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Content updated: 12-06-2019 13:43

The legal regulation connected with the use of criminal intelligence information to investigate misconduct in office of a corrupt nature is not in conflict with the Constitution

18-04-2019

By its ruling passed today, the Constitutional Court recognised that the provision “criminal intelligence information about an act with the characteristics of a corruption criminal act may, with the consent of the prosecutor, be declassified by decision of the head of the principal criminal intelligence institution and be used in an investigation into […] misconduct in office” of Paragraph 3 of Article 19 of the Law on Criminal Intelligence is not in conflict with the Constitution.

The Constitutional Court has also recognised that the provision “A disciplinary penalty shall be imposed taking into account the information provided in the cases and according to the procedure referred to in […] the Law on Criminal Intelligence […]” of Paragraph 2 of Article 29 of the Law on State Service was not in conflict with the Constitution. The provision “A disciplinary penalty shall be imposed taking into account the information provided in the cases and according to the procedure referred to in […] the Law on Criminal Intelligence […]” of Paragraph 1 of Article 26 (wording of 27 June 2013) of the Statute of Internal Service and of Paragraph 1 of Article 33 of the Statute of the Internal Service (wording of 25 June 2015) was also recognised to have been not in conflict with the Constitution.

The provisions of the Constitution and the official constitutional doctrine

In this constitutional justice case, the Constitutional Court has examined the compliance of the legal regulation established in the Law on Criminal Intelligence, the Law on State Service, and the Statute of Internal Service under which criminal intelligence information about an act with the characteristics of a corruption criminal act could (or can) be declassified for the purposes of the investigation of misconduct in office with Article 22 and Paragraph 1 of Article 30 of the Constitution, the provision “Citizens shall have […] the right to enter on equal terms the State Service of the Republic of Lithuania” of Paragraph 1 of Article 33 thereof, and the constitutional principle of a state under the rule of law.

In this ruling, the Constitutional Court has noted that Paragraphs 1–4 of Article 22 of the Constitution, which guarantee the right of a person to privacy, including the right to respect for private life and for its inviolability, as well as the right to the inviolability of personal correspondence, telephone conversations, and other communications, and which consolidate a prohibition on arbitrary or unlawful interference with everyone’s private and family life, as well as on encroachment upon everyone’s honour and dignity, imply that all paragraphs of Article 22 of the Constitution are interrelated and should be interpreted in conjunction with one another. It would not be possible to adequately ensure the right of a person to respect for his/her private life, honour and dignity, for the inviolability of his/her correspondence or other communication if information on the person’s private life were collected differently from what is provided for in Paragraph 3 of Article 22 of the Constitution, i.e. not exclusively upon a justified court decision and not exclusively according to the law, or if laws did not establish respective guarantees for the protection of the person’s rights meant to protect him/her from arbitrary or unlawful interference, among other things, with his/her personal and family life.

The Constitutional Court has held that, under the Constitution, the right of a person to privacy is not absolute, and has repeatedly stressed in its rulings that, under the Constitution, it is allowed to limit the exercise of the rights and freedoms of a person if the following conditions are followed: these limitations are established by means of a law; the limitations are necessary in a democratic society in order to protect the rights and freedoms of other persons, the values consolidated in the Constitution, as well as the constitutionally important objectives; the limitations do not deny the nature and essence of the rights or freedoms; and the constitutional principle of proportionality is observed.

With regard to the right to privacy, which is relevant in this case, the Constitutional Court has noted that, if any person, including a state servant/official, is committing criminal or other acts that are contrary to law, for instance, is committing misconduct in office, he/she must be aware that, under the Constitution, among others, Article 22 thereof, and the constitutional principle of a state under the rule of law, such his/her actions will trigger an appropriate reaction from authorised state institutions, meaning that a violation of the law (whether being committed or already committed) may lead to coercive measures lawfully and reasonably enforced by the state, where those coercive measures will not only have a certain effect on the conduct of that person, but also interfere with his/her private life.

Thus, on the one hand, a person, including a state servant/official, who has committed a criminal or another act that is contrary to law, including misconduct in office, or has otherwise injured the interests protected by law, or has inflicted damage on individual persons, society, or the state should not and must not expect that his/her private life will be protected in the same way as the private life of persons who do not violate laws or who act in the public interest. On the other hand, under the Constitution, among others, Article 22 thereof, and the constitutional principle of a state under the rule of law, the legislature, having established the powers of state institutions to secretly collect, in the cases and according to the procedure established by law, information about persons for the purposes of criminal justice or for other legitimate purposes, is also obliged to establish in the law the cases and conditions of the use of such collected information, among other things, to consolidate the possibility of transferring this information to other state institutions for use for other legitimate purposes established by law, including for the investigation of misconduct in office.

Paragraph 1 of Article 33 of the Constitution consolidates the right of citizens to enter state service on equal terms. The Constitutional Court recalled the fact that, under the Constitution, state service is service to the State of Lithuania and the civil Nation; therefore, state service should be loyal to the State of Lithuania and its constitutional order; only persons who are loyal to their state may work in the institutions of that state where no doubts arise concerning the loyalty or credibility of such persons.

The Constitutional Court has noted from the aspect relevant to this case that, as stated before, various provisions of the Constitution – its norms and principles, among other things, the provision of Paragraph 1 of Article 33 thereof that citizens have the right to enter state service on equal terms – give rise to the constitutional principle of the transparency of state service; this principle implies certain requirements that must be respected when public authorities, their officials, and state servants are forming a corps of state servants; the transparency of state service is a necessary precondition against the consolidation of corruption and protectionism, against the discrimination of some persons and granting privileges to others, and against the abuse of power; thus, the transparency of state service is also a necessary precondition for people for trusting public authorities and the state in general.

The Constitutional Court has emphasised the importance of the fight against corruption in state service. The Constitution, among others, the provision of Paragraph 3 of Article 5 thereof that state institutions serve the people, Paragraph 1 of Article 33 thereof, the constitutional concept of state service, the constitutional principles of transparency and publicity of state service, give rise to the duty of the state to take all possible measures to prevent corruption and the abuse of power in state service. In this context, the Constitutional Court noted that corruption as a social phenomenon has negative material and moral effect on the political and economic system of the state, undermines the reputation of state servants and officials, as well as the authority of the institutions in which they work and the authority of all of state service, encourages disrespect for laws and creates the preconditions for violating human rights, undermines the trust of the public in the state, its institutions, democratic government of the state, and law; thus, corruption destroys the constitutional foundations of a democratic state under the rule of law.

In view of the foregoing, the Constitutional Court has held that a person who has exercised his/her right, established in Paragraph 1 of Article 33 of the Constitution, to enter state service must be loyal to the state and work in such a way that his/her loyalty to the state and his/her credibility would not give rise to any doubts, that the citizens could reasonably trust in state servants/officials, that state service would be qualified and capable of performing the tasks assigned to it, among other things, in preventing the abuse of power and corruption in state service.

Thus, in order to ensure proper functioning of state service, its transparency and publicity, the prevention of the manifestations of corruption or corruption-related acts in state service is, under the Constitution, among others, Paragraph 1 of Article 33 thereof, and the constitutional principle of a state under the rule of law, one of the constitutionally important objectives of the state. Thus, if a state servant/official allegedly commits criminal acts or other acts that are contrary to law, among others, misconduct in office, he/she, under the Constitution, may be subject to state coercive measures, which have a certain effect on his/her conduct while simultaneously limiting the exercise, among others, of his/her right to the protection of private life or the right to enter state service in order that the constitutionally important objectives, including the ensuring of the transparency and publicity of state service, would be reached.

In view of this, as regards the legal regulation impugned in this case, the Constitutional Court has held that, under the Constitution, among others, Paragraph 1 of Article 33 thereof, and the constitutional principle of a state under the rule of law, it is not allowed to establish such a legal regulation where, in the course of its application, a state servant/official who fails to comply with constitutionally justified requirements laid down in the Constitution and other legal acts with respect to state service and persons working in it could escape legal liability; the law must lay down appropriate legal measures, i.e. the liability of the state servant/official for the violations committed by him/her, including misconduct in office; one of the sanctions established by law for misconduct in office may be the dismissal of the state servant/official from office. Otherwise, without introducing the possibility of applying the relevant legal liability to such a state servant/official, a situation would be created that would not be tolerated under the Constitution, i.e. where such persons are allowed to work in state service who do not meet the requirements arising from the Constitution, such as the proper performance of their duties in compliance with the Constitution and law, loyalty to the State of Lithuania and its constitutional order, avoidance of a conflict between public and private interests, non-abuse of office, and the adoption of transparent and reasoned decisions.

The Constitutional Court has also noted that, under the Constitution, information on persons secretly collected by other state institutions for the purposes of criminal justice or for other legitimate purposes may be used in the cases and according to the procedure established by law in order to achieve the above-mentioned constitutionally important objectives; the use of such information can not only have a certain impact on the conduct of the state servant/official, but also interfere with his/her private life. According to the Constitution, among others, Paragraph 1 of Article 33 thereof, the constitutional concept of state service, and the constitutional principle of a state under the rule of law, as well as the imperatives of lawfulness, necessity in a democratic society, and proportionality, which arise from the said principle, if the application by the state of the relevant coercion measures, established by law, to a state servant/official or another person, in particular for the investigation of criminal acts, does not reveal the characteristics (as they have not been proved) of the body of a crime, but detects other possibly committed acts that are contrary to law, among others, misconduct in office, including that of a corrupt nature, which are incompatible with the requirements stemming from the Constitution for state servants/officials, or identifies state servants/officials who allegedly committed them, state institutions and officials have the duty to properly investigate such violations of law and, when justified, to bring the mentioned state servants/officials to respective legal liability, among others, by using, in the cases and according to the procedure established by law, secret information collected by other state institutions about them, which discloses the aforementioned alleged violations of law, including misconduct in office, committed by them. Such use of this information for investigating misconduct in office is based on constitutionally important objectives of the protection of the public interest, it aims to protect the interests of the state, of state service, and of all society, to prevent corruption in state service, to strengthen the credibility and responsibility of state service and every state servant/official, and to guarantee that only such persons hold the positions of state servants and statutory positions who meet the high requirements established by law, who are loyal to the State of Lithuania, and who are of good repute.

Thus, to sum up, it should be noted that this ruling of the Constitutional Court makes it clear that, according to the Constitution, information secretly collected about a state servant/official where that information shows that the state servant/official may have committed misconduct in office of a corrupt nature can be used to investigate the relevant misconduct in office. In other words, the Constitution cannot tolerate a situation where such a person works in state service about whom the state has information, collected lawfully and secretly, that testifies that the person in question does not comply with the requirements, stemming from the Constitution for him/her, for the loyalty to the state and the transparency of his/her activities. Otherwise, the Constitution would not create any preconditions for ensuring in an effective manner the transparency and publicity of state service and for combating corruption.

Paragraph 1 of Article 30 of the Constitution consolidates the right of a person to effective judicial protection. The Constitutional Court recalled the fact that, under Paragraph 1 of Article 30 of the Constitution, a person must be guaranteed the right to an independent and impartial arbiter of a dispute who, on the basis of the Constitution and laws, would settle a legal dispute on its merits; each person has this right.

With regard to the right, relevant in this case, to judicial protection of violated rights, the Constitutional Court has pointed out that the right of a public servant/official, which arises from the Constitution, among others, Paragraph 1 of Article 30 thereof, and the constitutional principle of a state under the rule of law, to apply to a court regarding the protection of his/her rights violated as a result of the application of official liability must be real, i.e. the person in question must have real opportunities to effectively defend under the judicial procedure his/her violated rights against, in his/her opinion, the unlawful actions of the state/municipal institutions and/or against the abuse of the powers granted to them in the course of the application of the state coercive measures, among others, in secretly collecting information/data about the person and by using that information for the purposes of the investigation of misconduct in office; such a person has the right to defend his/her violated rights and legitimate interests effectively, irrespective of whether or not they are directly enshrined in the Constitution. It is also important that the right of a state servant/official to apply to a court regarding the protection of his/her rights violated as a result of the application of official liability also implies his/her right to the due court process and a fair court decision. During the dispute in a court, it is necessary to ensure the right of the state servant/official to have full access to all the material, data, or information used in the investigation of the misconduct in office, including the information about him/her secretly collected in the course of applying state coercive measures that has been declassified in accordance with the procedure and under the conditions set by law and has been transferred for use for the purposes of the investigation of the misconduct in office, as well as the right to access the evidence used in the case; in addition, he/she has the right to provide explanations, to challenge the lawfulness or authenticity of the evidence used in the investigation of the misconduct in office, to challenge the necessity and proportionality of the use of the evidence, and to challenge all the factual and legal circumstances relating to the imposition of an official penalty. The state servant/official in the court proceedings must have the right to defend himself/herself effectively, among others, to have his/her representative, and the state servant/official must be given sufficient time and opportunities to prepare properly for defence.

In this case, the Constitutional Court has also revealed the requirements of due process, which stem from the Constitution, for the procedure of investigating the misconduct in office committed by a state servant/official. The Constitutional Court noted that the Constitution, among others, Paragraph 1 of Article 33 thereof, the constitutional concept of state service, the constitutional principle of a state under the rule of law, and the constitutional imperatives of justice and reasonableness, give rise to the requirement for the legislature also to regulate the procedure for imposing official penalties, among other things, the procedure of investigating, in a manner that would ensure due process, the misconduct in office committed by a state servant/official. The guarantees of such a process include the protection of the constitutional rights of the state servant/official, among others, the protection of the right to the inviolability of private life and correspondence, guaranteed under Article 22 of the Constitution, and the ensuring of the right to enter state service on equal terms, enshrined in Paragraph 1 of Article 33 thereof; at the same time, the said guarantees create the preconditions for preventing unlawful actions of state/municipal institutions and/or the abuse of powers, granted to them, in the course of applying state coercive measures, including official liability. The right of the state servant/official to be informed about the beginning of an investigation into the misconduct in office is also important for due process in investigating incidents of misconduct in office. Both at the beginning of the investigation of the misconduct in office and throughout such a procedure, the state servant/official has the right to full access to all material, data, or information used in this investigation, as well as to any information secretly gathered concerning him/her, he/she has the right to be heard and to submit his/her explanations in the course of this procedure, to challenge the material or evidence used in his/her case of misconduct in office, to raise the question of the legality of such use, to demand that no evidence that he/she considers unacceptable be used, to challenge all the factual and legal circumstances relating to the imposition of an official penalty. During the procedure of investigating the misconduct in office, it is necessary to ensure the right of the state servant/official to effective defence, among others, the right to have his/her representative.

As the Constitutional Court has emphasised in this ruling, the presumption of innocence, enshrined in Paragraph 1 of Article 31 of the Constitution, must also be ensured in transferring for use and/or using information collected secretly by authorised state institutions in accordance with the procedure established by law for the purposes of the investigation of misconduct in office, and the fact of transferring such information cannot serve as the basis, in the absence of a proper and thorough investigation of the alleged misconduct in office, for considering the state servant/official to have committed the misconduct in office. Such transferred information either may serve as the basis for launching an investigation into a particular instance of misconduct in office or may be used for investigating such misconduct, i.e. in order to establish (prove) the fact of the misconduct in office and the circumstances in which it was committed.

The Constitutional Court has reviewed the relevant legal regulation of the European Union and the relevant constitutional jurisprudence of other countries. Summarising the case law of the European Court of Human Rights (hereinafter referred to as the ECtHR), the Constitutional Court concluded that states have been granted under the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention) a certain margin of appreciation in the choice and application of, among others, secret surveillance measures (such as telephone tapping or the control of personal correspondence) used for the investigation of acts that are criminal or representing a danger to the public. As such, the application of such measures to achieve certain legitimate objectives or the use of evidence obtained through the application of such measures does not constitute a contravention of the Convention provided that persons subjected to such measures have effective safeguards to protect their rights and the application of such measures is provided for by law and regulated in detail, i.e. the person is provided effective protection against possible arbitrariness by public authorities. Such a person must have access to effective judicial remedies when he/she challenges the application of such measures (among other things, he/she must have the right to access to justice and the right to a fair trial as a whole), as well as when he/she challenges the lawfulness, necessity, and proportionality of evidence obtained through secret surveillance measures, the authenticity of such evidence, or raises the question of its inadmissibility, whereas national courts have the duty to assess in each case the proportionality of the measure used, for instance, the proportionality of the application of the measure of telephone tapping or of monitoring personal correspondence, or whether the legitimate objectives sought could be achieved by other, less restrictive measures.

In this context, the Constitutional Court noted that, in the case of Terrazzoni v France, examined by the ECtHR, the applicant’s telephone conversation tapped and secretly recorded during lawfully authorised secret surveillance of another person had been used, among others, in her disciplinary proceedings, which led to her dismissal. The evidence obtained by surveilling another person for the purposes of criminal justice and used in the disciplinary proceedings in which the applicant (who herself was a judge) was involved did not violate her right to the protection of her private life under Article 8 of the Convention. Conversations of persons tapped in the context of certain proceedings where those persons are unrelated to the person whose line is being tapped may be used in other proceedings if the said conversations reveal the commission of other violations of law.

The assessment of the compliance of Paragraph 3 of Article 19 of the Law on Criminal Intelligence with the Constitution

In this constitutional justice case, the petitioners impugned the constitutionality of Paragraph 3 of Article 19 of the Law on Criminal Intelligence essentially from two aspects, i.e. insofar as the said paragraph provides for the possibility of declassifying criminal intelligence information about an act with the characteristics of a corruption criminal act and using that information in investigating misconduct in office, as well as insofar as that paragraph does not establish the procedure for the use of the above-mentioned information for investigating misconduct in office. With regard to the latter aspect, the petitioners raised the issue of a legislative omission, i.e. they argued that Paragraph 3 of Article 19 of the Law on Criminal Intelligence does not provide for the above-mentioned procedure, which, according to the petitioners, should have been established in that paragraph under the Constitution.

The Constitutional Court noted that, according to Paragraph 3 of Article 19 of the Law on Criminal Intelligence, criminal intelligence information may be declassified and used for the investigation of only such instances of misconduct in office with the characteristics of a corruption criminal act for the commission of which a state servant/official faces the risk of being imposed the most severe official penalty – dismissal from the position in state service. Taking account of this fact, as regards this aspect, the Constitutional Court has found the legal regulation enshrined in Paragraph 3 of Article 19 of the Law on Criminal Intelligence to be justified by constitutionally important state objectives; this is a necessary and proportionate measure to achieve, under the Constitution, the objective of official liability, among other things, to create the preconditions for the proper application of official liability as a public form of control over servants/officials of a democratic state and of their accountability to society, and, at the same time, to ensure transparency and publicity of state service, as well as to prevent corruption and acts of a corrupt nature in state service. Therefore, the Constitutional Court held that the possibility, consolidated in Paragraph 3 of Article 19 of the Law on Criminal Intelligence, to declassify criminal intelligence information about an act with the characteristics of a corruption criminal act and to use it for the investigation of misconduct in office of a corrupt nature does not restrict the right to the protection of private life, enshrined in Article 22 of the Constitution, and the right to enter state service, enshrined in Paragraph 1 of Article 33 thereof, more than is permitted by the Constitution.

In deciding on the compliance of the impugned Paragraph 3 of Article 19 of the Law on Criminal Intelligence, insofar as, according to the petitioners, that paragraph does not establish the procedure for the use of criminal intelligence information about an act with the characteristics of a corruption criminal act for the investigation of misconduct in office of a corrupt nature, including the possibility of using such information collected with respect to another person (but not the person under investigation as a result of misconduct in office), with Article 22 of the Constitution, the provision “Citizens shall have […] the right to enter on equal terms the State Service of the Republic of Lithuania” of Paragraph 1 of Article 33 thereof, as well as with the constitutional principle of a state under the rule of law, the Constitutional Court noted that the impugned Paragraph 3 of Article 19 of the Law on Criminal Intelligence not only establishes the possibility of declassifying criminal intelligence information collected on the basis of the Law on Criminal Intelligence and using it for the investigation of misconduct in office, but also the conditions for such use:

– not all criminal intelligence information can be used for the investigation of misconduct in office, but only information about an act with the characteristics of a corruption criminal act;

– such criminal intelligence may be declassified and used only by decision of the head of the principal criminal intelligence institution;

– before taking such a decision, the head of the principal criminal intelligence institution must obtain the consent of the prosecutor for declassifying the above-mentioned information and using it for investigating misconduct in office;

– in the investigation of misconduct in office, it is allowed to use only declassified criminal intelligence information about an act with the characteristics of a corruption criminal act.

This legal regulation, interpreted in a systemic manner in conjunction with the other provisions of this and other laws, implies the following steps of the appropriate procedure for deciding on the declassification and use of the said criminal intelligence information:

1) when, in the course of carrying out, or after completing, a criminal intelligence investigation, it becomes clear that an act with the characteristics of a corruption criminal act may have been committed, the head of the criminal intelligence subject informs about this fact the head of the relevant principal criminal intelligence institution who has the right to decide on the declassification of criminal intelligence information and its use for the investigation of misconduct in office;

2) the head of the principal criminal intelligence institution, having determined that the criminal intelligence information available to him/her shows that misconduct in office of a corrupt nature and with the characteristics of a criminal act has been possibly committed, applies to a prosecutor so as to obtain his/her consent to the declassification and use of that information for the investigation of such misconduct;

3) an authorised prosecutor, seeking to ensure the lawfulness requirement in accordance with Paragraphs 1 and 2 of Article 2 of the Law on the Prosecution Service, must fully assess the received criminal intelligence information and the possibilities of its use in criminal proceedings before giving such consent; in addition, the impugned Paragraph 3 of Article 19 of the Law on Criminal Intelligence gives rise to the prosecutor’s duty to assess, on the basis of available criminal intelligence information, whether that information is sufficient to investigate misconduct in office and may be regarded as information about an act with the characteristics of a corruption criminal act that could be declassified and used for the investigation of misconduct in office; seeking to ensure the lawfulness requirement, the authorised prosecutor must also assess in each particular case and to the extent necessary, justified, and proportional the use of that information for the purpose of investigating misconduct in office, and he/she has the right to decide whether to give such consent;

4) having obtained the prosecutor’s consent to the declassification of information about an act with the characteristics of a corruption criminal act and its use for the investigation of misconduct in office, the head of the principal criminal intelligence institution, before taking a decision pursuant to the impugned Paragraph 3 of Article 19 of the Law on Criminal Intelligence, applies to a special commission of experts or to a person responsible for the protection of classified information and asks for a conclusion on the declassification of that criminal intelligence information;

5) although the head of the principal criminal intelligence institution has the duty to obtain a conclusion from the said special commission of experts or from the person responsible for the protection of classified information, this conclusion is not binding on the head of the principal criminal intelligence institution; according to Paragraph 3 of Article 19 of the Law on Criminal Intelligence, the said head has the right, after obtaining the consent from the prosecutor, to take a final decision on the declassification of the said classified criminal intelligence information and its use for the investigation of misconduct in office.

The impugned Paragraph 3 of Article 19 of the Law on Criminal Intelligence does not state that, in the course of carrying out a criminal intelligence investigation under the Law on Criminal Intelligence, criminal intelligence information collected only with respect to a particular person may be declassified and used for investigating misconduct in office of a corrupt nature committed namely by that person. Thus, where, in the course of carrying out a criminal intelligence investigation with respect to a certain person, information is collected about another person and that information shows that that other person has possibly committed misconduct in office with the characteristics of a corruption criminal act, such information may also be declassified under the impugned Paragraph 3 of Article 19 of the Law on Criminal Intelligence and be used to investigate the misconduct in office of a corrupt nature committed by that other person. According to the assessment of the Constitutional Court, if that were not the case, i.e. without establishing the possibility of properly applying official liability to any state servant/official, among other things, using the information collected about him/her secretly by other authorised state institutions in the cases and according to the procedure established in laws, a situation intolerable under the Constitution would be created – it would not be ensured that persons who have committed misconduct in office are actually brought to official liability, i.e. the preconditions would be created for such persons to work in state service who do not meet the requirements arising from the Constitution.

In view of this, the Constitutional Court drew the conclusion that, contrary to what the petitioners claimed, the impugned Paragraph 3 of Article 19 of the Law on Criminal Intelligence establishes the procedure for deciding on the declassification of criminal intelligence information about an act with the characteristics of a corruption criminal act and its use for the purposes of the investigation of misconduct in office. At the same time, the Constitutional Court noted that the Law on Criminal Intelligence is not specifically designed to regulate the procedure for the use of declassified criminal intelligence information in investigating misconduct in office; therefore, contrary to what was claimed by the petitioners, as regards this aspect, a particular procedure for the use of criminal intelligence information in investigating misconduct in office need not be established in that law. Thus, in the impugned Paragraph 3 of Article 19 of the Law on Criminal Intelligence, there is no legislative omission indicated by the petitioners and in this respect that paragraph is not in conflict with Article 22 of the Constitution, the provision “Citizens shall have […] the right to enter on equal terms the State Service of the Republic of Lithuania” of Paragraph 1 of Article 33 thereof, and the constitutional principle of a state under the rule of law.

Deciding on the compliance of Paragraph 3 of Article 19 of the Law on Criminal Intelligence, insofar as, according to the petitioners, that paragraph does not establish the procedure for the use of criminal intelligence information about an act with the characteristics of a corruption criminal act for the investigation of misconduct in office of a corrupt nature, including the possibility of using such information collected with respect to another person (but not the person under investigation as a result of misconduct in office), with Paragraph 1 of Article 30 of the Constitution and the constitutional principle of a state under the rule of law, the Constitutional Court noted that, under Paragraph 3 of Article 19 of the Law on Criminal Intelligence, in declassifying criminal intelligence information about an act with the characteristics of a corruption criminal act for use in investigating misconduct in office, it is necessary to respect the human rights safeguards enshrined in Paragraphs 1, 6, 8, 9 of Article 5 (as amended on 23 December 2013 and 27 September 2018) and Paragraph 1 of Article 7 of the Law on Criminal Intelligence, as well as to follow the rules, provided for in Paragraph 7 of the latter article, of storage (keeping) and destruction of criminal intelligence information.

The Constitutional Court has held that a state servant/official about whom information has been collected secretly in accordance with the procedure established by the Law on Criminal Intelligence, after such information has been used in investigating misconduct in office of a corrupt nature committed by him/her, has the right, under Paragraph 9 of Article 5 of the Law on Criminal Intelligence, to apply to the court (judge) referred to in this paragraph and raise the questions of the legitimacy, necessity, and proportionality of the use of such declassified information, as well as challenge the admissibility of such information as evidence. As such, this legal regulation, which establishes the right of any person to file an appeal against the actions of criminal intelligence subjects, including actions carried out under the impugned Paragraph 3 of Article 19 of the Law on Criminal Intelligence, in particular under the pretrial procedure (i.e. to file an appeal with the head or prosecutor of the principal criminal intelligence institution), and then to file an appeal with the president of the regional court or a judge authorised by him/her may not be regarded as a denial of the person’s constitutional right to apply to a court with the purpose of filing appeals against the said actions and to effectively defend his/her rights or freedoms in a court or as restricting that person’s right to the extent that would deny the essence of that right.

In view of this, the Constitutional Court has drawn the conclusion that there is no reason to assert that, after the said legal regulation has been enshrined in Paragraph 3 of Article 5 of the Law on Criminal Intelligence, the impugned legal regulation consolidated in Paragraph 3 of Article 19 of the Law on Criminal Intelligence violates the requirements arising from Paragraph 1 of Article 30 of the Constitution, as well as from the constitutional principles of the rule of law and justice, and that, at the same time, denies the duty, arising from the Constitution, among others, Article 109 thereof, of the particular court (judge), referred to in Paragraph 9 of Article 5 of the Law on Criminal Intelligence, to properly administer justice and to adopt a fair decision in a case.

The assessment of the compliance of the impugned provisions of the Law on State Service and of the Statute of Internal Service with the Constitution

In this constitutional justice case, the Constitutional Court has examined the compliance of Paragraph 2 of Article 29 of the Law on State Service, Paragraph 1 of Article 26 of the Statute of Internal Service, and Paragraph 1 of Article 33 of the Statute of Internal Service with Article 22 of the Constitution, the provision “Citizens shall have […] the right to enter on equal terms the State Service of the Republic of Lithuania” of Paragraph 1 of Article 33 thereof, and the constitutional principle of a state under the rule of law essentially from two aspects, i.e. insofar as those paragraphs had provided for the possibility of using criminal intelligence information about an act with the characteristics of a corruption criminal act to investigate misconduct in office, as well as insofar as those paragraphs had not established the procedure for the use of criminal intelligence information, transferred in the cases and according to the procedure laid down in the Law on Criminal Intelligence, in investigating misconduct in office.

The petitioners based their doubts about the compliance of the impugned legal regulation with the Constitution basically on the same arguments as those regarding the constitutionality of the legal regulation entrenched in the impugned Paragraph 3 of Article 19 of the Law on Criminal Intelligence.

When deciding on the compliance of Paragraph 2 (wording of 2 October 2012) of Article 29 of the Law on State Service, Paragraph 1 of Article 26 (wording of 27 June 2013) of the Statute of Internal Service, and Paragraph 1 of Article 33 of the Statute of Internal Service (wording of 25 June 2015), insofar as those paragraphs had provided for the possibility of using criminal intelligence information about an act with the characteristics of a corruption criminal act to investigate misconduct in office, with the above-mentioned provisions of the Constitution, the Constitutional Court has noted that the impugned provisions of the Law on State Service and of the Statute of Internal Service stipulated that the official penalties for misconduct in office must be imposed on the relevant state servants or officials by taking into account the criteria, specified therein for the imposition of official penalties, such as the reasons for, and the circumstances of, the misconduct in office, the fault of the state servant or official who has committed the misconduct in office, his/her activity before that misconduct in office, as well as the circumstances mitigating and those aggravating the liability. These impugned provisions laid down at the same time the obligation, when an official penalty was being imposed, to take into account, among other things, the information supplied in the cases and according to the procedure laid down in the Law on Criminal Intelligence.

The Constitutional Court has noted that the impugned legal regulation entrenched in the Law on State Service and in the Statute of Internal Service should be understood only as imposing an obligation on the entity that investigates the misconduct in office and imposes an official penalty for such misconduct to assess the declassified criminal intelligence information transferred on the basis of the impugned Paragraph 3 of Article 19 of the Law on Criminal Intelligence to the extent that such information could (or can) be used in investigating misconduct in office of a corrupt nature. Therefore, as such, declassified criminal intelligence information transferred under Paragraph 3 of Article 19 of the Law on Criminal Intelligence for the purposes of the investigation of misconduct in office of a corrupt nature does not constitute an independent and/or additional criterion for the imposition of official penalties to be taken into account when imposing official penalties.

Having stated in this ruling that the impugned legal regulation enshrined in Paragraph 3 of Article 19 of the Law on Criminal Intelligence does not violate the requirements stemming from of Article 22 of the Constitution, the provision “Citizens shall have […] the right to enter on equal terms the State Service of the Republic of Lithuania” of Paragraph 1 of Article 33 thereof, and the constitutional principle of a state under the rule of law, the Constitutional Court, based on the same arguments, has also held that the impugned legal regulation enshrined in Paragraph 2 of Article 29 of the Law on State Service, Paragraph 1 of Article 26 of the Statute of Internal Service, and Paragraph 1 of Article 33 of the Statute of Internal Service were not in conflict with the above-mentioned provisions of Article 22 and Paragraph 1 of Article 33 of the Constitution, and with the constitutional principle of a state under the rule of law. As well as the impugned legal regulation enshrined in Paragraph 3 of Article 19 of the Law on Criminal Intelligence, the legal regulation established in the Law on State Service and in the Statute of Internal Service is justified by constitutionally important objectives pursued by the state and should be assessed as a measure, which is necessary in a democratic society, which is proportionate, and which is established by law, to achieve the objective of official liability, i.e. to create the preconditions for actually applying official liability, as a public form of control over servants/officials of a democratic state and of their accountability to society, to persons who have committed in state service violations of a corrupt nature, which are incompatible with the requirements arising for them from the Constitution, while ensuring at the same time transparency and publicity of state service, as well as preventing corruption and acts of a corrupt nature in state service.

As mentioned above, the petitioners in this case argued that the above-mentioned impugned provisions had not established either in the Law on State Service or the Statute of Internal Service the procedure for the use of criminal intelligence information, transferred in the cases and according to the procedure laid down in the Law on Criminal Intelligence, for investigating misconduct in office; according to the petitioners, such a procedure should have been established under the Constitution.

In this context, the Constitutional Court noted that neither the Law on State Service nor the Statute of Internal Service needed to establish a special procedure for the use of declassified criminal intelligence information transferred for the purposes of the investigation of misconduct in office with the characteristics of a corruption criminal act where that information, after it had been declassified, became public information. Such information is used to investigate misconduct in office in a general manner as any other information contained in the investigation file of an instance of misconduct in office.

Thus, none of the impugned provisions entrenched in the Law on State Service or in the Statute of Internal Service contained a legislative omission indicated by the petitioners and in this respect the said impugned provisions were not in conflict with Article 22 of the Constitution, the provision “Citizens shall have […] the right to enter on equal terms the State Service of the Republic of Lithuania” of Paragraph 1 of Article 33 thereof, and the constitutional principle of a state under the rule of law.

When deciding on the compliance of Paragraph 2 (wording of 2 October 2012) of Article 29 of the Law on State Service, Paragraph 1 of Article 26 (wording of 27 June 2013) of the Statute of Internal Service, and Paragraph 1 of Article 33 of the Statute of Internal Service (wording of 25 June 2015), insofar as those paragraphs had not established the procedure for the use of criminal intelligence information, transferred in the cases and according to the procedure laid down in the Law on Criminal Intelligence, in investigating misconduct in office, with the provisions of Paragraph 1 of Article 30 of the Constitution and the constitutional principle of a state under the rule of law, the Constitutional Court noted that these provisions, entrenched in the Law on State Service and in the Statute of Internal Service, had not been designed for implementing the constitutional right of a person to apply to a court, but, rather, they had consolidated the criteria for the imposition of official penalties for misconduct in office.

The Constitutional Court has held that the other, non-impugned provisions of the Law on State Service and of the Statute of Internal Service ensured the constitutional right of a state servant/official to apply to a court in challenging the imposition of official penalties, including dismissal from state (or internal) service, where these penalties could have been imposed under the criteria for the imposition of official penalties for misconduct in office, as established in the provisions of the impugned Paragraph 2 of Article 29 of the Law on State Service, Paragraph 1 of Article 26 of the Statute of Internal Service, and Paragraph 1 of Article 33 of the Statute of Internal Service, including the use of declassified criminal intelligence information about an act with the characteristics of a corruption criminal act transferred under Paragraph 3 of Article 19 of the Law on Criminal Intelligence for the purposes of the investigation of misconduct in office. Consequently, after the above-mentioned provisions of the Law on State Service and of the Statute of Internal Service had guaranteed the right of a state servant or official respectively to apply to a court and the right to the due court process, there were no grounds for stating that the impugned provisions of the Law on State Service and of the Statute of Internal Service had unjustifiably constrained a person’s opportunities to make use of effective judicial protection under Paragraph 1 of Article 30 of the Constitution regarding a possible violation of his/her constitutional rights and freedoms during the investigation.

In this context, the Constitutional Court noted that, according to the Constitution, among other things, the constitutional principle of a state under the rule of law, as well as the imperatives of justice and proportionality that arise from that principle, the constitutional right of a state servant/official to apply to a court does not deny the state duty, arising from the Constitution, to properly investigate instances of misconduct in office and to apply official liability to those state servants/officials who perform actions, including misconduct in office, as well as that of a corrupt nature, that are incompatible with the requirements arising from the Constitution for state service as a system and for persons working in state service.

The Constitutional Court has also noted that, under the Constitution, a state servant/official must be given effective protection against possible arbitrariness by public authorities in investigating his/her misconduct in office and a real opportunity to make use of the judicial protection of his/her constitutional rights and freedoms possibly violated in carrying out such an investigation.

The Constitutional Court recalled the fact that, as it has repeatedly stated, the full participation of the Republic of Lithuania, as a member of the European Union, in the European Union is a constitutional imperative based on the expression of the sovereign will of the Nation; this imperative also implies the constitutional obligation of the Republic of Lithuania to properly implement the requirements of EU law. Therefore, in view of the requirements set out in the EU legislation for the collection, use, processing, and storage of personal data, authorised state institutions, including criminal intelligence subjects, when collecting criminal intelligence information in the cases and according to the procedure established in the Law on Criminal Intelligence, when using this information under Paragraph 3 of Article 19 of the same law, as well as the relevant state institutions to which this information has been transferred, among others, for the purposes of the investigation of misconduct in office of a corrupt nature, must take all possible measures to ensure the human rights standards laid down in the EU legislation in the field of personal data protection and/or the legislation of the Republic of Lithuania implementing that EU legislation.