; it was only approved of by a legal act of
the Seimas, the Seimas resolution. Paragraph 7 of Article 8 of
the Law on Procedure of Drafting of Republic of Lithuania Laws
and Other Normative Legal Acts mentions that a law may have
annexes. However, neither this article, nor Article 9 of the
same law, regulating the form and structure of other legal
acts, speaks about annexes to a Seimas resolution. In addition,
Paragraph 2 of Article 9 of the said law mentions the legal
acts that are confirmed by Seimas resolutions, meanwhile, the
disputed provisions have not been confirmed-they were approved
of. Besides, the conclusions of the Commission that are in the
annex to the Seimas resolution are not of normative character.
Therefore, the representative of the party concerned believes
that the 11 December 2003 Resolution "On Applying to State and
Municipal Institutions", which is of normative character, was a
logical consequence of the prior Seimas resolution of
non-normative character, whereby one approved of the conclusion
of the Seimas Provisional Investigation Commission. A.
Jatkevičius noted that prior to that, conclusions of
provisional investigation commissions formed by the Seimas did
not use to be published in the official gazette "Valstybės
žinios". The constitutionality of conclusions of Seimas
provisional investigation commissions, which were not annexes
to a Seimas resolution, and which had not been published in the
official gazette "Valstybės žinios", did not use to be
questioned. Therefore, the representative of the party
concerned thinks that only because of the fact that the
conclusions of the Commission were annexed to the Seimas
resolution and published in the official gazette "Valstybės
žinios", they do not become an act of the Seimas the
investigation of constitutionality of which is within the
jurisdiction of the Constitutional Court.
3.5. In the opinion of the representative of the party
concerned, who was A. Jatkevičius, the Seimas Resolution "On
the Conclusion of the Provisional Commission of the Seimas for
Investigation into Possible Threats to Lithuanian National
Security" of 2 December 2003 to the disputed extent is not in
conflict with the Constitution. In the opinion of the
representative of the Seimas, the consideration of the
compliance of this resolution with Articles 3 and 8 of the Law
is not within the jurisdiction of the Constitutional Court.
Besides, the constitutionality of consideration of the
conclusions themselves made by the Seimas Provisional
Investigation Commission is not within the jurisdiction of the
Constitutional Court. Therefore, A. Jatkevičius believes that
in this part the legal proceedings in the case ought to be
dismissed.
IV
In the course of the preparation of the case for the
judicial investigation, written explanations were received from
A. Sakalas, Chairman of the Seimas Committee on Legal Affairs
(who also used to head the Provisional Commission of the Seimas
for Investigation into Possible Threats to Lithuanian National
Security) and Prof. T. Birmontienė, Head of the Department of
Constitutional Law, the Department of Law of the Law University
of Lithuania.
V
1. At the Constitutional Court hearing, the representative
of both groups of members of the Seimas H. Žukauskas
additionally indicated these arguments upon which the
representative of the petitioners disputes the compliance of
the Seimas Resolution "On the Conclusion of the Provisional
Commission of the Seimas for Investigation into Possible
Threats to Lithuanian National Security" of 2 December 2003
with the Constitution according to the content of its norms as
well as the procedure of its publishing.
1.1. The Seimas Resolution "On the Conclusion of the
Provisional Commission of the Seimas for Investigation into
Possible Threats to Lithuanian National Security" is an
integral act; the conclusion of the Commission is its
constituent part. In this conclusion one holds: "The list of
annexes to the conclusions of the Commission, which are a
constituent part of the conclusion, shall be attached." The
annexes to the conclusion of the Commission, upon which the
conclusion itself was based, have not been publicly published,
therefore, according to H. Žukauskas, the members of the
Seimas, who have no right to familiarise themselves with the
state secret, did not have any opportunities to familiarise
with them and decide as for the approval of the conclusion of
the Commission. Since the annexes to the conclusion of the
Commission were not published, the opportunities of the persons
mentioned in the conclusion of the Commission to defend their
rights, as well as to apply to court in order to deny the false
information, were unreasonably restricted.
1.2. The Commission grounded its conclusion on the
testimony of witnesses, however, no liability was provided for
the witnesses for giving false witness. H. Žukauskas emphasised
that in fair proceedings it is not permitted to base oneself on
unchecked information, while such basing on unchecked
information must be assessed as gross violation of the
principle of a state under the rule of law.
1.3. H. Žukauskas also noted that the right of the
commissions that is consolidated in the Law on Seimas
Provisional Investigation Commissions to familiarise with
pre-trial investigation and operational information exceeds the
competence of the Seimas and violates the principle of
separation of powers. Furthermore, the information that was
received during pre-trial investigation and presented to the
Seimas provisional investigation commission may become
available to the public, while this not only makes the
investigation of the case more difficult, but it can also
violate the constitutional rights of the persons that gave this
information as well as those of the persons mentioned in the
operational information.
2. At the Constitutional Court hearing, the representative
of the party concerned, the Seimas, who was A. Jatkevičius,
drew one's attention to the fact that in his petition the
petitioner did not dispute the compliance of Seimas Resolution
No. IX-1868 "On the Conclusion of the Provisional Commission of
the Seimas for Investigation into Possible Threats to
Lithuanian National Security", which was adopted on 2 December
2003, with the Constitution in the aspect that the annexes to
the conclusion of the Commission had not been publicly
published, therefore this question is not a matter of the case
at issue.
A. Jatkevičius also noted that the activities of the
Seimas Provisional investigation commission are not identical
to criminal proceedings. The Seimas Provisional Investigation
Commission was conducting a political process, a parliamentary
procedure. Under Paragraph 1 of Article 72 of the Statute of
the Seimas, provisional control or investigation commissions
shall be formed for the purpose of control of how the decisions
of Seimas are being implemented, collection and presentation of
collected information and conclusions, required to analyse the
problem at hand and to adopt a decision, as well as in other
instances stipulated in this statute. The Provisional
Commission of the Seimas for Investigation into Possible
Threats to Lithuanian National Security was formed in order to
collect and present the collected information as well as
conclusions to the Seimas, required to analyse the problem at
hand and to adopt a decision. Meanwhile, the
liability-criminal, administrative or other liability-of the
witnesses of the Commission, is not a mater of consideration in
this case.
3. At the Constitutional Court hearing, the representative
of the party concerned, the Seimas, who was J. Bernatonis,
virtually reiterated the arguments set forth in his written
explanations.
The Constitutional Court
holds that:
I
1. Under the Constitution, the Seimas is representation of
the Nation (Constitutional Court ruling of 30 December 2003).
The Seimas is an institution of state power executing the
legislative power. The constitutional nature of the Seimas, as
representation of the Nation, determines its special place in
the system of institutions of state power, its functions and
competence.
2. The constitutional powers of the Seimas are
consolidated in Article 67 of the Constitution. This article
provides that the Seimas: shall consider and adopt amendments
to the Constitution (Item 1); shall pass laws (Item 2); shall
adopt resolutions on referendums (Item 3); shall appoint an
election for the President of the Republic of Lithuania (Item
4); shall establish state institutions provided for by law, and
shall appoint and dismiss their heads (Item 5); shall approve
or disapprove of the candidature of the Prime Minister
presented by the President of the Republic (Item 6); shall
consider the programme of the Government presented by the Prime
Minister, and decide whether to approve of it (Item 7); shall,
upon the motion of the Government, establish and abolish
ministries of the Republic of Lithuania (Item 8); shall
supervise the activities of the Government, and may express
no-confidence in the Prime Minister or a Minister (Item 9);
shall appoint justices to, and Presidents of, the
Constitutional Court and the Supreme Court (Item 10); shall
appoint to, and dismiss from, office the State Controller as
well as the President of the Board of the Bank of Lithuania
(Item 11); shall appoint elections of municipal councils (Item
12); shall form the Central Electoral Commission and alter its
composition (Item 13); shall confirm the State Budget and
supervise the execution thereof (Item 14); shall establish
state taxes and other obligatory payments (Item 15); shall
ratify and denounce international treaties of the Republic of
Lithuania as well as consider other issues of foreign policy
(Item 16); shall establish administrative division of the
Republic (Item 17); shall establish state awards of the
Republic of Lithuania (Item 18); shall issue acts of amnesty
(Item 19); shall impose direct administration, martial law, and
a state of emergency, declare mobilisation, and adopt a
decision to use the armed forces (Item 20).
It needs to be noted that the list of the constitutional
powers of the Seimas consolidated in Article 67 of the
Constitution is not a final one. On the one hand, various
powers of the Seimas are entrenched in other articles (parts
thereof) of the Constitution. For instance, Article 74 of the
Constitution provides that for gross violation of the
Constitution, breach of oath, or upon disclosure of the
commission of a crime, the Seimas may, by a 3/5 majority vote
of all the members of the Seimas, remove from office the
President of the Republic, the President and justices of the
Constitutional Court, the President and justices of the Supreme
Court, the President and judges of the Court of Appeal, as well
as members of the Seimas, or may revoke the mandate of a member
of the Seimas; this shall be performed in accordance with the
procedure for impeachment proceedings which shall be
established by the Statute of the Seimas. Article 75 of the
Constitution provides that officials appointed or elected by
the Seimas (with the exception of persons specified in Article
74 of the Constitution) shall be dismissed from office when the
Seimas, by majority vote of all the members of the Seimas,
expresses no-confidence in them. Under Article 106 of the
Constitution, the Seimas has the right to apply to the
Constitutional Court by its resolution and to request that the
Constitutional Court investigate whether the legal acts
indicated in Article 102 of the Constitution are not in
conflict with the Constitution (while whether substatutory acts
are not in conflict with the Constitution and laws) and to
request a conclusion from the Constitutional Court on the
issues indicated in Paragraph 3 of Article 105 of the
Constitution. Under Item 11 of Article 84 and Paragraph 5 of
Article 118 of the Constitution, the Seimas either approves or
does not approve of the candidacy for appointment or dismissal
of the Prosecutor General of the Republic of Lithuania, while
under Item 14 of Article 84 of the Constitution-of the
candidacies of the Chief of the Army and the Head of the
Security Service. Under Article 100 of the Constitution, the
Seimas may give its consent to hold the Prime Minister or a
minister criminally liable, to arrest him, or otherwise
restrict their freedom. Under Paragraph 1 of Article 128 of the
Constitution, the Seimas adopts decisions concerning the state
loan and other basic property liabilities of the state. Also,
additional powers of the Seimas are established in various
articles (parts thereof) of the Constitution.
On the other hand, one is to pay attention to the fact
that some powers of the Seimas that are established in Article
67 of the Constitution are particularised and detailed in other
articles (parts thereof) of the Constitution. For example, the
provision of Item 9 of Article 67 of the Constitution that the
Seimas inter alia "may express no-confidence in the Prime
Minister or a Minister" is particularised by the provision
"upon considering the response of the Prime Minister or a
Minister to the interpellation, the Seimas may decide that the
response is not satisfactory, and, by a majority vote of half
of all the members of the Seimas, express no-confidence in the
Prime Minister or the Minister" of Paragraph 3 of Article 61 of
the Constitution. The provision of Item 14 of Article 67 of the
Constitution that the Seimas inter alia shall supervise the
execution of the State Budget is particularised in Item 4 of
Article 94 of the Constitution, which inter alia provides that
the Government shall present an account on the fulfilment of
the budget to the Seimas; thus the Seimas, under the
Constitution, enjoys powers to confirm this account. The
provision of Item 20 of Article 67 of the Constitution that the
Seimas shall impose direct administration, martial law, and a
state of emergency, declare mobilisation, and adopt a decision
to use the armed forces is particularised in Paragraph 1 of
Article 142 of the Constitution, which provides that the Seimas
shall impose martial law, shall declare mobilisation or
demobilisation, and shall adopt a decision to use the armed
forces when it is necessary to defend the Homeland or to fulfil
the international obligations of the State of Lithuania, also
in Paragraph 1 of Article 144 of the Constitution, which
provides that if the constitutional system or social peace in
the State is threatened, the Seimas may impose a state of
emergency throughout or in a separate part of the territory of
the State, also that the period of the state of emergency may
not exceed six months. The powers of the Seimas established in
Article 67 of the Constitution are particularised and detailed
in other articles (parts thereof) of the Constitution.
It also needs to be noted that, under the Constitution,
the powers of the Seimas may be and are established not only in
the Constitution, but also in laws. In certain cases the fact
that certain powers of the Seimas entrenched in the
Constitution may be particularised in laws is pointed out
directly. For instance, as mentioned, under Item 16 of Article
67 of the Constitution the Seimas shall ratify and denounce
international treaties of the Republic of Lithuania as well as
consider other issues of foreign policy, Paragraph 1 of Article
138 of the Constitution stipulates as to which international
treaties of the Republic of Lithuania are ratified and
denounced by the Seimas, while Paragraph 2 of the same article
provides that laws as well as international treaties may also
provide for other cases in which the Seimas shall ratify
international treaties of the Republic of Lithuania; under Item
3 of Article 67 of the Constitution the Seimas shall adopt
resolutions on referendums, while Paragraph 3 of Article 9 of
the Constitution provides that a referendum shall be announced
if not less than 300,000 of the citizens with the electoral
right so request, while under Paragraph 2 of the same article,
the Seimas announces a referendum in the cases established by
law. While implementing the right, which is directly
consolidated in the Constitution, to particularise its certain
constitutional powers by means of laws, the Seimas must pay
heed to the norms and principles of the Constitution.
The Seimas, as the representation of the Nation, has the
right to establish, by laws, also such its powers that are not
expressis verbis indicated in the Constitution which, however,
are designed for the implementation of the constitutional
functions of the Seimas. Implementing its right directly
established in the Constitution to particularise its certain
constitutional powers by means of laws, as well as
establishing, by means of laws, its powers that are not
expressis verbis indicated in the Constitution, the Seimas is
bound by the Constitution. The fact that the Seimas, while
passing laws, is bound by the Constitution, as well as by the
laws that were passed by it, is an essential element of the
constitutional principle of a state under the rule of law
(Constitutional Court rulings of 6 December 2000, 14 January
2002, 24 January 2003).
3. It is clear from the constitutional provisions in which
the powers of the Seimas are established that the Seimas, while
implementing its constitutional powers, discharges the
classical functions of the parliament of a democratic state
under the rule of law: the Seimas passes laws (the legislative
function), conducts the parliamentary control of executive and
other state institutions (save courts) (the control function),
establishes state institutions, appoints and dismisses their
heads and other state officials (the establishment function),
confirms the State Budget and supervises the execution thereof
(the budgetary function) etc.
The said functions of the Seimas as the representation of
the Nation of a state under the rule of law are constitutional
values. Under the Constitution, the legislator and other
entities of lawmaking may not establish any such legal
regulation whereby the said constitutional functions of the
Seimas would be denied or opportunities to discharge them would
be restricted, since thus the Seimas, the representation of the
Nation, would be hindered from effective actions in the
interests of the Nation and the State of Lithuania.
4. In order that it might properly discharge its
parliamentary functions and implement its constitutional
powers, the Seimas, the representation of the Nation, has to
possess exhaustive, objective information about the processes
taking place in the state and society, about the situation in
various sectors of life of the state and society and the
arising problems. The possession of such information is a
necessary precondition for the fact that the Seimas might be
able to effectively act in the interests of the Nation and the
State of Lithuania, that it would properly execute its
constitutional duty.
The constitutional functions of the Seimas, the powers of
the Seimas entrenched in the Constitution presuppose the powers
of the Seimas in every case when a necessity occurs to decide a
certain question ascribed to the constitutional competence of
the Seimas, to seek to achieve exhaustive, objective
information necessary to adopt corresponding decisions. The
necessity to possess such information means that in case of
need the Seimas can rely not only on the publicly known
information or that presented to it by state institutions and
other persons, but also that it can resort to concrete actions
so that such exhaustive, objective information could be
received. In case of need, the Seimas may conduct investigation
by itself so that it could collect exhaustive, objective
information about the processes taking place in the state and
society, about the situation in various sectors of life of the
state and society and the arising problems. This activity of
the Seimas logically follows from its purpose as the parliament
, from its constitutional functions and constitutional powers.
5. The Seimas shall consist of representatives of the
Nation-141 members of the Seimas (Paragraph 1 of Article 55 of
the Constitution). Legal acts must establish the structure of
the Seimas and the procedure of its work so that the Seimas,
the representation of the Nation, might be able to discharge
its constitutional functions.
Article 76 of the Constitution provides that the structure
and procedure of activities of the Seimas shall be established
by the Statute of the Seimas, and that the Statute of the
Seimas shall have the power of law. Under Paragraph 2 of
Article 70 of the Constitution, the Statute of the Seimas is
signed by the President of the Seimas.
5.1. Thus, under the Constitution, the Seimas, enjoying
discretion to establish its own structure, also enjoys
discretion to form its structural sub-units, it also enjoys
discretion to establish names of its structural sub-units,
their competence, composition, interrelations, term of
activity, to formulate certain tasks to them. When it
establishes all this, the Seimas is bound by the norms and
principles of the Constitution.
In the context of the case at issue, it needs to be noted
that the Seimas has the constitutional powers to form the
structural sub-units, whose term of activities is not defined
in advance, i.e. its permanent structural sub-units, as well as
the structural sub-units that are assigned only to solve a
certain issue (or certain issues), and which, after they have
solved this issue (or issues) terminate their activity, i.e.
provisional structural sub-units.
In the context of the case at issue, one is also to note
that the Seimas, enjoying the powers in every case, whenever
there occurs a necessity to decide a certain issue within the
constitutional competence of the Seimas, to seek to receive
exhaustive, objective information needed to adopt corresponding
decisions, also enjoys discretion to form such its structural
sub-units which would be assigned to conduct investigation so
that exhaustive, objective information about the processes
taking place in the state and society, about the situation in
various sectors of life of the state and society and the
arising problems could be collected.
5.2. The fact that under the Constitution the structure of
the Seimas and procedure of its activities are established by
the Statute of the Seimas, and that the Statute of the Seimas
is signed by the President of the Seimas inter alia means that
the Seimas, while paying heed to the Constitution, has the
right to decide by itself the questions of formation of its
structural sub-units, those of their competence and
organisation of their work, also that no other state
institution may interfere with these constitutional powers of
the Seimas.
Alongside, it needs to be noted that it is impossible to
construe the provision "the structure and procedure of
activities of the Seimas shall be established by the Statute of
the Seimas" of Article 76 of the Constitution only
linguistically, i.e. as meaning that the powers of Seimas
structural sub-units may be established only in the Statute of
the Seimas. For instance, in order that it could properly
discharge its constitutional functions, the Seimas may require
to form also such structural sub-units, which would enjoy
powers in regard of various state and municipal institutions,
their officials, and other persons. In the context of the case
at issue, it needs to be noted that such powers may also be
related with reception of exhaustive, objective information
from state or municipal institutions, their officials and other
persons about the processes taking place in the state and
society, about the situation in various sectors of life of the
state and society and the arising problems. It needs to be
emphasised that reception of this information cannot be
dependent upon the fact whether or not corresponding
institutions and other persons are accountable to the Seimas:
in order to receive exhaustive, objective information necessary
to adopt corresponding decisions, the Seimas, as the
representation of the Nation, has to have an opportunity to
receive information not only from institutions, other persons
that are accountable to it, but also from persons that are not
accountable to it. In case one needs to establish authoritative
empowerments of a structural sub-unit of the Seimas in regard
of institutions, their officials and other persons that are not
accountable to the Seimas (including the right to demand the
information the submission whereof is regulated by laws), then
such powers of the structural sub-unit of the Seimas must be
established by the law. When such powers are being established,
one must pay heed to the norms and principles of the
Constitution.
One must also note that certain questions linked with the
formation of structural sub-units of the Seimas, establishment
of their competence, formation of their composition,
formulation of tasks to them, may be decided by substatutory
legal acts of the Seimas. Such substatutory legal acts of the
Seimas may not be in conflict with laws, as well as the Statute
of the Seimas. If a substatutory act of the Seimas sets the
powers of a structural sub-unit of the Seimas in regard of
state or municipal institutions, their officials, and other
persons, then such provisions of the substatutory act of the
Seimas must be grounded on provisions of laws.
5.3. It needs to be emphasised that the Seimas, having
formed a certain structural sub-unit, having established its
powers, having set certain tasks to it, also enjoys the right,
under the Constitution, according to the procedure established
in legal acts to assess the activities of such its structural
sub-unit and their results, no matter whether this structural
sub-unit is permanent or provisional. The fact as to by what
form the activities of the structural sub-unit of the Seimas
and their results must be assessed is decided by the Seimas at
its discretion. For instance, the Seimas may decide whether or
not to approve of the activities of its structural sub-unit or
their results, or whether to approve of them only in part (with
reservations), the Seimas may state whether the structural
sub-unit formed by it has performed the tasks set to it, or
whether it failed to perform them, or whether it performed them
only in part, etc.
II
1. On 23 March 1999, the Seimas adopted the Republic of
Lithuania Law on Provisional Investigation Commissions in which
the formation of provisional investigation commissions of the
Seimas the Republic of Lithuania is established, their tasks,
powers and procedure of work.
On 3 April 2003, the Seimas adopted the Republic of
Lithuania Law on the Amendment of Articles 3, 4, and 8 of the
Law on Seimas Provisional Investigation Commissions, while on 6
November 2003 it adopted the Republic of Lithuania Law on the
Amendment of Article 7 of the Law on Seimas Provisional
Investigation Commissions, whereby, correspondingly, Articles
3, 4, 8, and 7 of the Law on Seimas Provisional Investigation
Commissions were amended.
2. Paragraph 1 of Article 2 of the Law on Seimas
Provisional Investigation Commissions provides that the Seimas,
having recognised a necessity to investigate an issue of state
importance, may form a Seimas provisional investigation
commission. Under the Law, the procedure of the formation of
the Seimas provisional investigation commission is regulated by
the Statute of the Seimas (Paragraph 2 of Article 2 of the
Law). Paragraph 3 of Article 2 of the Law provides that the
issue to be considered by the commission and the term of its
work shall be established by a Seimas resolution.
It needs to be emphasised that the provision "the Seimas,
having recognised a necessity to investigate an issue of state
importance, may form a Seimas provisional investigation
commission" of Paragraph 1 of Article 2 of the Law means that
the Seimas, under the Law, enjoys powers to form a Seimas
provisional investigation commission in order to investigate
not any, but a special issue, i.e. that of state importance.
Thus, in every particular case the Seimas, before it decides on
the formation of a Seimas provisional investigation commission,
must consider and assess whether the issue is really that of
state importance.
Under Paragraph 1 of Article 3 (wording of 3 April 2003)
of the Law, the Seimas provisional investigation commission
must elucidate and establish whether the actions were
performed, decisions were adopted related with the issues which
are assigned to it to be investigated, also to elucidate other
circumstances related with the investigated issue; the
circumstances established by the commission must be confirmed
by documents and other evidence.
3. In Paragraph 1 of Article 4 (3 April 2003) of the Law
the rights of the Seimas provisional investigation commission
are established. The Seimas provisional investigation
commission has the right: to familiarise with the information
related with the investigated issue, to receive documents, data
or information from all state and governance institutions, the
Bank of Lithuania, state and municipal enterprises (including
those controlled by them), establishments and organisations,
even if they comprise the commercial, bank or official secret,
also to receive primary and other documents, in which such data
or information are recorded; if the data comprise the state
secret, they must be presented to the commission under the
procedure established by the Republic of Lithuania Law on State
Secrets and Their Protection and the Republic of Lithuania Law
on Operational Activities (Item 1); to receive verbal and
written explanations or notes from heads and other employees of
all state and governance institutions, the Bank of Lithuania,
state and municipal enterprises (including those controlled by
them), establishments and organisations, concerning the issues
considered by the commission, as well as notes about the
material and documents available at state institutions,
enterprises, establishments or organisations (Item 2); to
summon to its sittings state and municipal politicians,
officials, servants as well as other persons working at state
and municipal institutions, to hear their explanations, to
demand that they present information or data concerning the
issue considered by the commission and to receive them either
in writing or orally (Item 3); to summon to its sittings other
persons and request that they present reports, explanations,
information or data concerning the issue investigated by the
commission either in writing or orally (Item 4); upon the
coordination with the Office of the Prosecutor General, the
State Control, the State Security Department or an institution
of pre-trial investigation, to familiarise, according to the
procedure established by laws, with a criminal case or other
material and documents that are at their disposal (Item 5);
upon co-ordination with heads of state institutions,
establishments, enterprises or organisations, to invite their
employees in order to help to conduct inspections or audits
(Item 6); to appeal to residents, via mass media, and request
their help on the investigated issue (Item 7); to present
proposals to the Seimas, the Government and other state
institutions on the issues related with the decision in the
assigned investigation (Item 8); to present proposals to the
Seimas and the Government concerning amendment, supplement of
legal acts, their recognition as no longer valid or concerning
drafting and adoption of new legal acts (Item 9); to present
proposals to the Seimas concerning removal of a member of the
commission for violations of the Law (Item 10).
4. In the context of the case at issue, it needs to be
noted that Items 1, 2, 3, 4, and 5 of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law consolidate the rights of
the Seimas provisional investigation commission that are linked
with receiving of the information from the persons indicated in
these items, which is necessary for carrying out of the tasks
formulated to the commission by the Seimas. The powers of the
Seimas provisional investigation commission, linked with
receiving of the said information, are distinguished as to from
what persons this information must be received, the character
of the information, also as to the way according to which the
Seimas provisional investigation commission must receive this
information from certain persons.
4.1. In Items 1 and 2 of Paragraph 1 of Article 4 (wording
of 3 April 2003) of the Law the right of the Seimas provisional
investigation commission is entrenched to receive documents,
data, information, as well as the primary and other documents,
in which these data were recorded, verbal an written
explanations or references, as well as references about the
available material, documents from heads and other employees
from all state institutions of power and governance, the Bank
of Lithuania, state and municipal enterprises (including those
controlled by them), establishments and organisations, their
heads and other employees related to the issues investigated by
the Seimas provisional investigation commission. This
information is necessary so that the Seimas provisional
investigation commission would perform the tasks formulated to
it by the Seimas.
The legal regulation established in Items 1 and 2 of
Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law
inter alia means that the persons indicated in these items must
present all information to the Seimas provisional investigation
commission, which is necessary to perform the tasks of the
commission. It needs to be noted that the Law does not provide
that a person indicated in Items 1 and 2 of Paragraph 1 of
Article 4 (wording of 3 April 2003) of the Law can refuse to
present the aforementioned information, or to present not all
information (save the exceptions, established in Paragraph 2 of
Article 3 (wording of 3 April 2003) of the Law). On the
contrary, under Item 1 of Paragraph 1 of Article 4 (wording of
3 April 2003) of the Law, one must present documents, data or
information to the Seimas provisional investigation commission,
even if this is a state, commercial, bank, or official secret;
this item also provides that if the data comprise the state
secret, they must be presented to the commission under the
procedure established by the Law on State Secrets and Their
Protection and the Law on Operational Activities, while under
Paragraph 2 of Article 4 (wording of 3 April 2003) of the Law,
in cases when one refuses to present the documents and material
indicated in Item 1 of Paragraph 1 of the same article, which
are demanded by the commission, the commission has the right to
invite police officers so that they help to seize these
documents and material, save the cases when such documents and
material are in a criminal case or operative record file or
card, in a civil or administrative case, or when they are
material of on-going inspection under the procedure established
in the Code of Criminal Procedure. In this context one is also
to mention that under Paragraph 6 of Article 7 (wording of 6
November 2003) of the Law, in case the issue under
investigation is linked with the state secret, then the
sittings of the Seimas provisional investigation commission are
closed to all persons except the summoned ones, also that under
Paragraph 5 of Article 8 (wording of 3 April 2003) of the Law,
when the mass media are informed about a conclusion or decision
adopted by the Seimas provisional investigation commission, the
data or information which comprise a state, commercial, bank,
official, private life secret or another secret protected by
laws shall not be presented.
4.2. Item 3 of Paragraph 1 of Article 4 (wording of 3
April 2003) of the Law consolidates the right of the Seimas
provisional investigation commission to summon to its sittings
state and municipal politicians, officials, servants as well as
other persons working at state and municipal institutions, to
hear their explanations, to demand that they present
information or data concerning the issue considered by the
commission and to receive them either in writing or orally.
This information is also necessary so that the Seimas
provisional investigation commission would perform the tasks
assigned to it by the Seimas.
The legal regulation established in Item 3 of Paragraph 1
of Article 4 (wording of 3 April 2003) of the Law inter alia
means that the persons indicated in this item, who are summoned
to a sitting of the Seimas provisional investigation
commission, have a duty to appear at the sitting and present
explanations to the commission concerning the investigated
issue of state importance, to answer the questions given by
members of the commission, also that explanations to the
commission and answers to questions of members of the
commission must be presented in the manner established by the
commission, i.e. either orally or in writing. It needs to be
noted that the Law does not provide that a certain person
indicated in Item 3 of Paragraph 1 of Article 4 (wording of 3
April 2003) of the Law who is summoned to a sitting of the
Seimas provisional investigation commission has the right not
to appear or refuse to appear at this sitting without valid
reasons; the law does not provide, either, that a certain
person indicated in Item 3 of Paragraph 1 of Article 4 (wording
of 3 April 2003) of the Law has the right to refuse to present
explanations to the Seimas provisional investigation commission
concerning the investigated question of state importance (save
the exceptions established in Paragraph 2 of Article 3 (wording
of 3 April 2003) of the Law). Thus, under the Law all the
persons indicated in Item 3 of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law who are summoned must
appear at the sitting of the Seimas provisional investigation
commission, must present explanations to the commission
concerning the investigated issue of state importance, must
answer the questions given by members of the commission in the
manner established by the commission, i.e. either in writing or
orally (save the exceptions established in Paragraph 2 of
Article 3 (wording of 3 April 2003) of the Law).
4.3. It needs to be emphasised that should the persons
indicated in Items 1, 2, and 3 of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law fail to carry out of the
aforesaid requirements of the Seimas provisional investigation
commission and refuse to present the information indicated in
these items to the commission, which is necessary so that the
Seimas provisional investigation commission would perform the
tasks assigned to it by the Seimas, or should present not all
information (save the exceptions established in Paragraph 2 of
Article 3 (wording of 3 April 2003) of the Law), then, having
taken account of all important circumstances in each particular
case, it might be regarded as a hindrance for the Seimas
provisional investigation commission to perform the tasks
assigned to it by the Seimas. Alongside, this would be a
hindrance for the Seimas, the representation of the Nation, to
discharge its constitutional functions, and to realise the
constitutional powers of the Seimas.
4.4. Under Item 4 of Paragraph 1 of Article 4 (wording of
3 April 2003) of the Law, the Seimas provisional investigation
commission also has the right to summon to its sittings other
persons and request that they present, either in writing or
orally, reports, explanations, information or data concerning
the issue investigated by the commission.
It needs to be noted that the Law does not contain any
provisions on the grounds of which the Seimas provisional
investigation commission might demand that the persons
indicated in Item 4 of Paragraph 1 of Article 4 (wording of 3
April 2003) of the Law appear at a sitting of the Seimas
provisional investigation commission that summoned them, and
present reports, explanations, information or data concerning
the issue of state importance investigated by the commission.
Thus the legal regulation established in Item 4 of
Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law
inter alia means that the persons indicated in this item may,
at their own discretion, decide whether to appear at the
sitting of the Seimas provisional investigation commission that
has summoned them, and that they may, at their discretion,
decide whether or not to present reports, explanations,
information or data concerning the issue of state importance
investigated by the commission, and whether or not to answer
the questions given by members of the Seimas provisional
investigation commission.
It needs to be emphasised that the legal regulation
established in Item 4 of Paragraph 1 of Article 4 (wording of 3
April 2003) of the Law does not ensure that the Seimas
provisional investigation commission will, in all cases,
receive all information necessary for the investigation
conducted by it; thus, the aforementioned legal regulation
creates preconditions to aggravate the work of the Seimas
provisional investigation commission and does not ensure that
the Seimas provisional investigation commission will, in all
cases, perform the tasks assigned to it by the Seimas.
Therefore, the said legal regulation does not ensure that the
Seimas will, in all cases, receive exhaustive, objective
information concerning the investigated issue of state
importance, that the Seimas in all cases will be able to
effectively act in the interests of the Nation and the State of
Lithuania, and to properly execute its constitutional
obligation. This legal regulation established in Item 4 of
Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law
is to be amended.
4.5. Under Item 5 of Paragraph 1 of Article 4 (wording of
3 April 2003) of the Law, the Seimas provisional investigation
commission has the right, "upon the coordination with the
Office of the Prosecutor General, the State Control, the State
Security Department or an institution of pre-trial
investigation, to familiarise, according to the procedure
established by laws, with a criminal case or other material and
documents that are at their disposal".
Thus, Item 5 of Paragraph 1 of Article 4 (wording of 3
April 2003) of the Law provides for certain peculiarities of
reception of the information necessary for the investigation by
the Seimas provisional investigation commission, which is at
the disposal of the Office of the Prosecutor General, the State
Control, the State Security Department or an institution of
pre-trial investigation: it is permitted to familiarise with a
criminal case or other material and documents that are at the
disposal of these state institutions only upon coordination
with these state institutions.
The notion "upon coordination" of Item 5 of Paragraph 1 of
Article 4 (wording of 3 April 2003) of the Law means that the
Seimas provisional investigation commission may receive the
information necessary for its investigation, which is in
criminal cases or other material and documents that are at the
disposal of the Office of the Prosecutor General, the State
Control, the State Security Department or an institution of
pre-trial investigation, only after it receives consent of a
respective state institution; in case the said state
institutions do not consent that the Seimas provisional
investigation commission receive this information, then the
commission will not be able to receive this information.
The formula "according to the procedure established by
laws" of Item 5 of Paragraph 1 of Article 4 (wording of 3 April
2003) of the Law means that the Seimas provisional
investigation commission cannot establish the procedure for
familiarising with a criminal case or other material and
documents that are at the disposal of the Office of the
Prosecutor General, the State Control, the State Security
Department or an institution of pre-trial investigation by
itself-this is done in accordance with the procedure
established by laws. It is clear that the organisational and
technical questions of such familiarisation must be coordinated
with the state institutions at whose disposal there is the
criminal case or other material and documents.
The independence of the prosecutor in the organisation of
pre-trial investigation and being in charge of it, pursuit of
charges on behalf of the state in criminal cases are
consolidated in the Constitution, therefore, the legal
regulation established in Item 5 of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law is to be analysed and
assessed in the context of the constitutional regulation.
Paragraph 1 of Article 118 of the Constitution provides
that the prosecutor shall organise and be in charge of
pre-trial investigation as well as pursue charges on behalf of
the state in criminal cases; Paragraph 2 of the same article
provides that in the events established by law, the prosecutor
defends the rights and legitimate interests of the person,
society and the state; Paragraph 3 of Article 118 of the
Constitution provides that, while discharging his functions,
the prosecutor shall be independent and obey only the law.
Thus, it needs to be noted that the independence of the
prosecutor in the organisation of pre-trial investigation and
being in charge of it, pursuit of charges on behalf of the
state in criminal cases are a constitutional value; under the
Constitution, it is not permitted to establish any such legal
regulation whereby this constitutional value might be denied or
otherwise the independence of the prosecutor, in the course of
organising pre-trial investigation and being in charge of it,
while pursuing charges on behalf of the state in criminal
cases, would be denied or restricted otherwise.
The Constitution shall be an integral act (Paragraph 1 of
Article 6 of the Constitution). The Constitutional Court has
held that the principles and norms of the Constitution compose
a harmonious system, that no provision of the Constitution may
be construed so that the content of another constitutional
provision would be distorted or denied, since thus the essence
of the whole constitutional regulation would be distorted and
the balance of values consolidated in the Constitution would be
disturbed (Constitutional Court ruling of 3 December 2003). The
Constitutional Court also held that the legislator must
coordinate different interests and ensure the balance of
constitutional values (Constitutional Court ruling of 24
September 1998).
In the context of the case at issue, it needs to be noted
that one constitutional value-the independence of the
prosecutor in the organisation of pre-trial investigation and
being in charge of it, pursuit of charges on behalf of the
state in criminal cases-may not be opposed to any other
constitutional values; the legislator must ensure a balance
between this constitutional value and other constitutional
values so that not a single of constitutional values would be
raised above other constitutional values or, on the contrary,
would be sacrificed to the benefit of another constitutional
value.
It has been mentioned that the functions of the Seimas, as
the representation of the Nation of a democratic state under
the rule of law, which are entrenched in the Constitution, i.e.
the legislative, control, establishment, budgetary functions
etc., are constitutional values, that the legislator and other
entities of lawmaking may not establish any such legal
regulation whereby the said constitutional functions of the
Seimas would be denied or opportunities to discharge them would
be restricted. It was also mentioned that in order that it
might properly discharge its parliamentary functions and
implement its constitutional powers, the Seimas, the
representation of the Nation, has to possess exhaustive,
objective information about the processes taking place in the
state and society, about the situation in various sectors of
life of the state and society and the arising problems. It was
also mentioned that the Seimas, in case of need, enjoys
discretion to form such its structural sub-units which would be
assigned to conduct investigation so that information about the
processes taking place in the state and society, about the
situation in various sectors of life of the state and society
and the arising problems could be collected.
It was held in this Ruling of the Constitutional Court
that, under Item 5 of Paragraph 1 of Article 4 (wording of 3
April 2003) of the Law, in case the Office of the Prosecutor
General, the State Control, the State Security Department or an
institution of pre-trial investigation do not consent that the
Seimas provisional investigation commission receive this
information, then the Seimas provisional investigation
commission will not be able to receive the information which is
necessary for its investigation, which is in criminal cases or
other material and documents that are at the disposal of the
aforementioned state institutions. It needs to be noted that
this item (and, in general, the Law) does not provide for any
criteria on the basis of which the Office of the Prosecutor
General, the State Control, the State Security Department or an
institution of pre-trial investigation might refuse to give
their consent in order that the Seimas provisional
investigation commission would receive the information
necessary for it, or on the basis of which certain restrictions
could be applied to the use of this information in the work of
the commission.
Having held this, one is also to hold that by the legal
regulation established in Item 5 of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law one has created
preconditions to place one constitutional value-the
independence of the prosecutor in the organisation of pre-trial
investigation and being in charge of it-in opposition to other
constitutional values, to raise it above the latter, in
particular, above the functions of the Seimas as the
representation of the Nation, and above the logical necessity,
which follows from the purpose of the Seimas, from its
constitutional functions and constitutional powers, which is to
undertake by itself, in case of need, to investigation activity
in connection of an issue of state importance so that to
receive exhaustive, objective information about certain
processes taking place in the state and society, about the
situation in various sectors of life of the state and society
and the arising problems.
On the other hand, it needs to be noted that although the
legal regulation established in Item 5 of Paragraph 1 of
Article 4 (wording of 3 April 2003) of the Law has created
pre-conditions to aggravate the discharge of certain functions
of the Seimas, as the representation of the Nation, the said
constitutional values are not denied by this legal regulation,
therefore there is no ground to hold that the legal regulation
established in Item 5 of Paragraph 1 of Article 4 (wording of 3
April 2003) of the Law is in conflict with the Constitution in
the said aspect. However, it needs to be emphasised that this
legal regulation is to be amended, specified so that the
"coordination" indicated in Item 5 of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law would not create
pre-conditions to the institutions pointed out in this item
virtually not to permit the Seimas provisional investigation
commission to conduct thorough and objective investigation in
connection of the issue of state importance that has been
assigned to it, in other words, that one would not create
pre-conditions to place pre-trial investigation in opposition
to the investigation of the issue of state importance conducted
by the Seimas provisional investigation commission.
4.6. The legal regulation established in Items 1, 2, 3, 4,
and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of
the Law is inseparable from the legal regulation established in
other articles (parts, items thereof) of the Law.
4.6.1. For example, Paragraph 2 of Article 3 (wording of 3
April 2003) of the Law provides that the Seimas provisional
investigation commission, while investigating the issue
assigned to it and implementing its rights, does not interfere
with the activities of the court, the judge, the prosecutor,
the official of pre-trial investigation when they conduct the
pre-trial investigation and consider the case in court.
Thus, under the Law, the Seimas provisional investigation
commission does not have any right to demand that a judge, a
prosecutor, an official of pre-trial investigation should
present to the Seimas provisional investigation commission
explanations concerning on-going or completed pre-trial
investigation, or a case that has been accepted for
consideration, or is being considered in court, or whose
consideration in court is over, thus, the judge, the
prosecutor, the official of pre-trial investigation cannot be
summoned to a sitting of the Seimas provisional investigation
commission to present their explanations concerning on-going or
completed pre-trial investigation, or a case that has been
accepted for consideration, or is being considered in court,
or whose consideration in court is over. Thus, the legal
regulation established in Paragraph 2 of Article 3 (wording of
3 April 2003) of the Law provides for an exception, which is
applicable to the duty consolidated in Items 1 and 2 of
Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law,
of all state institutions of power and governance, the Bank of
Lithuania, state and municipal enterprises (including those
controlled by them), establishments and organisations, of their
heads and other employees to present to the Seimas provisional
investigation commission all information necessary to perform
the tasks of the commission (documents, data, information, as
well as primary and other documents in which these data or
information are recorded, verbal and written explanations or
references from the heads or other employees, also references
about the available material and documents), as well as an
exception which is applicable to the duty consolidated in Item
3 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the
Law, of state and municipal politicians, officials, employees,
other persons who work at state or municipal institutions to
appear at the sitting of the Seimas provisional investigation
commission, to present explanations concerning the issue of
state importance that is investigated by the commission, to
answer the questions of members of the commission.
It has been mentioned that, under Paragraph 2 of Article 4
(wording of 3 April 2003) of the Law, in cases when one refuses
to present to the Seimas provisional investigation commission
the documents and material required by the commission, which
are indicated in Item 1 of Paragraph 1 of the same article, the
commission has the right to invite police officers so that they
help to seize these documents and material, save the cases when
such documents and material are in a criminal case or operative
record file or card, in a civil or administrative case, or when
they are material of on-going inspection under the procedure
established in the Code of Criminal Procedure.
The legal regulation established in Paragraph 2 of Article
3 (wording of 3 April 2003) and Paragraph 2 of Article 4
(wording of 3 April 2003) of the Law is to be assessed as one
ensuring that in the activities of the Seimas provisional
investigation commission one will follow the provision of
Paragraph 1 of Article 109 of the Constitution that in the
Republic of Lithuania justice shall be administered solely by
courts, the provision of Paragraph 2 of Article 109 of the
Constitution that while administering justice, the judge and
courts shall be independent, the provision of Paragraph 3 of
Article 109 of the Constitution that while considering cases,
judges shall obey only the law, the provision of Paragraph 1 of
Article 114 of the Constitution that interference by
institutions of state power and administration, members of the
Seimas and other officials, political parties, political and
public organisations, or citizens with the activities of a
judge or the court shall be prohibited and incur liability as
provided for by law, the provision of Paragraph 1 of Article
118 of the Constitution that the prosecutor shall organise and
be in charge of pre-trial investigation as well as pursue
charges on behalf of the state in criminal cases, the provision
of Paragraph 3 of Article 118 of the Constitution that while
discharging his functions, the prosecutor shall be independent
and obey only the law, as well as the other provisions of the
Constitution that consolidate the independence of the judge and
courts in the course of administration of justice and the
independence of the prosecutor in the course of organisation of
pre-trial investigation and being in charge of it.
Alongside, it needs to be noted that there might appear a
situation when the information necessary so that the Seimas
provisional investigation commission would perform the tasks
formulated to it by the Seimas is possessed by a judge, a
prosecutor, or an official of pre-trial investigation, who
learned about this information or otherwise received it while
they were outside their duties as a judge, a prosecutor, or an
official of pre-trial investigation. In such cases, under the
Law, the Seimas provisional investigation commission has the
right to demand that the judge, the prosecutor, or the official
of pre-trial investigation should appear, after they have been
summoned, at the sitting of the commission and that the
indicated persons present their explanations to the Seimas
provisional investigation commission in connection with the
questions not related with on-going or completed pre-trial
investigation, or a case that has been accepted for
consideration, or is being considered in court, or whose
consideration in court is over. However, even in these cases
the Seimas provisional investigation commission does not have
the right to demand that the judge, the prosecutor, or the
official of pre-trial investigation should appear, after they
have been summoned, at the sitting of the commission and that
the indicated persons present their explanations to the Seimas
provisional investigation commission, if this could be regarded
as interference with the activities of the judge, the
prosecutor, or the official of pre-trial investigation when
they discharge the functions established to them in the
Constitution and laws, and if this could be regarded as
violation of the independence of the judge or the prosecutor.
It also needs to be noted that it is impossible to
construe the legal regulation established in Paragraph 2 of
Article 3 (wording of 3 April 2003) of the Law as meaning that,
purportedly, the Seimas provisional investigation commission in
general does not have the right to demand any information from
the court or the Prosecutor's Office of the Republic of
Lithuania in connection with the issues of state importance
investigated by the Seimas provisional investigation
commission. However, under the Constitution, the Seimas
provisional investigation commission cannot demand any such
information from the court or the Prosecutor's Office of the
Republic of Lithuania, the demand of which could be regarded as
interference with the activities of these institutions, when
they discharge their functions established in the Constitution
and laws, as violation of the independence of the judge or the
prosecutor.
4.6.2. Under Paragraph 3 of Article 4 (wording of 3 April
2003) of the Law, the persons indicated in Items 2, 3 and 4 of
Paragraph 1 of the same article, who present explanations to
the Seimas provisional investigation commission, may not be
compelled to give explanations against themselves, members of
their families or close relatives.
In this Ruling of the Constitutional Court it was held
that when the Seimas establishes the powers of its structural
sub-units in regard of various state and municipal
institutions, their officials and other persons, one must pay
heed to the norms and principles of the Constitution.
It needs to be noted that the legal regulation established
in Paragraph 3 of Article 4 (wording of 3 April 2003) of the
Law is to be assessed as ensuring that in the activities of the
Seimas provisional investigation commission one will follow the
provision of Paragraph 3 of Article 31 of the Constitution that
it shall be prohibited to compel to give evidence against
oneself or against one's family members or close relatives, as
well as the other provisions of the Constitution consolidating
human rights and freedoms, and also the family as a
constitutional value.
5. Article 8 (wording of 3 April 2003) of the Law provides
as to what decisions the Seimas provisional investigation
commission may adopt in relation with the considered issue,
this article also provides for the procedure of presentation of
the conclusion of the Seimas provisional investigation
commission to the Seimas, other state institutions, the mass
media, etc.
Under Paragraph 1 of Article 8 (wording of 3 April 2003)
of the Law, the results of the investigation of the Seimas
provisional investigation commission are drawn up in a draft
conclusion; in it the circumstances elucidated in the course of
the investigation, the collected evidence are indicated and a
legal assessment of the situation is presented. Under Paragraph
2 of the same article, the Seimas provisional investigation
commission, after it has considered the draft conclusion, may:
decide to transfer the material to institutions of pre-trial
investigation or prosecutor's office (Item 1); propose that
state and self-government institutions bring the persons who
committed the violations to disciplinary responsibility, or
decide whether these persons are fit to the office that they
are holding (Item 2); state that, in the opinion of the
commission, there have not been any actions performed or
decisions adopted which the commission is assigned to
investigate, also that the actions performed or decisions
adopted are not in conflict with laws and other legal acts
(Item 3). Under Paragraph 3 of Article 8 (wording of 3 April
2003) of the Law, the conclusion must, within one day after the
decision was adopted, be presented to the Seimas. Paragraph 4
of Article 8 (wording of 3 April 2003) of the Law provides that
the conclusion of the commission may also be given to
institutions of state administration or municipal institutions;
these institutions must consider the conclusion within the time
period indicated in the decision of the commission and must
inform the commission about the results of the consideration.
Under Paragraph 5 of Article 8 (wording of 3 April 2003) of the
Law, the Seimas provisional investigation commission, after it
has presented its conclusion or adopted decision to the Seimas,
informs public mass media about this; the data or information
which comprises the state, commercial, bank, official, private
life secret or another secret protected by the law, is not to
be published.
The conclusion of the Seimas provisional investigation
commission is a legal act adopted by the Seimas provisional
investigation commission in which an assessment of certain
actions or facts for investigation of which the commission has
been formed is presented, an opinion is expressed regarding the
issue that has been assigned to it, corresponding proposals are
formulated, etc. The purpose of the conclusion of the Seimas
provisional investigation commission is to present information
to the Seimas in connection with the issue of state importance,
which has been investigated by the commission, so that the
Seimas might adopt respective decisions.
6. As mentioned, under Paragraph 1 of Article 8 (wording
of 3 April 2003) of the Law, the draft conclusion of the Seimas
provisional investigation commission contains inter alia a
legal assessment of the situation.
One must pay attention to the fact that the Seimas
provisional investigation commission is neither an institution
of pre-trial investigation, nor the prosecutor's office, nor
the court. The formula "legal assessment" is a general notion;
it does not mean that the Seimas provisional investigation
commission must or may present the legal qualification of the
actions that it has investigated, of the decisions adopted by
it on the issues that it was assigned to investigate, and of
other circumstances that were elucidated by it, which are
related with the investigated issue, i.e. this formula does not
mean that the Seimas provisional investigation commission has
to or may state the compliance or non-compliance of the said
actions, decisions, circumstances with legal acts, but it means
that the said actions and decisions must be investigated, other
circumstances related with the investigated question must be
elucidated and that the results of the Seimas provisional
investigation commission must be drawn up so that on their
basis it might be possible to adopt legal decisions-either to
adopt respective legal acts or not to adopt them.
It also needs to be noted that, under the Law, Seimas
provisional investigation commissions are formed in order to
investigate issues of state importance, while these questions
may be very much varied ones, also such in whose connection
adopted decisions are determined not by legal, but economic,
social and other assessments, and expediency reasons. Thus, it
is impossible to objectively address the provision of Paragraph
1 of Article 8 (wording of 3 April 2003) of the Law that in the
draft conclusion of the Seimas provisional investigation
commission a legal assessment of the situation is presented to
all Seimas provisional investigation commissions which might be
formed in accordance with the Law; by taking account of the
character of the investigated situation, of the fact as to what
actions, decisions, circumstances the Seimas provisional
investigation commission has been considering, what tasks were
raised before the commission, then, objectively, the assessment
presented in its draft conclusion could not necessarily be a
legal, but different one. Therefore, the said provision of
Paragraph 1 of Article 8 (wording of 3 April 2003) of the Law
cannot be construed as an imperative one, i.e. it is impossible
to construe it as meaning that in all cases it is a legal
assessment of the situation but not a different one must be
presented without having regard to the actions, decisions, and
circumstances that were elucidated by the Seimas provisional
investigation commission, as well as to its tasks.
7. It needs to be emphasised that the conclusion (its
individual statements) of the Seimas provisional investigation
commission in itself directly does not give rise to any legal
effects to the persons indicated in it. Such effects could be
raised to them only by decisions of other institutions and
their officers, which may be adopted, while taking into
consideration of the conclusion of the Seimas provisional
investigation commission.
8. It has been held in this Ruling of the Constitutional
Court that the Seimas, after it has formed a certain structural
sub-unit, has established its powers, has formulated certain
tasks to it, also has the right, under the Constitution, to
assess, under procedure established by legal acts, the activity
and the results of this structural sub-unit, also the fact that
the Seimas decides at its discretion as to the form that the
activities of the structural sub-unit of the Seimas and their
results must be assessed.
Thus, under the Constitution, the Seimas has the right to
assess both the activity of the provisional investigation
commission formed by it and the conclusion of this commission,
which is provided for in the Law. The Seimas may express its
opinion and point of view in various forms as regards the
conclusion of the Seimas provisional investigation commission.
For example, the Seimas may decide whether to approve or not to
approve of the conclusion of the Seimas provisional
investigation commission, or to approve of it in part (with
reservations), the Seimas may hold that the Seimas provisional
investigation commission that was formed by it has performed
the tasks which have been formulated to it, or that it has not
preformed them, or that performed them in part, the Seimas may
also hold that the Seimas provisional investigation commission
has finished its activity, or decide to prolong its activities,
etc. It needs to be noted that the conclusion of the Seimas
provisional investigation commission is not binding to the
Seimas.
9. In the context of the case at issue, it needs to be
noted that the Law does not contain any provisions that would
indicate in what form the Seimas ought to or could express its
opinion and point of view as to the conclusion of the Seimas
provisional investigation commission formed by it.
Alongside, it needs to be noted that, under Paragraph 1 of
Article 76 of the Statute of the Seimas, having completed the
assigned work, the Seimas provisional investigation commission
shall submit to Seimas the collected and summarised data,
conclusion and prepared draft decision. Under Paragraph 2 of
the same article, a resolution is passed at the Seimas sitting
regarding the issue examined by the Seimas provisional
investigation commission. Thus, according to the Statute of the
Seimas, the opinion and point of view of the Seimas regarding
the conclusion of the Seimas provisional investigation
commission formed by it may be formulated in a corresponding
resolution of the Seimas.
It is clear that the Seimas is neither an institution of
pre-trial investigation, nor prosecutor's office, not the
court. Therefore, it needs to be noted that the formulation of
the opinion and point of view of the Seimas regarding the
conclusion of the Seimas provisional investigation commission
formed by it in a resolution of the Seimas may not be
construed, under the Constitution, as legal qualification of
the actions that the Seimas provisional commission has
investigated, of the decisions adopted by it on the issues that
it was assigned to investigate, and of other circumstances that
were elucidated by it. The Seimas, after it has decided either
to approve or not to approve of the conclusion of the Seimas
provisional investigation commission, or to approve of it in
part (with reservations), does not adopt a decision on the
compliance of the said actions, decisions, and circumstances
with legal acts which is mandatory to other state institution
(including institutions of pre-trial investigation, the
prosecutor's office, courts), but it merely formulates its
point of view as to the conclusion of the Seimas provisional
investigation commission that was formed by it. The Seimas
resolution in which the opinion and point of view of the Seimas
are formulated as to the conclusion of the Seimas provisional
investigation commission that was formed by it is not binding
to institutions of pre-trial investigation, the prosecutor's
office, and the court.
It also needs to be noted that neither the Law on Seimas
Provisional Investigation Commissions, nor the Statute of the
Seimas in general, does not contain any provisions obligating
the Seimas to present a legal assessment of the actions or
facts that were investigated by the Seimas provisional
investigation commission formed by it. The Seimas resolution in
which the point of view of the Seimas is formulated as regards
the conclusion of the Seimas provisional investigation
commission formed by it, as well as this conclusion (or its
individual statements), in itself directly does not give rise
to any legal effects to the persons indicated in the
conclusion. Such effects could be raised to them only by
decisions of other institutions and their officers, which may
be adopted, while taking into consideration of the conclusion
of the Seimas provisional investigation commission.
III
On the compliance of Items 1, 2, 3, and 5 of Paragraph 1
of Article 4 (wording of 3 April 2003) of the Law on Seimas
Provisional Investigation Commissions with Articles 5, 55, 61,
67, 109, and 118 of the Constitution.
1. Paragraph 1 of Article 4 (wording of 3 April 2003) of
the Law inter alia provides:
"The Commission shall have the right:
1) to familiarise with the information related with the
investigated issue, to receive documents, data or information
from all state and governance institutions, the Bank of
Lithuania, state and municipal enterprises (including those
controlled by them), establishments and organisations, even if
they comprise the commercial, bank or official secret, also to
receive primary and other documents, in which such data or
information are recorded; if the data comprise the state
secret, they must be presented to the commission under the
procedure established by the Republic of Lithuania Law on State
Secrets and Their Protection and the Republic of Lithuania Law
on Operational Activities;
2) to receive verbal and written explanations or notes
from heads and other employees of all state and governance
institutions, the Bank of Lithuania, state and municipal
enterprises (including those controlled by them),
establishments and organisations, concerning the issues
considered by the commission, as well as notes about the
material and documents available at state institutions,
enterprises, establishments or organisations;
3) to summon to its sittings state and municipal
politicians, officials, servants as well as other persons
working at state and municipal institutions, to hear their
explanations, to demand that they present information or data
concerning the issue considered by the commission and to
receive them either in writing or orally; <...>
5) upon the coordination with the Office of the Prosecutor
General, the State Control, the State Security Department or an
institution of pre-trial investigation, to familiarise,
according to the procedure established by laws, with a criminal
case or other material and documents that are at their
disposal; <...>".
2. In their 24 November 2003 petition, a group of members
of the Seimas, the petitioner, requests to investigate whether
the following is not in conflict with Articles 5, 55, 61, 67,
109, and 118 of the Constitution:
- Item 1 of Paragraph 1 of Article 4 of the Law on Seimas
Provisional Investigation Commissions to the extent that it
provides that the commission has the right to receive
documents, data or information from all state and governance
institutions, state and municipal enterprises (including those
controlled by them), establishments and organisations, even if
they comprise the commercial, bank or official secret, also to
receive primary and other documents, in which such data or
information are recorded,
- Item 2 of Paragraph 1 of Article 4 of the Law on Seimas
Provisional Investigation Commissions to the extent that it
provides that the commission has the right to receive verbal
and written explanations or notes from heads and other
employees of all state and governance institutions, state and
municipal enterprises (including those controlled by them),
establishments and organisations, concerning the issues
considered by the commission, as well as notes about the
material and documents available at state institutions,
enterprises, establishments or organisations,
- Item 3 of Paragraph 1 of Article 4 of the Law on Seimas
Provisional Investigation Commissions to the extent that it
provides that that the commission has the right to summon to
its sittings state and municipal politicians, officials,
servants as well as other persons working at state and
municipal institutions, to hear their explanations, to demand
that they present information or data concerning the issue
considered by the commission and to receive them either in
writing or orally,
- Item 5 of Paragraph 1 of Article 4 of the Law on Seimas
Provisional Investigation Commissions to the extent that it
provides that the commission has the right, upon the
coordination with the Office of the Prosecutor General or an
institution of pre-trial investigation, to familiarise,
according to the procedure established by laws, with a criminal
case or other material and documents that are at their
disposal.
3. The doubts of the petitioner concerning the compliance
of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of
3 April 2003) of the Law with Articles 55, 61, and 67 of the
Constitution are based on the fact that, according to the
petitioner, the provisional investigation commission that is
formed by the Seimas cannot have more powers than an individual
member of the Seimas (member of the commission). The petitioner
believes that from Article 55 of the Constitution follow the
rights of members of the Seimas, representatives of the
Nations, directly linked with participation in the work of the
Seimas and Seimas committees (voting on all questions
considered at the Seimas at all the sittings of the Seimas, the
committee, and the commission whose member he is, participation
in discussions on all debated issues, proposing of issues to
the Seimas for deliberation, making of statements, drafting
laws and other legal acts and their submission to the Seimas
for deliberation, etc.). The petitioner is of the opinion that
a systemic construction of Article 67 of the Constitution which
regulates the powers of the Seimas and Article 61 of the
Constitution which consolidates the rights of members of the
Seimas related with the parliamentary control function, permits
to draw a conclusion that only members of the Government, the
President of the Board of the Bank of Lithuania, the State
Controller, members of the Central Electoral Commission, the
heads and other employees of other institutions established or
formed by the Seimas, may be summoned to sittings of a
commission formed by the Seimas, and that one may demand that
only the said persons present documents and other information.
Therefore, the petitioner doubts whether the disputed
provisions of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law, which grant the right to
the Seimas provisional investigation commission to demand
information from institutions that are not accountable from the
Seimas and to summon to its sittings state and municipal
politicians, officials, servants, other persons who are not
accountable to the Seimas, are not in conflict with Articles
55, 61, and 67 of the Constitution.
3.1. Article 55 of the Constitution provides:
"The Seimas shall consist of representatives of the
Nation-141 members of the Seimas who shall be elected for a
four-year term on the basis of universal, equal, and direct
electoral right by secret ballot.
The Seimas shall be deemed elected when not less than 3/5
of the members of the Seimas have been elected.
The procedure for elections of members of the Seimas shall
be established by law."
3.1.1. Thus, Article 55 of the Constitution provides the
members of the Seimas are representatives of the Nation, how
many representatives of the Nation-members of the
Seimas-compose the Seimas, it consolidates the constitutional
grounds for elections of members of the Seimas.
Meanwhile, Items 1, 2, 3, and 5 of Paragraph 1 of Article
4 (wording of 3 April 2003) of the Law provide for the powers
of Seimas provisional investigation commissions related with
reception of information from the persons indicated in these
items, which is necessary in order that the Seimas provisional
investigation commission would perform the tasks formulated to
it by the Seimas. Thus, Items 1, 2, 3, and 5 of Paragraph 1 of
Article 4 (wording of 3 April 2003) of the Law regulate
relations of different character than those regulated in
Article 55 of the Constitution.
3.1.2. Taking account of the arguments set forth, one is
to draw a conclusion that Items 1, 2, 3, and 5 of Paragraph 1
of Article 4 (wording of 3 April 2003) of the Law are not in
conflict with Article 55 of the Constitution.
3.2. Article 61 of the Constitution provides:
"A member of the Seimas shall have the right to submit an
inquiry to the Prime Minister, the Ministers, and the heads of
other State institutions formed or elected by the Seimas. The
said persons must respond orally or in writing at the session
of the Seimas in accordance with the procedure established by
the Seimas.
At a session of the Seimas, a group of not less than 1/5
of the members of the Seimas may interpellate the Prime
Minister or a Minister.
Upon considering the response of the Prime Minister or a
Minister to the interpellation, the Seimas may decide that the
response is not satisfactory, and, by a majority vote of half
of all the members of the Seimas, express no-confidence in the
Prime Minister or the Minister.
The voting procedure shall be established by law."
3.2.1. Thus, Article 61 of the Constitution consolidates
the right of inquiry of the Seimas member, the right of a group
of members of the Seimas to interpellate the Prime Minister or
a minister, as well as the right of the Seimas to express
no-confidence in the Prime Minister or the minister.
Meanwhile, as mentioned, Items 1, 2, 3, and 5 of Paragraph
1 of Article 4 (wording of 3 April 2003) of the Law provide for
the powers of Seimas provisional investigation commissions
related with reception of information from the persons
indicated in these items, which is necessary in order that the
Seimas provisional investigation commission would perform the
tasks formulated to it by the Seimas. Thus Items 1, 2, 3, and 5
of Paragraph 1 of Article 4 (wording of 3 April 2003) of the
Law regulate relations of different character than those
regulated in Article 61 of the Constitution.
3.2.2. Taking account of the arguments set forth, one is
to draw a conclusion that Items 1, 2, 3, and 5 of Paragraph 1
of Article 4 (wording of 3 April 2003) of the Law are not in
conflict with Article 61 of the Constitution.
3.3. Article 67 of the Constitution provides:
"The Seimas:
1) shall consider and adopt amendments to the
Constitution;
2) shall pass laws;
3) shall adopt resolutions on referendums;
4) shall appoint an election for the President of the
Republic of Lithuania;
5) shall establish State institutions provided for by law,
and shall appoint and dismiss their heads;
6) shall approve or disapprove of the candidature of the
Prime Minister presented by the President of the Republic;
7) shall consider the programme of the Government
presented by the Prime Minister, and decide whether to approve
of it;
8) shall, upon the motion of the Government, establish and
abolish ministries of the Republic of Lithuania;
9) shall supervise the activities of the Government, and
may express no-confidence in the Prime Minister or a Minister;
10) shall appoint justices to, and Presidents of, the
Constitutional Court and the Supreme Court;
11) shall appoint to, and dismiss from, office the State
Controller as well as the President of the Board of the Bank of
Lithuania;
12) shall appoint elections of municipal councils;
13) shall form the Central Electoral Commission and alter
its composition;
14) shall confirm the State Budget and supervise the
execution thereof;
15) shall establish State taxes and other obligatory
payments;
16) shall ratify and denounce international treaties of
the Republic of Lithuania as well as consider other issues of
foreign policy;
17) shall establish administrative division of the
Republic;
18) shall establish State awards of the Republic of
Lithuania;
19) shall issue acts of amnesty;
20) shall impose direct administration, martial law, and a
state of emergency, declare mobilisation, and adopt a decision
to use the armed forces."
3.3.1. As mentioned, the list of constitutional powers of
the Seimas consolidated in Article 67 of the Constitution is
not a final one: various powers of the Seimas are consolidated
in other articles (parts thereof) of the Constitution, besides,
certain powers of the Seimas established in Article 67 of the
Constitution are particularised and detailed in other articles
(parts thereof) of the Constitution. It was also mentioned
that, under the Constitution, the powers of the Seimas may be
and are established not only in the Constitution, but also in
laws, also, that the Seimas, as the representation of the
Nation, has the right to establish, by laws, also such its
powers that are not expressis verbis indicated in the
Constitution which, however, are designed for the
implementation of the constitutional functions of the Seimas.
It was also mentioned that, under the Constitution, the
Seimas enjoys discretion to form such its structural sub-units
which are commissioned to conduct investigation so that that
information would be collected about the processes taking place
in the state and society, about the situation in various
sectors of life of the state and society and the arising
problems, thus the Seimas also enjoys discretion to establish
the competence of these structural sub-units; in case one needs
to establish authoritative empowerments of a structural
sub-unit of the Seimas in regard of institutions, their
officials and other persons that are not accountable to the
Seimas (including the right to demand the information the
submission whereof is regulated by laws), then such powers of
the structural sub-unit of the Seimas must be established by
the law.
In addition, it was held in this Ruling of the
Constitutional Court that in order to receive exhaustive,
objective information necessary to adopt corresponding
decisions, the Seimas, as the representation of the Nation, has
to have an opportunity to receive information not only from
institutions, other persons that are accountable to it, but
also from persons that are not accountable to it; the reception
of this information cannot be dependent upon the fact whether
or not corresponding institutions and other persons are
accountable to the Seimas.
Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording
of 3 April 2003) of the Law provide for the powers of Seimas
provisional investigation commissions related with reception of
information from the persons indicated in these items, which is
necessary in order that the Seimas provisional investigation
commission perform the tasks formulated to it by the Seimas. It
needs to be noted that, under the Law, this information has to
be received so that not any issue, but a special issue of state
importance would be investigated, and that the Seimas might
adopt corresponding decisions, that it would effectively act in
the interests of the Nation and the State of Lithuania.
3.3.2. Taking account of the arguments set forth, one is
to draw a conclusion that Items 1, 2, 3, and 5 of Paragraph 1
of Article 4 (wording of 3 April 2003) of the Law are not in
conflict with Article 67 of the Constitution.
4. The doubts of the petitioner concerning the compliance
of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of
3 April 2003) of the Law with Articles 109 and 118 of the
Constitution are based on the fact that, according to the
petitioner, the legal regulation established in these items
created preconditions to interfere with the activities of
courts and the prosecutor's office, to violate the principles
of the independence of the court, the judge, and the
prosecutor, which are consolidated in the Constitution.
4.1. Article 109 of the Constitution provides:
"In the Republic of Lithuania, justice shall be
administered solely by courts.
While administering justice, the judge and courts shall be
independent.
While considering cases, judges shall obey only the law.
The court shall adopt decisions in the name of the
Republic of Lithuania."
Administration of justice is a function of courts, which
determines the place of this branch of power in the system of
state institution as well the status of judges. No other state
institution, nor any official may discharge this function
(Constitutional Court ruling of 21 December 1999).
4.1.1. The function of administration of justice
determines the independence of judges and courts. The judge can
administer justice only in case he is independent from the
parties to the case, institutions of state power, officials,
political and public associations, natural and legal persons
(Constitutional Court ruling of 12 July 2001). The independence
of judges and courts is one of essential principles of a
democratic state under the rule of law (Constitutional Court
ruling of 21 December 1999).
4.1.2. Although the petitioner requests to investigate the
compliance of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law with entire Article 109 of
the Constitution, it is clear from the arguments of the
petition that he has doubts only as regards the compliance of
these items with Paragraphs 1, 2, and 3 of Article 109 of the
Constitution.
4.1.3. As mentioned, in Items 1 and 2 of Paragraph 1 of
Article 4 (wording of 3 April 2003) of the Law the right of the
Seimas provisional investigation commission is entrenched to
receive documents, data, information, as well as the primary
and other documents, in which these data were recorded, verbal
an written explanations or references, as well as references
about the available material, documents from heads and other
employees from all state institutions of power and governance,
the Bank of Lithuania, state and municipal enterprises
(including those controlled by them), establishments and
organisations, their heads and other employees related to the
issues investigated by the Seimas provisional investigation
commission, while in Item 3-the right to summon to its sittings
state and municipal politicians, officials, servants as well as
other persons working at state and municipal institutions, to
hear their explanations, to demand that they present
information or data concerning the issue considered by the
commission and to receive them either in writing or orally.
While investigating the compliance of Items 1, 2, 3, and 5
of Paragraph 1 of Article 4 (wording of 3 April 2003) of the
Law with Paragraphs 1, 2, and 3 of Article 109 of the
Constitution, it needs to be noted that, as it was mentioned in
this Ruling of the Constitutional Court, the legal regulation
established in the said items of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law is inseparable from the
legal regulation established in other articles (parts, items
thereof) of the Law. It was also mentioned that, under
Paragraph 2 of Article 3 (wording of 3 April 2003) of the Law,
the commission, while investigating the issue assigned to it
and implementing its rights, does not interfere inter alia with
the activities of the court and the judge when they investigate
a case in court; thus, as mentioned, under the Law, the Seimas
provisional investigation commission does not have the right to
demand that a judge, when summoned, appear at the sitting of
the commission, or that a judge present explanations to the
commission in connection with a case accepted for consideration
in court, a case that is being considered or the consideration
of which is over. It was also mentioned that, under Paragraph 2
of Article 4 (wording of 3 April 2003) of the Law, in cases
when one refuses to present the documents and material
indicated in Item 1 of Paragraph 1 of the same article, which
are demanded by the commission, the commission has the right to
invite police officers so that they help to seize these
documents and material, save the cases when such documents and
material are inter alia in a criminal, civil or administrative
case.
It has been held in this Ruling of the Constitutional
Court that the legal regulation established in Paragraph 2 of
Article 3 (wording of 3 April 2003) and Paragraph 2 of Article
4 (wording of 3 April 2003) of the Law is to be assessed as
ensuring that in the activities of the Seimas provisional
investigation commission one will follow inter alia the
provisions of Paragraphs 1, 2, and 3 of Article 109 of the
Constitution.
Thus, one is to hold that the legal regulation established
in Items 1, 2, and 3 of Paragraph 1 of Article 4 (wording of 3
April 2003) of the Law does not mean that the Seimas
provisional investigation commission may take over the
constitutional powers of courts or otherwise interfere with the
implementation of the constitutional competence of courts, that
it may violate the independence of the judge and courts when
they administer justice, let alone that it may administer
justice by itself.
4.1.4. Taking account of the arguments set forth, one is
to draw a conclusion that Items 1, 2, and 3 of Paragraph 1 of
Article 4 (wording of 3 April 2003) of the Law are not in
conflict with Paragraphs 1, 2, and 3 of Article 109 of the
Constitution.
4.1.5. While investigating the compliance of Item 5 of
Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law
with Paragraphs 1, 2, and 3 of Article 109 of the Constitution,
one is to note that the right of the Seimas provisional
investigation commission, which is consolidated in this item,
to familiarise, upon the coordination with the Office of the
Prosecutor General, the State Control, the State Security
Department or an institution of pre-trial investigation,
according to the procedure established by laws, with a criminal
case or other material and documents that are at their
disposal, is not linked with the exceptional constitutional
function of the court-administration of justice. In its ruling
of 8 May 2000, the Constitutional Court held that the
constitutional function of the court, i.e. administration of
justice, is essentially different from being in charge of
pre-trial investigation of the case, supervision of this
investigation, prosecution of criminal cases on behalf of the
state etc. Thus, by the legal regulation established in Item 5
of Paragraph 1 of Article 4 (wording of 3 April 2003) of the
Law it is impossible to violate the provision of Paragraph 2 of
Article 109 of the Constitution, too, which states that, while
administering justice, the judge and courts shall be
independent, and the provision of Paragraph 3 of the same
article that, while considering cases, judges shall obey only
the law.
4.1.6. Taking account of the arguments set forth, one is
to draw a conclusion that Item 5 of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law is not in conflict with
Paragraphs 1, 2, and 3 of Article 109 of the Constitution.
4.2. Article 118 of the Constitution provides:
"The prosecutor shall organise and be in charge of
pre-trial investigation as well as pursue charges on behalf of
the State in criminal cases.
In the events established by law, the prosecutor defends
the rights and legitimate interests of the person, society and
the State.
While discharging his functions, the prosecutor shall be
independent and obey only the law.
The Prosecutor's Office of the Republic of Lithuania shall
be the Office of the Prosecutor General and territorial
prosecutor's offices.
The Prosecutor General shall be appointed and dismissed by
the President of the Republic upon approval of the Seimas.
The procedure of appointment and dismissal of prosecutors
as well as their status shall be established by law."
4.2.1. While construing the legal regulation established
in Article 118 of the Constitution, one is to note that on 20
March 2003 the Seimas adopted the Law on Altering Article 118
of the Constitution of the Republic of Lithuania, whereby
Article 118 of the Constitution was altered. The quoted text of
Article 118 of the Constitution is the 20 March 2003 wording of
Article 118 of the Constitution.
Under Paragraph 3 of Article 149 of the Constitution, the
law on an alteration of the Constitution shall come into effect
not earlier than one month after the adoption thereof. In its
ruling of 24 December 2002, the Constitutional Court held that
"under Paragraph 3 of Article 149 of the Constitution, the
Seimas may establish the date of the entry into effect of the
law on the alteration of the Constitution in the law on the
alteration of the Constitution, however, it is not permitted
that the said date be established earlier than one month as of
the day of the adoption of the law on the alteration of the
Constitution. While adopting the law on the alteration of the
Constitution, the Seimas may establish the date of the entry
into effect of the said law, which begins only after one month
expires after such a law on the alteration of the Constitution
is adopted. If the law on the alteration of the Constitution
does not establish the date of the entry into effect of the law
on the alteration of the Constitution, then, under the
Constitution, such a law on the alteration of the Constitution
goes into effect after one month expires after the said law is
adopted".
The Law on Altering Article 118 of the Constitution does
not establish the date of its entry into effect. Thus, this law
went into effect after one month that it was adopted, i.e. on
21 April 2003.
Upon the entry of Law on Altering Article 118 of the
Constitution, the Constitutional Court formulates the official
constitutional doctrine on the basis of the new wording set
forth in Article 118 of the Constitution.
It needs to be noted that after the Law on Altering
Article 118 of the Constitution has gone into effect, in
Article 118 of the Constitution an essentially different
constitutional institute of the prosecutor is established than
the previous one: one has consolidated a different
constitutional status of prosecutors than it used to be; one
has consolidated an institution, the Prosecutor's Office of the
Republic of Lithuania, which did not use to be named in the
Constitution previously; one has established the system of the
Prosecutor's Office of the Republic of Lithuania-it is composed
of the Office of the Prosecutor General and territorial
prosecutor's offices; one has consolidated the post of the
Prosecutor General of the Republic of Lithuania and established
the procedure of appointment and dismissal of this official,
etc. Therefore, upon the establishment of a virtually different
constitutional institute of the prosecutor than it used to be
and upon the consolidation of the status and system of the
Prosecutor's Office of the Republic of Lithuania in the
Constitution, it is impossible, when construing the provisions
of Article 118 of the Constitution, to base oneself on the
constitutional doctrine statement, which is grounded on the
previous wording of Article 118 of the Constitution, that
prosecutors are a constituent part of the judicial power
(Constitutional Court rulings of 14 February 1994, 6 December
1995, 1 October 1997, and 21 April 1998).
Under the Constitution, only the Constitutional Court has
powers to officially construe the Constitution (Constitutional
Court rulings of 30 May 2003 and 29 October 2003), therefore,
under the Constitution, only the Constitutional Court has
powers, in each case, after an amendment to the Constitution
has gone into effect, to hold that it is impossible, while
construing the Constitution, to base oneself (and to which
extent) on the doctrine formulated by the Constitutional Court
on the grounds of the former provisions of the Constitution.
4.2.2. Under the Constitution, the Prosecutor's Office of
the Republic of Lithuania is a centralised state institution
with specific authoritative powers, it is not ascribed to the
institutions executing state power, which are indicated in
Paragraph 1 of Article 5 of the Constitution. It is not a
constituent part of the judicial power.
In Article 118 of the Constitution the functions of
prosecutors are established: the prosecutor organises and is in
charge of pre-trial investigation as well as pursues charges on
behalf of the state in criminal cases (Paragraph 1); in the
events established by law, the prosecutor defends the rights
and legitimate interests of the person, society and the state
(Paragraph 2). Paragraph 3 of Article 118 of the Constitution
provides that, while discharging his functions, the prosecutor
shall be independent and obey only the law.
Thus, the prosecutor is a state official enjoying specific
authoritative powers. Under the Constitution, no one else but
the prosecutor may organise pre-trial investigation and be in
charge of it, also, under the Constitution, no one else but the
prosecutor may pursue charges on behalf of the state in
criminal cases. Alongside, it needs to be noted that, under the
Constitution, the functions of the prosecutor are different
from administration of justice.
4.2.3. Although the petitioner requests to investigate the
compliance of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law with entire Article 118 of
the Constitution, it is clear from the arguments of the
petition that he has doubts only as regards the compliance of
these items with Paragraphs 1 and 3 of Article 118 of the
Constitution.
4.2.4. As mentioned, in Items 1 and 2 of Paragraph 1 of
Article 4 (wording of 3 April 2003) of the Law the right of the
Seimas provisional investigation commission is entrenched to
receive documents, data, information, as well as the primary
and other documents, in which these data were recorded, verbal
an written explanations or references, as well as references
about the available material, documents from heads and other
employees from all state institutions of power and governance,
the Bank of Lithuania, state and municipal enterprises
(including those controlled by them), establishments and
organisations, their heads and other employees related to the
issues investigated by the Seimas provisional investigation
commission, while in Item 3-the right to summon to its sittings
state and municipal politicians, officials, servants as well as
other persons working at state and municipal institutions, to
hear their explanations, to demand that they present
information or data concerning the issue considered by the
commission and to receive them either in writing or orally.
While investigating the compliance of Items 1, 2, 3, and 5
of Paragraph 1 of Article 4 (wording of 3 April 2003) of the
Law with Paragraphs 1 and 3 of Article 118 of the Constitution,
it needs to be noted that, as it was mentioned in this Ruling
of the Constitutional Court, the legal regulation established
in the items of Paragraph 1 of Article 4 (wording of 3 April
2003) of the Law is inseparable from the legal regulation
established in other articles (parts, items thereof) of the
Law. It was also mentioned that, under Paragraph 2 of Article 3
(wording of 3 April 2003) of the Law, the commission, while
investigating the issue assigned to it and implementing its
rights, does not interfere inter alia with the activities of
the prosecutor and an official of pre-trial investigation when
they conduct pre-trial investigation; thus, under the Law, the
Seimas provisional investigation commission does not have the
right to demand that a prosecutor and an official of pre-trial
investigation, when summoned, appear at the sitting of the
commission, or that the said persons present explanations to
the commission in connection with on-going or accomplished
pre-trial investigation. It was also mentioned that, under
Paragraph 2 of Article 4 (wording of 3 April 2003) of the Law,
in cases when one refuses to present the documents and material
indicated in Item 1 of Paragraph 1 of the same article, which
are demanded by the commission, the commission has the right to
invite police officers so that they help to seize these
documents and material, save the cases when such documents and
material are inter alia in a criminal case or operative record
file or card, in a civil or administrative case, or when they
are material of on-going inspection under the procedure
established in the Code of Criminal Procedure.
It was mentioned that, under Item 5 of Paragraph 1 of
Article 4 (wording of 3 April 2003) of the Law, the Seimas
provisional investigation commission has the right "upon the
coordination with the Office of the Prosecutor General, the
State Control, the State Security Department or an institution
of pre-trial investigation, to familiarise, according to the
procedure established by laws, with a criminal case or other
material and documents that are at their disposal".
While investigating the compliance of Item 5 of Paragraph
1 of Article 4 (wording of 3 April 2003) of the Law with
Paragraphs 1 and 3 of Article 118 of the Constitution, one is
to note that, as stated in this Ruling of the Constitutional
Court, under Item 5 of Paragraph 1 of Article 4 (wording of 3
April 2003) of the Law, the Seimas provisional investigation
commission may receive the information necessary for its
investigation, which is in criminal cases or other material and
documents that are at the disposal of inter alia the Office of
the Prosecutor General and an institution of pre-trial
investigation only after it receives consent of a respective
state institution; in case the said state institutions do not
consent that the Seimas provisional investigation commission
receive this information, then the commission will not be able
to receive this information. Besides, as stated in this Ruling
of the Constitutional Court, under the said item, the
organisational and technical questions of such familiarisation
must be coordinated with the state institutions at whose
disposal there is the criminal case or other material and
documents, while the Seimas provisional investigation
commission by itself cannot establish any procedure for the
familiarising with a criminal case or other material and
documents which are at the disposal of inter alia the Office of
the Prosecutor General and an institution of pre-trial
investigation-this is done under procedure established by laws.
It has also been held in this Ruling of the Constitutional
Court that the legal regulation established in Paragraph 2 of
Article 3 (wording of 3 April 2003) and Paragraph 2 of Article
4 (wording of 3 April 2003) of the Law is to be assessed as
ensuring that in the activities of the Seimas provisional
investigation commission one will follow inter alia the
provisions of Paragraphs 1 and 3 of Article 118 of the
Constitution.
Thus, one is to hold that the legal regulation established
in Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of
3 April 2003) of the Law does not mean that the Seimas
provisional investigation commission may take over the
constitutional powers of prosecutors or otherwise interfere
with the implementation of the constitutional competence of
prosecutors, to violate the independence of the prosecutor when
he organises pre-trial investigation and pursues charges on
behalf of the state in criminal cases.
4.2.5. Taking account of the arguments set forth, one is
to conclude that Items 1, 2, 3, and 5 of Paragraph 1 of Article
4 (wording of 3 April 2003) of the Law are not in conflict with
Paragraphs 1 and 3 of Article 118 of the Constitution.
4.2.6. It has been held in this Ruling of the
Constitutional Court that the legal regulation established in
Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of
the Law one has created preconditions to place one
constitutional value-the independence of the prosecutor in the
organisation of pre-trial investigation and being in charge of
it-in opposition to other constitutional values, to raise it
above the latter, in particular, above the functions of the
Seimas as the representation of the Nation, and above the
logical necessity, which follows from the purpose of the
Seimas, from its constitutional functions and constitutional
powers, which is to undertake by itself, in case of need, to
investigation activity in connection of an issue of state
importance so that to receive exhaustive, objective information
about certain processes taking place in the state and society,
about the situation in various sectors of life of the state and
society and the arising problems. It has also been emphasised
in this Ruling of the Constitutional Court that the legal
regulation established in Item 5 of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law is to be amended,
specified so that the "coordination" indicated in Item 5 of
Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law
would not create pre-conditions to the institutions pointed out
in this item virtually not to permit the Seimas provisional
investigation commission to conduct thorough and objective
investigation in connection of the issue of state importance
that has been assigned to it, in other words, that one would
not create pre-conditions to place pre-trial investigation in
opposition to the investigation of the issue of state
importance conducted by the Seimas provisional investigation
commission. Alongside, it was held in this Ruling of the
Constitutional Court that although the legal regulation
established in Item 5 of Paragraph 1 of Article 4 (wording of 3
April 2003) of the Law has created pre-conditions to aggravate
the discharge of certain functions of the Seimas, as the
representation of the Nation, the said constitutional values
are not denied by this legal regulation, therefore there is no
ground to hold that the legal regulation established in Item 5
of Paragraph 1 of Article 4 (wording of 3 April 2003) of the
Law is in conflict with the Constitution in the said aspect.
5. The doubts of the petitioner concerning the compliance
of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of
3 April 2003) of the Law with Article 5 of the Constitution are
virtually based on the fact that, in the opinion of the
petitioner, the said items are in conflict with Articles 67,
109, and 118 of the Constitution, and thus the principle of
separation of powers is denied, which is entrenched in Article
5 of the Constitution.
5.1. 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.
The scope of power shall be limited by the Constitution.
State institutions shall serve the people."
5.2. In its rulings, the Constitutional Court has held
more than once that Article 5 of the Constitution consolidates
inter alia the principle of separation of powers.
The constitutional principle of separation of powers is
the main principle of the organisation and activity of a
democratic state under the rule of law; it is established not
only in Article 5 of the Constitution, but also in other
articles of the Constitution (Constitutional Court rulings of
10 January 1998, 5 February 1999, 3 June 1999, 9 July 1999, 26
April 2001, 12 July 2001). While construing the legal
regulation established in Article 5 of the Constitution, one
has to note that the constitutional principle of separation of
powers is consolidated in Paragraphs 1 and 2 of this article
(Constitutional Court ruling of 23 April 2002); this principle
is particularised in other articles of the Constitution in
various aspects. On the other hand, Paragraph 2 of Article 5 of
the Constitution reflects not only the constitutional principle
of separation of powers, but also the principle of supremacy of
the Constitution and the constitutional principle of a state
under the rule of law (Constitutional Court rulings of 12 July
2001, 24 December 2002, 24 January 2003); if the legal
regulation is established so that not only the powers of the
institution of state power pointed out in Paragraph 1 of
Article 5 of the Constitution are unreasonably expanded from
the constitutional standpoint, but also the powers of some
other state institution, one is also to hold that the provision
of Paragraph 2 of Article 5 of the Constitution that the scope
of power shall be limited by the Constitution is violated as
well (Constitutional Court ruling of 24 December 2002).
5.3. Although the petitioner requests to investigate
whether Items 1, 2, 3, and 5 of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law are not in conflict with
Article 5 of the Constitution, however, it is clear from the
arguments of the petition that he doubts whether the legal
regulation established in these items is not in conflict with
not the entire legal regulation established in Article 5 of the
Constitution, but with the constitutional principle of
separation of powers, established in inter alia Paragraphs 1
and 2 of Article 5 of the Constitution.
Subsequent to the petition of the petitioner, the
Constitutional Court will investigate whether Items 1, 2, 3,
and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of
the Law are not in conflict with the constitutional principle
of separation of powers.
5.4. While construing the constitutional principle of
separation of powers, the Constitutional Court noted in its
acts more than once that the principle of separation of powers
means that the legislative, executive and judicial powers must
be separated, sufficiently independent, but there must be a
balance among them; that to every state institution certain
competence is established, which corresponds to its purpose;
that the concrete content of the competence of the institution
depends on the place of that branch of power in the overall
system of branches of power and its relation with other
branches of power, on the place of that institution among other
state institutions and the relation of its powers with the
powers of other institutions; that, after the Constitution has
directly established the powers of a particular state
institution, one state institution may not take over such
powers of another institution, nor transfer or waive them, and
that such powers may not be changed or restricted by means of
the law.
5.5. It has been mentioned that the doubts of the
petitioner concerning the compliance of Items 1, 2, 3, and 5 of
Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law
with the constitutional principle of separation of powers are
based on the fact that, in his opinion, the said items are in
conflict with Articles 67, 109, and 118 of the Constitution. It
has also been mentioned that the petitioner had doubts as for
the compliance of the said items with not entire Article 109 of
the Constitution and not with entire Article 118 of the
Constitution, but only with Paragraphs 1, 2, and 3 of Article
109 and Paragraphs 1 and 3 of Article 118 of the Constitution.
5.5.1. It has been held in this Ruling of the
Constitutional Court that Items 1, 2, 3, and 5 of Paragraph 1
of Article 4 (wording of 3 April 2003) of the Law are not in
conflict with Article 67 of the Constitution.
It also needs to be noted that the Seimas provisional
investigation commission whose powers established in Items 1,
2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April
2003) of the Law are being disputed in this case, is a
structural sub-unit of the Seimas, i.e. a constituent part of
the state institution executing the legislative power, the
Seimas, but not an institution attributed to another branch of
state power, either the executive or the judiciary.
Therefore, after the powers of the Seimas provisional
investigation commission have been established in Items 1, 2,
3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003)
of the Law, the constitutional principle of separation of
powers, in general, cannot be violated in the aspect that the
Seimas provisional investigation commission, purportedly, might
take over the powers of the Seimas, as an institution
implementing state power, which are established in Article 67
of the Constitution, since, as it was mentioned, the Seimas
provisional investigation commission is a structural sub-unit
of the Seimas, i.e. a constituent part of the state institution
executing the legislative power, the Seimas, but not an
institution attributed to another branch of state power.
According to Items 1, 2, 3, and 5 of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law, the Seimas provisional
investigation commission does not take over the said powers of
the Seimas, an institution executing state power.
5.5.2. In this Ruling of the Constitutional Court it was
held that Items 1, 2, 3, and 5 of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law are not in conflict with
Paragraphs 1, 2, and 3 of Article 109 of the Constitution.
Alongside, it needs to be noted that, as it was held in
this Ruling of the Constitutional Court, it needs to be noted
that the formulation of the opinion and point of view of the
Seimas regarding the conclusion of the Seimas provisional
investigation commission formed by it in a resolution of the
Seimas may not be construed, under the Constitution, as legal
qualification of the actions that the Seimas provisional
commission has investigated, of the decisions adopted by it on
the issues that it was assigned to investigate, and of other
circumstances that were elucidated by it, since the Seimas is
neither an institution of pre-trial investigation, nor the
prosecutor's office, nor the court, also that the Seimas
resolution in which the opinion and point of view of the Seimas
are formulated as to the conclusion of the Seimas provisional
investigation commission that was formed by it is not inter
alia binding to the court.
Therefore, upon the establishment of the powers of the
Seimas provisional investigation commission in Items 1, 2, 3,
and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of
the Law, the constitutional principle of separation of powers
is not violated in the aspect that the Seimas provisional
investigation commission, which is a constituent part of the
Seimas, a state institution executing the legislative power,
purportedly, may take over the powers of the Judiciary, as an
institution executing the judicial power, to administer
justice, which are established in Article 109 of the
Constitution, since, as mentioned, the Seimas resolution in
which the opinion and point of view of the Seimas are
formulated as to the conclusion of the Seimas provisional
investigation commission that was formed by it is not binding
to the court. According to Items 1, 2, 3, and 5 of Paragraph 1
of Article 4 (wording of 3 April 2003) of the Law, the Seimas
provisional investigation commission does not take over the
said powers of the Judiciary, an institution executing state
power.
5.5.3. It has been mentioned in this Ruling of the
Constitutional Court that Items 1, 2, 3, and 5 of Paragraph 1
of Article 4 (wording of 3 April 2003) of the Law are not in
conflict with Paragraphs 1 and 3 of Article 118 of the
Constitution.
It also needs to be noted that, as it was held in this
Ruling of the Constitutional Court, under the Constitution, the
Prosecutor's Office of the Republic of Lithuania is a state
institution with specific authoritative powers, and that it is
not ascribed to the institutions executing state power, which
are indicated in Paragraph 1 of Article 5 of the Constitution.
Therefore, after the powers of the Seimas provisional
investigation commission have been established in Items 1, 2,
3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003)
of the Law, the constitutional principle of separation of
powers, in general, cannot be violated in the aspect that the
Seimas provisional investigation commission, purportedly, might
take over the powers of the Prosecutor's Office of the Republic
of Lithuania as an institution entrenched in Article 118 of the
Constitution, as an institution purportedly implementing state
power, since, as it was mentioned, the Prosecutor's Office of
the Republic of Lithuania is not an institution executing state
power, which is indicated in Paragraph 1 of Article 5 of the
Constitution. The Prosecutor's Office of the Republic of
Lithuania does not enjoy powers of an institution executing
state power, thus, it is evident that under Items 1, 2, 3, and
5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the
Law the Seimas provisional investigation commission cannot take
over such powers.
5.5.4. Therefore, it is to be held that after the powers
of the Seimas provisional investigation commission have been
established in Items 1, 2, 3, and 5 of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law, the constitutional
principle of separation of powers is not violated in a single
aspect pointed out by the petitioner.
5.5.5. Taking account of the arguments set forth, one is
to hold that Items 1, 2, 3, and 5 of Paragraph 1 of Article 4
(wording of 3 April 2003) of the Law are not in conflict with
the constitutional principle of separation of powers.
IV
On the compliance of Seimas Resolution No. IX-1868 "On the
Conclusion of the Seimas Provisional Commission for
Investigation into Possible Threats to Lithuanian National
Security" of 2 December 2003 with Paragraphs 1 and 2 of Article
5, Paragraph 1 of Article 31, Article 67, Paragraph 1 of
Article 109, Paragraph 1 of Article 114 of the Constitution and
the constitutional principle of a state under the rule of law,
as well as Articles 3 and 8 (wording of 3 April 2003) of the
Law on Seimas Provisional Investigation Commissions.
1. By its Resolution No. IX-1802 "On the Formation of the
Provisional Commission for Investigation into Possible Threats
to Lithuanian National Security" of 3 November 2003, the Seimas
formed the Provisional Commission for Investigation into
Possible Threats to Lithuanian National Security and obligated
it to present its primary conclusions to the Seimas till 1
December 2003.
On 1 December 2003, the Commission adopted a conclusion
and presented it to the Seimas.
On 2 December 2003, the Seimas adopted Resolution No.
IX-1868 "On the Conclusion of the Seimas Provisional Commission
for Investigation into Possible Threats to Lithuanian National
Security" in Article 1 whereof it resolved:
"To approve of the conclusion (annexed) made by the Seimas
Provisional Commission for Investigation into Possible Threats
to Lithuanian National Security and recognise that the
Commission has finished its work."
Article 2 of the same Seimas resolution provides that the
resolution shall come into force from the moment of its
adoption.
2. The petitioner, a group of members of the Seimas, in
its 16 December 2003 petition requests to investigate whether
Seimas Resolution No. IX-1868 "On the Conclusion of the Seimas
Provisional Commission for Investigation into Possible Threats
to Lithuanian National Security" of 2 December 2003, to the
extent that it provides that "via the President or his
advisors, classified information used to reach the persons who
did not have the right to be familiarised with it, or those in
whose regard operational investigation was being conducted",
"the President and some of his advisors exerted impermissible
influence on privatisation of enterprises and individual
entities of private business", "the President being tolerant,
his advisors exceeded their competence, interfered with the
activities of other state institutions, abused their status,
thus causing confusion in state governance", is not in conflict
with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article
31, Paragraph 1 of Article 67, Paragraph 1 of Article 109,
Paragraph 1 of Article 114 of the Constitution and the
constitutional principle of a state under the rule of law, as
well as Articles 3 and 8 of the Law on Seimas Provisional
Investigation Commissions.
3. The doubts of the petitioner regarding the compliance
of Seimas Resolution No. IX-1868 "On the Conclusion of the
Seimas Provisional Commission for Investigation into Possible
Threats to Lithuanian National Security" of 2 December 2003 to
the aforementioned extent with Paragraphs 1 and 2 of Article 5,
Paragraph 1 of Article 31, Paragraph 1 of Article 67, Paragraph
1 of Article 109, Paragraph 1 of Article 114 of the
Constitution and the constitutional principle of a state under
the rule of law, as well as Articles 3 and 8 of the Law on
Seimas Provisional Investigation Commissions are based on the
fact that, in the opinion of the petitioner, the Seimas does
not enjoy any powers to establish the facts having legal
significance, and which may lead to either criminal or
administrative liability, therefore, according to the
petitioner, while approving of the conclusion of the
Commission, in which the facts confirming the guilt of a person
are established, the Seimas exceeded its competence and
violated the principle of presumption of innocence.
Thus, it needs to be noted that although the petitioner
requests to investigate whether Seimas Resolution No. IX-1868
"On the Conclusion of the Seimas Provisional Commission for
Investigation into Possible Threats to Lithuanian National
Security", which was adopted on 2 December 2003, to the extent
that it provides that "via the President or his advisors,
classified information used to reach the persons who did not
have the right to be familiarised with it, or those in whose
regard operational investigation was being conducted", "the
President and some of his advisors exerted impermissible
influence on privatisation of enterprises and individual
entities of private business", "the President being tolerant,
his advisors exceeded their competence, interfered with the
activities of other state institutions, abused their status,
thus causing confusion in state governance", is not in conflict
with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article
31, Paragraph 1 of Article 67, Paragraph 1 of Article 109,
Paragraph 1 of Article 114 of the Constitution and the
constitutional principle of a state under the rule of law, as
well as Articles 3 and 8 of the Law, it is clear from the
arguments of the petitioner that he does not dispute the
truthfulness or reasonableness of the above statements of the
conclusion of the Commission, which was approved of by the
Resolution, nor does he request to investigate them in the
aspect of their truthfulness and/or reasonableness. The
petitioner doubts only whether the Seimas, by approving of the
conclusion of the Commission (in particular, of the quoted
statements), did not exceed its constitutional powers, also,
whether the Seimas, by approving of the conclusion of the
Commission (in particular, of the quoted statements), did not
violate the requirements of Articles 3 and 8 of the Law.
4. The petitioner requests to investigate whether the
aforesaid statements of the conclusion of the Commission, which
was approved of by the Resolution, are not in conflict (in the
aspect that the Seimas approved of them) with Paragraph 1 of
Article 67 of the Constitution.
It needs to be noted that Article 67 of the Constitution
is not divided into paragraphs at all: it is composed of 20
items. Thus, the petitioner doubts the compliance of the said
provisions of the Resolution with entire Article 67 of the
Constitution.
5. The petitioner requests to investigate whether the
aforesaid statements of the conclusion of the Commission, which
was approved of by the Resolution, are not in conflict (in the
aspect that the Seimas approved of them) with Articles 3 and 8
of the Law.
As mentioned, on 3 April 2003, the Seimas adopted the Law
on the Amendment of Articles 3, 4, and 8 of the Law on Seimas
Provisional Investigation Commissions, whereby inter alia
Articles 3 and 8 of the Law on Seimas Provisional Investigation
Commissions were amended.
Thus, the petitioner doubts as to the compliance of the
aforesaid statements of the conclusion of the Commission, which
was approved of by the Resolution (in the aspect that the
Seimas approved of them) with Article 3 (wording of 3 April
2003) and Article 8 (wording of 3 April 2003) of the Law.
6. It has been held in this Ruling of the Constitutional
Court that, under the Constitution, the Seimas has the right to
assess both the activity of the provisional investigation
commission formed by it and the conclusion of this commission,
which is provided for in the Law; that the Seimas may express
its opinion and point of view in various forms as regards the
conclusion of the Seimas provisional investigation commission
(including approval of a conclusion of the Seimas provisional
investigation commission); that the Law does not contain any
provisions that would indicate in what form the Seimas ought to
or could express its opinion and point of view as to the
conclusion of the Seimas provisional investigation commission
formed by it; that according to the Statute of the Seimas, the
opinion and point of view of the Seimas regarding the
conclusion of the Seimas provisional investigation commission
formed by it may be formulated in a corresponding resolution of
the Seimas; that the Seimas, after it has decided to approve of
the conclusion of the Seimas provisional investigation
commission, does not adopt a decision on the compliance of the
said actions, decisions, and circumstances with legal acts
which is mandatory to other state institutions (including
institutions of pre-trial investigation, the prosecutor's
office, courts), but it merely formulates its point of view as
to the conclusion of the Seimas provisional investigation
commission that was formed by it and that the Seimas resolution
in which the opinion and point of view of the Seimas are
formulated as to the conclusion of the Seimas provisional
investigation commission that was formed by it is not binding
to institutions of pre-trial investigation, the prosecutor's
office, and the court; that the Seimas resolution in which the
point of view of the Seimas is formulated as regards the
conclusion of the Seimas provisional investigation commission
formed by it, by itself directly does not give rise to any
legal effects to the persons indicated in the conclusion: such
effects could be raised to them only by decisions of other
institutions and their officers, which may be adopted, while
taking into consideration of the conclusion of the Seimas
provisional investigation commission.
7. Having held this, one is also to hold that, under the
Constitution and the Statute of the Seimas, the Seimas had the
right to adopt the disputed Resolution whereby the conclusion
of the Commission formed by the Seimas was approved of.
8. As mentioned, although the petitioner requests to
investigate whether Seimas Resolution No. IX-1868 "On the
Conclusion of the Seimas Provisional Commission for
Investigation into Possible Threats to Lithuanian National
Security" of 2 December 2003, to the extent that it provides
that "via the President or his advisors, classified information
used to reach the persons who did not have the right to be
familiarised with it, or those in whose regard operational
investigation was being conducted", "the President and some of
his advisors exerted impermissible influence on privatisation
of enterprises and individual entities of private business",
"the President being tolerant, his advisors exceeded their
competence, interfered with the activities of other state
institutions, abused their status, thus causing confusion in
state governance", is not in conflict with the Constitution and
the Law, the petitioner does not dispute the truthfulness or
reasonableness of the above statements of the conclusion of the
Commission, which was approved of by the Resolution, nor does
he request to investigate them in the aspect of their
truthfulness and/or reasonableness.
Taking account of the fact that the petitioner does not
dispute the truthfulness or reasonableness of the aforesaid
statements of the conclusion of the Commission, which was
approved of by the Resolution, and does not request that they
be investigated in the aspect of their truthfulness and/or
reasonableness, one is to hold that in the petition of the
petitioner the matter of the investigation is absent.
The fact that in the petition of the petitioner the matter
of the investigation is absent means that the petition is not
within the jurisdiction of the Constitutional Court
(Constitutional Court decisions of 6 May 2003 and 13 May 2003).
Under Item 2 of Paragraph 1 of Article 69 of the Law on
the Constitutional Court, the Constitutional Court shall refuse
to consider petitions to investigate the compliance of a legal
act with the Constitution, if the consideration of the petition
does not fall under the jurisdiction of the Constitutional
Court.
Paragraph 3 of Article 69 of the Law on the Constitutional
Court provides that in the event that the grounds for refusal
to consider a petition have been established after the
commencement of the investigation of the case during the
hearing of the Constitutional Court, a decision to dismiss the
case shall be adopted.
Taking account of the arguments set forth and conforming
to Article 69 of the Law on the Constitutional Court, the case
concerning the petition to investigate whether Seimas
Resolution No. IX-1868 "On the Conclusion of the Seimas
Provisional Commission for Investigation into Possible Threats
to Lithuanian National Security" of 2 December 2003, to the
extent that it provides that "via the President or his
advisors, classified information used to reach the persons who
did not have the right to be familiarised with it, or those in
whose regard operational investigation was being conducted",
"the President and some of his advisors exerted impermissible
influence on privatisation of enterprises and individual
entities of private business", "the President being tolerant,
his advisors exceeded their competence, interfered with the
activities of other state institutions, abused their status,
thus causing confusion in state governance", is not in conflict
with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article
31, Article 67, Paragraph 1 of Article 109, Paragraph 1 of
Article 114 of the Constitution and the constitutional
principle of a state under the rule of law, as well as Articles
3 and 8 of the Law on Seimas Provisional Investigation
Commissions, is to be dismissed.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, 56 and 69
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:
1. To recognise that Items 1, 2, 3, and 5 of Paragraph 1
of Article 4 (wording of 3 April 2003) of the Republic of
Lithuania Law on Seimas Provisional Investigation Commissions
are not in conflict with the Constitution of the Republic of
Lithuania.
2. To dismiss the case concerning the petition to
investigate whether Seimas of the Republic of Lithuania
Resolution No. IX-1868 "On the Conclusion of the Seimas
Provisional Commission for Investigation into Possible Threats
to Lithuanian National Security" of 2 December 2003, to the
extent that it provides that "via the President or his
advisors, classified information used to reach the persons who
did not have the right to be familiarised with it, or those in
whose regard operational investigation was being conducted",
"the President and some of his advisors exerted impermissible
influence on privatisation of enterprises and individual
entities of private business", "the President being tolerant,
his advisors exceeded their competence, interfered with the
activities of other state institutions, abused their status,
thus causing confusion in state governance", is not in conflict
with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article
31, Article 67, Paragraph 1 of Article 109, Paragraph 1 of
Article 114 of the Constitution of the Republic of Lithuania
and the constitutional principle of a state under the rule of
law, as well as Articles 3 and 8 of the Republic of Lithuania
Law on Seimas Provisional Investigation Commissions.
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