Case No. 43/06
                                
      THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
                                
                            DECISION
ON THE DISMISSAL OF THE LEGAL PROCEEDINGS IN THE CASE  SUBSEQUENT
TO  THE  PETITION  OF A GROUP OF MEMBERS OF THE  SEIMAS  OF   THE
REPUBLIC OF LITHUANIA, THE PETITIONER, REQUESTING TO  INVESTIGATE
WHETHER  PARAGRAPH 3 (WORDING OF 30 MARCH 2004) OF ARTICLE 20  OF
THE REPUBLIC OF LITHUANIA LAW ON DOCUMENTS AND ARCHIVES IS NOT IN
CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

                           28 May 2007
                             Vilnius

      The  Constitutional  Court of the Republic  of   Lithuania,
composed  of  the Justices of the Constitutional  Court   Armanas
Abramavičius,   Toma  Birmontienė,  Egidijus  Kūris,     Kęstutis
Lapinskas,  Zenonas  Namavičius,  Vytautas  Sinkevičius,   Stasys
Stačiokas and Romualdas Kęstutis Urbaitis, 
with the secretary of the hearing—Daiva Pitrėnaitė,
      at  a  procedural  sitting  of  the  Constitutional   Court
considered  the petition of a group of Members of the Seimas   of
the   Republic  of  Lithuania,  composed  of  Vilija    Aleknaitė
Abramikienė, Jurgis Razma, Irena Degutienė, Rimantas Jonas Dagys,
Audronius  Ažubalis,  Ramūnas Garbaravičius, Danutė   Bekintienė,
Arimantas Dumčius, Liudvikas Sabutis, Rasa Juknevičienė,  Andrius
Kubilius,   Algirdas  Vrubliauskas,  Edmundas  Pupinis,    Julius
Dautartas,  Saulius Pečeliūnas, Antanas Matulas, Vincė  Vaidevutė
Margevičienė,  Audrius  Endzinas,  Violeta  Boreikienė,   Povilas
Jakučionis,   Antanas   Napoleonas   Stasiškis,   Vida     Marija
Čigriejienė,  Dalia  Teišerskytė, Kęstutis  Glaveckas,   Gintaras
Šileikis,  Algis  Čaplikas,  Rimantas Remeika,  Arminas   Lydeka,
Saulius  Lapėnas,  Vytautas Bogušis, Jonas Čekuolis,  and   Algis
Kašėta,  the  petitioner,  requesting  to  investigate    whether
Paragraph  3  (wording  of 30 March 2004) of Article 20  of   the
Republic  of  Lithuania  Law on Documents and Archives,  to   the
extent  that  it  provides  that  access  to  the    intelligence
information  containing  documents,  belonging to  the   National
Documentary Fund, of the Lithuanian SSR subdivision of the former
USSR State Security Committee (KGB), the Lithuanian SSR  Ministry
of the Interior and other special services which operated on  the
territory  of  Lithuania,  as  well  as  produced  criminal   and
deportation case files shall be limited for a period of 70  years
from the production thereof, is not in conflict with Articles  25
and 42 of the Constitution of the Republic of Lithuania and  with
the  constitutional  principles of Lithuania as  an   independent
state,  of  democracy, open civil society and a state under   the
rule of law.
The Constitutional Court 
                        has established:
                                I
      1.  A  group  of Members of the  Seimas,  the   petitioner,
applied  to the Constitutional Court with a petition,  requesting
to investigate whether Paragraph 3 (wording of 30 March 2004)  of
Article 20 of the Law on Documents and Archives (hereinafter also
referred  to  as the Law), to the extent that it  provides   that
access  to  the intelligence information  containing   documents,
belonging to the National Documentary Fund, of the Lithuanian SSR
subdivision  of the former USSR State Security Committee   (KGB),
the  Lithuanian  SSR Ministry of the Interior and other   special
services which operated on the territory of Lithuania, as well as
produced criminal and deportation case files shall be limited for
a  period  of  70 years from the production thereof, is  not   in
conflict with Articles 25 and 42 of the Constitution and with the
constitutional  principles of Lithuania as an independent  state,
of  democracy, open civil society and a state under the rule   of
law.
      This  petition was received at the Constitutional Court  on
26 September 2006.
      2.  Under  ordinance No. 2B-133 of 9 October 2006  of   the
President of the Constitutional Court subsequent to this petition
of  the  group  of Members of the Seimas,  the  petitioner,   the
preparation  of  case  No. 43/06 for  the  Constitutional   Court
hearing was begun.
                                II
      1.  It was established in Paragraph 3 (wording of 30  March
2004) of Article 20 of the Law:
      "Access   to  the  intelligence  information     containing
documents,  belonging  to the National Documentary Fund, of   the
Lithuanian  SSR  subdivision of the former USSR  State   Security
Committee (KGB), the Lithuanian SSR Ministry of the Interior  and
other  special  services  which  operated on  the  territory   of
Lithuania,  as  well as produced criminal and  deportation   case
files  shall  be  limited  for a period of  70  years  from   the
production  thereof. The Government of the Republic of  Lithuania
shall establish the procedure for using such documents."
                               III
      The petition of the petitioner is grounded on the following
arguments.
      1.  Publicity is one of the conditions for democracy.   The
Nation,  when adopting decisions on most important issues of  the
Republic  of Lithuania, an open civil society have the right   to
know  what persons used to serve the occupants; one must   ensure
transparency.  This must be done by consolidating the  protection
of the rights of the third persons and the personal liability  of
users  of the archives, however, it is impermissible to  classify
for  a 70 year-period the content of documents of the  structures
of  a  foreign  state,  which  used  to  operate  in    Lithuania
unlawfully;  the classification of information about   anti-state
activity  prevents  the society from familiarisation  about   the
criminal organisations of the foreign state-aggressor, as well as
the  members and co-workers of such organisations. The fact  that
the independent Republic of Lithuania, which was restored on  the
basis  of  continuity  of the state and  citizenship,  grants   a
special protection to documents of the criminal organisations  of
the state that used to act against the Republic of Lithuania  and
its  citizens is incompatible with the status of the Republic  of
Lithuania as an independent state.
      2. Freedom of information may be limited by means of a  law
when  such limitations are necessary in a democratic society  and
when  one  seeks to protect, by means of the  limitations,   such
values  as the health of a human being, his honour and   dignity,
private life and the constitutional order.
      However,   a  democratic  society  is  inseparable     from
publicity; an open civil society of Lithuania is hard to  imagine
without information about the structures of a foreign state which
used  to  conduct anti-state activities in the territory of   the
Republic  of Lithuania and about the persons who served them.   A
permit to society to access the documents of criminal  structures
of  a foreign state (the Lithuanian SSR subdivision of the   USSR
State  Security Committee (KGB), the Lithuanian SSR Ministry   of
the  Interior, and other USSR special services which operated  on
the territory of Lithuania) would strengthen the participation of
the  civil  society  in  democratic  governance  and  it    would
strengthen  the constitutional order, while the possibilities  of
manipulation with persons due to their participation in the anti-
state activities would be reduced to the minimum.
      In  addition, the limits of the protection of the   private
life of a human being end at the point when he, by his actions or
in  other  unlawful manner, violates the interests protected   by
law,  inflicts  damage  on individual persons, society  and   the
state.
      Therefore,  the  limitation established in Paragraph 3   of
Article 20 of the Law whereby one seeks to protect the  documents
of  the structures that operated for unlawful purposes cannot  be
regarded  as  a necessary one in the democratic society  of   the
Republic of Lithuania, nor may it be justified by the  protection
of private life or the constitutional order.
      3.  An open civil society is unimaginable without the  most
important function of archives properly discharged, which is  the
presentation  of the kept material to society and researches   of
the  past  of  Lithuania.  The disputed  limitation  blocks   the
research of the history of the XX century, which is important not
only  to the society of Lithuania, but also in the  international
context.  Due  to  the  classification of the part  of  the   KGB
archives,  which is related with intelligence information,   with
criminal  and  deportation  files, the studies of  the   post-war
resistance,  the holocaust and the Soviet period come to a  dead-
end.
The Constitutional Court
                           holds that:
      1.  On  30 March 2004, the Seimas adopted the Republic   of
Lithuania  Law  on  Amending the Law on Archives  by  Article   1
whereof  it  amended the Republic of Lithuania Law on   Archives,
which was adopted by the Seimas on 5 December 1995 and which  had
been  in effect as from 30 December 1995, set it forth in a   new
wording and changed its title—this law was titled the Republic of
Lithuania Law on Documents and Archives. The Law on Documents and
Archives (wording of 30 March 2004) came into force on 1  January
2005.
      As mentioned, under Paragraph 3 (wording of 30 March  2004)
of Article 20 of the Law, access to the intelligence  information
containing documents, belonging to the National Documentary Fund,
of  the  Lithuanian  SSR subdivision of the  former  USSR   State
Security  Committee  (KGB), the Lithuanian SSR Ministry  of   the
Interior  and  other  special  services which  operated  on   the
territory  of  Lithuania,  as  well  as  produced  criminal   and
deportation case files shall be limited for a period of 70  years
from the production thereof; the Government had to establish  the
procedure for using such documents.
      2. On 19 December 2006, the Seimas adopted the Republic  of
Lithuania Law on Amending and Supplementing Articles 1, 2, 3, 14,
and 20 of the Law on Documents and Archives and Supplementing the
Law with an Annex, by Paragraph 1 of Article 5 whereof it amended
Paragraph  3 (wording of 30 March 2004) of Article 20 of the  Law
on Documents and Archives. The Law on Amending and  Supplementing
Articles 1, 2, 3, 14, and 20 of the Law on Documents and Archives
and  Supplementing  the Law with an Annex came into force on   11
January 2007.
      Paragraph 3 (wording of 19 December 2006) of Article 20  of
the Law provides:
      "Access  to  the  documents  of the special  part  of   the
National Documentary Fund, covered in Paragraph 3 of Article 3 of
this  Law, shall not be limited. Access to the documents of   the
special part of the National Documentary Fond shall be  regulated
in accordance with the procedure laid down in Paragraphs 2 and  3
of  Article  19 of this Law. Access to the documents   containing
information  regarding  the persons who have admitted to   secret
collaboration with the intelligence agencies of the USSR and  who
have  been  entered  on  the  record of  the  persons  who   have
confessed,  as  well as in the cases when a person who   suffered
from the intelligence agencies of the USSR expresses his will  on
the limitation of use of the information on him until his  death,
shall  be  limited.  The procedure for accessing and  using   the
restricted documents, as well as the procedure according to which
a  person  who  suffered from the special services of  the   USSR
expresses his will on the limitation of use of the information on
him  shall  be  laid down by the Government of the  Republic   of
Lithuania in compliance with this and other laws."
      Paragraph  3 (wording of 19 December 2006) of Article 3  of
the Law, to which reference is made in Paragraph 3 (wording of 19
December 2006) of Article 20 of the same law, provides:
      "The  special part of the National Documentary Fund   shall
consist  of  the  activity documents of the  structures  of   the
opposition (resistance) to the occupation regimes of the USSR and
Germany,  the People's Commissariat for Internal Affairs of   the
Lithuanian  SSR  (from 1940 to 1941 and from 1944 to 1946),   the
People's  Commissariat for State Security of the Lithuanian   SSR
(in 1941 and from 1944 to 1946), the Ministry for State  Security
of  the  Lithuanian  SSR (from 1946 to 1953),  the  Ministry   of
Internal  Affairs of the Lithuanian SSR (from 1946 to 1954),  the
Committee for State Security of the Lithuanian SSR (from 1954  to
1991),  the People's Commissariat for State Security of the  USSR
(NKGB),  the Ministry for State Security of the USSR (MGB),   the
subdivisions  of  the Committee for State Security of  the   USSR
(KGB)  which  operated  in  Lithuania from  1940  to  1991,   the
subdivisions of the People's Commissariat for Internal Affairs of
the USSR (NKVD) and the Ministry of Internal Affairs of the  USSR
(MVD)  which  operated  in  Lithuania from  1946  to  1954,   the
subdivisions of the People's Commissariat of Defence of the  USSR
(NKO)  and  the  People's Commissariat (Ministry)  of  the   Navy
(NKVMF)  which operated in Lithuania in 1941, from 1943 to  1946,
the  subdivisions  of the Main Intelligence Directorate  of   the
General  Staff  of  the  Soviet Army  (GRU)  which  operated   in
Lithuania from 1940 to 1991, the Communist Party of Lithuania, as
well  as  the  structures subordinate  to  these   organisations,
services.  The  documents  of the special part of  the   National
Documentary  Fund,  with the exception of the documents  of   the
former  secret  (first) divisions of the  state   establishments,
enterprises  and  organisations that operated in the   Lithuanian
SSR,  must be transferred in accordance with the procedure   laid
down in Paragraph 2 of Article 4 of this Law and preserved in the
Lithuanian  Special Archives. The documents of the former  secret
(first)  divisions of the state establishments, enterprises   and
organisations  that  operated  in the Lithuanian  SSR  shall   be
preserved in other state archives."
      Paragraphs 2 and 3 (wording of 19 December 2006) of Article
19  of  the Law, to which reference is also made in Paragraph   3
(wording  of  19 December 2006) of Article 20 of the  same   law,
provide:
      -  "A person who wishes to get acquainted himself with  the
documents  the access to which is not limited, must apply to  the
document  holder,  submitting a written request and  a   document
proving  his  identity. A person should not be obliged  to   give
reasons  for having access to documents. A person may get  access
to  documents  only  on  the premises of  the  document   holder"
(Paragraph 2);
      -  "The  document holder must provide a person  who   seeks
access to documents with available finding aids and the documents
requested by him or their copies. A person shall get finding aids
and  have access to documents for free. When access to  documents
is possible only by means of special equipment or when copies  of
documents are made at the person's request, the person must cover
the expenses related to the display or copying of documents. If a
document  holder refuses to present the documents requested by  a
person, he must explain in writing the reasons of the refusal and
the  possibility  to appeal against such refusal in  the   manner
prescribed by law" (Paragraph 3).
      3.  If  one compares the legal regulation  established   in
Paragraph  3 (wording of 19 December 2006) of Article 20 of   the
Law  with  the legal regulation which used to be established   in
Paragraph 3 (wording of 30 March 2004) of Article 20 of the  Law,
it  is  clear  that the provision "Access  to  the   intelligence
information  containing  documents,  belonging to  the   National
Documentary Fund, of the Lithuanian SSR subdivision of the former
USSR State Security Committee (KGB), the Lithuanian SSR  Ministry
of the Interior and other special services which operated on  the
territory  of  Lithuania,  as  well  as  produced  criminal   and
deportation case files shall be limited for a period of 70  years
from  the production thereof" which is disputed by the group   of
Members of the Seimas, the petitioner, is no longer there.
      4.   Paragraph  4  of  Article  69  of  the  Law  on    the
Constitutional Court provides that the annulment of the  disputed
legal  act  shall be grounds to adopt a decision to dismiss   the
instituted legal proceedings and, if it becomes clear before  the
beginning  of the Court hearing, the Constitutional Court   shall
decide this question in the deliberation room.
      In  its  acts 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
establishing the right of the Constitutional Court to dismiss the
instituted legal proceedings, when not courts, but other subjects
specified in Article 106 of the Constitution have applied to  the
Constitutional  Court,  and  when  one  takes  account  of    the
circumstances of the case. The Constitutional Court has also held
that the same can be said about the situations when the  disputed
legal  act  (part thereof) was not repealed, however, the   legal
regulation  established in it was changed (Constitutional   Court
ruling  of 4 March 2003, decisions of 14 March 2006 (cases   Nos.
3/05 and 14/03), rulings of 30 March 2006, 14 April 2006, and  21
September 2006).
      Conforming to Paragraphs 3 and 4 of Article 22, Article 28,
and  Paragraph 4 of Article 69 of the Law on the   Constitutional
Court  of the Republic of Lithuania, the Constitutional Court  of
the Republic of Lithuania has adopted the following 

                            decision:

      To  dismiss  the instituted legal proceedings in case   No.
43/06  subsequent to the petition of the group of Members of  the
Seimas,  the  petitioner,  requesting  to  investigate    whether
Paragraph  3  of Article 20 of the Republic of Lithuania Law   on
Documents  and  Archives,  to the extent that it  provides   that
access  to  the intelligence information  containing   documents,
belonging to the National Documentary Fund, of the Lithuanian SSR
subdivision  of the former USSR State Security Committee   (KGB),
the  Lithuanian  SSR Ministry of the Interior and other   special
services which operated on the territory of Lithuania, as well as
produced criminal and deportation case files shall be limited for
a  period  of  70 years from the production thereof, is  not   in
conflict  with  Articles  25 and 42 of the Constitution  of   the
Republic  of Lithuania and with the constitutional principles  of
Lithuania  as  an  independent state, of democracy,  open   civil
society and a state under the rule of law.

Justices of the Constitutional Court: 
Armanas Abramavičius
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Vytautas Sinkevičius
Stasys Stačiokas
                                            Romualdas    Kęstutis
Urbaitis