Lietuviškai
Case No. 8/02-16/02-25/02-9/03-10/03-11/03-36/03-37/03-06/04-09/04-
20/04-26/04-30/04-31/04-32/04-34/04-41/04
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF ARTICLE 3 (WORDING OF 26 JUNE
2001), ARTICLE 4 (WORDINGS OF 26 JUNE 2001 AND 3
APRIL 2003), PARAGRAPH 3 OF ARTICLE 6 (WORDING OF
26 JUNE 2001) AND PARAGRAPH 1 OF ARTICLE 8
(WORDING OF 26 JUNE 2001) OF THE REPUBLIC OF
LITHUANIA LAW ON THE RESTRAINT OF ORGANISED CRIME
WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA
29 December 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, Jonas Prapiestis, Vytautas
Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the Seimas of the Republic of
Lithuania, the party concerned, who was Mindaugas Girdauskas, a
senior consultant to the Legal Department of the Office of the
Seimas, and Girius Ivoška, the chief specialist of the same
department,
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 16
December 2004 in its public hearing heard Case No.
8/02-16/02-25/02-9/03-10/03-11/03-36/03-37/03-06/04-09/04-20/04
-26/04-30/04-31/04-32/04-34/04-41/04 which originated in these
petitions:
1) the 1 March 2002 petition of the Šiauliai City District
Court, a petitioner, requesting to investigate as to whether
Articles 3, 4 and 8 (wording of 26 June 2001) of the Republic
of Lithuania Law on the Restraint of Organised Crime are not in
conflict with Articles 18, 22, 24, 31 and 32 of the
Constitution of the Republic of Lithuania;
2) the 23 July 2002 petition of the Klaipėda City District
Court, a petitioner, requesting to investigate as to whether
Paragraph 3 of Article 6 (wording of 26 June 2001) of the
Republic of Lithuania Law on the Restraint of Organised Crime
is not in conflict with Paragraph 1 of Article 30, Paragraph 2
of Article 21 and Paragraph 4 of Article 22 of the Constitution
of the Republic of Lithuania;
3) the 26 November 2002 petition of the Šiauliai City
District Court, a petitioner, requesting to investigate as to
whether Articles 3, 4 and 8 (wording of 26 June 2001) of the
Republic of Lithuania Law on the Restraint of Organised Crime
are not in conflict with Articles 18, 22, 24, 31 and 32 of the
Constitution of the Republic of Lithuania;
4) the 6 January 2003 petition of the Šiauliai City
District Court, a petitioner, requesting to investigate as to
whether Paragraph 3 of Article 6 of the Republic of Lithuania
Law on the Restraint of Organised Crime, to the extent that it
does not provide for the right to appeal in court against the
decision on application of an official warning to a person, is
not in conflict with Paragraph 2 of Article 21 and Paragraph 4
of Article 22 of the Constitution of the Republic of Lithuania;
5) the 7 January 2003 petition of the Šiauliai City
District Court, a petitioner, requesting to investigate as to
whether Paragraph 3 of Article 6 of the Republic of Lithuania
Law on the Restraint of Organised Crime, to the extent that it
does not provide for the right to appeal in court against the
decision on application of an official warning to a person, is
not in conflict with Paragraph 2 of Article 21, Paragraph 4 of
Article 22 and Paragraph 1 of Article 30 of the Constitution of
the Republic of Lithuania;
6) the 23 January 2003 petition of the Šiauliai City
District Court, a petitioner, requesting to investigate as to
whether Articles 3, 4 and 8 (wording of 26 June 2001) of the
Republic of Lithuania Law on the Restraint of Organised Crime
are not in conflict with Articles 18, 22, 24, 31 and 32 of the
Constitution of the Republic of Lithuania;
7) the 11 September 2003 petition of the Panevėžys
Regional Court, a petitioner, requesting to investigate as to
whether Articles 3, 4 and 8 (wording of 26 June 2001) of the
Republic of Lithuania Law on the Restraint of Organised Crime
are not in conflict with Article 31 of the Constitution of the
Republic of Lithuania and the constitutional principle of a
state under the rule of law;
8) the 24 September 2003 petition of the Šiauliai City
District Court, a petitioner, requesting to investigate as to
whether Articles 3, 4 and 8 (wording of 26 June 2001) of the
Republic of Lithuania Law on the Restraint of Organised Crime
are not in conflict with Articles 18, 22, 24, 31 and 32 of the
Constitution of the Republic of Lithuania;
9) the 28 November 2003 petition of the Šiauliai City
District Court, a petitioner, requesting to investigate as to
whether Articles 3, 4 and 8 (wording of 26 June 2001) of the
Republic of Lithuania Law on the Restraint of Organised Crime
are not in conflict with Article 31 of the Constitution of the
Republic of Lithuania and the constitutional principle of a
state under the rule of law;
10) the 18 December 2003 petition of the Marijampolė Local
District Court, a petitioner, requesting to investigate as to
whether Articles 3, 4 and 8 (wording of 26 June 2001) of the
Republic of Lithuania Law on the Restraint of Organised Crime
are not in conflict with the principle of a state under the
rule of law, which is entrenched in the Preamble to the
Constitution of the Republic of Lithuania, and Articles 18, 22,
24, 31, 32 and 48 of the Constitution;
11) the 23 January 2004 petition of the Šiauliai City
District Court, a petitioner, requesting to investigate as to
whether Articles 3, 4 and 8 (wording of 26 June 2001) of the
Republic of Lithuania Law on the Restraint of Organised Crime
are not in conflict with Articles 18, 22, 24, 31 and 32 of the
Constitution of the Republic of Lithuania;
12) the 30 March 2004 petition of the Marijampolė Local
District Court, a petitioner, requesting to investigate as to
whether Articles 3 and 4 (wording of 26 June 2001) of the
Republic of Lithuania Law on the Restraint of Organised Crime
are not in conflict with the principle of a state under the
rule of law, which is entrenched in the Preamble to the
Constitution of the Republic of Lithuania, and Articles 18, 22,
24, 31, 32 and 48 of the Constitution;
13) the 28 April 2004 petition of the Panevėžys City
District Court, a petitioner, requesting to investigate as to
whether Articles 3, 4 and 8 (wording of 26 June 2001) of the
Republic of Lithuania Law on the Restraint of Organised Crime
are not in conflict with Articles 18, 22, 24, 31, 32 and 48 of
the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law;
14) the 25 May 2004 petition of the Alytus Local District
Court, a petitioner, requesting to investigate as to whether
Articles 3, 4 and 8 (wording of 26 June 2001) of the Republic
of Lithuania Law on the Restraint of Organised Crime are not in
conflict with Articles 18, 22, 24, 31, 32 and 48 of the
Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law;
15) the 19 July 2004 petition of the Panevėžys Regional
Court, a petitioner, requesting to investigate as to whether
Articles 3, 4 and 8 (wording of 26 June 2001 with the
subsequent amendment made by Law No. IX-1486 of 3 April 2003)
of the Republic of Lithuania Law on the Restraint of Organised
Crime are not in conflict with Articles 18 and 31 of the
Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law;
16) the 25 August 2004 petition of the Šiauliai City
District Court, a petitioner, requesting to investigate as to
whether Articles 3, 4 and 8 (wording of 26 June 2001) of the
Republic of Lithuania Law on the Restraint of Organised Crime
are not in conflict with Articles 18, 22, 24, 31 and 32 of the
Constitution of the Republic of Lithuania;
17) the 6 October 2004 petition of the Marijampolė Local
District Court, a petitioner, requesting to investigate as to
whether Articles 3 and 8 (wording of 26 June 2001) and Article
4 (wording of 3 April 2003) of the Republic of Lithuania Law on
the Restraint of Organised Crime are not in conflict with
Articles 18, 22, 24, 31, 32 and 48 of the Constitution of the
Republic of Lithuania and the constitutional principle of a
state under the rule of law entrenched in the preamble to the
Constitution.
By the Constitutional Court decision of 23 October 2002,
the 1 March 2002 petition of the Šiauliai City District Court
and the 23 July 2002 petition of the Klaipėda City District
Court were joined into one case and reference No. 8/02-16/02
was given to it.
By the Constitutional Court decision of 17 August 2004,
the petitions previously joined into Case No. 8/02-16/02 were
joined also with the 25 May 2004 petition of the Alytus Local
District Court, the 18 December 2003 and 30 March 2004
petitions of the Marijampolė Local District Court, the 19 July
2004 and 11 September 2003 petitions of the Panevėžys Regional
Court, the 28 April 2004 petition of the Panevėžys City
District Court, the 26 November 2002, 6 January 2003, 7 January
2003, 23 January 2003, 24 September 2003, 28 November 2003, and
23 January 2004 petitions of the Šiauliai City District Court,
and reference No.
8/02-16/02-25/02-9/03-10/03-11/03-36/03-37/03-06/04-09/04-20/04
-26/04-30/04-31/04-32/04 was given to the case.
By the Constitutional Court decision of 5 October 2004,
the petitions previously joined into Case No.
8/02-16/02-25/02-9/03-10/03-11/03-36/03-37/03-06/04-09/04-20/04
-26/04-30/04-31/04-32/04 were joined also with the 25 August
2004 petition of the Šiauliai City District Court and reference
No.
8/02-16/02-25/02-9/03-10/03-11/03-36/03-37/03-06/04-09/04-20/04
-26/04-30/04-31/04-32/04-34/04 was given to the case.
By the Constitutional Court decision of 10 November 2004,
the petitions previously joined in Case No.
/02-16/02-25/02-9/03-10/03-11/03-36/03-37/03-06/04-09/04-20/04-
26/04-30/04-31/04-32/04-34/04 were joined also with the 6
October 2004 petition of the Marijampolė Local District Court
and reference No.
8/02-16/02-25/02-9/03-10/03-11/03-36/03-37/03-06/04-09/04-20/04
-26/04-30/04-31/04-32/04-34/04-41/04 was given to the case.
The Constitutional Court
has established:
I
1. The Šiauliai City District Court, a petitioner, was
investigating a criminal case. By its ruling of 1 March 2002
the court suspended the investigation of the case and applied
to the Constitutional Court with a petition requesting to
investigate as to whether Articles 3, 4 and 8 (wording of 26
June 2001) of the Republic of Lithuania Law on the Restraint of
Organised Crime (Official Gazette Valstybės žinios, 2001, No.
60-2138; hereinafter also referred to as the Law) are not in
conflict with Articles 18, 22, 24, 31 and 32 of the
Constitution.
2. The Klaipėda City District Court, a petitioner, was
investigating a case. By its ruling of 23 July 2002 the court
suspended the investigation of the case and applied to the
Constitutional Court with a petition requesting to investigate
as to whether Paragraph 3 of Article 6 (wording of 26 June
2001) of the Law is not in conflict with Paragraph 1 of Article
30, Paragraph 2 of Article 21 and Paragraph 4 of Article 22 of
the Constitution.
3. The Šiauliai City District Court, a petitioner, was
investigating a criminal case. By its ruling of 26 November
2002 the court suspended the investigation of the case and
applied to the Constitutional Court with a petition requesting
to investigate as to whether Articles 3,4 and 8 (wording of 26
June 2001) of the Law are not in conflict with Articles 18, 22,
24, 31 and 32 of the Constitution.
4. The Šiauliai City District Court, a petitioner, was
investigating a case. By its ruling of 6 January 2003 the court
suspended the investigation of the case and applied to the
Constitutional Court with a petition requesting to investigate
as to whether Paragraph 3 of Article 6 of the Law, to the
extent that it does not provide for the right to appeal in
court against the decision on application of an official
warning to a person, is not in conflict with Paragraph 2 of
Article 21 and Paragraph 4 of Article 22 of the Constitution.
5. The Šiauliai City District Court, a petitioner, was
investigating a criminal case. By its ruling of 23 January 2003
the court suspended the investigation of the case and applied
to the Constitutional Court with a petition requesting to
investigate as to whether Articles 3, 4 and 8 (wording of 26
June 2001) of the Law are not in conflict with Articles 18, 22,
24, 31 and 32 of the Constitution.
6. The Šiauliai City District Court, a petitioner, was
investigating a case. By its ruling of 7 January 2003 the court
suspended the investigation of the case and applied to the
Constitutional Court with a petition requesting to investigate
as to whether Paragraph 3 of Article 6 of the Law, to the
extent that it does not provide for the right to appeal in
court against the decision on application of an official
warning to a person, is not in conflict with Paragraph 2 of
Article 21, Paragraph 4 of Article 22 and Paragraph 1 of
Article 30 of the Constitution.
7. The Panevėžys Regional Court, a petitioner, was
investigating a case. By its ruling of 11 September 2003 the
court suspended the investigation of the case and applied to
the Constitutional Court with a petition requesting to
investigate as to whether Articles 3, 4 and 8 (wording of 26
June 2001) of the Law are not in conflict with Article 31 of
the Constitution and the principle of a state under the rule of
law entrenched in the Preamble to the Constitution.
8. The Šiauliai City District Court, a petitioner, was
investigating a criminal case. By its ruling of 24 September
2003 the court suspended the investigation of the case and
applied to the Constitutional Court with a petition requesting
to investigate as to whether Articles 3, 4 and 8 (wording of 26
June 2001) of the Law are not in conflict with Articles 18, 22,
24, 31 and 32 of the Constitution.
9. The Šiauliai Local District Court, a petitioner, was
investigating a case. By its ruling of 28 November 2003 the
court suspended the investigation of the case and applied to
the Constitutional Court with a petition requesting to
investigate as to whether Articles 3, 4 and 8 (wording of the
Law of 26 June 2001) of the Law are not in conflict with
Article 31 of the Constitution and the constitutional principle
of a state under the rule of law.
10. The Marijampolė Local District Court, a petitioner,
was investigating a criminal case. By its ruling of 18 December
2003 the court suspended the investigation of the case and
applied to the Constitutional Court with a petition requesting
to investigate as to whether Articles 3, 4 and 8 (wording of 26
June 2001) of the Law are not in conflict with the principle of
a state under the rule of law entrenched in the Preamble to the
Constitution, and Articles 18, 22, 24, 31, 32 and 48 of the
Constitution.
11. The Šiauliai City District Court, a petitioner, was
investigating a criminal case. By its ruling of 23 January 2004
the court suspended the investigation of the case and applied
to the Constitutional Court with a petition requesting to
investigate as to whether Articles 3, 4 and 8 (wording of 26
June 2001) of the Law are not in conflict with Articles 18, 22,
24, 31, 32 and 48 of the Constitution.
12. The Marijampolė Local District Court, a petitioner,
was investigating a criminal case. By its ruling of 30 March
2004 the court suspended the investigation of the case and
applied to the Constitutional Court with a petition requesting
to investigate as to whether Articles 3 and 4 (wording of 26
June 2001) of the Law are not in conflict with Articles 18, 22,
24, 31, 32 and 48 of the Constitution.
13. The Panevėžys City District Court, a petitioner, was
investigating a criminal case. By its ruling of 28 April 2004
the court suspended the investigation of the case and applied
to the Constitutional Court with a petition requesting to
investigate as to whether Articles 3, 4 and 8 (wording of 26
June 2001) of the Law are not in conflict with Articles 18, 22,
24, 31, 32 and 48 of the Constitution and the constitutional
principle of a state under the rule of law.
14. The Alytus Local District Court, a petitioner, was
investigating a criminal case. By its ruling of 25 May 2004 the
court suspended the investigation of the case and applied to
the Constitutional Court with a petition requesting to
investigate as to whether Articles 3, 4 and 8 (wording of 26
June 2001) of the Law are not in conflict with Articles 18, 22,
24, 31, 32 and 48 of the Constitution and the constitutional
principle of a state under the rule of law.
15. The Panevėžys Regional Court, a petitioner, was
investigating a case. By its ruling of 19 July 2004 the court
suspended the investigation of the case and applied to the
Constitutional Court with a petition requesting to investigate
as to whether Articles 3, 4 and 8 (wording of 26 June 2001 with
the subsequent amendment made by Law No. IX-1486 of 3 April
2003 (Official Gazette Valstybės žinios, 2003, No. 38-1701)) of
the Law are not in conflict with Articles 18 and 31 of the
Constitution and the constitutional principle of a state under
the rule of law.
16. The Šiauliai City District Court, a petitioner, was
investigating a case. By its ruling of 25 August 2004 the court
suspended the investigation of the case and applied to the
Constitutional Court with a petition requesting to investigate
as to whether Articles 3, 4 and 8 (the 26 June 2001 wording of
the law) of the Law are not in conflict with Articles 18, 22,
24, 31 and 32 of the Constitution.
17. The Marijampolė Local District Court, a petitioner,
was investigating a criminal case. By its ruling of 6 October
2004 the court suspended the investigation of the case and
applied to the Constitutional Court with a petition requesting
to investigate as to whether Articles 3 and 8 (wording of 26
June 2001) and Article 4 (wording of 3 April 2003) of the Law
are not in conflict with Articles 18, 22, 24, 31, 32 and 48 of
the Constitution and the principle of a state under the rule of
law entrenched in the Preamble to the Constitution.
II
1. The 1 March 2002, 26 November 2002, 23 January 2003, 24
September 2003, 23 January 2004, 25 August 2004 petitions of
the Šiauliai City District Court, a petitioner, wherein one
requests to investigate as to whether Articles 3, 4 and 8
(wording of 26 June 2001) of the Law are not in conflict with
Articles 18, 22, 24, 31 and 32 of the Constitution, are based
on the following arguments.
It is established in Article 3 (wording of 26 June 2001)
of the Law that if the bases provided for in Article 4 of the
Law exist, one may apply preventive measures: official warning,
court injunctions. It is established in disputed Article 4 of
the Law that preventive measures may be applied in regard to
the persons, if the data, received upon the procedure
established by laws, about the relations of these persons with
organised groups, criminal syndicates or their members,
constitute a sufficient basis for considering that these
persons may commit grave crimes, and preventive measures are to
be applied in order to guarantee the safety of society and the
state, to ensure public order and the rights and freedoms of
persons.
According to the petitioner, the said provisions of the
Law may be applied to the persons who have not been recognised
guilty upon the procedure established by the law and who are
only suspected of having relations with organised groups,
criminal syndicates or their members. The petitioner has doubts
as to whether such legal regulation is not in conflict with
Article 31 of the Constitution, wherein it is established that
the person is presumed innocent until proven guilty and
declared guilty by an effective court judgement.
In the opinion of the petitioner, the court injunctions,
consolidated in Article 8 of the Law, not to maintain relations
with the persons specifically named, not to change the place of
residence and to be present at the place of residence at the
appointed time, not to frequent the places indicated, restrict
the rights and freedoms of citizens, which are entrenched in
Articles 18, 22, 24, 31 and 32 of the Constitution.
2. The 23 July 2002 petition of the Klaipėda City District
Court, a petitioner, and the 6 January 2003 petition of the
Šiauliai City District Court, a petitioner, wherein one
requests to investigate as to whether Paragraph 3 of Article 6
(wording of 26 June 2001) of the Law, to the extent that it
does not provide for the right to appeal in court against the
decision on application of an official warning to a person, is
not in conflict with Paragraph 2 of Article 21, Paragraph 4 of
Article 22 and Paragraph 1 of Article 30 of the Constitution,
as well as the 7 January 2003 petition of the Šiauliai City
District Court, a petitioner, wherein one requests to
investigate as to whether Paragraph 3 of Article 6 (wording of
26 June 2001) of the Law, to the extent that it does not
provide for the right to appeal in court against the decision
on application of an official warning to a person, is not in
conflict with Paragraph 2 of Article 21 and Paragraph 4 of
Article 22 of the Constitution, are based on the following
arguments.
It is established in Paragraph 1 of Article 30 of the
Constitution that a person whose constitutional rights or
freedoms are violated has the right to apply to court. However,
Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law
does not provide for an opportunity for a person to appeal
against the decision of a police officer on application of the
official warning.
According to Article 5 of the Law, the official warning is
a written demand by an authorised officer requesting that a
person should necessarily abide by the Constitution and laws,
should not restrict the rights and freedoms of other people,
should not commit violations of law, also setting forth the
possible legal consequences. According to the petitioners, such
a demand of the officers, by the same, states and evaluates the
actions and behaviour of the person who is subject to the
official warning; as a rule, the police officer in the official
warning states that actions of the person restrict other
people's rights and freedoms which are necessary in a
democratic society, that they create favourable conditions for
creation and development of social and economic pre-requisites
of organised crime, and evaluate them as the ones that
constitute a threat to the safety of society.
The petitioners state that the officer, while holding
official powers and while acting in the name of the law, by a
written demand indicates that the actions of the person to whom
the official warning is issued are contrary to law and
dangerous to society. The actions such as restriction of human
rights and freedoms, violation of laws, commission of
violations of law, maintaining relations with organised groups
and criminal syndicates, causing threat to the safety of
society and the person are evaluated as being negative and are
condemned in a democratic society. By the official warning one
strives to make the person self-critically evaluate his own
actions and cancel them, and to make him start following the
Constitution and laws.
The honour and dignity of the person are constitutional
human rights. Under Articles 21 and 22 of the Constitution, the
honour and dignity of the person are protected by the law and
the court. According to the petitioners, when considering that
such an action of the police officer was taken unlawfully and
unreasonably and in this way his honour and dignity was
encroached upon, the person to whom an official warning is
issued has no opportunity to make use of judicial defence, as
no such right is provided for in Paragraph 3 of Article 6
(wording of 26 June 2001) of the Law. The petitioners doubt as
to whether Paragraph 3 of Article 6 of the Law, to the extent
that it does not provide for the right to appeal in court
against the decision on application of an official warning to a
person, is not in conflict with Paragraph 2 of Article 21 and
Paragraph 4 of Article 22 of the Constitution.
3. The 11 September 2003 petition of the Panevėžys
Regional Court, a petitioner, and the 28 November 2003 petition
of the Šiauliai City District Court, a petitioner, wherein one
requests to investigate as to whether Articles 3, 4 and 8
(wording of 26 June 2001) of the Law are not in conflict with
the constitutional principle of a state under the rule of law
and Article 31 of the Constitution, are based on the following
arguments.
The court injunctions which are provided for in Article 8
of the Law in the type of imposed restrictions are similar to
the measures of suppression, house arrest and written
commitment not to leave, which are provided for in Articles 132
and 136 of the Code of Criminal Procedure of the Republic of
Lithuania (hereinafter also referred to as CCP) and restriction
of freedom, the punishment provided for in Article 48 of the
Criminal Code of the Republic of Lithuania (hereinafter also
referred to as CC), imposed on the persons who committed
criminal deeds. Under Paragraph 2 of Article 121 of the CCP,
measures of suppression may be imposed only in cases where one
has enough evidence providing for a reason to believe that the
suspect committed a criminal deed, meanwhile the
punishment-restriction of freedom-provided for in the CC is
imposed only upon the person who has committed the criminal
deed. Article 249 of the CC consolidates criminal liability for
participation in or organisation of the activity of a criminal
syndicate or leading a criminal syndicate.
However, under Article 4 of the Law, court injunctions are
issued against a person, who has not committed a criminal deed,
but there exists a reason to believe that he may commit grave
criminal deeds, i.e. restrictions of rights, which correspond
to a criminal punishment, are imposed upon the person whose
guilt in committing the criminal deed has not been established
(proven). Therefore, the petitioners doubt as to whether
Articles 3, 4 and 8 of the Law are not in conflict with the
principle of a state under the rule of law which is entrenched
in the Preamble to the Constitution and Article 31 of the
Constitution.
4. The 18 December 2003 petition of the Marijampolė Local
District Court, a petitioner, wherein one requests to
investigate as to whether Articles 3, 4 and 8 of (wording of 26
June 2001) of the Law are not in conflict with the principle of
a state under the rule of law entrenched in the Preamble to the
Constitution and Articles 18, 22, 24, 31, 32 and 48 of the
Constitution, is based on the following arguments.
Article 4 of the Law on the Restraint of Organised Crime
provides a reason to conclude that court injunctions are issued
against a person, who has not committed a criminal deed, but
there only exists a reason to believe that the person may
commit grave or especially grave criminal deeds. This means
that the restrictions of rights, which correspond to a criminal
punishment, are imposed upon a person whose guilt in committing
the criminal deed has not been established (proven). Further to
the principle of a state under the rule of law entrenched in
the Preamble to the Constitution and Articles 18, 22, 24, 31,
32 and 48 of the Constitution, human rights and freedoms may be
restricted only by the law and only when it is necessary for
the security of the state, protection of human health, as well
as in the course of administration of justice. The preventive
measures provided for in Article 3 of the Law may be applied
when the bases established in Article 4 of the Law exist; the
court injunctions upon the person provided for in Article 8 of
the Law are similar to the measures of suppression established
in both the CC and the CCP and imposed upon persons, who have
committed criminal deeds. In the opinion of the petitioner,
Articles 3, 4 and 8 of the Law on the Restraint of Organised
Crime are in conflict with the principle of a state under the
rule of law which is entrenched in the Preamble to the
Constitution and Articles 18, 22, 24, 31, 32 and 48 of the
Constitution.
5. The 30 March 2004 petition of the Marijampolė Local
District Court, a petitioner, wherein one requests to
investigate as to whether Articles 3 and 4 (wording of 26 June
2001) of the Law are not in conflict with Articles 18, 22, 24,
31, 32 and 48 of the Constitution and the principle of a state
under the rule of law which is entrenched in the Preamble to
the Constitution is based on the following arguments.
The human rights and freedoms consolidated in Articles 18,
22, 24, 31, 32 and 48 of the Constitution may be restricted
only by the law and when it is necessary in order to protect
the security of the state and human health, as well as in the
course of administration of justice. The preventive measures
provided for in Article 3 of the Law on the Restraint of
Organised Crime may be applied when the bases established in
Article 4 of this law exist. In the opinion of the petitioner,
a conclusion is to be made from Article 4 of the Law that court
injunctions are issued against a person, who has not committed
a criminal deed, but there only exists a reason to believe that
the person may commit grave or especially grave criminal deeds,
i.e. the restrictions of rights which correspond to a criminal
punishment are imposed upon a person whose guilt in committing
the criminal deed has not been established. The petitioner
doubts as to whether Articles 3 and 4 of the Law are in
compliance with Articles 18, 22, 24, 31, 32 and 48 of the
Constitution and the principle of a state under the rule of law
which is entrenched in the Preamble to the Constitution.
6. The 28 April 2004 petition of the Panevėžys City
District Court, a petitioner, wherein one requests to
investigate as to whether Articles 3, 4 and 8 (wording of 26
June 2001) of the Law are not in conflict with Articles 18, 22,
24, 31, 32 and 48 of the Constitution and the principle of a
state under the rule of law which is entrenched in the Preamble
to the Constitution, is based on the following arguments
The human rights and freedoms consolidated in Articles 18,
22, 24, 31, 32 and 48 of the Constitution may be restricted
only by the law and when it is necessary in order to protect
the security of the state and human health, as well as in the
course of administration of justice. The preventive measures
provided for in Article 3 of the Law on the Restraint of
Organised Crime may be applied when the bases established in
Article 4 of this law exist. In the opinion of the petitioner,
a conclusion is to be made from Article 4 of the Law that court
injunctions are issued against a person, who has not committed
a criminal deed, but there only exists a reason to believe that
the person may commit grave or especially grave criminal deeds,
i.e. the restrictions of rights, which correspond to a criminal
punishment, are imposed upon a person whose guilt in committing
the criminal deed has not been established (proven). The
injunctions upon a person, provided for in Article 8 of the Law
on the Restraint of Organised Crime, are similar to the
measures of suppression provided for in the CC and the CCP and
imposed upon persons who have committed criminal deeds. The
petitioner doubts as to whether Articles 3, 4 and 8 of the Law
are in compliance with the constitutional principle of a state
under the rule of law and Articles 18, 22, 24, 31, 32 and 48 of
the Constitution.
7. The 19 July 2004 petition of the Panevėžys Regional
Court, a petitioner, the 6 October 2004 petition of the
Marijampolė Local District Court, a petitioner, and the 25 May
2004 petition of the Alytus Local District Court, a petitioner,
wherein one requests to investigate as to whether Articles 3
and 8 (wording of 26 June 2001) and Article 4 (wordings of 26
June 2001 and 3 April 2003) of the Law are not in conflict with
Articles 18, 22, 24, 31, 32 and 48 of the Constitution and the
principle of a state under the rule of law which is entrenched
in the Preamble to the Constitution, are based on the following
arguments.
The human rights and freedoms consolidated in Articles 18,
22, 24, 31, 32 and 48 of the Constitution may be restricted
only by the law and only in cases when it is necessary in order
to protect the security of the state and human health, as well
as in the course of administration of justice. The preventive
measures provided for in Article 3 of the Law may be applied
when the bases, established in Article 4 of the Law, exist. In
the opinion of the petitioner, a conclusion is to be made from
Article 4 of the Law that court injunctions are issued against
a person, who has not committed a criminal deed, but there only
exists a reason to believe that the person may commit grave or
especially grave criminal deeds, i.e. the restrictions of
rights, which correspond to a criminal punishment, are imposed
upon a person whose guilt in committing the criminal deed has
not been established. The injunctions upon a person provided
for in Article 8 of the Law are similar to the measures of
suppression provided for in the CC and the CCP. The petitioners
doubt as to whether Articles 3, 4 and 8 of the Law are in
compliance with Articles 18, 22, 24, 31, 32 and 48 of the
Constitution and the constitutional principle of a state under
the rule of law.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations from the
representatives of the Seimas, the party concerned, namely
written explanations of M. Girdauskas of 20 May 2002, 17
October 2002, 4 April 2003 and 8 April 2004, as well as written
explanations of G. Ivoška of 20 May 2003 and 8 April 2004, were
received.
1. In his explanations concerning the compliance of
Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law
with the Constitution, the representative of the Seimas, the
party concerned, who was M. Girdauskas, submitted the following
arguments.
Article 6 of the Law does not prohibit from appealing in
court against the decision on application of an official
warning upon a person. The representative of the party
concerned maintains that in such cases one must follow general
provisions of laws, which permit the appeal against such a
decision in court; the contrary construction would not
correspond to the constitutional concept of the right to apply
to court.
M. Girdauskas stated that on the basis of the Republic of
Lithuania Law on the Legal Proceedings of Administrative Cases
a decision on application of an official warning upon a person
may be appealed against in court. It is established in Item 1
of Paragraph 1 of Article 15 of this law that administrative
courts hear the cases on legitimacy of legal acts and actions
of the subjects of national administration. The official
warning is issued by police officers, who enjoy the public
administration powers in regard to non-subordinate persons.
Therefore, a police establishment (officer) acts as a subject
of state administration, a decision of which to issue an
official warning is considered to be an individual legal act.
Paragraph 4 of Article 22 of the Law on the Legal Proceedings
of Administrative Cases is to be applied in regard to such a
decision. Therefore a person has the right submit an appeal
against the application of the official warning upon the person
directly to the administrative court. Such an appeal could also
be submitted to the regional or the Chief Administrative
Disputes Commission (Articles 2, 5 and 9 of the Republic of
Lithuania Law on Administrative Disputes Commission, and
Paragraphs 7 and 8 of Article 2, as well as Paragraph 4 of
Article 22 of the Law on the Legal Proceedings of
Administrative Cases), and their decisions may also be appealed
against in the administrative court. According to the
representative of the party concerned, actions of the police
officer may also be appealed against to the Commissioner
General, and his decision may be appealed against to the Chief
Administrative Disputes Commission and, later on, to the
administrative court, or to the administrative court directly
(Paragraph 7 of Article 2, Articles 15, 18, 19 and Paragraph 4
of Article 22 of the Law on the Legal Proceedings of
Administrative Cases, Paragraph 3 of Article 2 and Article 9 of
the Law on Administrative Disputes Commission, Paragraph 3 of
Article 12 of the Republic of Lithuania Law on Police
Activity).
On the basis of these arguments, M. Girdauskas maintains
that Paragraph 3 of Article 6 (wording of 26 June 2001) of the
Law, to the extent that it does not provide for the right to
appeal against a decision in court on application of an
official warning to a person, is not in conflict with Paragraph
2 of Article 21, Paragraph 4 of Article 22 and Paragraph 1 of
Article 30 of the Constitution.
2. The representatives of the party concerned, who were M.
Girdauskas and G. Ivoška, in their explanations concerning the
compliance of Articles 3, 4 and 8 (wording of 26 June 2001)
with the Constitution, submitted the following arguments.
The provision of Article 18 of the Constitution that human
rights and freedoms are innate does not deny the possibility to
impose by laws restrictions upon them. The provisions of this
article of the Constitution mean that the person since his
birth has rights and freedoms, which are inseparable from his
person, still other articles of the Constitution (for example,
Paragraph 2 of Article 20, Paragraph 3 of Article 22, Paragraph
3 of Article 23, Paragraph 2 of Article 24 and Paragraph 2 of
Article 32) provide for an opportunity to restrict the human
rights and freedoms. The constitutional principle of a state
under the rule of law implies also that it is one of the duties
of the state and one of its priority tasks to ensure the safety
of the human being and society. When fulfilling this task,
state institutions have the right to apply preventive measures
aimed at restricting the rights of persons. By the official
warning provided for in Item 1 of Article 3 of the Law, the
person is only informed that court injunctions may be issued
against him upon the procedure established by the Law,
therefore this warning in itself does not restrict human
rights. In the opinion of the representatives of the party
concerned, Articles 3, 4 and 8 of the Law are not in conflict
with Article 18 of the Constitution.
In the opinion of the representatives of the party
concerned, the statement of the petitioners that Articles 3, 4
and 8 are in conflict with the presumption of innocence, which
is consolidated in the Constitution, is unreasoned as the
evidence of guilt of the person as well as its recognition by
an effective court decision constitutes the basis for imposing
a punishment rather than preventive measures. The presumption
of innocence also does not deny an opportunity to restrict, on
the basis of the constitutional provisions, certain rights of
individuals that are entrenched in the Constitution. According
to the statements of M. Girdauskas and G. Ivoška, when applying
the preventive measures established in the disputed articles of
the Law, one does not decide as to whether a crime has been
committed. The representatives of the party concerned state
that laws of foreign states provide also for an opportunity to
apply preventive measures to persons in order to prevent them
from committing crimes.
According to M. Girdauskas and G. Ivoška, when
investigating the application of preventive measures the
European Court of Human Rights construed that preventive
measures are not to be equated with criminal sanctions, as
their purpose is to prevent crimes. When imposing preventive
measures one does not decide the issue of initiated charges
brought against the person in regard to the norms of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms, i.e. justice is not implemented. In the
opinion of the representatives of the party concerned, the
application of the preventive measures provided for in Articles
3, 4 and 8 of the Law does not mean that the person is
recognised guilty and in itself does not violate the
presumption of innocence.
In their explanations the representatives of the party
concerned indicated that the disputed articles of the Law are
not in conflict with the provisions of the Constitution
regarding the inviolability of private life and collection of
information about the private life of a person only on the
basis of a reasoned court decision and only on the basis of the
law, as they do not provide for collection of information about
the private life of a person. The collection of information
about fulfilment of injunctions, performed by the police, is
legitimised in regard to these constitutional norms by the fact
that the injunctions are imposed, according to the law, by
court by a reasoned decision. This right may be restricted when
such a restriction is provided for by the law and when it is
necessary in a democratic society in order to ensure the
national safety, to protect the society or economic welfare of
the state, as well as in order to prevent violations of public
order or crimes, to guarantee people's health or morals or the
rights and freedoms of other persons.
On the basis of these arguments, M. Girdauskas and G.
Ivoška maintain that Articles 3, 4, 6 and 8 (wording of 26 June
2001) of the Law are not in conflict with the Constitution.
IV
In the course of the preparation of the case for the
Constitutional Court hearing written explanations were received
from A. Klimavičius, the Prosecutor General of the Republic of
Lithuania, G. Dalinkevičius, the then Chairman of the Human
Rights Committee of the Seimas, J. Bernatonis, the then
Minister of the Interior of the Republic of Lithuania, V.
Bulovas, the then Minister of the Interior of the Republic of
Lithuania, G. Švedas, the Vice-Minister of the Interior, V.
Vadapalas, the then Director General of the European Law
Department under the Government of the Republic of Lithuania,
J. Misiūnas, the then Acting Director of the Law Institute, T.
Birmontienė, the former Director of the Lithuanian Centre for
Human Rights, as well as A. Andriulienė, the then acting
Director of the Lithuanian Centre for Human Rights.
V
At the Constitutional Court hearing, the representatives
of the Seimas-the party concerned-who were M. Girdauskas and G.
Ivoška, virtually reiterated the arguments set forth in the
written explanations.
The Constitutional Court
holds that:
I
1. On 1 July 1997, the Seimas adopted the Law on the
Restraint of Organised Crime. This law became effective on 23
July 1997.
2. On 26 June 2001, the Seimas adopted the Law on Amending
the Law on the Restraint of Organised Crime, by Article 1 of
which it amended the Law on the Restraint of Organised Crime
and set it forth in a new wording. The Law on Amending the Law
on the Restraint of Organised Crime became effective on 11 July
2001.
3. It is established in Article 3 (wording of 26 June
2001) of the Law:
"If the bases provided for in Article 4 of this Law exist,
one may apply the following preventive measures:
1) official warning;
2) court injunctions."
Article 4 (wording of 26 June 2001) of the Law used to
provide: "The preventive measures provided for in Article 3 of
this Law may be applied in regard to the persons, if the data,
received upon the procedure established by laws, about the
relations of these persons with organised groups, criminal
syndicates or their members, constitute a sufficient basis for
considering that these persons may commit grave crimes, and the
preventive measures are to be applied in order to guarantee the
safety of society and the state, to ensure public order and the
rights and freedoms of persons."
Article 6 (wording of 26 June 2001) of the Law provides:
"1. The head of the police establishment or police officer
acting as his deputy, while taking account of the data
specified in Article 4 of this Law, authorises a police officer
to issue an official warning to the person.
2. When fulfilling the decision on application of the
official warning the authorised police officer has the right to
summon the person to the police establishment.
3. The decision on the application of the official warning
to the person shall be formalised by a written resolution. The
resolution shall be confirmed by the head of the police
establishment.
4. The official warning is presented to the person so that
he can familiarise with it and sign it.
5. The person must be handed in an official copy of the
warning.
6. If the person to whom the official warning is applied
does not follow the requirements of this warning, the head of
the police establishment or the police officer acting as his
deputy may authorise a police officer to decide whether to
request that the court impose court injunctions against this
person."
It is established in Article 8 (wording of 26 June 2001)
of the Law:
"1. The court may impose one or several injunctions upon
the person:
1) not to maintain any contact with the persons
specifically named, directly, through other persons, by
technical or other means;
2) not to change the permanent place of residence without
a consent by the authorised supervising police officer and to
remain at the place of residence at the appointed time;
3) not to frequent the places indicated.
2. In issuing court injunctions, the court shall establish
their length."
4. On 3 April 2003, the Seimas adopted the Republic of
Lithuania Law on Amending Article 4 of the Law on the Restraint
of Organised Crime. By Article 1 of this law Article 4 (wording
of 26 June 2001) of the Law on the Restraint of Organised Crime
was amended, after the word "grave" the words "or very grave"
were entered, and Article 4 of the Law on the Restraint of
Organised Crime was set forth as follows: "The preventive
measures provided for in Article 3 of this Law may be applied
in regard to the persons, if the data, received upon the
procedure established by laws, about the relations of these
persons with organised groups, criminal syndicates or their
members, constitute a sufficient basis for considering that
these persons may commit grave or very grave crimes, and the
preventive measures are to be applied in order to guarantee the
safety of society and the state, to ensure public order and the
rights and freedoms of persons."
It is established in Article 2 of the Law on Amending
Article 4 of the Law on the Restraint of Organised Crime that
this law becomes effective together with the Criminal Code of
the Republic of Lithuania and Code of Criminal Procedure of the
Republic of Lithuania.
It is inter alia established in Article 1 of the Law on
the Procedure of Coming into Force and Implementation of the
Criminal Code of the Republic of Lithuania which was confirmed
by 26 September 2000 Law No. VIII-1968, the Code of Criminal
Procedure which was confirmed by 14 March 2002 Law No. IX-785
and the Penitentiary Code which was confirmed by 27 June 2002
Law No. IX-994, adopted by the Seimas on 29 October 2002, that
the Criminal Code which was confirmed by 26 September 2000 Law
No. VIII-1968 and the Code of Criminal Procedure which was
confirmed by 14 March 2002 Law No. IX-785 become effective as
from 1 May 2003. Thus, the Law on Amending Article 4 of the Law
on the Restraint of Organised Crime became effective on 1 May
2003.
5. The Šiauliai City District Court, a petitioner, by its
1 March 2002 ruling applied to the Constitutional Court with a
petition requesting to investigate as to whether Articles 3, 4
and 8 (wording of 26 June 2001) of the Law on the Restraint of
Organised Crime are not in conflict with Articles 18, 22, 24,
31 and 32 of the Constitution.
The Klaipėda City District Court, a petitioner, by its 23
July 2002 ruling applied to the Constitutional Court with a
petition requesting to investigate as to whether Paragraph 3 of
Article 6 (wording of 26 June 2001) of the Law is not in
conflict with Paragraph 1 of Article 30, Paragraph 2 of Article
21 and Paragraph 4 of Article 22 of the Constitution.
The Šiauliai City District Court, a petitioner, by its 26
November 2002 ruling applied to the Constitutional Court with a
petition requesting to investigate as to whether Articles 3, 4
and 8 (wording of 26 June 2001) of the Law are not in conflict
with Articles 18, 22, 24, 31 and 32 of the Constitution.
The Šiauliai City District Court, a petitioner, by its 6
January 2003 ruling applied to the Constitutional Court with a
petition requesting to investigate as to whether Paragraph 3 of
Article 6 of the Law, to the extent that it does not provide
for the right to appeal in court against the decision on
application of an official warning to a person, is not in
conflict with Paragraph 2 of Article 21 and Paragraph 4 of
Article 22 of the Constitution.
The Šiauliai City District Court, a petitioner, by its 7
January 2003 ruling applied to the Constitutional Court with a
petition requesting to investigate as to whether Paragraph 3 of
Article 6 of the Law, to the extent that it does not provide
for the right to appeal in court against the decision on
application of an official warning to a person, is not in
conflict with Paragraph 2 of Article 21, Paragraph 4 of Article
22 and Paragraph 1 of Article 30 of the Constitution.
The Šiauliai City District Court, a petitioner, by its 23
January 2003 ruling applied to the Constitutional Court with a
petition requesting to investigate as to whether Articles 3, 4
and 8 (wording of 26 June 2001) of the Law are not in conflict
with Articles 18, 22, 24, 31 and 32 of the Constitution.
The Panevėžys Regional Court, a petitioner, by its 11
September 2003 ruling applied to the Constitutional Court with
a petition requesting to investigate as to whether Articles 3,
4 and 8 (wording of 26 June 2001) of the Law are not in
conflict with Article 31 of the Constitution and the
constitutional principle of a state under the rule of law.
The Šiauliai City District Court, a petitioner, by its 24
September 2003 ruling applied to the Constitutional Court with
a petition requesting to investigate as to whether Articles 3,
4 and 8 (wording of 26 June 2001) of the Law are not in
conflict with Articles 18, 22, 24, 31 and 32 of the
Constitution.
The Šiauliai City District Court, a petitioner, by its 28
November 2003 ruling applied to the Constitutional Court with a
petition requesting to investigate as to whether Articles 3, 4
and 8 (wording of 26 June 2001) of the Law are not in conflict
with Article 31 of the Constitution and the constitutional
principle of a state under the rule of law.
The Marijampolė Local District Court, a petitioner, by its
18 December 2003 ruling applied to the Constitutional Court
with a petition requesting to investigate as to whether
Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are
not in conflict with the principle of a state under the rule of
law entrenched in the Preamble to the Constitution and Articles
18, 22, 24, 31, 32 and 48 of the Constitution.
The Šiauliai City District Court, a petitioner, by its 23
January 2004 ruling applied to the Constitutional Court with a
petition requesting to investigate as to whether Articles 3, 4
and 8 (wording of 26 June 2001) of the Law are not in conflict
with Articles 18, 22, 24, 31 and 32 of the Constitution.
The Marijampolė Local District Court, a petitioner, by its
30 March 2004 ruling applied to the Constitutional Court with a
petition requesting to investigate as to whether Articles 3 and
4 (wording of 26 June 2001) of the Law are not in conflict with
the principle of a state under the rule of law entrenched in
the Preamble to the Constitution and Articles 18, 22, 24, 31,
32 and 48 of the Constitution.
The Panevėžys City District Court, a petitioner, by its 28
Aril 2004 ruling applied to the Constitutional Court with a
petition requesting to investigate as to whether Articles 3, 4
and 8 (wording of 26 June 2001) of the Law are not in conflict
with Articles 18, 22, 24, 31, 32 and 48 of the Constitution and
the constitutional principle of a state under the rule of law.
The Alytus Local District Court, a petitioner, by its 25
May 2004 ruling applied to the Constitutional Court with a
petition requesting to investigate as to whether Articles 3, 4
and 8 (wording of 26 June 2001) of the Law are not in conflict
with Articles 18, 22, 24, 31, 32 and 48 of the Constitution and
the constitutional principle of a state under the rule of law.
The Panevėžys Regional Court, a petitioner, by its 19 July
2004 ruling applied to the Constitutional Court with a petition
requesting to investigate as to whether Articles 3, 4 and 8
(wording of 26 June 2001 with the subsequent amendment made by
Law No. IX-1486 of 3 April 2003) of the Law are not in conflict
with Articles 18 and 31 of the Constitution and the
constitutional principle of a state under the rule of law.
The Šiauliai City District Court, a petitioner, by its 25
August 2004 ruling applied to the Constitutional Court with a
petition requesting to investigate as to whether Articles 3, 4
and 8 (wording of 26 June 2001) of the Law are not in conflict
with Articles 18, 22, 24, 31 and 32 of the Constitution.
The Marijampolė Local District Court, a petitioner, by its
6 October 2004 ruling applied to the Constitutional Court with
a petition requesting to investigate as to whether Articles 3
and 8 (wording of 26 June 2001) and Article 4 (wording of 3
April 2003) of the Law are not in conflict with Articles 18,
22, 24, 31, 32 and 48 of the Constitution and the
constitutional principle of a state under the rule of law
entrenched in the Preamble to the Constitution.
6. The petitioners, namely the Panevėžys Regional Court by
its 11 September 2003 ruling, the Alytus Local District Court
by its 25 May 2004 ruling, the Marijampolė Local District Court
by its 18 December 2003 and 30 March 2004 rulings, the
Panevėžys City District Court by its 28 April 2004 ruling, the
Šiauliai City District Court by its 1 March 2002, 26 November
2002, 23 January 2003, 24 September 2003, 28 November 2003, 23
January 2004 and 25 August 2004 rulings, request to investigate
inter alia the compliance of Article 4 (wording of 26 June
2001) of the Law which was, as already mentioned, amended by
Article 1 of the adopted on 3 April 2003 Law on Amending
Article 4 of the Law on the Restraint of Organised Crime with
the Constitution.
According to Paragraph 4 of Article 69 of the Law on the
Constitutional Court, the annulment of the disputed legal act
constitutes the grounds to adopt a decision to dismiss the
instituted legal proceedings. In its rulings the Constitutional
Court has held more than once that the formula "shall be
grounds <...> to dismiss the instituted legal proceedings" of
Paragraph 4 of Article 69 of the Law on the Constitutional
Court is to be construed as the one which establishes the right
of the Constitutional Court, having considered the
circumstances of the case at issue, to dismiss the instituted
legal proceedings in cases where it is not courts but other
subjects listed in Article 106 of the Constitution who apply to
the Constitutional Court, but not as the one which establishes
that the instituted legal proceedings should be dismissed in
every case where the disputed legal act is annulled; according
to the Constitution, in the cases where the Constitutional
Court is addressed by the court which investigates the case and
which has doubts concerning the compliance of the applicable in
particular case law with the Constitution and laws the
Constitutional Court has the duty to consider the petition of
the court irrespective of the fact whether the disputed law or
other legal act is in force or not.
7. The petitioners, namely the Panevėžys Regional Court by
its 11 September 2003 and 19 July 2004 rulings, the Alytus
Local District Court by its 25 May 2004 ruling, the Marijampolė
Local District Court by its 18 December 2003 and 6 October 2004
rulings, the Panevėžys City District Court by its 28 April 2004
ruling, the Šiauliai City District Court by its 1 March 2002,
26 November 2002, 23 January 2003, 24 September 2003, 28
November 2003, 23 January 2004 and 25 August 2004 rulings,
request to investigate the compliance of Article 8 (wording of
26 June 2001) of the Law with the Constitution.
The arguments of the petitioners reveal that the
petitioners have doubts concerning the compliance only of
Paragraph 1 of Article 8 (wording of 26 June 2001), but not of
whole Article 8 (wording of 26 June 2001) of the Law, with the
Constitution.
8. The petitioners, namely the Panevėžys Regional Court by
its 11 September 2003 and 19 July 2004 rulings, the Alytus
Local District Court by its 25 May 2004 ruling, the Marijampolė
Local District Court by its 18 December 2003 and 30 March 2004
rulings, the Panevėžys City District Court by its 28 April 2004
ruling and the Šiauliai City District Court by its 28 November
2003 ruling, request to investigate as to whether the
provisions of Articles 3, 4 and 8 of the Law are not in
conflict with the principle of a state under the rule of law
entrenched in the Preamble to the Constitution.
The constitutional principle of a state under the rule of
law may not be construed as the one which is entrenched only in
the Preamble to the Constitution, nor may it be identified only
with the declared therein striving for an open, just, and
harmonious civil society and state under the rule of law. The
constitutional principle of a state under the rule of law is
consolidated not only by the striving for an open, just, and
harmonious civil society and state under the rule of law, which
is declared in the Preamble to the Constitution, but, in
various aspects, by all the other provisions of the
Constitution as well. The constitutional principle of a state
under the rule of law integrates various values enshrined in,
and protected and defended by the Constitution, including those
which are expressed by the aforementioned striving. The
investigation of the compliance of legal acts (parts thereof)
with the enshrined in the Preamble to the Constitution striving
for an open, just, and harmonious civil society and state under
the rule of law implies the investigation of their compliance
with the constitutional principle of a state under the rule of
law (Constitutional Court ruling of 13 December 2004).
9. The petitioners, namely the Panevėžys Regional Court by
its 11 September 2003 and 19 July 2004 rulings, the Alytus
Local District Court by its 25 May 2004 ruling, the Klaipėda
City District Court by its 23 July 2002 ruling, the Marijampolė
Local District Court by its 18 December 2003, 30 March 2004 and
6 October 2004 rulings, the Panevėžys City District Court by
its 28 April 2004 ruling, the Šiauliai City District Court by
its 1 March 2002, 26 November 2002, 6 January 2003, 7 January
2003, 23 January 2003, 24 September 2003, 28 November 2003, 23
January 2004 and 25 August 2004 rulings, request to investigate
the compliance of the disputed provisions with inter alia
Articles 22, 31, 32 and 48 of the Constitution.
The arguments listed in the petitions of the petitioners
reveal that the petitioners have doubts concerning the
compliance of the disputed provisions of the Law not with whole
Article 22 of the Constitution, but with Paragraphs 1, 3 and 4
thereof only, not with whole Article 31 of the Constitution,
but with Paragraphs 1 and 4 thereof only, not with whole
Article 32 of the Constitution, but with Paragraphs 1 and 2
thereof only, and not with whole Article 48 of the
Constitution, but with the provision that each human being may
freely choose a job or business of Paragraph 1 of this article
only.
10. Subsequent to the petitions of the petitioners the
Constitutional Court will investigate:
1) whether Article 3 (wording of 26 June 2001) of the Law
is not in conflict with Article 18, Paragraphs 1, 3 and 4 of
Article 22, Article 24, Paragraphs 1 and 4 of Article 31,
Paragraphs 1 and 2 of Article 32 of the Constitution, the
provision that each human being may freely choose a job or
business of Paragraph 1 of Article 48 of the Constitution and
the constitutional principle of a state under the rule of law;
2) whether Article 4 (wordings of 26 June 2001 and 3 April
2003) of the Law is not in conflict with Article 18, Paragraphs
1, 3 and 4 of Article 22, Article 24, Paragraphs 1 and 4 of
Article 31, Paragraphs 1 and 2 of Article 32 of the
Constitution, the provision that each human being may freely
choose a job or business of Paragraph 1 of Article 48 of the
Constitution and the constitutional principle of a state under
the rule of law;
3) whether Paragraph 3 of Article 6 (wording of 26 June
2001) of the Law, to the extent that that it does not provide
for the right to appeal in court against the decision on
application of an official warning to a person, is not in
conflict with Paragraph 2 of Article 21, Paragraph 4 of Article
22 and Paragraph 1 of Article 30 of the Constitution;
4) whether Paragraph 1 of Article 8 (wording of 26 June
2001) of the Law is not in conflict with Article 18, Paragraphs
1, 3 and 4 of Article 22, Article 24, Paragraphs 1 and 4 of
Article 31, Paragraphs 1 and 2 of Article 32, the provision
that each human being may freely choose a job or business of
Paragraph 1 of Article 48 of the Constitution and the
constitutional principle of a state under the rule of law.
II
1. Crimes are violations of law by which human rights and
freedoms as well as other values protected and defended by the
Constitution are grossly violated. The purpose of the state as
a political organisation of the entire society is to ensure
human rights and freedoms and to guarantee the public interest,
therefore, while exercising its functions and acting in the
interests of the entire society, the state has the obligation
to efficiently ensure effective protection of human rights and
freedoms, other values protected and defended by the
Constitution, of every individual and the whole society from
inter alia criminal attempts.
2. The entrenched in the Constitution negative attitude
towards crimes as a social evil is reflected in various
articles of the Constitution, inter alia the ones in which the
notions "crime", "criminal actions", "criminal" are used
directly. For example, according to Paragraph 2 of Article 24
of the Constitution, without the consent of the resident, entry
into his dwelling place is not permitted otherwise than inter
alia by the procedure established by law when it is necessary
to apprehend a criminal; according to Paragraph 4 of Article 25
of the Constitution freedom to express convictions and impart
information is incompatible with criminal actions-the
instigation of national, racial, religious, or social hatred,
violence and discrimination, slander and disinformation;
according to Article 27 of the Constitution the convictions,
religion, or beliefs of the human being may not justify inter
alia a crime; according to Article 31 of the Constitution a
person is presumed innocent until proven and declared guilty by
an effective court judgement in accordance with the procedure
established by law (Paragraph 1), a person charged with the
commission of a crime has the right to a fair public hearing of
his case by an independent and impartial court (Paragraph 2),
punishment may be imposed or applied only on the grounds
established in law (Paragraph 4), no one may be punished a
second time for the same crime (Paragraph 5), a person
suspected of the commission of a crime or an accused, from the
moment of his detention or first interrogation, is guaranteed
the right to defence as well as the right to have an advocate
(Paragraph 6); one of the grounds of removal of the highest
state officials from office (revocation of the mandate of a
member of the Seimas), specified in Article 74 of the
Constitution, is "disclosure of the commission of a crime".
3. Ensuring of safety of each human being and the whole
society from crimes is a duty of the state and one of its
priority tasks as by the crimes one violates not only human
rights and freedoms and other values protected and defended by
the Constitution, but also negative impact to living conditions
and subsistence level of people is made as well as the
fundamentals of the life of the state and society are
encroached upon. In case the state fails to take proper actions
in order to prevent crimes, the trust in the state power and
laws would be destroyed and disrespect in legal order and
various social institutes would increase. Therefore, according
to the Constitution, the state, an organisation of the entire
society, which must guarantee the public interest, has not only
the right, but also a duty to take various lawful measures
preventing the crimes, as well as restricting and reducing
crime. The measures established and applied by the state must
be efficient.
4. In a democratic state under the rule of law the
legislator has the right and, alongside, the duty to prohibit
by laws the deeds by which essential harm is inflicted on the
interests of persons, society or those of the state, or in case
there occurs a threat that due to such deeds the said damage
will be inflicted. According to the Constitution it is only the
law by which one may define what deeds are criminal and
establish criminal liability for such deeds. It is to be noted
that only the deeds which are truly dangerous and by which harm
is really inflicted on the interests of the person, society and
the state or in case there occurs a threat that due to such
deeds the said damage will be inflicted, may be recognised in
the law as criminal deeds.
5. The legislator, having considered the threat caused by
crimes, the scope of crimes, their occurrence, dynamics,
structure, as well as various criminogenic factors, has the
duty to establish measures, the purpose of which is to protect
the person, society and the state from criminal attempts. Under
the Constitution, the legislator enjoys the right to choose
various measures of restricting and reducing crime, as well as
to establish the conditions and procedure of application
thereof. When doing so the legislator must observe the
Constitution.
6. Both legal and other than legal (organisational,
economic, etc.) measures are to be applied when seeking to
restrict crime and to reduce it. In the context of the
constitutional justice case at issue it is to be noted that the
legal measures of restricting and reducing crime differ also in
whether they are aimed at reacting to the already committed
crime and deterring the persons who have already committed
crimes and other persons from new criminal attempts (repressive
measures), or at preventing crimes, where the risk of their
commission is greater in case no such measures are taken
(preventive measures).
The repressive measures of restricting and reducing crime
comprise inter alia the fact that in laws one defines which
deeds are criminal and establishes punishment for commission of
such deeds. By these measures one strives not only to establish
the legal bases for punishing the persons guilty of committing
a crime, but by these measures, by threatening with punishments
and establishing the legal bases for punishing the persons who
committed crimes, every person, the whole society and the state
are protected from criminal attempts. According to the
Constitution the state prosecutes the persons who committed
crimes, their guilt is being proven upon the procedure
established by the law, and the established by the law
punishments for the committed crimes are being imposed upon
them.
When restricting and reducing crime it is not only
repressive, but also preventive measures that are to be
applied. In its 9 December 1998 ruling, the Constitutional
Court stressed the importance of the efficiently applied system
of various preventive measures in crime prevention. It was
mentioned that the preventive measures are aimed at preventing
crimes, where the risk of their commission is greater in case
no such measures are taken.
It must be noted that although the final objective of the
repressive and preventive measures of restricting and reducing
crime is the same-they are aimed at eliminating crime-they
still have objective differences-they differ in the bases of
their application, direct aim, content, as well as legal
consequences of their application. By repressive measures one
reacts to the already committed crime and seeks to deter the
persons who have already committed crimes and other individuals
from new criminal attempts, while by preventive measures one
strives to prevent crimes, where the risk of their commission
is greater in case no such measures are taken. Within the
context of the constitutional justice case at issue it is to be
noted that a punishment may be imposed upon the person who has
committed the crime, meanwhile, preventive measures do not
constitute a punishment, their purpose is to prevent a person
from committing a crime and thus to protect the public interest
as well. Moreover, in this way, finally, the person who,
according to the data received in a legal manner, if not
deterred from by preventive measures would tend to commit a
crime, is protected himself as well. It should also be noted
that the preventive measures which are aimed at restricting and
reducing crime, are, as a rule, linked with particular
restriction of implementation of human rights and freedoms, by
which, one should stress, the essence of these rights and
freedoms may not be denied.
The aforementioned objective differences between
repressive and preventive measures determine also the
particularities of their legal regulation.
7. Within the context of the constitutional justice case
at issue it is also to be noted that organised criminal groups
(syndicates), the crimes committed by them or the fact that
they are going to commit such crimes pose a special threat to a
person, his rights and freedoms, society and the state.
It is worth stressing that the majority of especially
dangerous crimes, for example, terrorism, trafficking in
people, criminal trade in weapons and drugs, money laundering,
financial crimes and crimes related to corruption, are often
committed namely by organised criminal groups (syndicates). If
organised crime were not prevented and organised criminal
groups (syndicates) were not prosecuted, the constitutional
values, inter alia the rights and freedoms of the person, the
legal bases of the life of society entrenched in the
Constitution, the state as an organisation of the entire
society and the entire society would be under the threat.
It should also be noted that in the modern world organised
crime often reaches beyond the state borders and causes threat
to the international community as well. If the activity of
organised criminal groups (syndicates) were not persecuted at
the time when it is spreading from one country to another, the
most important values of both the communities of democratic
states and the international community would become under the
threat.
Therefore, modern states establish and apply various
measures, both repressive and preventive, for restricting and
reducing organised crime. Lithuania as a democratic state under
the rule of law and a member of the international community has
also the duty to establish and apply both repressive and
preventive measures which are adequate to the threat posed by
organised crime. When assessing these measures, in general, it
should be noted, that the construction that, purportedly, the
constitutional recognition of the innate nature of human rights
and freedoms, the broad as well as entrenched in the
Constitution catalogue of innate rights and freedoms of a human
being and other constitutional institutes does not permit the
establishment and application of efficient and, if needed,
quite strict measures of organised crime restriction and
reduction, would be misleading. On the contrary, the duty of
the state as an organisation of the entire society to protect
the person and the state from the threat caused by crimes
obligates it to establish and unhesitatingly apply efficient
measures of restricting and reducing crime, thus organised
crime as well.
In this context it is to be noted that in the Constitution
one has consolidated the concept of a democratic state, where
the state not only seeks to protect and defend the person and
society from crimes and other dangerous violations of law, but
also is able to do this efficiently. Such a state must create
and efficiently apply a system of measures of restricting and
reducing crime, especially organised crime, which would
comprise the preventive measures adequate to the threat caused
by organised crime, as well. Otherwise, the duty, according to
the Constitution, of the state to ensure the security of each
human being and the entire society, as well as the legal order
based on the constitutional values, would not be implemented.
On the other hand, the entrenched in the Constitution
concept of a democratic state under the rule of law, which
seeks and is able to protect and defend the person and society
from crimes and other dangerous violations of law, may not
become a basis for violating human rights and freedoms, for
restricting them more than one needs in order to attain the
important to the society and legitimate objectives or for
denying by such restrictions the essence of human rights and
freedoms. Therefore, the preventive measures by which one
strives to restrict and reduce crime, thus organised crime as
well, must be established by the law in which one must provide
for the bases and objectives of the application of these
measures; a system of control over the imposing and applying
various preventive measures, comprising inter alia judicial
control and the right of a person to apply to court regarding
the violation of his rights, must be also consolidated by the
law.
III
1. It has been mentioned that the petitioners have doubts
as to whether the disputed articles (parts thereof) of the Law
are not in conflict with the constitutional principle of a
state under the rule of law, Articles 18 and 21, Paragraphs 1,
3 and 4 of Article 22, Articles 24 and 30, Paragraphs 1 and 4
of Article 31, Paragraphs 1 and 2 of Article 32, and the
provision that each human being may freely choose a job or
business of Paragraph 1 of Article 48 of the Constitution.
2. When construing the content of the constitutional
principle of a state under the rule of law, the Constitutional
Court in its rulings has held more than once that the
constitutional principle of a state under the rule of law is a
universal principle, on which the whole legal system of
Lithuania and the Constitution of the Republic of Lithuania
itself are based, that the constitutional principle of a state
under the rule of law is to be construed inseparably from the
striving for an open, just, and harmonious civil society and
state under the rule of law, which is declared in the Preamble
to the Constitution, and that the content of the aforementioned
constitutional principle reveals itself in various provisions
of the Constitution.
The essence of the constitutional principle of a state
under the rule of law is the rule of law. The constitutional
imperative of the rule of law means that freedom of power is
limited by law which must be obeyed by all the subjects of
legal relations, including law-making subjects as well. The
discretion of all the law-making subjects is limited by the
supreme law-the Constitution. All the legal acts and decisions
of all the state and municipal institutions and officials must
be in conformity and must not be in conflict with the
Constitution.
The constitutional principle of a state under the rule of
law is especially capacious, it comprises a range of various
inter-related imperatives. In its rulings the Constitutional
Court has held more than once that the principle of a state
under the rule of law consolidated in the Constitution, apart
from other requirements, also implies that human rights and
freedoms must be secured, that all institutions implementing
state power and other state institutions, municipal
institutions and all the officials must act while observing law
and in compliance with the Constitution and law, that the
Constitution has the supreme legal power and that all the legal
acts must be in conformity with the Constitution. In the
jurisprudence of the Constitutional Court one has stated many
times the imperative originating from the constitutional
principle of a state under the rule of law and other provisions
of the Constitution that a person, who believes that his rights
or freedoms are violated, enjoys an absolute right to a hearing
of his case by an independent and impartial court, which would
settle the dispute. The right of an individual to apply to
court implies also his right to a due judicial process and
constitutes a compulsory condition of implementation of
justice. It should be stressed that the constitutional right of
an individual to apply to court may not be artificially
restricted and its implementation may not be unreasonably
impeded.
The constitutional principle of a state under the rule of
law implies various requirements upon the legislator and other
law-making subjects, inter alia that the requirements
established in legal acts must be based on provisions of
general type (legal norms and principles), which may be applied
in regard to all the specified subjects of respective legal
relations; differentiated legal regulation must be based only
on the objective differences of the status of the subjects of
public relations, which are regulated by respective legal acts;
formulas of legal acts must be precise, consistency and
internal harmony of the legal system must be ensured; legal
regulation must be relatively stable so that the subjects of
legal relations could orient their behaviour in accordance with
the requirements of law; etc.
It is established in Article 28 of the Constitution that
in exercising rights and freedoms, the human being must observe
the Constitution and the laws of the Republic of Lithuania and
must not impair the rights and freedoms of other people. The
constitutional consolidation of human rights and freedoms does
not mean that their implementation may not be restricted. In
its rulings, the Constitutional Court has held more than once
that according to the Constitution it is allowed to restrict
implementation of human rights and freedoms if the following
conditions are followed: it is made by the law; the
restrictions are necessary in a democratic society in order to
ensure the rights and freedoms of other persons and values
entrenched in the Constitution, as well as the constitutionally
important objectives; the restrictions do not deny the nature
and essence of the rights and freedoms; the constitutional
principle of proportionality is followed.
Within the context of the constitutional justice case at
issue it is to be noted that when deciding whether the law by
which implementation of the rights and freedoms of a person are
restricted does not infringe the constitutional principle of
proportionality as one of the elements of the constitutional
principle of a state under the rule of law, it is necessary to
assess whether the measures established in the law are in
compliance with legitimate objectives that are important to
society, whether these measures are necessary in order to
attain the specified objectives and whether these measures do
not restrict the rights and freedoms of the person apparently
more than necessary in order to attain the said objectives.
The constitutional principle of a state under the rule of
law must be followed not only when creating, but also when
applying law. When applying law it is necessary inter alia to
observe such requirements originating from the constitutional
principle of a state under the rule of law as the equal rights
of persons, non-permission to punish twice for the same
violation of law, etc. It should be noted that jurisdictional
and other law-applying institutions must be impartial, they
must strive to find out the objective truth and to make
decisions based only on law (Constitutional Court rulings of 11
May 1999, 19 September 2000, 24 January 2003 and 13 December
2004). In the context of the constitutional justice case at
issue it is to be noted that jurisdictional and other
law-applying institutions, while applying the preventive
measures which are aimed at restricting and reducing organised
crime and which are linked with the restriction of
implementation of particular rights and freedoms of a person,
in every case must thoroughly assess a concrete situation,
investigate all the influential circumstances, find out if it
is possible to achieve the same objectives without restricting
implementation of human rights and freedoms, and having find
out that such restriction is necessary in order to attain the
said objectives of the application of the preventive measures,
to ensure that implementation of these rights and freedoms is
not restricted more than necessary in order to achieve the said
objectives. If this is not done, human rights and freedoms
could be violated.
3. It is established in Article 18 of the Constitution
that human rights and freedoms are innate.
The principle of recognition of the innate nature of human
rights and freedoms is consolidated in this article of the
Constitution. It is to be noted alongside that in this article
of the Constitution one does not specify particular innate
human rights and freedoms-they are entrenched in other articles
(parts thereof) of the Constitution.
The consolidated in the Constitution principle of the
recognition of the innate nature of human rights and freedoms
means that the human being enjoys the rights and freedoms which
are inseparable from his person and which may not be taken from
him, as well as that the person enjoys them ipso facto.
In its 9 December 1998 ruling, the Constitutional Court
stated: "The inborn nature of human rights means that they are
inseparable of an individual, that they are linked neither with
a territory nor a nation. An individual possesses his inborn
rights regardless of whether they are entrenched in legal acts
of the state or not. These rights are enjoyed by every
individual, and it means that they are enjoyed by the best and
worst people alike." The constitutional recognition of the
innate nature of human rights and freedoms implies that one may
not establish such a procedure of implementation of these
rights and freedoms, where their implementation would depend
upon the decisions of the state institutions, officials or
other persons which are not based on law.
The principle of recognition of the innate nature of human
rights and freedoms is revealed in various articles (parts
thereof) of the Constitution, which consolidate certain human
rights and freedoms, as well. This principle is also one of the
fundamentals of the constitutional order of the Republic of
Lithuania as a democratic state under the rule of law: one of
the major tasks of a democratic state under the rule of law is
to defend and protect these rights and freedoms. The
consolidation of human rights and freedoms in the Constitution
implies the duty of the legislator and other law-making
subjects, when issuing legal acts, which regulate the relations
of an individual and the state, to follow the priority of human
rights and freedoms, to establish sufficient measures of
protecting and defending human rights and freedoms, by no means
to violate these rights and freedoms and not to allow others to
violate them.
It should also be noted that one may not construe that,
purportedly, any entrenched in the Constitution human right or
freedom is innate only due to the fact that it is consolidated
in the Constitution. Violation of a certain human right or
freedom entrenched in the Constitution in itself does not mean
that the principle of recognition of the innate nature of human
rights and freedoms consolidated in Article 18 of the
Constitution is violated as well.
The human rights and freedoms entrenched in the
Constitution comprise a single and harmonious system. The
Constitution consolidates the concept of human rights and
freedoms, where the rights and freedoms of one person
cohabitate with the rights and freedoms of other persons. It
has been mentioned that when exercising his rights and
freedoms, the human being must observe the Constitution and the
laws of the Republic of Lithuania and must not impair the
rights and freedoms of other people (Article 28 of the
Constitution). In its 13 February 1997 ruling, the
Constitutional Court stated that between, first, rights and
freedoms of an individual and, second, interests of the society
conflicts often arise and sometimes even contradictions
originate, that such contradictions in a democratic state are
solved by harmonising different interests and striving not to
disturb their balance, and that one of the ways to harmonise
the interests is a restriction of implementation of human
rights and freedoms.
The principle of recognition of the innate nature of human
rights and freedoms does not deny the fact that implementation
of human rights and freedoms may be restricted. It was held in
this ruling of the Constitutional Court that according to the
Constitution implementation of the constitutional human rights
and freedoms may be restricted if the following conditions are
satisfied: it is done by the law; the restrictions are
necessary in a democratic society in order to secure the rights
and freedoms of other persons and values entrenched in the
Constitution, as well as the constitutionally important
objectives; the restrictions do not deny the nature and essence
of the rights and freedoms; the constitutional principle of
proportionality is followed.
4. Paragraph 1 of Article 22 of the Constitution provides:
"The private life of a human being shall be inviolable."
Paragraphs 3 and 4 of Article 22 of the Constitution
provide:
"Information concerning the private life of a person may
be collected only upon a justified court decision and only in
accordance with the law.
The law and the court shall protect everyone from
arbitrary or unlawful interference in his private and family
life, from encroachment upon his honour and dignity."
The private life of a human being is the personal life of
an individual, i.e. the way of life, marital status, dwelling
surroundings, relations with other persons, the views,
convictions, habits of the individual, his physical and
psychological state, his health, honour, dignity etc.
The quoted provisions of Article 22 of the Constitution
consolidate the right of a human being to privacy. In its
rulings of 21 October 1999, 8 May 2000, 19 September 2002, 23
October 2002 and 24 March 2003, the Constitutional Court held
that that this right encompasses private, family and house
life, physical and psychological inviolability, honour and
reputation, secrecy of personal facts and prohibition to
publicise received or acquired confidential information etc.
Arbitrary or unlawful interference in the private life of an
individual constitutes, alongside, an encroachment upon his
honour and dignity.
The provision "information concerning the private life of
a person may be collected only upon a justified court decision
and only in accordance with the law" of Paragraph 3 of Article
22 of the Constitution and the provision "the law and the court
shall protect everyone from arbitrary or unlawful interference
in his private and family life, from encroachment upon his
honour and dignity" of Paragraph 4 of Article 22 of the
Constitution are some of the most important guarantees of the
inviolability of the private life of a person. By the said
provisions the private life of the individual is protected
against unlawful interference by the state, other institutions,
their officers and other persons (Constitutional Court ruling
of 19 September 2002).
The human right to privacy is not an absolute one.
According to the Constitution it is allowed to restrict the
constitutional human right to privacy, if the general
requirements of restricting human rights and freedoms (it is
done by the law, the restrictions are necessary in a democratic
state in order to secure the rights and freedoms of other
persons and values entrenched in the Constitution, as well as
the constitutionally important objectives; the restrictions do
not deny the nature and essence of the rights and freedoms; the
constitutional principle of proportionality is followed) which
originate from the Constitution are followed.
It is worth noting that the legal concept of the private
life is linked with legitimate expectations of the private life
of the person. If a person commits criminal deeds or those
contrary to law, by his unlawful actions violates the interests
protected by law, inflicts damage on particular persons,
society or the state, he is aware or must and can be aware of
the fact that this will cause corresponding reaction of state
institutions and that for the breach of law being committed (or
already committed) the state may apply force measures and that
by such measures his behaviour will be influenced in a certain
way. It needs to be noted that a person who has committed a
criminal deed cannot and may not expect that the protection of
his private life will be the same as that of the persons
observing the laws (Constitutional Court ruling of 24 March
2003).
In the context of the constitutional justice case at issue
it is to be noted that, as already held in this Ruling of the
Constitutional Court, crimes are the violations of law by which
human rights and freedoms and other values protected and
defended by the Constitution are grossly violated. It is also
held in this Ruling of the Constitutional Court that organised
criminal groups (syndicates), the crimes committed by them or
the fact that they are going to commit such crimes, pose a
special threat to a person, his rights and freedoms, society
and the state.
It is to be noted also that in cases where the data,
received upon the procedure established by laws, about the
relations of persons with organised groups, criminal syndicates
or their members, constitute a sufficient basis for considering
that these persons may commit grave crimes, i.e. when
particular activity of the persons, their relations prove the
threat to constitutional values, inter alia human rights and
freedoms, constitutional order, the safety of society and the
state, as well as public order, one may establish by the law
the preventive measures which provide for a certain control
over the behaviour of such persons. The preventive measures
which are aimed at restricting and reducing organised crime, in
themselves, are not to be considered a constitutionally
unreasonable restriction of the human right to privacy,
however, only if they are established by the law, if they are
necessary in a democratic society in order to secure the rights
and freedoms of other persons and values entrenched in the
Constitution, if they do not deny the nature and essence of the
right of the person to privacy, as well as if they are
proportionate to the objective sought and which may not be
attained by any other means. While applying the aforementioned
preventive measures the jurisdictional and other law-applying
institutions must in every case assess the particular
situation, investigate all the important circumstances, and
find out, whether the same objectives may be attained without
interfering with the private life of a human being and family
life and without restricting the human right to privacy more
than it is needed in order to achieve the said important to the
society and constitutionally grounded objective.
In order to protect the person from arbitrary and unlawful
restriction of privacy, the preventive measures, which
interfere into implementation of the human right to private
life, may be imposed only on the bases established in the law,
only by following the procedure established by the law and only
by providing for the right of a person to appeal against the
imposed preventive measure in court.
5. Article 24 of the Constitution provides:
"The dwelling place of a human being shall be inviolable.
Without the consent of the resident, entry into his
dwelling place shall not be permitted otherwise than by a court
decision, or the procedure established by law when it is
necessary to guarantee public order, apprehend a criminal, save
the life, health, or property of a human being."
The principle of inviolability of the dwelling place of
the person is consolidated in Article 24 of the Constitution.
Other constitutional human rights and freedoms, i.e. the right
to privacy, right to ownership etc., as well as acquired
rights, are also secured by the constitutional guarantee of
inviolability of the dwelling place of the person, security of
the dwelling place of the human being from encroachment of
outsiders.
It is to be noted alongside that under the Constitution
the inviolability of the dwelling place of a human being is not
absolute to the extent that without the consent of the resident
entry into his dwelling place is permitted when it is necessary
to guarantee the values protected and defended by the
Constitution (Paragraph 2 of Article 24 of the Constitution).
For example, it is permitted to enter the dwelling place
without the consent of the resident by a court decision adopted
in order to ensure the values protected and defended by the
Constitution or by the procedure established by law when it is
necessary to guarantee public order, apprehend a criminal, save
the life of a human being, health, or property. The
aforementioned constitutional provisions imply the duty of the
legislator to establish by the law the procedure for entering
into the dwelling place without the consent of the resident.
When setting this procedure the legislator must regulate also
the way how a respective court decision should be executed, as
well as how the dwelling place is entered without the consent
of the resident in cases when it is necessary to guarantee
public order, to apprehend a criminal, save the life of a human
being, health, or property. When establishing such legal
regulation, the legislator must pay heed to the norms and
principles of the Constitution.
6. It is established in Paragraph 1 of Article 30 of the
Constitution: "The person whose constitutional rights or
freedoms are violated shall have the right to apply to court."
The constitutional principle of judicial defence is
universal (Constitutional Court rulings of 2 July 2002, 23
October 2002 and 17 August 2004). In a state under the rule of
law a possibility is ensured for everyone to protect his rights
in court from other persons, as well as unlawful actions of
state institutions or officials (Constitutional Court rulings
of 1 October 1997 and 17 August 2004). Under Paragraph 1 of
Article 30 of the Constitution, a person must be guaranteed the
right to an independent and impartial arbiter of the dispute,
who would in essence settle the legal dispute on the grounds of
the Constitution and laws; every person enjoys this right; the
person is guaranteed the defence of his violated rights in
court regardless of the legal status of the person; the
infringed rights and legitimate interests of persons must be
defended in court irrespective of whether or not they are
directly established in the Constitution; the rights of the
person must be defended not formally, but in reality and
effectively from unlawful actions of both private persons and
state institutions or officials (Constitutional Court rulings
of 1 October 1997, 8 May 2000, 12 July 2001, 17 August 2004 and
13 December 2004). The guarantee of the judicial protection of
the rights and freedoms of persons is a guarantee of procedural
nature, an essential element of the constitutional institute of
rights and freedoms of persons, a necessary condition of
implementation of justice, an inseparable element of the
content of the constitutional principle of a state under the
rule of law (Constitutional Court ruling of 30 June 2000).
The right to apply to court is an absolute one
(Constitutional Court rulings of 30 June 2000 and 17 August
2004). It is not permitted to restrict nor deny this right.
Under the Constitution, the legislator has a duty to establish
legal regulation so that it could be possible to settle all
disputes concerning violations of rights and freedoms of
persons in court. Legal acts can also establish a procedure of
out-of-court settlement of disputes. However, it is not
permitted to establish any such legal regulation which would
deny the right of a person, who thinks that his rights or
freedoms have been violated, to defend his rights or freedoms
in court (Constitutional Court rulings of 2 July 2002, 4 March
2003 and 17 August 2004). The legal regulation consolidating
the procedure of implementation of the right of a person to
judicial defence of his rights and freedoms must be in
compliance with the requirement of clarity which emerges from
the constitutional principle of a state under the rule of law.
In order to provide an opportunity for a person to implement in
reality his right to apply to court regarding violation of his
rights and freedoms, the legislator must clearly establish in
laws in what way and to what court the person may apply.
7. It is established in Paragraph 1 of Article 31 of the
Constitution: "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 presumption of innocence consolidated in Paragraph 1
of Article 31 of the Constitution is one of the most important
guarantees of implementation of justice in a democratic state.
It is a fundamental principle of implementation of justice in
the process of criminal cases, an important guarantee of human
rights and freedoms. A person is considered having not
committed a crime until his guilt is proven upon the procedure
established by the law and recognised guilty by an effective
court judgement. The presumption of innocence is inseparably
linked with the respect to and protection of other
constitutional human rights and freedoms as well as acquired
rights. It is especially important that state institutions and
officials follow the presumption of innocence. It should be
noted that public persons should in general restrain from
referring to a person as a criminal until the guilt of the
person in committing the crime is proven upon the procedure
established by the law and recognised guilty by an effective
court judgement. Otherwise, human honour and dignity could
become violated and human rights and freedoms could be
undermined.
The presumption of innocence consolidated in Paragraph 1
of Article 31 of the Constitution may not be construed only
linguistically and as the one which is linked only with
administration of justice in the process of criminal cases. The
consolidated in Paragraph 1 of Article 31 of the Constitution
presumption of innocence, when evaluated in the context of
other provisions of the Constitution, has a broader content, it
may not be linked with the criminal legal relations only.
8. Paragraph 4 of Article 31 of the Constitution provides:
"Punishment may be imposed or applied only on the grounds
established in law."
When construing the content of Paragraph 4 of Article 31
of the Constitution, according to which punishment may be
imposed and applied only on the grounds established in law, the
Constitutional Court in its 10 June 2003 ruling stated that
this paragraph means inter alia that the legislator has the
duty to establish by law as to what deeds are criminal ones, as
well as criminal liability for such deeds. Upon establishing as
to what deeds are criminal ones, as well as criminal liability
for them, the legislator is bound by the principles of natural
justice and proportionality established by the Constitution as
well as other requirements of a state under the rule of law.
According to the Constitution, in the Republic of Lithuania
justice is administered solely by courts (Paragraph 1 of
Article 109 of the Constitution). Provisions of Paragraph 4 of
Article 31 of the Constitution imply that only the court enjoys
an exceptional right, upon the procedure established in law, to
decide the issue of guilt (innocence) of a person and to impose
the punishment established in the law.
In the context of the constitutional justice case at issue
it is to be noted that, as already held in this Ruling of the
Constitutional Court, not only repressive but also preventive
measures are applied when restricting and reducing crime. It
has been mentioned that although the final purpose of the
repressive and preventive measures of restricting and reducing
crime is the same-they are aimed at eliminating crime-they have
objective differences, the bases of their application,
directions of effect, direct purpose, content, as well as legal
consequences of their application are different. By repressive
measures one reacts to the already committed crime and seeks to
deter the persons who have already committed crimes and other
persons from new criminal attempts, while by preventive
measures one strives to prevent crimes, where the risk of their
commission is greater in case no such measures are taken. It
has been mentioned also that a punishment may be imposed upon
the person who committed the crime, meanwhile preventive
measures do not constitute a punishment, their purpose is to
prevent a person from committing a crime and thus to protect
the public interest as well.
9. Paragraphs 1 and 2 of Article 32 of the Constitution
provide:
"A citizen may move and choose his place of residence in
Lithuania freely, and may leave Lithuania freely.
The said rights may not be restricted other than by law
and if it is necessary to protect the security of the State,
the health of the people, as well as to administer justice."
The citizen's freedom of movement is an important element
of the constitutional status of a member of the civil
community. It is to be noted that the rights and freedoms
entrenched in Paragraph 1 of Article 32 of the Constitution are
guaranteed both to citizens of the Republic of Lithuania and
other persons, who according to Lithuanian law and
international treaties of the Republic of Lithuania reside in
Lithuania, in case their legal status does not imply other
implementation of these rights and freedoms.
The provisions of Article 32 of the Constitution mean that
only the citizen himself has the right to decide, in which
place of the territory of the Republic of Lithuania he stays,
when to leave this place and move to another place, to finally
decide as to what permanent or temporary place of residence to
choose, as well as to decide whether to stay in Lithuania or
leave it, as well as the right to choose himself the time of
departure. The latter right implies also the freedom of the
citizen to choose any legal manner of departure. It should be
noted that according to the Constitution it is not permitted to
establish a procedure for implementation of these rights and
freedoms so that the citizen has to apply for a permission of
any state institution to implement the freedom of movement
which belongs to him, as well as the right to choose a place of
residence in Lithuania, the right to freely leave Lithuania, or
so that these rights and freedoms are unreasonably restricted.
It is also worth noticing that the rights and freedoms
entrenched in Article 32 of the Constitution create
preconditions for implementing certain other human rights and
freedoms: freedom to freely choose a job and business, the
right to ownership, the right to education etc.
The entrenched in Article 32 of the Constitution right of
movement, the right to choose a place of residence in
Lithuania, as well as the right to leave Lithuania freely are
not absolute ones. Under Paragraph 2 of Article 32 of the
Constitution they may be restricted, however, this may be done
only by the law and only when it is necessary in order to
protect security of the state and health of people; they may
also be restricted if it is necessary while administering
justice.
In the context of the constitutional justice case at issue
it is to be noted that, as already held in this Ruling of the
Constitutional Court, crimes are the violations of law by which
human rights and freedoms and other values protected and
defended by the Constitution are grossly violated. It is also
held in this ruling of the Constitutional Court that organised
criminal groups (syndicates), the crimes committed by them or
the fact that they are going to commit such crimes, pose a
special threat to a person, his rights and freedoms, society
and the state. In cases where the data, received upon the
procedure established by laws, about the relations of persons
with organised groups, criminal syndicates or their members,
constitute a sufficient basis for considering that these
persons may commit the most dangerous crimes, i.e. when a
certain activity of the persons, their relations prove the
threat to the constitutional values, inter alia human rights
and freedoms, constitutional order, the safety of society and
the state, as well as public order, one may establish by the
law the preventive measures which provide for certain control
over the behaviour of such persons. The preventive measures
which are aimed at restricting and reducing organised crime, in
themselves, are not to be considered a constitutionally
unreasonable restriction of freedom of movement of the person,
as well as the right to freely choose the place of residence in
Lithuania and the right to leave Lithuania freely, however,
these provisions are applicable only if they are established by
the law, if they are necessary in a democratic society in order
to protect the values defended and protected by the
Constitution, if they do not deny the nature and essence of the
freedom of movement of the person as well as the right to
freely choose the place of residence in Lithuania and the right
to leave Lithuania freely, and if they are proportionate to the
objective sought which may not be achieved in any other manner.
The jurisdictional and other law-applying institutions, while
applying the aforementioned preventive measures, in every case
must thoroughly assess the specific situation, investigate all
the influential circumstances, find out if it is possible to
achieve the same objectives without interfering into the
freedom of movement of the person, as well as the right to
freely choose the place of residence in Lithuania and the right
to leave Lithuania freely and without restricting the freedom
of movement of the person, as well as the right to freely
choose the place of residence in Lithuania and the right to
leave Lithuania freely more than it is needed in order to
achieve the said important to society and constitutionally
reasonable objective.
10. It is consolidated in Paragraph 1 of Article 48 of the
Constitution inter alia that each human being may freely choose
a job and business.
This freedom is one of the essential conditions of
ensuring the satisfaction of vital needs of a human being and
his proper status in society. In its 25 November 2002 and 4
July 2003 rulings, the Constitutional Court noted that the
constitutional freedom of each human being to freely choose a
job and business implies the duty of the legislator to create
legal preconditions for implementation of this freedom. While
creating them, the legislator is empowered, while taking
account of the nature of the job and business, to establish the
conditions of implementation of the right to freely choose a
job and business. While doing this, he must pay heed to the
Constitution.
In the context of the constitutional justice case at issue
it is to be noted that it is not permitted to restrict the
human right to freely choose a job and business by preventive
measures aimed at preventing organised crime.
11. Paragraph 2 of Article 21 of the Constitution
provides: "The dignity of the human being shall be protected by
law."
Dignity is an integral characteristic of a human being as
the greatest social value. Each member of society enjoys innate
dignity. In its 9 December 1998 ruling, the Constitutional
Court held that the inborn human rights are inborn
opportunities of an individual which ensure his human dignity
in the spheres of social life. It is to be noted that dignity
is characteristic of every human being, irrespective of how he
himself or other persons assess him.
Paragraph 2 of Article 21 of the Constitution is to be
construed within the context of Paragraph 3 of this article as
well. It is established in Paragraph 3 of Article 21 of the
Constitution inter alia that it is prohibited to degrade the
dignity of the human being. Thus, in the Constitution one has
established the duty of the state to ensure the protection and
defence of human dignity. The fact that the legislator, while
regulating relations linked with implementation of human rights
and freedoms, must guarantee their proper protection
constitutes one of the conditions of ensuring the human dignity
as the constitutional value.
The duty of the state to ensure the protection and defence
of human dignity means also that state institutions and
officials may not unreasonably restrict human rights and
freedoms, treat the human being solely as a subject belonging
to particular social, economic, professional or other category.
In every case one must consider the human being as a free
personality, whose human dignity is to be respected. State
institutions and officials have a duty to respect human dignity
as a special value. Violations of human rights and freedoms can
infringe human dignity as well.
IV
1. The human rights and freedoms indicated in the
petitions of the petitioners are consolidated in international
legal acts.
In Article 5 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (hereinafter also referred to
as the Convention) the right of everyone to liberty and
security of person is entrenched, in Article 6 the entitlement
of everyone to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by
law is consolidated, Article 8 provides that everyone has the
right to respect for his private and family life, his home and
his correspondence, and that there shall be no interference by
a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a
democratic society in the interests of national security,
public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others.
Article 2 of Protocol No. 4 securing certain rights and
freedoms other than those included in the Convention for the
Protection of Human Rights and Fundamental Freedoms and the
First Protocol thereto provides that everyone lawfully within
the territory of a State shall, within that territory, have the
right to liberty of movement and freedom to choose his
residence, that everyone shall be free to leave any country,
including his own, that no restrictions shall be placed on the
exercise of these rights other than such as are in accordance
with law and are necessary in a democratic society in the
interests of national security or public safety, for the
maintenance of ordre public, for the prevention of crime, for
the protection of health or morals, or for the protection of
the rights and freedoms of others, and that the rights set
forth may also be subject, in particular areas, to restrictions
imposed in accordance with law and justified by the public
interest in a democratic society.
2. The Convention also provides for other grounds of
restriction of the rights and fundamental freedoms of the
person. For instance, Article 8 thereof provides that that
there shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for
the protection of health or morals, or for the protection of
the rights and freedoms of others.
3. In this context the jurisprudence of the European Court
of Human Rights is to be mentioned in the cases in which one
was considering application of preventive measures against
organised crime in various states inter alia in the aspect of
its compliance with the Convention.
The Constitutional Court has held in its rulings more than
once that the jurisprudence of the European Court of Human
Rights as a source of construction of law is also important to
the construction and application of Lithuanian law.
The European Court of Human Rights noted in the case
Labita v. Italy (European Court of Human Rights, judgment in
the case Labita v. Italy of 6 April 2000, No. 26772/95) that it
is lawful to apply preventive measures, including special
supervision, against persons who are suspected of belonging to
mafia, even before adoption of the judgement, since the purpose
of these measures is prevention of crimes. In this case the
European Court of Human Rights also noted that suspicion is
regarded as reasonable if there are certain facts or data which
can convince an objective observer that the person-participant
of the case-could commit a violation of law.
The European Court of Human Rights recognised in the case
Raimondo v. Italy (European Court of Human Rights, judgment in
the case Labita v. Italy of 22 February 1994, Series A 281-A)
that the special supervision by the police did not deprive the
person of freedom in the sense of Paragraph 1 of Article 5 of
the Convention and that restrictions on the freedom of movement
due to the special supervision did not violate Article 2 of
Protocol No. 4 to the Convention. The European Court of Human
Rights also recognised in this case that it is lawful to apply
preventive measures, including special supervision, against
persons who are suspected of belonging to mafia, since the
purpose of these measures is prevention of crimes; and it is
not necessary that upon acquittal of these persons the grounds
for application of such special measures would disappear, as
the evidence collected during the court proceedings, even if
insufficient for adoption of a judgement of conviction, can
confirm reasonable fears that these persons may commit crimes
in the future.
While investigating whether the private life of a person
had been lawfully restricted, the European Court of Human
Rights held in the case Malone v. United Kingdom (European
Court of Human Rights, judgment in the case Malone v. United
Kingdom of 2 August 1984, Series A No. 82) that interference
with the private life of a person must be grounded on
provisions of domestic law, however, domestic law must be in
line with the principle of the rule of law in a democratic
state, and that there must be a necessity for such interference
by the state. In the case Olsson v. Sweden (European Court of
Human Rights, decision in the Olsson Case of 25 June 1987,
Series A No. 130) the European Court of Human Rights noted that
according to the established practice of the Court, the term
"necessity" means that the interference is in line with the
existing social need and is proportionate to the objective
sought.
4. Prevention of organised crime is also provided for in
other international legal acts. On 13 December 2000, in
Palermo, the authorised persons of governments of member states
of the United Nations signed the United Nations Convention
against Transnational Organised Crime. The Seimas ratified this
convention by the 19 March 2002 Republic of Lithuania Law "On
Ratifying the United Nations Convention against Transnational
Organised Crime". It is declared in this convention that its
purpose is to promote cooperation to prevent and combat
transnational organised crime more effectively. This convention
applies to the prevention, investigation and prosecution of
serious crime as defined in Article 2 of this convention where
the offence is transnational in nature and involves an
organised criminal group. This convention also provides for
prevention of transnational organised crime, too. Under Article
31 of the said convention, State Parties shall endeavour to
develop and evaluate national projects and to establish and
promote best practices and policies aimed at the prevention of
transnational organised crime; State parties inter alia shall,
through appropriate legislative, administrative or other
measures, endeavour to reduce existing or future opportunities
for organised criminal groups to participate in lawful markets
with proceeds of crime, to prevent the misuse by organised
crime groups of tender procedures conducted by public
authorities and of subsidies and licences granted by public
authorities for commercial activity, and to prevent the misuse
of legal persons by organised criminal groups. By the said
convention, the State Parties also undertook to evaluate
periodically existing relevant legal instruments and
administrative practices with a view to detecting their
vulnerability to misuse by organised criminal groups and to
endeavour to promote public awareness regarding the existence,
causes and gravity of and the threat posed by transnational
organised crime.
5. The Council of the European Union, having regard to the
threat of international organised crime and seeking to
strengthen the cooperation between Member States' law
enforcement agencies, on 29 November 1996 adopted the Joint
Action on the basis of Article K.3 of the Treaty on European
Union, concerning the creation and maintenance of a directory
of specialised competencies, skills and expertise in the fight
against international organised crime, in order to facilitate
law enforcement cooperation between the Member States of the
European Union (96/747/JHA). By Article 1 of this legal act the
Europol Drugs Unit was commissioned to establish, maintain and
disseminate a directory of specialised competencies, skills and
expertise for the fight against international crime. Under this
legal act, Member States shall submit their contributions to be
entered in the directory.
On 20 December 1996, the Council of the European Union
adopted the Resolution on individuals who cooperate with the
judicial process in the fight against international organised
crime (97/C 10/01), by which it calls on Member States to adopt
appropriate measures to encourage individuals who participate
or have participated in an association of criminals or other
criminal organisation of any kind, or in organised crime
offences, to cooperate with the judicial process.
On 5 December 1997, the Council of the European Union
adopted the Joint Action on the basis of Article K.3 of the
Treaty on European Union, establishing a mechanism for
evaluating the application and implementation at national level
of international undertakings in the fight against organised
crime (97/827/JHA). This legal act provides for establishment
of a mechanism for peer evaluation of the application and
implementation at national level of European Union and other
international acts and instruments in criminal matters, of the
resulting legislation and practices at national level and of
international cooperation actions in the fight against
organised crime in the Member States.
On 8 December 2000, the Council of the European Union
adopted the Decision on the signing, on behalf of the European
Community, of the United Nations Convention against
transnational organised crime and its Protocols on combating
trafficking in persons, especially women and children, and the
smuggling of migrants by land, air and sea (2001/87/EC) whereby
it authorised to designate the persons who are empowered, on
behalf of the Community, to sign the said convention. On behalf
of the European Community, this convention was signed on 12
December 2000.
V
1. Article 1 (wording of 26 June 2001) of the Law on the
Restraint of Organised Crime consolidates that this law
establishes the measures of restraint of organised crime, the
principles and bases of their application as well as the
procedure of their imposition. Under Article 2 of the Law
(wording of 26 June 26), the preventive measures are applied
while observing the principles of lawfulness, protection of the
rights and freedoms of the person, and those of humaneness, as
well as the principle of coordination of persuasion with
compulsion.
It has been mentioned that Article 3 (wording of 26 June
2001) of the Law provides that if the bases provided for in
Article 4 of the Law exist, one may apply preventive measures:
official warning, court injunctions. Article 4 (wording of 26
June 2001) of the Law defined the bases for application of
preventive measures as follows: "The preventive measures
provided for in Article 3 of this Law may be applied in regard
to the persons, if the data, received upon the procedure
established by laws, about the relations of these persons with
organised groups, criminal syndicates or their members,
constitute a sufficient basis for considering that these
persons may commit grave crimes, and the preventive measures
are to be applied in order to guarantee the safety of society
and the state, to ensure public order and the rights and
freedoms of persons."
According to Article 5 (wording of 26 June 2001) of the
Law, the official warning is a written demand by an authorised
officer requesting that a person should necessarily abide by
the Constitution and laws, should not restrict the rights and
freedoms of other people, should not commit violations of law,
also setting forth the possible legal consequences.
The procedure and consequences of the official warning are
provided for in Article 6 (wording of 26 June 2001) of the Law.
Under the said article, the head of a police establishment or
the police officer acting as his deputy, while taking account
of the data specified in Article 4 of the Law, authorises a
police officer to issue an official warning to the person. When
implementing the decision regarding application of the official
warning, the authorised police officer shall have the right to
summon the person to the police establishment. The decision on
the application of the official warning to the person is
formalised by a written resolution. The resolution is confirmed
by the head of the police establishment. The official warning
is presented to the person so that he familiarise with it and
sign it. The person must be handed in an official copy of the
warning. If the person to whom the official warning is applied
does not follow the requirements of this warning, the head of
the police establishment or the police officer acting as his
deputy may authorise a police officer to decide whether to
request that the court impose court injunctions against this
person.
Article 7 (wording of 26 June 2001) of the Law provides
for the procedure for imposition of court injunctions. Under
the said article of the Law, the authorised police officer,
while executing the order of the head of the police
establishment or the police officer who acts as his deputy
under Paragraph 6 of Article 6 of the Law, must summon the
person to the police establishment and question the person as
to the circumstances due to which it is possible to apply to
court and impose court injunctions. The authorised police
officer, after he has questioned the person, informs the head
of the police establishment or the police officer who acts as
his deputy about the result of the questioning. The head of the
police establishment or the police officer who acts as his
deputy may, while taking account of the results of the
questioning, authorise the police officer to draw up a reasoned
proposal to the court to impose court injunctions. The proposal
regarding imposition of court injunctions to the person shall
specify: the surname and position of the police officer who has
drawn up the reasoned proposal; the name and surname of the
person to whom court injunctions are proposed to be imposed, as
well as his place of residence, character of work (occupation),
the main source income, marital status; the reasoning upon
which the necessity to apply court injunctions is grounded;
types, duration and conditions of the proposed injunctions; the
documents about dangerous character of the activity of the
person and other documents of importance in deciding the issue
of imposition of court injunctions are attached to the
proposal. The reasoned proposal to impose court injunctions is
considered and decided by one judge of a local or regional
court in the presence of the person in regard of whom the
imposition of court injunctions is proposed and the authorised
police officer. In the course of decision of the issue of
imposition of court injunctions in court an advocate may
participate. The court considers the received proposal to
impose court injunctions on the person within 48 hours. After
he has heard the explanations and familiarised with the
material, the judge either adopts a decision to impose court
injunctions on the person, or refuses to impose them in a
reasoned manner. The person, upon whom court injunctions are
proposed, has the right to give explanations to the judge and
to familiarise with the material submitted to the court. The
person, upon whom court injunctions are proposed, has the right
to familiarise, under procedure established in the Republic of
Lithuania Law on State and Official Secrets and other legal
acts, with information classified under procedure established
in laws, as well as with the material the revelation of which
is limited. Court injunctions may be imposed for the period of
1-6 months. If there are grounds, the imposed court injunctions
may be prolonged once for additional 3 months. The issue of
prolongation is decided and decisions on imposition or
non-imposition of injunctions are appealed against under
procedure established in Article 7 (wording of 26 June 2001) of
the Law. The person who was imposed court injunctions, either
himself or though his advocate, as well as the authorised
police officer, has the right to appeal against the decision of
the judge in a higher court: that of the judge of a local
court-in the regional court, that of the judge of a regional
court-in the Court of Appeal of Lithuania. Complaints are filed
within 3 days of the adoption of the decision by the judge.
Having appealed against the court decision to impose court
injunctions, the person must abide by the injunctions until the
adoption of the final decision. The decision of a higher court
must be adopted within 7 days of the reception of the
complaint. The decision of the higher court is final and not
subject to appeal.
Article 8 (wording of 26 June 2001) of the Law provides
that the court may issue one or several injunctions against a
person: not to maintain any contact with the persons
specifically named, directly, through other persons, by
technical or other means; not to change the permanent place of
residence without a consent by the authorised supervising
police officer and to remain at the place of residence at the
appointed time; not to frequent the places indicated. In
issuing court injunctions, the court shall establish the length
of injunctions. Article 9 (wording of 26 June 2001) of the Law
provides that police establishments shall control
implementation of the injunctions issued by the court. Under
Article 10 (wording of 26 June 2001) of the Law, a person who
has violated the injunctions established by the court, shall be
held liable in accordance with the procedure established by
laws.
2. It has been mentioned that on 3 April 2003 the Seimas
adopted the Law on Amending Article 4 of the Law on the
Restraint of Organised Crime in Article 1 whereof it was
established that in Article 4 of the Law after the word "grave"
the words "or very grave" are entered and this article was set
forth as follows: "The preventive measures provided for in
Article 3 of this Law may be applied in regard to the persons,
if the data, received upon the procedure established by laws,
about the relations of these persons with organised groups,
criminal syndicates or their members, constitute a sufficient
basis for considering that these persons may commit grave or
very grave crimes, and the preventive measures are to be
applied in order to guarantee the safety of society and the
state, to ensure public order and the rights and freedoms of
persons."
It was established in Article 2 of the Law on Amending
Article 4 of the Law on the Restraint of Organised Crime that
this law shall go into effect together with the CC and the CCP.
It needs to be noted that this amendment to Article 4 of the
Law is related with the entry into effect of the new CC which
also consolidated the institute of very grave crimes.
It has been mentioned that Article 4 (wording of 26 June
2001) of the Law on the Restraint of Organised Crime used to
provide: "The preventive measures provided for in Article 3 of
this Law may be applied in regard to the persons, if the data,
received upon the procedure established by laws, about the
relations of these persons with organised groups, criminal
syndicates or their members, constitute a sufficient basis for
considering that these persons may commit grave crimes, and the
preventive measures are to be applied in order to guarantee the
safety of society and the state, to ensure public order and the
rights and freedoms of persons."
After comparing the provisions of the wordings of 26 June
2001 and 3 April 2003 of Article 4 of the Law, it is clear that
virtually the same legal regulation is consolidated in them,
under which the preventive measures provided for in Article 3
(wording of 26 June 2001) of the Law may inter alia be applied
in regard to persons if the data, received upon the procedure
established by laws, about the relations of these persons with
organised groups, criminal syndicates or their members,
constitute a sufficient basis for considering that these
persons may commit the most dangerous crimes, which were named
as grave crimes in the wording of 26 June 2001 of Article 4 of
the Law and as grave or very grave crimes in the wording of 3
April 2003 of Article 4 of the Law.
VI
On the compliance of Article 3 (wording of 26 June 2001),
Article 4 (wordings of 26 June 2001 and 3 April 2003) of the
Law on the Restraint of Organised Crime with Article 18,
Paragraphs 1, 3, and 4 of Article 22, Article 24, Paragraphs 1
and 4 of Article 31, Paragraphs 1 and 2 of Article 32,
Paragraph 1 of Article 48 of the Constitution and the
constitutional principle of a state under the rule of law, on
the compliance of Paragraph 3 of Article 6 (wording of 26 June
2001) of the Law with Paragraph 2 of Article 21, Paragraph 4 of
Article 22 and Paragraph 1 of Article 30 of the Constitution
and on the compliance of Paragraph 1 of Article 8 (wording of
26 June 2001) of the Law with Article 18, Paragraphs 1, 3, and
4 of Article 24, Paragraphs 1 and 4 of Article 31, Paragraphs 1
and 2 of Article 32, Paragraph 1 of Article 48 of the
Constitution and the constitutional principle of a state under
the rule of law.
1. Article 3 (wording of 26 June 2001) of the Law on the
Restraint of Organised Crime provides:
"If the bases provided for in Article 4 of this Law exist,
one may apply preventive measures:
1) official warning;
2) court injunctions."
Article 4 (wording of 26 June 2001) of the Law on the
Restraint of Organised Crime used to provide: "The preventive
measures provided for in Article 3 of this Law may be applied
in regard to the persons, if the data, received upon the
procedure established by laws, about the relations of these
persons with organised groups, criminal syndicates or their
members, constitute a sufficient basis for considering that
these persons may commit grave crimes, and the preventive
measures are to be applied in order to guarantee the safety of
society and the state, to ensure public order and the rights
and freedoms of persons."
2. In Article 3 (wording of 26 June 2001) of the Law the
preventive measures are specified, which may be applied under
the Law: they are an official warning and court injunctions.
The content of the preventive measures-official warning and
court injunctions-themselves is not revealed in Article 3
(wording of 26 June 2001) of the Law.
It is also established in this article of the Law that the
said preventive measures may be applied only if the bases
provided for in Article 4 of the Law exist. This formula of
Article 3 (wording of 26 June 2001) of the Law is of directing
character, therefore, if one is willing to assess the
compliance of the disputed provisions of Article 3 (wording of
26 June 2001) of the Law with the Constitution, it is
necessary, first of all, to assess the constitutionality of the
bases of application of the preventive measures established in
Article 4 (wording of 26 June 2001) of the Law.
3. The following provisions are consolidated in Article 4
(wording of 26 June 2001) of the Law:
1) the preventive measures provided for in Article 3 of
the Law may be applied in regard to the person;
2) the preventive measures provided for in Article 3 of
the Law may be applied in regard to the person only if there
are these bases for application of the preventive measures:
a) data must be received about the relations of these
persons with organised groups, criminal syndicates or their
members;
b) the said data must be received upon the procedure
established by laws;
c) the said data must constitute a sufficient basis for
considering that these persons may commit grave crimes;
3) the preventive measures provided for in Article 3 of
the Law may be applied when one is seeking to attain these
objectives: to guarantee the safety of society and the state
and to ensure public order as well as the rights and freedoms
of persons.
The said provisions of Article 4 (wording of 26 June 2001)
of the Law constitute a single whole: the preventive measures
established in Article 3 of the Law may be applied in regard of
the person only in case there are the bases established in
Article 4 (wording of 26 June 2001) of the Law and only when
one seeks to attain the objectives provided for in this
article.
4. As mentioned, organised criminal groups (syndicates),
the crimes committed by them or the fact that they are going to
commit such crimes pose a special threat to a person, his
rights and freedoms, society and the state. It has been noted
in this Ruling of the Constitutional Court that the majority of
especially dangerous crimes, for example, terrorism,
trafficking in people, criminal trade in weapons and drugs,
money laundering, financial crimes and crimes related to
corruption, are often committed namely by organised criminal
groups (syndicates). If organised crime were not prevented and
organised criminal groups (syndicates) were not prosecuted, the
constitutional values, inter alia the rights and freedoms of
the person, the legal bases of the life of society entrenched
in the Constitution, the state as an organisation of the entire
society and the entire society would be under the threat. It
was also held in this Ruling of the Constitutional Court that
in the Constitution one has consolidated the concept of a
democratic state, where the state not only seeks to protect and
defend the person and society from crimes and other dangerous
violations of law, but also is able to do this efficiently.
Such a state must create and efficiently apply a system of
measures of restricting and reducing crime, especially
organised crime, which would comprise preventive measures
adequate to the threat caused by organised crime, as well.
5. It needs to be noted that the preventive measures are
defined in Article 4 (wording of 26 June 2001) of the Law as
"the preventive measures provided for in Article 3 of this
Law". This article of the Law does not reveal as to what
measures they are, what their content is and who applies them
and in what manner. It also needs to be noted that the
preventive measures listed in Article 3 (wording of 26 June
2001) of the Law, their content, the subjects that apply these
measures, and the procedure of application thereof are
established in other articles of the Law.
In Article 4 (wording of 26 June 2001) of the Law the
bases for the application of the preventive measures were
established. As mentioned, the preventive measures specified in
Article 3 (wording of 26 June 2001) of the Law could be applied
in regard to persons only in case there were all bases for
application of these measures listed in Article 4 (wording of
26 June 2001) of the Law, i.e. if one received data about the
relations of these persons with organised groups, criminal
syndicates or their members, if these data were received upon
the procedure established by laws, if these data constituted a
sufficient basis for considering that these persons may commit
grave crimes, and when one had to apply these measures while
seeking to attain these objectives: to guarantee the safety of
society and the state, to ensure public order and the rights
and freedoms of persons.
While assessing these provisions of Article 4 (wording of
26 June 2001) of the Law, it needs to be noted that, according
to the legal regulation established therein, first of all, the
data specified in Article 4 (wording of 26 June 2001) of the
Law had to be received not in any manner but only under the
procedure established by the law; second, the said data had to
testify the existence of the relations of the persons with
organised groups, criminal syndicates or their members, i.e.
these data had to reveal the link of the persons with organised
groups, criminal syndicates or their members exactly as with
organised groups, criminal syndicates or their members; third,
the formula "if the data <...> about the relations of these
persons with organised groups, criminal syndicates or their
members, constitute a sufficient basis for considering that
these persons may commit grave crimes" of Article 4 (wording of
26 June 2001) of the Law means that one of the necessary bases
in order to apply the preventive measures established in the
Law in regard of the person must be the data reflecting such
actions of the said persons, which testify not only the fact
that these persons maintain relations with organised groups,
criminal syndicates or their members, but also the fact that
these relations reasonably permit to assume that these persons
may commit grave crimes. It also needs to be noted that the
preventive measures provided for could be applied only when one
was seeking to attain these objectives: to guarantee the safety
of society and the state, to ensure public order and the rights
and freedoms of persons, i.e. when one was seeking to defend
respective constitutional values.
In this context one is to hold that the statement of the
petitioners that, purportedly, the basis of the application of
the preventive measures, according to Article 4 (wording of 26
June 2001) of the Law, could be a mere suspicion that the
person maintains relations with organised groups, criminal
syndicates or their members is groundless.
6. Thus, after Article 4 (wording of 26 June 2001) of the
Law established the bases and objectives of the preventive
measures provided for in Article 3 (wording of 26 June 2001) of
the Law, one was seeking to defend and protect constitutional
values.
7. It has been mentioned that in Article 4 (wording of 3
April 2003) of the Law virtually the same legal regulation was
consolidated as in Article 4 (wording of 26 June 2001) of the
Law. Having held in this Ruling of the Constitutional Court
that after Article 4 (wording of 26 June 2001) of the Law
established the bases and objectives of the preventive measures
provided for in Article 3 (wording of 26 June 2001) of the Law,
one was seeking to defend and protect constitutional values,
one is also to hold that after Article 4 (wording of 3 April
2003) of the Law established the bases and objectives of the
preventive measures provided for in Article 3 (wording of 26
June 2001) of the Law, one is seeking to defend and protect
constitutional values, too.
8. Alongside, it needs to be emphasised that in the course
of the application of the preventive measures provided for in
Article 3 (wording of 26 June 2001) of the Law, one must verify
whether there are all bases of their application established in
Article 4 (wordings of 26 June 2001 and 3 April 2003) of the
Law, i.e. whether there are data received upon the procedure
established by laws about the relations of the persons to whom
the said preventive measures are applied with organised groups,
criminal syndicates or their members, whether such data testify
the link of the persons with organised groups, criminal
syndicates or their members exactly as with organised groups,
criminal syndicates or their members, whether these relations
reasonably permit to assume that these persons may commit grave
crimes (or very grave crimes). Also, in every case one must
ascertain whether when one seeks to guarantee the safety of
society and the state and ensure public order and the rights
and freedoms of persons, the precisely chosen preventive
measures are necessary.
While construing the legal regulation established in
Article 4 (wordings of 26 June 2001 and 3 April 2003) in the
context of the constitutional principle of a state under the
rule of law, one is to emphasise especially that in the course
of application of the preventive measures provided for in
Article 3 (wording of 26 June 2001) of the Law, one must pay
heed to the constitutional principle of proportionality, i.e.
that one must choose such preventive measures and that they
must be applied only to such an extent that is necessary in
seeking to attain the objectives that are important and
legitimate to society.
Thus, the subjects commissioned to apply the preventive
measures provided for in Article 3 (wording of 26 June 2001) of
the Law can apply them only in the presence of all the
aforementioned bases for application of these measures, and
only when one seeks to attain constitutionally important
objectives-guaranteeing the safety of society and the state and
ensure public order and the rights and freedoms of persons, and
only when one pays heed to the constitutional principle of
proportionality.
9. As mentioned, it is established in Article 3 (wording
of 26 June 2001) of the Law that if the bases provided for in
Article 4 of the Law exist, one may apply preventive measures:
official warning, court injunctions.
While assessing the compliance of the legal regulation
established in Article 3 (wording of 26 June 2001) of the Law
with the Constitution, one is to note that, as held in this
Ruling of the Constitutional Court, in the Constitution one has
consolidated the concept of a democratic state, where the state
not only strives to protect and defend the person and society
from crimes and other dangerous violations of law, but also is
able to do this efficiently. Such a state must create and
efficiently apply a system of measures of restricting and
reducing crime, especially organised crime, which would
comprise the preventive measures adequate to the threat caused
by organised crime, as well.
It was also held in this Ruling of the Constitutional
Court that after Article 4 (wordings of 26 June 2001 and 3
April 2003) of the Law established the bases and objectives of
the preventive measures, one was seeking to defend and protect
constitutional values.
10. One of the types of preventive measures established in
Article 3 (wording of 26 June 2001) of the Law is official
warning. In this article the content of the notion of official
warning is not revealed. The notion of official warning is
revealed in Article 5 (wording of 26 June 2001) of the Law: the
official warning is a written demand by an authorised police
officer requesting that a person should necessarily abide by
the Constitution and laws, should not restrict the rights and
freedoms of other people, should not commit violations of law,
also setting forth the possible legal consequences.
Under the Law, a necessary element of the official warning
is the person's familiarisation with possible legal
consequences. Such warning should be stated only in case there
are all bases established in Article 4 (wordings of 26 June
2001 and 3 April 2003) of the Law, i.e. if the data, received
upon the procedure established by laws, about the relations of
these persons with organised groups, criminal syndicates or
their members, constitute a sufficient basis for considering
that these persons may commit grave (or very grave) crimes and
the preventive measures are to be applied in order to guarantee
the safety of society and the state, to ensure public order and
the rights and freedoms of persons. It should be noted that in
every case the authorised police officer must state the
official warning while following the form and the procedure of
the official warning established in the Law. Thus, it is clear
that the purpose of the type of preventive measures, official
warning, in case there are the bases established in Article 4
(wordings of 26 June 2001 and 3 April 2003) of the Law, is to
prevent most dangerous crimes threatening these constitutional
values: the safety of society and the state, public order and
the rights and freedoms of persons.
Thus, by a type of preventive measures, official warning,
provided for in Article 3 (wording of 26 June 2001) of the Law,
one seeks to defend and protect the said constitutional values.
11. Another type of preventive measures established in
Article 3 (wording of 26 June 2001) of the Law is court
injunctions. In this article the content of the notion "court
injunctions" is not revealed. The Law does not contain a
definition of this notion at all. Alongside, it needs to be
noted that Article 8 (wording of 26 June 2001) of the Law
enumerates the court injunctions that may be imposed on the
persons specified in Article 4 (wordings of 26 June 2001 and 3
April 2003) of the Law. Under Article 8 (wording of 26 June
2001) of the Law, the court may issue one or several
injunctions against a person: not to maintain any contact with
the persons specifically named, directly, through other
persons, by technical or other means; not to change the
permanent place of residence without a consent by the
authorised supervising police officer and to remain at the
place of residence at the appointed time; not to frequent the
places indicated. It has been mentioned that the procedure of
issuing injunctions by the court is established in Article 7
(wording of 26 June 2001) of the Law.
The formula "court injunctions" of Article 3 (wording of
26 June 2001) of the Law is a general notion meaning
authoritative instructions of the court to the person to
observe certain prohibitions or to perform certain actions.
It needs to be noted that, under the Law, court
injunctions can be issued only in case there are all bases
established in Article 4 (wordings of 26 June 2001 and 3 April
2003) of the Law, i.e. i.e. if the data, received upon the
procedure established by laws, about the relations of these
persons with organised groups, criminal syndicates or their
members, constitute a sufficient basis for considering that
these persons may commit grave (or very grave) crimes and the
preventive measures are to be applied in order to guarantee the
safety of society and the state, to ensure public order and the
rights and freedoms of persons. Thus, it is clear that the
purpose of the type of preventive measures, court injunction,
in case there are the bases established in Article 4 (wordings
of 26 June 2001 and 3 April 2003) of the Law, is to prevent
most dangerous crimes threatening these constitutional values:
the safety of society and the state, public order and the
rights and freedoms of persons. While issuing a court
injunction, one must ascertain in every case that in order to
guarantee the safety of society and the state, and to ensure
public order and the rights and freedoms of persons precisely
this preventive measure is necessary.
Court injunctions may be issued only by observing the
procedure of issuance of court injunctions established in
Article 7 (wording of 26 June 2001) of the Law. Under Paragraph
8 of Article 7 (wording of 26 June 2001) of the Law, the person
who was imposed court injunctions, either himself or though his
advocate, as well as the authorised police officer, has the
right to appeal against the decision of the judge in a higher
court: that of the judge of a local court-in the regional
court, that of the judge of a regional court-in the Court of
Appeal of Lithuania.
Thus, it is clear that by means of the type of preventive
measures, court injunctions, established in Article 3 (wording
of 26 June 2001) of the Law, one seeks to defend and protect
the constitutional values: the safety of society and the state,
public order and the rights and freedoms of persons.
12. Paragraph 3 of Article 6 (wording of 26 June 2001) of
the Law on the Restraint of Organised Crime provides: "The
decision on the application of the official warning to the
person shall be formalised by a written resolution. The
resolution shall be confirmed by the head of the police
establishment."
13. It has been mentioned that the Klaipėda City District
Court and the Šiauliai City District Court, petitioners, had
doubts as to whether Paragraph 3 of Article 6 (wording of 26
June 2001) of the Law, to the extent that it does not provide
for the right to appeal in court against the decision on
application of an official warning to a person, is not in
conflict with Paragraph 2 of Article 21, Paragraph 4 of Article
22, and Paragraph 1 of Article 30 of the Constitution. The
doubts of the petitioners are grounded on the fact that
Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law
does not expressis verbis provide for an opportunity to apply
to court for a person, whose rights and freedoms could be
violated due to the official warning.
Thus, the doubts of the petitioners concerning the
compliance of Paragraph 3 of Article 6 (wording of 26 June
2001) of the Law with the Constitution are grounded on the fact
that, in their opinion, the said paragraph of the article does
not contain a certain legal regulation which, according to the
petitioners, ought to be established in Paragraph 3 of Article
6 (wording of 26 June 2001) of the Law. The petitioners
virtually dispute not the legal regulation expressis verbis
established in Paragraph 3 of Article 6 (wording of 26 June
2001) of the Law, but the legislative omission, which is, in
their opinion, in Paragraph 3 of Article 6 (wording of 26 June
2001) of the Law, i.e. something that is not established in
this paragraph of the article of the legal act, although, in
the opinion of the petitioner, it ought to be established,
under the Constitution, by the legislator, namely, the petition
disputes the gap in the legal regulation which, according to
the petitioner, is prohibited by the Constitution.
14. It needs to be noted that Paragraph 3 of Article 6
(wording of 26 June 2001) of the Law provides as to how the
decision on the application of the official warning to the
person is formalised, i.e. it is formalised by a written
resolution, and the subject confirming the said resolution is
named, i.e. it is confirmed by the head of the police
establishment. Paragraph 3 of Article 6 (wording of 26 June
2001) of the Law does not contain any other legal regulation.
It also needs to be noted that the Law on the Restraint of
Organised Crime does not, in general, contain any provisions
regulating the relations linked with the right of the person to
whom an official warning has been issued to apply to court.
15. While assessing the legal regulation established in
Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law,
one is to note that, under Paragraph 1 of Article 30 of the
Constitution, the person whose constitutional rights or
freedoms are violated shall have the right to apply to court.
It has been held in this Ruling of the Constitutional
Court that in a state under the rule of law a possibility is
ensured for everyone to protect his rights in court from other
persons, as well as unlawful actions of state institutions or
officials; that a person must be guaranteed the right to an
independent and impartial arbiter of the dispute, who would in
essence settle the legal dispute on the grounds of the
Constitution and laws; that every person enjoys this right;
that the person is guaranteed the defence of his violated
rights in court regardless of the legal status of the person;
that the infringed rights and legitimate interests of persons
must be defended in court irrespective of whether or not they
are directly established in the Constitution; that the rights
of the person must be defended not formally, but in reality and
effectively from unlawful actions of both private persons and
state institutions or officials. It was also held in this
Ruling of the Constitutional Court that the right to apply to
court is an absolute one; that it is not permitted to restrict
nor deny this right; that, under the Constitution, the
legislator has a duty to establish legal regulation so that it
could be possible to settle all disputes concerning violations
of rights and freedoms of persons in court; that legal acts can
also establish a procedure of out-of-court settlement of
disputes, however, it is not permitted to establish any such
legal regulation which would deny the right of a person, who
thinks that his rights or freedoms have been violated, to
defend his rights or freedoms in court.
16. Under Article 111 of the Constitution, the courts of
the Republic of Lithuania shall be the Supreme Court of
Lithuania, the Court of Appeal of Lithuania, regional and local
courts (Paragraph 1); for the consideration of administrative,
labour, family and other categories of cases, specialised
courts may be established pursuant to law (Paragraph 2).
Under Item 4 of Article 12 (wording of 24 January 2002) of
the Republic of Lithuania Law on Courts, the Supreme
Administrative Court of Lithuania and regional administrative
courts are specialised courts considering cases concerning the
disputes arising from administrative legal relations.
The procedure of consideration of cases concerning the
disputes arising from administrative legal relations is
established by the Law on the Proceedings of Administrative
Cases, Item 16 of Article 2 (wording of 26 June 2001) whereof
defines administrative legal relations as public relations
developing in the process of effecting public administration as
well as internal administration. Under Item 1 of Article 2
(wording of 26 June 2001) of the said law, public
administration means executive activity of state and local
self-government institutions and other entities regulated by
law, the purpose whereof is implementation of laws, other legal
acts, of local self-government institutions' decisions as well
as administration and provision of public services provided
for. Item 6 of the said law indicates entities of state
administration: state institutions, establishments, services as
well as state servants (officials), who are conferred by law
the rights of public administration.
Under Item 3 of Article 2 of the Law on Police Activities,
the police officer enjoys public administrative powers with
respect to persons who are not subordinate to him, thus, the
police officer is a subject of state administration.
17. Under Item 1 of Article 15 (wordings of 19 September
2000 and 11 November 2004) of the Law on the Proceedings of
Administrative Cases, administrative courts shall decide cases
relating to lawfulness of legal acts passed and actions
performed by subjects of public administration.
As mentioned, neither Paragraph 3 of Article 6 (wording of
26 June 2001) of the Law on the Restraint of Organised Crime,
nor other articles of this law contain any norms regulating the
relations linked with the right of the person to whom an
official warning has been issued to apply to court. Thus, the
Law does not provide for any special procedure for appealing in
court against the decision of the authorised police officer
(respective resolution confirmed by the head of the police
establishment) to state an official warning to the person.
18. Taking account of the fact that the decision to issue
an official warning is taken by a police officer authorised by
the head of the police establishment or the police officer
acting as his deputy, i.e. by a subject of public
administration, and of the fact that the legislator did not
establish any special procedure for appealing in court against
a decision of the authorised police officer (respective
resolution confirmed by the head of the police establishment)
to state an official warning to the person, also of the fact
that, under the Law on the Proceedings of Administrative Cases,
administrative courts shall decide cases relating to lawfulness
of legal acts passed and actions performed by subjects of
public administration, one is to hold that, under the Law on
the Proceedings of Administrative Cases, a person, to whom an
official warning has been issued, may appeal against the
decision (respective resolution confirmed by the head of the
police establishment) concerning the issuance of the official
warning in the administrative court.
Thus, the right of the person to whom an official warning
has been issued in pursuance of the Law on the Restraint of
Organised Crime to appeal in court against the decision
concerning the application of the official warning is
consolidated in the legal system of Lithuania.
19. In the context of the constitutional justice case at
issue, it needs to be noted that either in Paragraph 3 of
Article 6 (wording of 26 June 2001) of the Law on the Restraint
of Organised Crime, or in the entire Law on the Restraint of
Organised Crime, there is no legislative omission presumed by
the petitioners, i.e. the gap in the legal regulation which is
prohibited by the Constitution. Thus, there are no grounds to
maintain that Paragraph 3 of Article 6 (wording of 26 June
2001) of the Law on the Restraint of Organised Crime in the
aspect pointed out by the petitioners is in conflict with
Paragraph 2 of Article 21, Paragraph 4 of Article 22 and
Paragraph 1 of Article 30 of the Constitution.
20. Paragraph 1 of Article 8 (wording of 26 June 2001) of
the Law on the Restraint of Organised Crime provides:
"The court may issue one or several injunctions against a
person:
1) not to maintain any contact with the persons
specifically named, directly, through other persons, by
technical or other means;
2) not to change the permanent place of residence without
a consent by the authorised supervising police officer and to
remain at the place of residence at the appointed time;
3) not to frequent the places indicated."
21. It needs to be noted that the court may issue the
injunctions indicated in this article, if there are the bases
for application of preventive measures provided for Article 4
(wordings of 26 June 2001 and 3 April 2003) of the Law, while
seeking to achieve the objectives of the preventive measures
established in Article 4 (wordings of 26 June 2001 and 3 April
2003) of the Law, and following the procedure of issuance of
court injunctions consolidated in Article 7 (wording of 26 June
2001) of the Law.
Paragraph 2 of Article 8 (wording of 26 June 2001) of the
Law provides that, in issuing court injunctions, the court
shall establish their length. Under Item 7 of Article 7
(wording of 26 June 2001) of the Law, court injunctions may be
imposed for the period of 1-6 months. If there are grounds, the
imposed court injunctions may be prolonged once for additional
3 months.
22. While deciding whether the court injunctions
established in Paragraph 1 of Article 8 (wording of 26 June
2001) of the Law are not in conflict with the articles (parts
thereof) of the Constitution, which are indicated by the
petitioners, one must elucidate: whether such court injunctions
are necessary in a democratic society in attempt to protect the
rights and freedoms of other persons and values entrenched in
the Constitution, as well as constitutionally important
objectives; whether by means of the injunctions one does not
deny the nature and essence of the rights and freedoms; whether
the injunctions are grounded on objective needs of society;
whether the injunctions are in line with the constitutional
principle of proportionality.
23. In the context of the constitutional justice case at
issue, one is to note that, as it was held in this Ruling of
the Constitutional Court, organised criminal groups
(syndicates), the crimes committed by them or the fact that
they are going to commit such crimes pose a special threat to a
person, his rights and freedoms, society and the state. If
organised crime were not prevented and organised criminal
groups (syndicates) were not prosecuted, the constitutional
values, inter alia the rights and freedoms of the person, the
legal bases of the life of society entrenched in the
Constitution, the state as an organisation of the entire
society and the entire society would be under the threat. State
institutions are under a duty to establish and apply preventive
measures adequate to the threat posed by organised crime.
The court injunctions established in Paragraph 1 of
Article 8 (wording of 26 June 2001) of the Law are preventive
measures against organised crime that are applied when one
seeks for the constitutionally important objective, which is
grounded on the objective need to ensure the safety of the
person, society and the sate from organised crime. The purpose
of the court injunctions established in Paragraph 1 of Article
8 (wording of 26 June 2001) of the Law is protection and
defence of the following constitutional values against the
threat of organised crime: rights and freedoms of the person,
the safety of society and the state as well as public order.
24. Under Item 1 of Paragraph 1 of Article 8 (wording of
26 June 2001) of the Law, the court the court may issue an
injunction in regard of the person not to maintain any contact
with the persons specifically named, directly, through other
persons, by technical or other means.
24.1. While assessing the legal regulation consolidated in
Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of
the Law, one is to take account of the provisions of Article 3
(wording of 26 June 2001), Article 4 (wordings of 26 June 2001
and 3 April 2003) and Article 7 (wording of 26 June 2001) of
the Law.
The court may issue an injunction to a person, under Item
1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the
Law, not to maintain any contact with the persons specifically
named, directly, through other persons, by technical or other
means, only in case there are the bases established in the Law,
i.e. if there are data, received upon the procedure established
by laws, about the relations of these persons with organised
groups, criminal syndicates or their members, constitute a
sufficient basis for considering that these persons may commit
grave (or very grave) crimes, and the preventive measures are
to be applied in order to guarantee the safety of society and
the state, to ensure public order and the rights and freedoms
of persons.
It needs to be noted that the injunction not to maintain
any contact with the persons specifically named, directly,
through other persons, by technical or other means, is issued
in regard of the person after he had already been officially
warned by a writ to abide by the Constitution and laws, not to
restrict the rights and freedoms of other people, not to commit
violations of law, after he had been familiarised with the
possible legal consequences and had not followed these
requirements. As mentioned, the right of the person to whom an
official warning has been issued in pursuance of the Law on the
Restraint of Organised Crime to appeal in court against the
decision concerning the application of the official warning is
consolidated in the legal system of Lithuania.
Thus, the court injunction in regard of the person not to
maintain any contact with the persons specifically named,
directly, through other persons, by technical or other means,
may be issued, under the Law, only in case there are the
aforesaid bases established in the Law and while seeking for
the aforesaid objectives established in the Law and while
following the procedure for issuance of court injunctions which
is established in the Law.
It also needs to be noted that the court, while issuing
the court injunction not to maintain any contact with the
persons specifically named, directly, through other persons, by
technical or other means, must assess, in each case, the
concrete situation, to investigate all circumstances related
with the bases of issuance of the court injunction, to
ascertain whether it is possible to achieve the objective of
prevention of organised crime by not applying such court
injunction.
24.2. The petitioners had doubts whether Item 1 of
Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law
is not in conflict with Article 18, Paragraphs 1, 3, and 4 of
Article 22, Article 24, Paragraphs 1 and 4 of Article 31,
Paragraphs 1 and 2 of Article 32 of the Constitution, the
provision of Paragraph 1 of Article 48 thereof that each human
being may freely choose a job and business, and with the
constitutional principle of a state under the rule of law.
24.3. As mentioned, Paragraph 1 of Article 48 of the
Constitution inter alia provides that that each human being may
freely choose a job and business.
The court may issue an injunction to a person, under Item
1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the
Law, not to maintain any contact with the persons specifically
named, directly, through other persons, by technical or other
means. Thus, by the court injunction provided for in Item 1 of
Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law
the ties of the person with other persons are restricted.
It also needs to be noted that it is not permitted to
construe the legal regulation established in Item 1 of
Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law
under which the court may issue an injunction in regard of the
person not to maintain ties with the persons specifically
named, directly, through other persons, by technical or other
means as the one permitting to restrict the ties of the person
with other persons, which are objectively necessary due to a
legal job performed or legal business engaged by this person.
If such restrictions were established, the constitutional right
of the person to a job and business would be unreasonably
restricted.
Having compared the provision of Paragraph 1 of Article 48
of the Constitution that each human being may freely choose a
job and business and the legal regulation consolidated in Item
1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the
Law, one can notice that they regulate different relations.
Thus, Item 1 of Paragraph 1 of Article 8 (wording of 26 June
2001) of the Law is not in conflict with the provision of
Paragraph 1 of Article 48 of the Constitution that each human
being may freely choose a job and business.
24.4. As mentioned, in Article 24 of the Constitution the
principle of inviolability of the dwelling place of a human
being is entrenched.
Under Item 1 of Paragraph 1 of Article 8 (wording of 26
June 2001) of the Law, the court may issue an injunction in
regard of the person not to maintain ties with the persons
specifically named, directly, through other persons, by
technical or other means. It has been mentioned that by the
court injunction provided for in Item 1 of Paragraph 1 of
Article 8 (wording of 26 June 2001) of the Law the ties of the
person with other persons are restricted.
Having compared the legal regulation consolidated in
Article 24 of the Constitution with that of Item 1 of Paragraph
1 of Article 8 (wording of 26 June 2001) of the Law, one can
notice that they regulate different relations. Thus, Item 1 of
Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law
is not in conflict with Article 24 of the Constitution.
24.5. Under Paragraph 1 of Article 32 of the Constitution,
a citizen may move and choose his place of residence in
Lithuania freely, and may leave Lithuania freely, while under
Paragraph 2 of this article, the said rights may not be
restricted other than by law and if it is necessary to protect
the security of the state, the health of the people, as well as
to administer justice.
Under Item 1 of Paragraph 1 of Article 8 (wording of 26
June 2001) of the Law, the court may issue an injunction in
regard of the person not to maintain ties with the persons
specifically named, directly, through other persons, by
technical or other means. It has been mentioned that by the
court injunction provided for in Item 1 of Paragraph 1 of
Article 8 (wording of 26 June 2001) of the Law the ties of the
person with other persons are restricted.
Having compared the legal regulation consolidated in
Paragraphs 1 and 2 of Article 32 of the Constitution with that
of Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001)
of the Law, one can notice that they regulate different
relations. Thus, Item 1 of Paragraph 1 of Article 8 (wording of
26 June 2001) of the Law is not in conflict with Paragraphs 1
and 2 of Article 32 of the Constitution.
24.6. Under Paragraph 1 of Article 22 of the Constitution,
the private life of a human being shall be inviolable, under
Paragraph 3 of the same article, information concerning the
private life of a person may be collected only upon a justified
court decision and only in accordance with the law, while under
Paragraph 4 of the same article, the law and the court shall
protect everyone from arbitrary or unlawful interference in his
private and family life, from encroachment upon his honour and
dignity.
Under Item 1 of Paragraph 1 of Article 8 (wording of 26
June 2001) of the Law, the court may issue an injunction in
regard of the person not to maintain ties with the persons
specifically named, directly, through other persons, by
technical or other means. It has been mentioned that by the
court injunction provided for in Item 1 of Paragraph 1 of
Article 8 (wording of 26 June 2001) of the Law the ties of the
person with other persons are restricted.
While assessing the compliance of Item 1 of Paragraph 1 of
Article 8 (wording of 26 June 2001) of the Law with Paragraphs
1, 3, and 4 of the Constitution, one is to note that the court
injunctions provided for in Item 1 of Paragraph 1 of Article 8
(wording of 26 June 2001) of the Law in regard to the person
not to maintain ties with the persons specifically named,
directly, through other persons, by technical or other means,
means that the person is prohibited from maintaining ties with
the persons who are members of criminal groups or criminal
syndicates, if due to such ties there is a sufficient basis for
considering that these persons may commit grave (or very grave)
crimes, and if this preventive measure has to be applied in
order to achieve these objectives: to guarantee the safety of
society and the state, to ensure public order and the rights
and freedoms of persons. Thus, the restriction of the ties of
this person with the other persons is determined by a possible
threat to the aforesaid constitutional values and the striving
for protection of these values.
The court can issue the injunction provided for in Item 1
of Paragraph 1 of Article 8 (wording of 26 June 2001) of the
Law only after it has taken account of the concrete situation,
only after it has assessed, according to all significant
circumstances, that there is a sufficient basis for considering
that this person may commit grave (or very grave) crimes, and
if this preventive measure has to be applied in order to
achieve these objectives: to guarantee the safety of society
and the state, to ensure public order and the rights and
freedoms of persons, and only after it has considered the
compliance of the injunction with the objective sought.
Alongside, it needs to be noted that it is not permitted
to construe the provisions of Item 1 of Paragraph 1 of Article
8 (wording of 26 June 2001) of the Law as granting the right to
the court to issue an injunction in regard of the person not to
maintain ties with persons, who are not linked with organised
groups or crimes, or permitting to prohibit the person from
maintaining ties with his family members and close relatives.
Under these provisions also it is not permitted to restrict the
ties of the person with other persons, if these ties are
necessary due to a legal job or legal business. If one
understands the legal regulation established in Item 1 of
Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law
in this way, then Item 1 of Paragraph 1 of Article 8 (wording
of 26 June 2001) of the Law is not in conflict with Paragraphs
1, 3 and 4 of Article 22 of the Constitution.
24.7. Under Paragraph 1 of Article 31 of the Constitution,
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. As mentioned,
in Paragraph 1 of Article 31 of the Constitution the
presumption of innocence of a person is consolidated. By
Paragraph 4 of Article 31 of the Constitution, punishment may
be imposed or applied only on the grounds established in law.
Under Item 1 of Paragraph 1 of Article 8 (wording of 26
June 2001) of the Law, the court may issue an injunction in
regard of the person not to maintain ties with the persons
specifically named, directly, through other persons, by
technical or other means. It has been mentioned that by the
court injunction provided for in Item 1 of Paragraph 1 of
Article 8 (wording of 26 June 2001) of the Law the ties of the
person with other persons are restricted.
While assessing the compliance of Item 1 of Paragraph 1 of
Article 8 (wording of 26 June 2001) of the Law with Paragraph 1
of Article 31 of the Constitution, one is to note that the
court injunction provided for in Item 1 of Paragraph 1 of
Article 8 (wording of 26 June 2001) of the Law is a preventive
measure, which may be applied to persons, if the data, received
upon the procedure established by laws, about the relations of
these persons with organised groups, criminal syndicates or
their members, constitute a sufficient basis for considering
that these persons may commit grave (or very grave) crimes and
this preventive measure has to be applied in order to guarantee
the safety of society and the state, to ensure public order and
the rights and freedoms of persons. Thus, the said court
injunction is not a punishment, which can be imposed, under the
Constitution, by a court judgement on a person for commission
of a crime, but a preventive measure applied in order to
restrict and diminish organised crime. After this preventive
measure is issued, the person is not recognised as being guilty
of commission of a crime. This measure is applied when there is
a sufficient basis for considering that this person may commit
grave (or very grave) crimes and when it is necessary to
protect the constitutional values: the safety of society and
the state, public order and the rights and freedoms of persons.
It also needs to be noted that, on the one hand, the objective
of this measure is not to allow that the person commit a grave
(or very grave) crime, i.e. not to allow that he commit the
most dangerous violations of law for the commission of which or
attempt of commission of which a punishment may be imposed on
the person, and, on the other hand, to guarantee the safety of
society and the state, to ensure public order and the rights
and freedoms of persons.
Thus, Item 1 of Paragraph 1 of Article 8 (wording of 26
June 2001) of the Law is not in conflict with Paragraph 1 of
Article 31 of the Constitution.
24.8. It has been held in this Ruling of the
Constitutional Court that Item 1 of Paragraph 1 of Article 8
(wording of 26 June 2001) of the Law is not in conflict with
Paragraphs 1, 2 and 4 of Article 22, Paragraphs 1 and 2 of
Article 31, Paragraphs 1 and 2 of Article 32 of the
Constitution, the provision of Paragraph 1 of Article 48
thereof that each human being may freely choose a job and
business. Having held this, one is also to hold that Item 1 of
Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law
is not in conflict with Article 18 of the Constitution and the
constitutional principle of a state under the rule of law.
25. Under Item 2 of Paragraph 1 of Article 8 (wording of
26 June 2001) of the Law, the court may issue an injunction in
regard of the person not to change the permanent place of
residence without a consent by the authorised supervising
police officer and to remain at the place of residence at the
appointed time.
Two elements constitute the content of the court
injunction consolidated in Item 2 of Paragraph 1 of Article 8
(wording of 26 June 2001) of the Law: the requirement that the
person not change the permanent place of residence without a
consent by the authorised supervising police officer and the
requirement that he remain at the place of residence at the
appointed time.
25.1. When assessing the legal regulation established in
Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of
the Law, one must pay heed to the provisions of Article 3
(wording of 26 June 2001), Article 4 (wordings of 26 June 2001
and 3 April 2003) and Article 7 (wording of 26 June 2001) of
the Law.
According to Item 2 of Paragraph 1 of Article 8 (wording
of 26 June 2001) of the Law the court may impose upon a person
an injunction not to change the permanent place of residence
without a consent by the authorised supervising police officer
and to remain at the place of residence at the appointed time
only when the bases established in law exist, i.e. if the data
are received about the relations of the persons with the
organised groups, criminal syndicates or their members, if such
data are received upon the procedure established by laws and if
the collected data constitute a sufficient basis for
considering that these persons may commit grave (or very grave)
criminal deeds, while striving to attain the following
objectives as well: to guarantee the safety of society and the
state, to ensure public order and the rights and freedoms of
persons. It should be noted that the court by its decision may
impose upon a person an injunction not to change the permanent
place of residence without the consent by the authorised
supervising police officer and to remain at the place of
residence at the appointed time only after the person was
officially warned in writing by the authorised police officer
to follow the Constitution and laws, not to restrict rights and
freedoms of other persons, not to commit violations of law, was
familiarised with the possible legal consequences and failed to
meet these requirements. It was mentioned that the right of the
person to whom an official warning is issued according to the
Law on the Restraint of Organised Crime to appeal against the
official warning in court is entrenched in the legal system of
Lithuania.
Thus a court injunction in regard of the person not to
change the permanent place of residence without a consent by
the authorised supervising police officer and to remain at the
place of residence at the appointed time may be imposed only
when the specified bases established in the Law exist, only in
order to achieve the specified objectives established in the
Law and only in compliance with the established in the Law
procedure of imposing court injunctions.
It also needs to be noted that the court, when applying
the said court injunction, must assess, in each case, the
concrete situation, to investigate all circumstances related
with the bases of issuance of the court injunction, to
ascertain whether it is possible to achieve the objective of
prevention of organised crime by not applying such court
injunction.
25.2. The petitioners had doubts whether Item 2 of
Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law
is not in conflict with Article 18, Paragraphs 1, 3, and 4 of
Article 22, Article 24, Paragraphs 1 and 4 of Article 31,
Paragraphs 1 and 2 of Article 32 of the Constitution, the
provision of Paragraph 1 of Article 48 thereof that each human
being may freely choose a job and business, and with the
constitutional principle of a state under the rule of law.
25.3. According to Paragraph 1 of Article 32 of the
Constitution the citizen may move and choose his place of
residence in Lithuania freely, and may leave Lithuania freely,
and, under Paragraph 2 of this article, the said rights may not
be restricted other than by law and if it is necessary to
protect the security of the state, the health of the people, as
well as to administer justice.
It has been mentioned that the content of the court
injunction entrenched in Item 2 of Paragraph 1 of Article 8
(wording of 26 June 2001) of the Law comprises two elements:
the requirement not to change the permanent place of residence
without a consent by the authorised supervising police officer
and the to remain at the place of residence at the appointed
time.
By the court injunction in regard to the person not to
change the permanent place of residence without a consent by
the authorised supervising police officer and to remain at the
place of residence at the appointed time, entrenched in Item 2
of Paragraph 1 of Article 8 (wording of 26 June 2001) of the
Law, one strives to restrict the opportunity of the person to
maintain ties with organised criminal groups, criminal
syndicates or their members, and to provide legal conditions
for the authorised supervising police officer to possess the
information about the place of permanent residence of the
person and the fact whether the person is at his place of
residence at the appointed time.
The formula "to remain at the place of residence at the
appointed time" of Item 2 of Paragraph 1 of Article 8 (wording
of 26 June 2001) of the Law means that the person is obligated
by the court at the appointed time to remain at the place of
residence and that he may not leave this place during the said
time. The formula "to remain at the place of residence at the
appointed time" may not be construed as the one which means
that in exceptional justifiable cases (illness, death of close
relatives etc.) the person, having coordinated this with the
authorised supervising police officer, is not permitted to
leave the place of residence for a certain period.
The injunction to remain at the at the place of residence
at the appointed time, established in Item 2 of Paragraph 1 of
Article 8 (wording of 26 June 2001) of the Law, may not be
construed as the one which means that the court enjoys the
discretion to impose the injunction according to which the
person must stay at the place of residence at the time
appointed by the court and therefore is not able to implement
his other constitutional rights and freedoms. This injunction
imposed by the court must be reasonable and in compliance with
the legitimate objective sought.
The formula "not to change the permanent place of
residence without a consent by the authorised supervising
police officer" of Item 2 of Paragraph 1 of Article 8 (wording
of 26 June 2001) of the Law may not be construed only
linguistically. When construing the this formula only
linguistically, one could state that, purportedly, Article 8
(wording of 26 June 2001) of the Law establishes the legal
regulation where the person upon whom the court has imposed the
injunction not to change the permanent place of residence
without a consent by the authorised supervising police officer,
in all cases, when he really wishes to change the permanent
place of residence, must get the permission of the authorised
supervising police officer, and until the permission is
received has no right to change the permanent place of
residence. The formula "not to change the permanent place of
residence without a consent by the authorised supervising
police officer" is to be construed teleologically and
systemically, while taking account inter alia of Article 1
(wording of 26 June 2001) of the Law, according to which this
Law provides for the measures of restraint of the organised
crime, the principles of their application, their bases,
procedure of their imposition, of Article 2 (wording of 26 June
2001) of the Law, according to which the preventive measures
are applied inter alia while following the principles of
lawfulness, protection of human rights and freedoms, and
humaneness, of the provision of Article 4 (wordings of 26 June
2001 and 3 April 2003) of the Law that the preventive measures
are to be applied in order to guarantee the safety of society
and the state, to ensure public order and the rights and
freedoms of persons, i.e. to protect and defend the
constitutional values.
The formula "not to change the permanent place of
residence without a consent by the authorised supervising
police officer" is to be construed as the one which means that
if the person who is subject to the court injunction inter alia
not to change the permanent place of residence without a
consent by the authorised supervising police officer wishes to
change the permanent place of his residence, he has the duty to
inform in advance the authorised supervising police officer
about his intention to change the permanent place of residence,
so that the authorised supervising police officer could check
and ascertain whether the permanent place of residence is
really changed, as well as whether one does not try to evade
the implementation of the injunction imposed by the court by
such changing the permanent place of residence. The part of
this formula "without a consent by the authorised supervising
police officer" may not be construed as the one which means
that the authorised supervising police officer, having checked
and ascertained, after the person informs him about the
intention to change the permanent place of residence, that one
does not try to evade the implementation of the court
injunction by such changing the permanent place of residence,
is permitted not to allow the said person to change the
permanent place of residence. It is worth to be stressed that
the person who has not received the consent of the authorised
supervising police officer concerning the change of the
permanent place of residence, may appeal against such a
decision of the officer in court. It is to be noted that when
the person subject to the injunction established in Item 2 of
Paragraph 1 (wording of 26 June 2001) of the Law changes the
permanent place of residence, the court injunction to remain at
the place of residence at the appointed time remains effective
and the said person must implement this injunction. Thus, if
the said person changed the permanent place of residence
without giving an advance notice to the authorised supervising
police officer, i.e. without discussing the changing the
permanent place of residence with this officer, one would
create conditions for such person to evade the injunction
imposed by the court to remain at the place of residence at the
appointed time. It is to be noted, alongside, that the said
part of the formula "without a consent by the authorised
supervising police officer" is formulated in a legally
incorrect and imprecise manner and is to be corrected according
to the specified arguments, however, the deficiency of this
formula, in itself, does not constitute a sufficient reason to
state that the legal regulation established in Item 2 of
Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law,
according to which the court may impose an injunction upon the
person inter alia not to change the permanent place of
residence without a consent by the authorised supervising
police officer is in conflict with the Constitution.
By the court injunction not to change the permanent place
of residence without a consent by the authorised supervising
police officer and to remain at the place of residence at the
appointed time one may interfere in the right of the citizen to
move and choose his place of residence in Lithuania freely, and
to leave Lithuania freely, established in Paragraph 1 of
Article 32 of the Constitution. It has been mentioned that
under Paragraph 2 of Article 32 of the Constitution the said
rights may not be restricted other than by law and if it is
necessary to protect the security of the state, the health of
the people, as well as to administer justice. The court
injunction established in Item 2 of Paragraph 1 of Article 8
(wording of 26 June 2001) of the Law is to be assessed as a
constitutionally reasoned one, when the data about the
relations of these persons with organised groups, criminal
syndicates or their members are received, if this is done upon
the procedure established by laws, if the said data constitute
a sufficient basis for considering that these persons may
commit grave (or very grave) crimes, and if the preventive
measures are to be applied when striving for the
constitutionally important objectives: in order to guarantee
the safety of society and the state, to ensure public order and
the rights and freedoms of persons.
Thus, having considered the facts set forth it is to be
concluded that Item 2 of Paragraph 1 of Article 8 (wording of
26 June 2001) of the Law is not in conflict with Paragraphs 1
and 2 of Article 32 of the Constitution.
25.4. It has been mentioned that it is established in
Paragraph 1 of Article 48 of the Constitution inter alia that
every human being may freely choose a job and business.
According to Item 2 of Paragraph 1 of Article 8 (wording
of 26 June 2001) of the Law the court may issue an injunction
to a person not to change the permanent place of residence
without a consent by the authorised supervising police officer
and to remain at the place of residence at the appointed time.
The legal regulation entrenched in Item 2 of Paragraph 1
of Article 8 (wording of 26 June 2001) of the Law, under which
the court may issue an injunction to a person not to change the
permanent place of residence without a consent by the
authorised supervising police officer and to remain at the
place of residence at the appointed time, may not be construed
as the one which permits the court to appoint any time when the
person must remain at the place of residence without
considering whether such injunction would not hinder the person
from implementation of his right to be engaged in a legal job
or legal business. Otherwise, one would create preconditions
for preventing the person from having a legal source to earn
his living and, alongside, preconditions to deny the right of a
human being may freely choose a job and business entrenched in
Paragraph 1 of Article 48 of the Constitution.
If one understands the legal regulation established in
Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of
the Law in this way, there are no grounds to state that Item 2
of Paragraph 1 of Article 8 (wording of 26 June 2001) of the
Law is in conflict with the provision of Paragraph 1 of Article
48 that every human being may freely choose a job and business.
25.5. It has been mentioned that the principle of
inviolability of the dwelling place of a human being is
entrenched in Article 24 of the Constitution.
According to Item 2 of Paragraph 1 of Article 8 (wording
of 26 June 2001) of the Law the court may issue an injunction
to a person not to not to change the permanent place of
residence without a consent by the authorised supervising
police officer and to remain at the place of residence at the
appointed time. By the said injunction one strives to create
legal preconditions for the authorised supervising police
officer to know the permanent place of residence of the person,
as well as to provide him an opportunity to check whether the
person stays in his place of residence at the appointed time.
By such court injunction one interferes, to a certain
extent, in the inviolability of the dwelling place of the human
being entrenched in Article 24 of the Constitution, however, in
case such court injunction is applied when the data, upon the
procedure established by laws, are received about the relations
of the persons with the organised groups, criminal syndicates
or their members, in case the collected data constitute a
sufficient basis for considering that this person may commit
grave (or very grave) criminal deeds, and in case by this
injunction one strives to attain the constitutionally important
objectives-to guarantee the safety of society and the state, to
ensure public order and the rights and freedoms of persons-this
court injunction is to be assessed as constitutionally
reasonable.
By understanding the legal regulation established in Item
2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the
Law in this way, there are no grounds to state that Item 2 of
Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law
is in conflict with Article 24 of the Constitution.
25.6. According to Paragraph 1 of Article 22 of the
Constitution, the private life of a human being is inviolable,
under Paragraph 3 of this article, information concerning the
private life of a person may be collected only upon a justified
court decision and only in accordance with the law, and, under
Paragraph 4 of this article, the law and the court protect
everyone from arbitrary or unlawful interference in his private
and family life, from encroachment upon his honour and dignity.
According to Item 2 of Paragraph 1 of Article 8 (wording
of 26 June 2001) of the Law the court may impose an injunction
upon the person not to change the permanent place of residence
without a consent by the authorised supervising police officer
and to remain at the place of residence at the appointed time.
When assessing the compliance of Item 2 of Paragraph 1 of
Article 8 (wording of 26 June 2001) of the Law with Paragraphs
1 and 3 of Article 22 of the Constitution it is to be noted
that by the court injunction provided for in the said item the
conditions may be created to a certain extent to interfere in
the private life of the person, however, in case such court
injunction is applied when the data, upon the procedure
established by laws, are received about the relations of the
persons with organised groups, criminal syndicates or their
members, in case the collected data constitute a sufficient
basis for considering that this person may commit grave (or
very grave) criminal deeds, and in case by this injunction one
strives to attain the constitutionally important objectives-to
guarantee the safety of society and the state, to ensure public
order and the rights and freedoms of persons-this court
injunction is to be assessed as constitutionally reasonable.
Thus, Item 2 of Paragraph 1 of Article 8 (wording of 26
June 2001) of the Law is not in conflict with Paragraphs 1, 3
and 4 of Article 22 of the Constitution.
25.7. According to Paragraph 1 of Article 31 of the
Constitution a person is presumed innocent until proven guilty
and declared guilty by an effective court judgement in
accordance with the procedure established by law. The
presumption of innocence is consolidated in Paragraph 1 of
Article 31 of the Constitution. According to paragraph 4 of
Article 31 of the Constitution punishment may be imposed or
applied only on the grounds established in law.
According to Item 2 of Paragraph 1 of Article 8 (wording
of 26 June 2001) of the Law the court may impose an injunction
upon the person not to change the permanent place of residence
without a consent by the authorised supervising police officer
and to remain at the place of residence at the appointed time.
When assessing the compliance of Item 2 of Paragraph 1 of
Article 8 (wording of 26 June 2001) of the Law with Paragraph 1
of Article 31 of the Constitution, it is to be noted that the
court injunction provided for in Item 2 of Paragraph 1 of
Article 8 (wording of 26 June 2001) of the Law is a preventive
measure, which may be applied in regard to the persons, if the
data, received upon the procedure established by laws, about
the relations of these persons with organised groups, criminal
syndicates or their members, constitute a sufficient basis for
considering that these persons may commit grave (or very grave)
crimes, and this preventive measure is to be applied in order
to guarantee the safety of society and the state, to ensure
public order and the rights and freedoms of persons. The said
court injunction is not a punishment, which may be imposed upon
the person by the court judgement for the commission of a
crime, but a preventive measure applied in order to restrict
and diminish organised crime. By imposing this preventive
measure the person is not recognised guilty of commission of a
crime, this measure is applied when sufficient reasons exist to
believe that the person may commit grave (or very grave) crimes
and when it is necessary in order to protect the constitutional
values: the safety of society and the state, public order and
the rights and freedoms of persons. It is worth noticing that,
on the one hand, the objective of this measure is to prevent
the person from committing a grave (or very grave) crime, i.e.
preventing him from committing dangerous violations of law for
the commission of which or an attempt to commit which a
punishment may be imposed upon the person, and, on the other
hand, to guarantee the safety of society and the state, public
order and the rights and freedoms of persons.
Thus, Item 2 of Paragraph 1 of Article 8 (wording of 26
June 2001) of the Law is not in conflict with Paragraphs 1 and
4 of Article 31 of the Constitution.
25.8. In this Constitutional Court ruling it has been held
that Item 2 of Paragraph 1 of Article 8 (wording of 26 June
2001) of the Law is not in conflict with Paragraphs 1, 3 and 4
of Article 22, Article 24, Paragraphs 1 and 4 of Article 31,
Paragraphs 1 and 2 of Article 32 of the Constitution, the
provision of Paragraph 1 of Article 48 thereof that each human
being may freely choose a job and business. Having held this,
one is also to hold that Item 2 of Paragraph 1 of Article 8
(wording of 26 June 2001) of the Law is not in conflict with
Article 18 of the Constitution and the constitutional principle
of a state under the rule of law.
26. According to Item 3 of Paragraph 1 of Article 8
(wording of 26 June 2001) of the Law the court may issue an
injunction to a person not to frequent the places indicated.
By such court injunction wherein one defines the places
which the person is prohibited from visiting, the right of the
person to freely choose the place of staying is restricted.
26.1. When assessing the legal regulation consolidated in
Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of
the Law one should consider provisions of Article 3 (wording of
26 June 2001), Article 4 (wordings of 26 June 2001 and 3 April
2003) and Article 7 (wording of 26 June 2001) of the Law. The
court may issue an injunction to a person not to frequent the
specified places only when the reasons provided for in the Law
exist, i.e. if there are data, received upon the procedure
established by laws, about the relations of these persons with
organised groups, criminal syndicates or their members, if the
said data constitute a sufficient basis for considering that
these persons may commit grave (or very grave) crimes, and only
when seeking to attain the constitutionally important
objectives: to guarantee the safety of society and the state,
to ensure public order and the rights and freedoms of persons.
In this context it is to be noted that organised crime is
social evil, therefore, establishment of respective preventive
measures is an objective need of society.
It should be noted that the court injunction not to
frequent the places indicated is issued in regard of the person
after he had already been officially warned by a writ to abide
by the Constitution and laws, not to restrict the rights and
freedoms of other people, not to commit violations of law,
after he had been familiarised with the possible legal
consequences and had not followed these requirements. As
mentioned, the right of the person to whom an official warning
has been issued in pursuance of the Law on the Restraint of
Organised Crime to appeal in court against the decision
concerning the application of the official warning is
consolidated in the legal system of Lithuania.
Thus, the court injunction not to frequent the places
indicated may be issued only in case there are the aforesaid
bases established in the Law and while seeking for the
aforesaid objectives established in the Law and while following
the procedure for issuance of court injunctions which is
established in the Law.
26.2. The petitioners had doubts whether Item 3 of
Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law
is not in conflict with Article 18, Paragraphs 1, 3, and 4 of
Article 22, Article 24, Paragraphs 1 and 4 of Article 31,
Paragraphs 1 and 2 of Article 32 of the Constitution, the
provision of Paragraph 1 of Article 48 thereof that each human
being may freely choose a job and business, and with the
constitutional principle of a state under the rule of law.
26.3. It has been mentioned that pursuant to Paragraph 1
of Article 48 of the Constitution each human being may freely
choose a job and business.
According to Item 3 of Paragraph 1 of Article 8 (wording
of 26 June 2001) of the Law the court may issue an injunction
to a person not to frequent the places indicated. As mentioned,
having indicated, by the court injunction provided for in Item
3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the
Law, the places which the person is prohibited from visiting,
one restricts the right of the person to freely choose the
place where he stays.
It is to be noted, alongside, that the legal regulation
entrenched in Item 3 of Paragraph 1 of Article 8 (wording of 26
June 2001) of the Law, according to which the court may issue
an injunction to a person not to frequent the places indicated,
may not be construed as the one which permits to issue an
injunction in regard to the person not to visit also the
places, in which the presence of the person is objectively
necessary due to his legal job and legal business. Otherwise,
the constitutional right of the person to a job and business
would become unreasonably restricted.
Having compared the legal regulation entrenched in
Paragraph 1 of Article 48 of the Constitution with the one
entrenched in Item 3 of Paragraph 1 of Article 8 (wording of 26
June 2001) of the Law, one may find that the relations
regulated therein are different. Thus, Item 3 of Paragraph 1 of
Article 8 (wording of 26 June 2001) of the Law is not in
conflict with the provision of Paragraph 1 of Article 48 of the
Constitution that each human being may freely choose a job and
business.
26.4. It has been mentioned that the principle of
inviolability of the dwelling place of a human is consolidated
in the provisions of Article 24 of the Constitution.
According to Item 3 of Paragraph 1 of Article 8 (wording
of 26 June 2001) of the Law the court may issue an injunction
to a person not to frequent the places indicated. As mentioned,
having indicated, by the court injunction provided for in Item
3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the
Law, the places which the person is prohibited from visiting,
one restricts the right of the person to freely choose the
place where he stays.
Having compared the legal regulation entrenched in Article
24 of the Constitution with the one entrenched in Item 3 of
Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law
one may find that the relations regulated therein are
different. Thus, Item 3 of Paragraph 1 of Article 8 (wording of
26 June 2001) of the Law is not in conflict Article 24 of the
Constitution.
26.5. Under Paragraph 1 of Article 32 of the Constitution,
a citizen may move and choose his place of residence in
Lithuania freely, and may leave Lithuania freely, while under
Paragraph 2 of this article, the said rights may not be
restricted other than by law and if it is necessary to protect
the security of the state, the health of the people, as well as
to administer justice.
According to Item 3 of Paragraph 1 of Article 8 (wording
of 26 June 2001) of the Law the court may issue an injunction
against the person not to frequent the places indicated. As
mentioned, having indicated, by the court injunction provided
for in Item 3 of Paragraph 1 of Article 8 (wording of 26 June
2001) of the Law, the places which the person is prohibited
from visiting, one restricts the right of the person to freely
choose the place where he stays.
Having considered the bases of application of this
preventive measure it is to be stated that it may be applied in
regard to the person only if the data, received upon the
procedure established by laws, about the relations of these
persons with organised groups, criminal syndicates or their
members, when such relations constitute a sufficient basis for
considering that these persons may commit grave (or very grave)
crimes and these preventive measures are to be applied while
striving for the following objectives: in order to guarantee
the safety of society and the state, to ensure public order and
the rights and freedoms of persons.
When assessing the court injunction not to frequent the
places indicated, which is provided for in disputed Item 3 of
Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law,
it is also to be noted that this injunction should be
formulated in the court decision by clearly naming the place
with its own particular characteristics, which the person is
prohibited from visiting due to the fact that his presence in
this particular place may create preconditions for the person
to maintain relations with organised groups, criminal
syndicates or their members constituting a sufficient reason to
consider that this person may commit grave (or very grave)
crimes. Such injunction is to be necessarily applied in order
to guarantee the safety of society and the state, to ensure
public order and the rights and freedoms of persons.
If one understands the legal regulation established in
Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of
the Law in this way, this item is not in conflict with
Paragraphs 1 and 2 of Article 32 of the Constitution.
26.6. Under Paragraph 1 of Article 22 of the Constitution,
the private life of a human being is inviolable, under
Paragraph 3 of this article, information concerning the private
life of a person may be collected only upon a justified court
decision and only in accordance with the law, while under
Paragraph 4 of this article, the law and the court protect
everyone from arbitrary or unlawful interference in his private
and family life, from encroachment upon his honour and dignity.
According to Item 3 of Paragraph 1 of Article 8 (wording
of 26 June 2001) of the Law, the court may issue an injunction
against a person not to frequent the places indicated. As
mentioned, having indicated, by the court injunction provided
for in Item 3 of Paragraph 1 of Article 8 (wording of 26 June
2001) of the Law, the places which the person is prohibited
from visiting, one restricts the right of the person to freely
choose the place where he stays.
When assessing the compliance of Item 3 of Paragraph 1 of
Article 8 (wording of 26 June 2001) of the Law with Paragraphs
1 and 3 of Article 22 of the Constitution it is to be noted
that by the court injunction provided for in the said item of
the Law conditions could be created to interfere in the private
life of the person to a certain extent, however, in case such
court injunction is applied when the data, upon the procedure
established by laws, are received about the relations of the
persons with the organised groups, criminal syndicates or their
members, in case the collected data constitute a sufficient
basis for considering that this person may commit grave (or
very grave) criminal deeds, and in case by this injunction one
strives to attain the constitutionally important objectives-to
guarantee the safety of society and the state, to ensure public
order and the rights and freedoms of persons-this court
injunction is to be assessed as constitutionally reasonable.
Thus, Item 3 of Paragraph 1 of Article 8 (wording of 26
June 2001) of the Law is not in conflict with Paragraphs 1, 3
and 4 of Article 22 of the Constitution.
26.7. Pursuant to Paragraph 1 of Article 31 of the
Constitution a person is presumed innocent until proven guilty
and declared guilty by an effective court judgement in
accordance with the procedure established by law. The
presumption of innocence is consolidated in Paragraph 1 of
Article 31 of the Constitution. According to Paragraph 4 of
Article 31 of the Constitution punishment may be imposed or
applied only on the grounds established in law.
According to Item 3 of Paragraph 1 of Article 8 (wording
of 26 June 2001) of the Law the court may impose an injunction
against a person not to frequent the places indicated. It has
been mentioned that by the court injunction, provided for in
Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of
the Law, wherein one indicates the places which the person is
prohibited from visiting, the right of the person to freely
choose the place of staying is restricted.
When assessing the compliance of Item 3 of Paragraph 1 of
Article 8 (wording of 26 June 2001) of the Law with Paragraph 1
of Article 31 of the Constitution it is to be noted that the
court injunction provided for in Item 3 of Paragraph 1 of
Article 8 (wording of 26 June 2001) of the Law is a preventive
measure, which may be applied in regard to the persons in case
the data, received upon the procedure established by laws,
about the relations of these persons with organised groups,
criminal syndicates or their members constitute a sufficient
basis for considering that this person may commit grave (or
very grave) criminal deeds, and in case this preventive measure
should be applied in order to guarantee the safety of society
and the state, to ensure public order and the rights and
freedoms of persons.
Thus, the said court injunction is not a punishment, which
may be imposed, according to the Constitution, upon the person
by the court judgement for a commission of a crime, but a
preventive measure applied in order to restrict and diminish
organised crime. By imposing this preventive measure the person
is not recognised guilty of commission of a crime. This measure
is applied when a sufficient reason exists to believe that the
person may commit grave (or very grave) crimes and when it is
necessary in order to protect the constitutional values: the
safety of society and the state, public order and the rights
and freedoms of persons. It is worth noticing that, on the one
hand, the objective of this measure is to prevent the person
from committing a grave (or very grave) crime, i.e. preventing
him from committing dangerous violations of law for the
commission of which or an attempt to commit which a punishment
may be imposed upon the person, and, on the other hand, to
guarantee the safety of society and the state, public order and
the rights and freedoms of persons.
Thus, Item 3 of Paragraph 1 of Article 8 (wording of 26
June 2001) of the Law is not in conflict with Paragraphs 1 and
4 of Article 31 of the Constitution.
26.8. In this Ruling of the Constitutional Court it was
held that Item 3 of Paragraph 1 of Article 8 (wording of 26
June 2001) of the Law is not in conflict with Paragraphs 1, 3
and 4 of Article 22, Article 24, Paragraphs 1 and 4 of Article
31, Paragraphs 1 and 2 of Article 32 of the Constitution, the
provision of Paragraph 1 of Article 48 thereof that each human
being may freely choose a job and business. Having held this,
one is also to hold that Item 3 of Paragraph 1 of Article 8
(wording of 26 June 2001) of the Law is not in conflict with
Article 18 of the Constitution and the constitutional principle
of a state under the rule of law. Having held this, it is to be
held also that Item 3 of Paragraph 1 of Article 8 (wording of
26 June 2001) of the Law is not in conflict with Article 18 of
the Constitution and the constitutional principle of a state
under the rule of law.
27. One should draw his attention to the fact that when
imposing a measure of prevention of organised crime, provided
for in the Law, it is necessary, each time, to check whether
all the bases of its application provided for in the Law exist,
i.e. whether any data are received upon the procedure
established by laws about the relations of the person with
organised groups, criminal syndicates or their members, whether
such data witness relations of this person with the organised
groups, criminal syndicates or their members precisely as with
the organised groups, criminal syndicates or their members, and
whether such relations permit to reasonably assume that these
persons may commit grave (or very grave) crimes. Moreover, in
each case one should ascertain that precisely the chosen
preventives measures are necessary in order to guarantee the
safety of society and the state, to ensure public order and the
rights and freedoms of persons. One may not impose any measures
of prevention of organised crime, which are disproportionate to
the constitutionally reasonable objective of imposing these
measures.
It is to be noted, alongside, that the provisions of
Article 3 (wording of 26 June 2001), Article 4 (wordings of 26
June 2001 and 3 April 2003), Paragraph 3 of Article 6 (wording
of 26 June 2001), and Paragraph 1 of Article 8 (wording of 26
June 2001) of the Law may not be construed as the ones which
prohibit the person upon in whose regard the preventive
measures provided for in the Law on the Restraint of Organised
Crime, including an official warning, are issued from applying
to court concerning the reasonability of issuance the
preventive measure defined in the Law.
28. Taking account of the arguments set forth, one is to
conclude:
1) Article 3 (wording of 26 June 2001) of the Law is not
in conflict with Article 18, Paragraphs 1, 3, and 4 of Article
22, Article 24, Paragraphs 1 and 4 of Article 31, Paragraphs 1
and 2 of Article 32, Paragraph 1 of Article 48 of the
Constitution and the constitutional principle of a state under
the rule of law;
2) Article 4 (wordings of 26 June 2001 and 3 April 2003)
of the Law is not in conflict with Article 18, Paragraphs 1, 3,
and 4 of Article 22, Article 24, Paragraphs 1 and 4 of Article
31, Paragraphs 1 and 2 of Article 32, Paragraph 1 of Article 48
of the Constitution and the constitutional principle of a state
under the rule of law;
3) Paragraph 3 of Article 6 (wording of 26 June 2001) of
the Law is not in conflict with Paragraph 2 of Article 21,
Paragraph 4 of Article 22, and Paragraph 1 of Article 31 of the
Constitution;
4) Paragraph 1 of Article 8 (wording of 26 June 2001) of
the Law is not in conflict with Article 18, Paragraphs 1, 3,
and 4 of Article 22, Article 24, Paragraphs 1 and 4 of Article
31, Paragraphs 1 and 2 of Article 32, Paragraph 1 of Article 48
of the Constitution and the constitutional principle of a state
under the rule of law.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
To recognise that Article 3 (wording of 26 June 2001),
Article 4 (wordings of 26 June 2001 and 3 April 2003),
Paragraph 3 of Article 6 (wording of 26 June 2001), and
Paragraph 1 of Article 8 (wording of 26 June 2001) of the
Republic of Lithuania Law on the Restraint of Organised Crime
are not in conflict with the Constitution of the Republic of
Lithuania.
This ruling of the Constitutional Court of the Republic of
Lithuania 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
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas