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On state secrets of the Republic of Lithuania and their protection

Case No. 3/96

THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA

R U L I N G

On the compliance of Articles 5 and 10 of the Law of the Republic of Lithuania on State Secrets and Their Protection with the Constitution of the Republic of Lithuania as well as on the compliance of the 6 March 1996 resolutions (Nos. 309 and 310) of the Government of the Republic of Lithuania with the Constitution of the Republic of Lithuania and the norms of the Republic of Lithuania Code of Civil Proceedings

19 December 1996, Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas Rasimavičius, Teodora Staugaitienė, and Juozas Žilys

The court reporter—Daiva Pitrėnaitė

Ramutė Ruškytė, acting as the representative of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on Constitutional Court of the Republic of Lithuania, in its public hearing, on 4 December 1996, considered case No. 3/96 subsequent to the petition submitted to the Court by the First Vilnius City Local Court, the petitioner, requesting an investigation into whether Articles 5 and 10 of the Law of the Republic of Lithuania on State Secrets and Their Protection are in compliance with Paragraphs 3 and 5 of Article 25 of the Constitution of the Republic of Lithuania as well as whether the provisions of the Resolution of the Government of the Republic of Lithuania (No. 309) “On the Approval of the List of the Information Which is Considered a State Secret of the Republic of Lithuania” of 6 March 1996 and those of the Resolution of the Government of the Republic of Lithuania (No. 310) “On the Approval of the List of Duties by Which the Persons Who Discharge Them are Entitled to Familiarise Themselves with the Information Which is Considered a State Secret Without Exceeding Their Competence Established by Law, as Well as on Notifying These Persons of Liability for Disclosure or Loss of Such Information” of 6 March 1996 are in compliance with Paragraphs 3 and 5 of Article 25, Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania, and Articles 4, 31, 197, Paragraph 3 of Article 220, Articles 222 and 253 of the Republic of Lithuania Code of Civil Proceedings.

The Constitutional Court

has established:

I

On 1 April 1996, the First Vilnius City Local Court, the petitioner, was investigating a civil case subsequent to the complaint of the plaintiff V. Šulcas against the respondent the Ministry of Internal Affairs regarding the restoration to work of the former. By its ruling, the court suspended the investigation of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 5 and 10 of the Law of the Republic of Lithuania on State Secrets and Their Protection (Official Gazette Valstybės žinios, 1995, No. 96-214) are in compliance with Paragraphs 3 and 5 of Article 25 of the Constitution. The petitioner also requests an investigation into whether the provisions of the Government Resolution (No. 309) “On the Approval of the List of the Information Which is Considered a State Secret of the Republic of Lithuania” of 6 March 1996 (Official Gazette Valstybės žinios, 1996, No. 22-579) and those of the Government Resolution (No. 310) “On the Approval of the List of Duties by Which the Persons Who Discharge Them are Entitled to Familiarise Themselves with the Information Which is Considered a State Secret Without Exceeding Their Competence Established by Law, as Well as on Notifying These Persons of Liability for Disclosure or Loss of Such Information” of 6 March 1996 (Official Gazette Valstybės žinios, 1996, No. 22-580) are in compliance with Paragraphs 3 and 5 of Article 25, Paragraph 1 of Article 29 of the Constitution, and Articles 4, 31, 197, Paragraph 3 of Article 220, Articles 222 and 253 of the Republic of Lithuania Code of Civil Proceedings.

II

The petitioner grounds its request on the following arguments.

  1. Articles 5 and 10 of the Law on State Secrets and Their Protection which limit the right and freedom of persons to obtain information contradict the provisions of Paragraphs 3 and 5 of Article 25 of the Constitution as Article 5 delegates to the Government the right to limit obtaining information. In addition, the impugned articles do not implement the requirement of the Constitution under what procedure citizens should obtain any available information which concerns them from state agencies.
  2. The impugned resolutions of the Government limit the opportunities of the persons participating in a case to implement the rights established by Article 31 of the Code of Civil Proceedings as well as the opportunity to appropriately implement the provisions of Articles 4, 197, 222, 253, and Paragraph 3 of Article 220 of the said code. This contradicts the principle of the equality of all persons which is consolidated in Article 29 of the Constitution. The impugned government resolutions violate the principle of the equality of persons which is consolidated in Article 31 of the Code of Civil Proceedings.

III

While the case was being prepared for the judicial investigation, an explanation from Prime Minister M. Stankevičius was received wherein it was indicated that the Government, when adopting the impugned resolutions, did not establish a new circle of persons who were entitled to familiarise with the information which is considered a state secret but merely enumerated the duties of the state officials and persons provided for by the Constitution, and who are appointed by the President of the Republic, the Seimas, the Government and the Prime Minister to the aforementioned duties. The Government had not limited the human right to information by means of its impugned resolutions.

  1. Vitkevičius, the Chairman of the State and Law Committee of the Seimas, explained in writing that the right to information may be limited only by law. Item 2 of Article 5 of the impugned law provides that the Government shall approve the list of state secrets. This and other issues indicated in the provisions of that article should be regulated by law. Article 10 of the impugned law is in compliance with Article 25 of the Constitution. The impugned government resolutions are in compliance with Paragraph 1 of Article 29 of the Constitution, however, they contradict Article 25 of the Constitution. The impugned resolutions are in compliance with Articles 4, 197, 222, 253, and Paragraph 3 of Article 220 of the Code of Civil Proceedings.
  2. Švedas, a secretary of the Ministry of Justice, explained the practice of European institutions for human rights protection. He pointed out that the European Commission for Human Rights and the European Court of Human Rights raises 2 requirements: 1) the person concerned must be given the opportunity to acquire information about the applied regulations; 2) the law must be formulated in a sufficiently precise manner so as the person would be able to act in accordance to it.
  3. Birmontienė, Director of the Lithuanian Centre for Human Rights, emphasised in her paper that Article 5 of the impugned law delegates to the Government the regulation of state secrets. Therefore, government resolution No. 309 contradicts the Constitution, while government resolution No. 310 is not linked with Paragraph 5 of Article 25 of the Constitution.
  4. Pėdnyčia, an assistant director of the Department of State Security, and K. Šimkus, Head of the Department of the Operational Tactics of the Police Academy of Lithuania, explained in writing certain circumstances of the question at issue.

During the court hearing, the representative for the Government virtually reiterated the arguments set forth in the paper of the Prime Minister.

The Constitutional Court

holds that:

Article 25 of the Constitution guarantees each human being the right to express his convictions and the right to information. Paragraph 2 of the said article stipulates: “The human being must not be hindered from seeking, obtaining, or disseminating information or ideas.”

It is universally recognised that in today’s society information is a need of a human being, as well as the measure of his knowledge. Information eliminates ignorance, it makes human behaviour meaningful. The implementation of human rights and freedoms is directly linked with the opportunity of a human being to obtain information from various sources and make use of it. This is one of pluralistic democracy achievements ensuring the progress of society.

Alongside, it should be noted that the human right to seek, obtain and disseminate information is not an absolute one. The relation of this constitutional value to other legal values expressing the rights and freedoms of other persons as well as necessary public needs determines the limitations on the right to information. One of such needs is a necessity to protect certain information for the good of interests of the society and individuals. This is state, commercial, professional, technological secrets or information concerning the private life of a human being. The state proclaims some especially important military, economic, political or other information the disclosure of which may harm national interests to be a state secret. In an attempt to prevent any disclosure of such information, its protection is established by law and the use of such information is limited. However, the protection of common interests in a democratic state may not deny the human right to information as such. The doctrine of human rights and freedoms, as well as the international and national law which are based on the former, links the solution of this issue with the rational relation of legal values which guarantees that the essence of the respective human right is not violated by means of such limitations. Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms guaranteeing the right for the individual to hold opinions, to receive and impart information and ideas provides for an opportunity to limit this freedom under these conditions: 1) providing it is necessary in a democratic society, 2) providing it is provided for in national law, and 3) providing such limitations seek to protect such values as national security, territorial integrity, public safety, prevention of disorder or crime, the protection of health or morals, etc. Most states follow these standards. Paragraphs 3 and 4 of Article 25 of the Constitution prescribe:

“Freedom to express convictions, as well as to obtain and disseminate information, may not be limited in any way other than as established by law, when it is necessary for the safeguard of the health, honour and dignity, private life, or morals of a person, or for the protection of constitutional order.

Freedom to express convictions or impart information shall be incompatible with criminal actions—the instigation of national, racial, religious, or social hatred, violence, or discrimination, the dissemination of slander or misinformation.”

These provisions of the Constitution defining the limitations on the human right to information are the main criterion of legal regulation of protection relations of classification, use and making public of the information which is considered a state secret. The legislature determining how the information which is considered a state secret must be protected is obligated to decide on such legal measures which would prevent any groundless limitation on the right of persons to information.

Article 145 of the Constitution also provides for exclusive principles of temporary limitation on the right to information during martial law or a state of emergency.

  1. On the compliance of Articles 5 and 10 of the Law on State Secrets and Their Protection with the Constitution.

1.1. The Law on State Secrets and Their Protection defines what a state secret is as well as how the information which is considered a state secret is classified, used, and made public in the Republic of Lithuania and its diplomatic embassies and consulates abroad.

Article 5 of the law wherein the protection of the information which is considered a state secret is regulated stipulates:

“Protection of the information which is considered a state secret shall be regulated by this Law and, in the manner prescribed by law, the Government of the Republic of Lithuania which shall:

1) establish the procedure for drawing up and amending the list (hereinafter referred to as the list of state secrets) of the Republic of Lithuania information which is considered a state secret;

2) approve the list of state secrets;

3) approve the list of subjects of state secrets, as well as establish the procedure for drawing up, approving and amending detailed lists of the information which is considered a state secret, relating to the activities of subjects of state secrets;

4) establish the procedure for familiarising the persons who hold office provided for in Paragraph 4 of Article 10 of this Law, with the information which is considered a state secret, as well as for notifying these persons of liability which is established by means of laws of the Republic of Lithuania for disclosure or loss of the information which is considered a state secret;

5) prolong the term of classifying the information which is considered a state secret;

6) approve normative acts which regulate protection of the information which is considered a state secret; and

7) establish the procedure for release of the information which is considered a state secret to other states or international organisations, as well as for permitting citizens of other states to have access to or familiarise themselves with the information which is considered a state secret.”

Article 10 of the law stipulates:

“To familiarise oneself with the information which is considered a state secret shall have the right only a person who has been granted the permit to work with such information, and only with that of information which is related with the performance of his duties.

A permit to familiarise oneself with the information which is considered a state secret, and which another subject of state secret has at its disposal, shall be granted to the person by the head of the institution which disposes of such information. The person must produce a special order issued by the head of the institution he works wherein. It must be confirmed in the order that the person has the permit to work with the information which is considered a state secret, specified the type and scope of information the person needs to familiarise himself with, as well as the motive for familiarising with such information.

If a decision is adopted not to allow the person to familiarise himself with the information which is considered a state secret specified in the order, the head of the institution which disposes of such information must give reasons for his decision, as well as familiarise within 10 days the head of the institution, which has sent the person, with this decision.

The following shall ex officio have the right to familiarise themselves with the information which is considered a state secret, without exceeding their powers established by law:

the President of the Republic,

the Prime Minister, and

the members of the Seimas of the Republic of Lithuania;

the persons who are appointed to discharge their duties by:

the President of the Republic,

the Seimas of the Republic of Lithuania,

the Government of the Republic of Lithuania, and

the Prime Minister.”

The petitioner is of the opinion that Article 5 of the Law on State Secrets and Their Protection which delegates to the Government the right to limit information obtaining, as well as Article 10 which limits the right and freedom of persons to obtain information, contradicts the provisions of Paragraphs 3 and 5 of Article 25 of the Constitution. Furthermore, the requirement provided for by Paragraph 5 of Article 25 of the Constitution to establish the procedure by which citizens are entitled to obtain any available information concerning them from state agencies is not implemented in Articles 5 and 10 of the said law.

It is clear from the content of Article 25 of the Constitution that two conditions must be followed when limiting the human rights to seek, obtain, and disseminate information: they may be limited only by law and only when the values enumerated in Paragraph 3 of Article 25 must be safeguarded or protected.

When deciding the question whether the Seimas may delegate to the Government to decide state secret protection issues linked with the establishment of limitations on the human right to information, one must take account of the principle of the separation of powers as established in the Constitution.

The doctrine of human rights and freedoms treats the state as the major guarantor of these rights and freedoms, and as the subject which may potentially violate these rights and freedoms. When actually implementing the principle of the separation of powers, it is possible to reinforce human rights guarantees. The state governance may be divided into relatively independent branches: the legislative, executive, and judicial. Different, still equally important roles fall upon these powers in the sphere of major rights and freedoms. Every state authority institution is granted competence corresponding to its purpose.

Article 67 of the Constitution consolidates the exclusive right of the Seimas to pass laws. The most important issues of public life are regulated by legal norms. Item 2 of Article 94 of the Constitution provides that the Government shall implement laws and other resolutions of the Seimas. Substatutory acts adopted by the Government particularise and specify legal norms. Thus, the main issues of the hierarchy of legal acts are consolidated in the Constitution.

It should be noted that the Constitutional Court, when judging the question whether the Seimas may commission the Government to regulate relations linked with human rights and freedoms, held in its 26 October 1995 ruling:

“The delegation of the right of legislation to the Government must be legitimate, i.e. it must be based on the provisions consolidated in the Constitution of the State. In the Constitution of the Republic of Lithuania the delegation of legislation is not provided for, therefore, only substatutory legal acts may be adopted by the Government.

The regulation limits of laws and substatutory acts depend on many factors—the traditions of law, the level of political and legal culture of society, however, from the standpoint of both the theory of law and the practice of legislation, certain priority matters of society must be regulated only by law. In a democratic society, the priority is given to a human being, therefore, everything that is related to the fundamental human rights and freedoms is regulated by law. That comprises the confirmation of human rights and freedoms, the determination of the contents thereof, the legal guarantees of their protection and defence, their permissible limitation, etc.”

Human rights and freedoms are the most important legal value, therefore, as a rule, the legislature establishes such ways and means to protect a state secret which would not create conditions for a groundless limitation on the human right to information. The law as the legal source, along with the manner of its adoption, best guarantees that the common interests conditioned by the constitutional order to protect a state secret are co-ordinated with the ensuring of the human right to seek, obtain and disseminate information. Such human rights, along with the observance of the reciprocity principle of the law limiting them, is a significant guarantee for the implementation of human rights and freedoms.

1.2. Item 1 of Article 5 of the Law on State Secrets and Their Protection provides that the Government shall establish the procedure for drawing up and amending the list of the information which is considered a state secret. The content of this norm depends upon the norm of Item 2 of Article 5 of the law, therefore, in the first place, the issue of compliance of the latter to Paragraph 3 of Article 25 of the Constitution must be assessed.

Item 2 of Article 5 of the law provides that the Government shall approve the list of state secrets. The state protects the information entered on the list, a special procedure concerning its use is established. Therefore, the approval of the list of state secrets (respective selection of information, the establishment of the content of the list, etc.) is directly related to the limitation on the human right to information. The issue of solution of the compliance of this norm with Paragraph 3 of Article 25 of the Constitution should be linked with the notion “a state secret” which is formulated in Article 2 of the said law. Therein it is indicated that a state secret shall be construed to mean “political, economic, military, law-and-order, scientific, technological or other information, the disclosure or loss whereof can violate sovereignty of the Republic of Lithuania, military or economic power, cause damage to the constitutional system and political interests, and which is specified in the list of the Republic of Lithuania, approved by the Government of the Republic of Lithuania, concerning the information which is considered a state secret”. This notion does not precisely enough define what information is held a state secret. Information becomes a state secret if it is entered on the list of state secrets which is made by the Government. Thus, the limitations on the human right to information are actually established by substatutory act norm but not by law.

Neither does Article 8 of the said law regulating what information may not be a state secret ensure the human right to information. When defining such information, a substatutory act norm is given priority but not that of law.

Thus, there being no precise criteria, formulated by law, as to which information is a state secret, the Government is virtually commissioned to regulate the relations which are a matter of legal regulation but not to particularise the law. Thereby the constitutional principle of human rights’ legal protection is violated. In view of the arguments set forth, the conclusion should be drawn that Items 1 and 2 of Article 5 of the impugned law contradict Paragraph 3 of Article 25 of the Constitution.

As the commissioning of the Government to approve the list of state secrets violates constitutional provisions, then the commissioning of the Government to establish the procedure of drawing up and amending the list as provided for by Item 1 of the said law contradicts Paragraph 3 of Article 25 of the Constitution, too.

As it has already been mentioned, Items 1 and 2 of Article 5 are related to each other, therefore, Item 1 of this article should be assessed correspondingly in the same manner as the above Item 2.

Item 3 of Article 5 of the Law on State Secrets and Their Protection provides that the Government shall approve the list of subjects of state secrets, as well as establish the procedure for drawing up, approving and amending detailed lists of the information which is considered a state secret, relating to the activities of subjects of state secrets. The provision of this item “[the Government shall] approve the list of subjects of state secrets” should be assessed while taking account of the norms of Articles 4 and 2 of the impugned law.

According to Article 4 of the law, subjects of state secrets shall be public institutions or other legal persons vested with special powers of the Government of the Republic of Lithuania, the activities whereof are related to use or protection of the information which is considered a state secret. The entering of these institutions or legal persons on the list of subjects of state secrets means that the organisation and its respective employees are entitled to use the information which is considered a state secret. The vagueness of the regulation provides the executive power with the opportunity to determine, by means of a substatutory act, the scope of the use of the information. Furthermore, Article 4 of the law mentions “other legal persons”. This allows the Government to give the status of a subject of a state secret not only to public but also to private legal persons as well.

The norms of Article 4 link giving the status of a subject of a state secret, first of all, with a formal entering on the list of subjects of state secrets but never with a state secret itself. Such a conclusion is confirmed by the fact that the Government by its 31 January 1991 resolution approved the list of subjects of state secrets, which was earlier than the list of state secrets itself was approved. Institutions of culture and education, special purpose stock companies, private companies, stock companies, etc., were entered on the former list. As there are no clear legal criteria on the grounds of which information is considered a state secret in the norm of Article 2 of the law, pre-conditions are created for the executive power to consider certain information of limited use (which would constitute a professional, official, commercial or technological secret) as a state secret. Thus, the use of this information is additionally limited.

In view of the arguments set forth, the conclusion should be drawn that the provision “[the Government shall] approve the list of subjects of state secrets” of Item 3 of Article 5 of the law contradicts Paragraph 3 of Article 25 of the Constitution.

Another provision of the said item that the Government shall “establish the procedure for the drawing up, approving and amending of detailed lists of the information which is considered a state secret” is the commissioning of the Government to merely specify legal norms, therefore, this provision is in compliance with Paragraph 3 of Article 25 of the Constitution.

Items 4, 5, 6 and 7 of Article 5 provide for concrete authorisations for the Government. They are devoted for implementation of the law, therefore, there are no grounds to conclude that the said items of Article 5 of the law contradict the Constitution.

1.3. The petitioner requests an investigation into whether the norms of Article 10 of the Law on State Secrets and Their Protection are in compliance with Paragraph 3 of Article 25 of the Constitution and points out that in one particular civil case the Ministry of Internal Affairs presented the information which is considered a state secret and which was necessary for the investigation of the case only to the judge. In the opinion of the petitioner, thereby the rights of the parties participating in the case are violated.

The norms of Article 10 of the Law on State Secrets and Their Protection regulate the permit to familiarise oneself with the information which is considered a state secret. They regulate relations the parties of which, on the one hand, are the subject of a state secret, and, on the other hand, the persons who have been granted the permit to work with the information which is considered a state secret, as well as the persons who discharge the duties enumerated in Paragraph 4 of Article 10 of this law. The analysis of the content of this article permits asserting that a person is entitled to familiarise himself with the information which is considered a state secret only in order to discharge certain duties. Thus, these norms do not directly regulate citizens’ relations with subjects of a state secret.

Article 10 does not directly indicate that a judge, when discharging his duties, is entitled to familiarise himself with the information which is considered a state secret. This may be judged to be a deficiency of the law. The Constitutional Court deems that the right of a judge who investigates a case to familiarise himself with the information which is considered a state secret is grounded on Article 109 of the Constitution prescribing that the courts shall have the exclusive right to administer justice, as well as on Article 117 of the Constitution providing the solution of issues related to state secrets during court trials. It should be noted that the right of a judge to familiarise himself with the information which is considered a state secret and which is necessary for the investigation of a case is determined by the function of the court as a state institution to implement justice but never by entering the position of the judge on any lists.

The norms of Article 10 of the law do not regulate the procedure of use of the information which is considered a state secret in court trials. The Constitutional Court will investigate the relation between a state secret and norms of civil proceedings in Item 2 of this ruling.

The imperfection of the aforementioned legal regulation does not provide grounds to assert that Article 10 contradicts the Constitution.

1.4. When implementing the right of citizens to seek, obtain and disseminate information, the provision “citizens shall have the right to obtain any available information which concerns them from State agencies in the manner established by law” of Paragraph 5 of Article 25 of the Constitution is of no less importance. Thereby the legislature is directly commissioned to establish by law the procedure under which state agencies must present information to citizens which concerns them.

The norms of various paragraphs of Article 25 of the Constitution constitute an indivisible whole complex. Paragraph 3 of the said article provides for an opportunity to limit by law the human right to obtain information when corresponding constitutional values are protected. One of such laws is the Law on State Secrets and Their Protection. The norms of this law may be assessed from the standpoint of the content of Paragraph 5 of Article 25 of the Constitution only while taking into consideration the content of Paragraph 3 of the same article of the Constitution, therefore, the right of citizens to obtain any available information which concerns them from state agencies in the manner established by law may be limited when seeking to protect state secrets.

The norms of Articles 5 and 10 of the Law on State Secrets and Their Protection do not regulate citizens’ right to obtain any available information which concerns them from state agencies. In view of the arguments set forth, the conclusion should be drawn that the norms of the said articles are in compliance with Paragraph 5 of Article 25 of the Constitution.

  1. On the compliance of the provisions of the Government Resolution (No. 309) “On the Approval of the List of the Information Which is Considered a State Secret of the Republic of Lithuania” of 6 March 1996 and the Government Resolution (No. 310) “On the Approval of the List of Duties by Which the Persons Who Discharge Them are Entitled to Familiarise Themselves with the Information Which is Considered a State Secret Without Exceeding Their Competence Established by Law, as Well as on Notifying These Persons of Liability for Disclosure or Loss of Such Information” of 6 March 1996 with Paragraphs 3 and 5 of Article 25, Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania and Articles 4, 31 and 197, Paragraph 3 of Article 220, Articles 222 and 253 of the Republic of Lithuania Code of Civil Proceedings.

2.1. While implementing the Law on State Secrets and Their Protection, by its Resolution (No. 309) “On the Approval of the List of the Information Which is Considered a State Secret of the Republic of Lithuania” of 6 March 1996 (hereinafter referred to as government resolution No. 309), the Government approved which information is considered a state secret. The information which is considered a state secret is defined on the basis of certain specific indications.

By its Resolution (No. 310) “On the Approval of the List of Duties by Which the Persons Who Discharge Them are Entitled to Familiarise Themselves with the Information Which is Considered a State Secret Without Exceeding Their Competence Established by Law, as Well as on Notifying These Persons of Liability for Disclosure or Loss of Such Information” of 6 March 1996 (hereinafter referred to as government resolution No. 310), the Government approved the list of duties by which the persons who discharge them are entitled to familiarise themselves with the information which is considered a state secret without exceeding their competence established by law, and also established the procedure for the said persons to familiarise themselves with the information which is considered a state secret as well as their notification of liability for disclosure or loss of such information.

The petitioner deems that the impugned government resolutions contradict Paragraphs 3 and 5 of Article 25 of the Constitution wherein it is prescribed that freedom to obtain information and the procedure for limiting its obtaining may be regulated only by law.

2.2. Paragraph 3 of Article 25 of the Constitution establishes conditions under which the right of persons to information may be limited. When discharging its commission made by the legislature, by Item 1 of its Resolution 309, the Government approved the list of information which is considered a state secret.

The norm of Item 2 of Article 5 of the Law on State Secrets and Their Protection by which the right is delegated to the Government to approve the list of state secrets has been judged in this ruling of the Constitutional Court to be contradicting Paragraph 3 of Article 25 of the Constitution, therefore, it should be concluded that Item 1 of government resolution No. 309 by which such delegation is implemented contradicts Paragraph 3 of Article 25 of the Constitution, too. The remaining part of the said resolution by which other government resolutions are recognised null and void is not linked with this norm of the Constitution. The Constitutional Court shall not investigate and assess it.

Item 1.1 of government resolution No. 310 approves the list of duties by which the persons who discharge them are entitled to familiarise themselves with the information which is considered a state secret. When approving the list of the duties, the Government established which persons are entitled to familiarise themselves with the information which is considered a state secret. It should be noted that the provisions of Item 1.1 of the said resolution have no legal basis. The introductory part of the resolution points out that it has been adopted conforming to Item 4 of Article 5 of the Law on State Secrets and Their Protection, however, in the said Item the legislature merely commissions the Government to establish the procedure for familiarising with the information which is considered a state secret but never is it commissioned to establish the duties themselves. In reality, the norm of the said resolution is grounded on Item 4 of the 25 October 1995 Seimas Resolution “On the Implementation of the Republic of Lithuania Law on State Secrets and Their Protection” by which the Government was suggested that such a list be approved, however, the Government was not granted this right by the Law on State Secrets and Their Protection. Taking account of the hierarchy of legal acts, the Government may have entered only the officials who are appointed and dismissed by the Government and Prime Minister on such a list. After it had entered other officials who are appointed by the President of the Republic and the Seimas on such a list, it intruded into the prerogatives of other branches of power. It contradicts the constitutional nature of the executive power.

In view of the indicated arguments, the conclusion should be drawn that Item 1.1 of government resolution No. 310, to the extent that the duties are established which are appointed by the President of the Republic or the Seimas, contradicts Paragraph 3 of Article 25, and Paragraph 2 of Article 5 of the Constitution.

The remaining part of the government resolution by which the procedure is established for the persons who ex officio are entitled to familiarise themselves with the information which is considered a state secret without exceeding their competence established by law, as well as notifying these persons of liability for disclosure or loss of such information, is devoted to implementation of the provisions of this law. This part of the resolution merely settles procedural issues, therefore, it is in compliance with Paragraph 3 of Article 25 of the Constitution.

2.3. The provision “citizens shall have the right to obtain any available information which concerns them from State agencies in the manner established by law” of Paragraph 5 of Article 25 of the Constitution is an obligation for the legislature to establish by law the procedure under which state agencies must provide a citizen respective information which concerns him.

The norms of the impugned resolutions do not regulate providing citizens with information about persons, therefore, the issue of their compliance with the Constitution should not be assessed.

2.4. In the opinion of the petitioner, the impugned government resolutions also contradict Paragraph 1 of Article 29 of the Constitution wherein the principle of the equality of all persons is consolidated.

Paragraph 1 of Article 29 of the Constitution defines the equality of persons by pointing out that “all persons shall be equal before the law, the court, and other State institutions and officers”. This provision is linked with the provisions of Paragraph 2 of the said article which establish that a person may not have his rights restricted in any way, or be granted any privileges on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or options.

The petitioner is of the opinion that the principle of the equality of persons which is consolidated by Paragraph 1 of Article 29 of the Constitution is violated by the impugned government resolutions as only the judge investigating a case may familiarise himself with the information which is considered a state secret during the investigation of the case, however, the persons participating in the case and who are enumerated in Article 30 of the Code of Civil Proceedings may not do so.

The aforesaid universal principle of law manifests itself in civil proceedings as the procedural equality of parties. The procedural rights of parties are equal. The rights of one party correspond those of the other; for instance, the plaintiff is entitled to sue some person, the respondent is entitled to defend his case by rebutting the demand of the plaintiff or by making counter-claims, etc. This principle is of great importance as only equal sides of pleadings may contend on equal grounds. It is important that the principle of procedural equality of parties were observed in all stages of the proceedings as the implementation of other principles of the proceedings depends upon their implementation.

The notion “court” is used in its most general meaning in procedural relations when the court is understood not only as a collective body but also as the judge himself. The court is a special subject of procedural legal relations. It is only the court which is authorised to implement justice. When implementing this function, the court acts on behalf of the state. It does not depend upon the persons participating in the case and it obeys only the law.

Thus, the essence of the equality of persons participating in the case is their equality before the court but never the equality between the court (the judge) and the persons participating in the case. Otherwise the nature of the court as an institution which implements justice would be denied.

The impugned government resolutions do not establish any privileges or limitations by which the procedural equality of persons would be denied. They do not condition any rights of the persons participating in the case. In view of the arguments set forth, the conclusion should be drawn that the said resolutions are in compliance with Paragraph 1 of Article 29 of the Constitution.

2.5. In the opinion of the petitioner, the impugned government resolutions limit the implementation of the rights of persons participating in the case provided for by Article 31 of the Code of Civil Proceedings, as well as the opportunity to properly implement the provisions of Articles 4, 197, Paragraph 3 of Article 220, Articles 222 and 253 of the said code.

The norm of Article 4 of the Code of Civil Proceedings that every person concerned shall have the right to appeal to court so as violated or contested rights or interests safeguarded by law could be protected consolidates the principle which grants every person the right to protect his violated or contested rights or legitimate interests in court. Article 31 of the said code establishes the rights and duties of the persons participating in the case, Article 197 regulates the investigation of written evidence, Paragraph 2 of Article 220 establishes the procedure of drawing up of the court decision, Article 222 establishes the content of the decision as a procedural document, Article 253 regulates the content of the record of proceedings. The procedure of argumentation is also regulated by other norms of the Code of Civil Proceedings which have not been indicated by the petitioner.

As Item 1 of government resolution No. 309 has been ruled in this ruling of the Constitutional Court to be in conflict with Paragraph 3 of Article 25 of the Constitution, its conformity with the indicated norms of the Code of Civil Proceedings should not be investigated. The remaining part of the said government resolution by which other government resolutions are recognised null and void is not linked with the aforementioned norms of the Code of Civil Proceedings, therefore, its compliance with the norms of the Code of Civil Proceedings should not be assessed.

Government resolution No. 310 has no influence upon the norms of the Code of Civil Proceedings which were pointed out by the petitioner. The norms of the said resolution do not prescribe the procedure under which such information should be used in civil proceedings, and how in such proceedings the principles of protection of state secrets and those of implementation of rights of persons who participate in the case are co-ordinated. The relations regulated by the Code of Civil Proceedings and those of the impugned government resolution are neither identical nor interdependent, therefore, the issue concerning the compliance of the said government resolution with the indicated norms of the Code of Civil Proceedings should not be investigated.

The fundamentals of protection of state secrets in court trial are provided for by Article 117 of the Constitution which establishes that closed court sittings may be held in order to prevent the disclosure of state secrets when open consideration of cases endangers the safety of state secrets. This constitutional provision is virtually reiterated in Article 10 of the Code of Civil Proceedings. The Law on Protection of State Secrets and Their Protection has not solved the issue how state secrets in court trials should be used. As it is necessary to ensure the right of persons to judicial protection which is consolidated in Paragraph 1 of Article 30 of the Constitution, it is necessary that the relations of use and protection of state secrets in court trials be regulated by procedural law.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 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 gives the following

ruling:

  1. To recognise that Items 1 and 2 as well as the provision “[the Government shall] approve the list of subjects of state secrets” of Item 3 of Article 5 of the Law on State Secrets and Their Protection contradict Paragraph 3 of Article 25 of the Constitution. Other norms of Article 5 of the said law are in compliance with the Constitution of the Republic of Lithuania.
  2. To recognise that Article 10 the Law on State Secrets and Their Protection is in compliance with the Constitution of the Republic of Lithuania.
  3. To recognise that Item 1 of the Resolution of the Government of the Republic of Lithuania (No. 309) “On the Approval of the List of the Information Which is Considered a State Secret of the Republic of Lithuania” of 6 March 1996 contradicts Paragraph 3 of Article 25 of the Constitution of the Republic of Lithuania. Other norms of the said government resolution are in compliance with the Constitution of the Republic of Lithuania.
  4. To recognise that Item 1.1 of the Resolution of the Government of the Republic of Lithuania (No. 310) “On the Approval of the List of Duties by Which the Persons Who Discharge Them are Entitled to Familiarise Themselves with the Information Which is Considered a State Secret Without Exceeding Their Competence Established by Law, as Well as on Notifying These Persons of Liability for Disclosure or Loss of Such Information” of 6 March 1996, to the extent that the list of duties which are appointed by the President of the Republic or the Seimas is established, contradicts Paragraph 3 of Article 25, and Paragraph 2 of Article 5 of the Constitution of the Republic of Lithuania. Other norms of the said government resolution are in compliance with the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

 Egidijus Jarašiūnas                           Kęstutis Lapinskas                           Zigmas Levickis

 Augustinas Normantas                    Vladas Pavilonis                              Jonas Prapiestis

 Pranas Vytautas Rasimavičius         Teodora Staugaitienė                       Juozas Žilys