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On international military operations, exercises and other events of military co-operation

Case No. 23/08

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPHS 1, 2, 3, 4 OF ARTICLE 5, PARAGRAPHS 2, 3, 4 OF ARTICLE 6, PARAGRAPHS 1, 2, 3 OF ARTICLE 10 (WORDING OF 12 MAY 2005), PARAGRAPHS 2, 3, 5 OF ARTICLE 14 OF THE REPUBLIC OF LITHUANIA LAW ON INTERNATIONAL OPERATIONS, EXERCISES AND OTHER EVENTS OF MILITARY CO-OPERATION (WORDING OF 15 JANUARY 2002) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

15 March 2011
Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Armanas Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,

with the secretary—Daiva Pitrėnaitė,

in the presence of the representatives of a group of Members of the Seimas of the Republic of Lithuania, the petitioner, who were Egidijus Klumbys and Julius Veselka, Members of the Seimas,

the representatives of the Seimas of the Republic of Lithuania, the party concerned, who were Saulius Pečeliūnas, a Member of the Seimas, Liucija Schulte-Ebbert, Head of the European Union and International Law Unit of the Legal Department of the Office of the Seimas, and Girius Ivoška, an adviser of the Criminal and Administrative Law Unit of the same department,

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania, Article 1 of the Law on the Constitutional Court Republic of Lithuania, on 24 February 2011, in a public Court hearing heard constitutional justice case No. 23/08 subsequent to the petition of a group of Members of the Seimas of the Republic of Lithuania requesting to investigate whether Paragraphs 1, 2, 3, 4 of Article 5, Paragraphs 2, 3, 4 of Article 6, Paragraphs 1, 2, 3 of Article 10, Paragraphs 2, 3, 5 of Article 14 of the Republic of Lithuania Law on International Operations, Exercises and Other Events of Military Co-operation (wording of 15 January 2002) are not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, Articles 137, 142 of the Constitution of the Republic of Lithuania, and with Item 3 of the Constitutional Act of the Republic of Lithuania “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”.

The Constitutional Court

has established:

I

A group of Members of the Seimas, the petitioner, has applied to the Constitutional Court with a petition requesting to investigate whether Paragraphs 1, 2, 3, 4 of Article 5, Paragraphs 2, 3, 4 of Article 6, Paragraphs 1, 2, 3 of Article 10, Paragraphs 2, 3, 5 of Article 14 of the Law on International Operations, Exercises and Other Events of Military Co-operation (hereinafter also referred to as the Law) (wording of 15 January 2002) are not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, Articles 137, 142 of the Constitution, and with Item 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”.

II

The petition of the group of Members of the Seimas, the petitioner, is substantiated by the following arguments.

1. The Constitution does not provide that in the course of carrying out collective defence operations military units of other states may be deployed and used on the territory of the Republic of Lithuania, however, Item 2 of Paragraph 1 of Article 5 of the Law (wording of 15 January 2002) provides that military units of other states—allies of Lithuania—may be deployed and used for the purposes of collective defence operations on the territory of the Republic of Lithuania. Therefore, Item 2 of Paragraph 1 of Article 5 of the Law (wording of 15 January 2002) is in conflict with Chapter XIII “Foreign Policy and National Defence” of the Constitution, inter alia with Articles 137 and 142 of the Constitution.

2. The right of the Seimas, which is established in Paragraph 2 of Article 5 of the Law (wording of 15 January 2002), to adopt a decision, on the recommendation of the President of the Republic, regarding the deployment and use of military units of other states for the purposes of collective defence operations on the territory of the Republic of Lithuania, is in conflict with Item 20 of Article 67 of the Constitution, which does not grant such a right to the Seimas. In addition, the recommendation of the President of the Republic for the Seimas provided for in Paragraph 2 of Article 5 of the Law (wording of 15 January 2002) is in conflict with Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution, since these provisions of the Constitution do not provide for such a recommendation of the President of the Republic, as well as with Paragraph 2 of Article 5 of the Constitution, since it limits the powers of the Seimas established in Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution—the right to adopt such a decision to use the armed forces, which does not require a recommendation of the President of the Republic.

3. The legal regulation established in Paragraph 3 of Article 5 of the Law (wording of 15 January 2002) has legalised the duties of the President of the Republic, which are not provided for in the Constitution, in case of an armed attack of the Republic of Lithuania, of other Party or Parties of the collective defence treaty. The established duty of the President of the Republic to immediately adopt a decision on defence in case of an armed attack of the Republic of Lithuania, of other Party or Parties of the collective defence treaty, including a decision to take part in a collective defence operation, is in conflict with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution, since these provisions only provide that, in the event of an armed attack which threatens the sovereignty of the state or its territorial integrity, the President of the Republic shall immediately adopt a decision on the defence against the armed aggression, i.e. these provisions of the Constitution do not provide for any other conditions, under which the President of the Republic might be able to adopt decisions on the defence against aggression. In addition, under Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution, it is only the Seimas that adopts a decision on the use of the armed forces. Therefore, according to the petitioner, the established duty of the President of the Republic, in case of need to deploy and use Lithuanian military units for the purposes of collective defence operations on the territory of other states, as well as to allow the deployment and use of military units of other states for the purposes of collective defence operations on the territory of the Republic of Lithuania is in conflict not only with Item 16 of Article 84, Paragraph 2 of Article 142 of the Constitution, but also Item 20 of Article 67, Paragraph 1 of Article 142, as well as with Paragraph 2 of Article 5 thereof.

4. The doubts of the petitioner regarding the compliance of Paragraph 4 of Article 5 of the Law (wording of 15 January 2002) with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution are substantiated by the fact that, under the disputed legal regulation, the decision of the President of the Republic (which is specified in Paragraph 3 of Article 5 of the Law and which is in conflict with the Constitution) on the defence against armed aggression or in case of an armed attack against other Party or Parties of the collective defence treaty must be executed immediately, even though the Constitution, according to the petitioner, does not mention any situations of an armed attack against other Party or Parties of the collective defence treaty. In addition, the provision of Paragraph 4 of Article 5 of the Law (wording of 15 January 2002), whereby, when ensuring the implementation of the collective defence treaty ratified by the Seimas and of joint decisions of the Parties to that treaty as well as the armed defence and resistance against an armed attack, the Seimas shall adopt a resolution on the approval of the decision of the President of the Republic, limits the powers of the Seimas established in the Constitution, since Paragraph 2 of Article 142 of the Constitution provides that the Seimas shall approve or overrule the decision of the President of the Republic.

5. The recommendation of the President of the Republic for the Seimas, which is provided for in Paragraph 2 of Article 6 of the Law (wording of 15 January 2002), limits the powers of the Seimas established in the Constitution, i.e. the right to adopt a decision to use the armed forces without the recommendation of the President of the Republic. On the other hand, under the Constitution, the Seimas has not been granted the right to adopt a decision regarding the deployment and use of military units of other states, as well as for the purposes of other operation on the territory of the Republic of Lithuania. Therefore, the disputed legal regulation is in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Article 137, and Paragraph 1 of Article 142 of the Constitution.

6. The petitioner maintains that Paragraph 3 of Article 6 of the Law (wording of 15 January 2002) is in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution, since, under the Constitution, it is only the Seimas that can adopt a decision to use the armed forces, i.e. no right has been granted to the President of the Republic to use the armed forces. In addition, under the Constitution, no right has been granted to the President of the Republic to allow that military units of other states be deployed in the Republic of Lithuania.

7. Under Paragraph 4 of Article 6 of the Law (wording of 15 January 2002), the decision (which is not legalised in the Constitution) of the President of the Republic referred to in Paragraph 3 of Article 6 of the Law must be executed immediately. On the other hand, under the Constitution, the President of the Republic immediately adopts only a decision on the defence against armed aggression.

8. Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution do not establish the size of the armed forces to be used by a decision of the Seimas. Therefore, after Paragraph 1 of Article 10 of the Law (wording of 15 January 2002) had established the size of the armed forces for the use of which a resolution of the Seimas is necessary, limitations were placed upon the powers of the Seimas. In addition, the powers of the Seimas were limited also after Paragraph 1 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) had established that, under the disputed legal regulation, the Seimas adopts the said resolution on the proposal of the Government, since no such proposal is provided for in Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution. Furthermore, the right to adopt a decision to use the armed forces, which is granted by the Constitution only to the Seimas, is limited by the fact that, under Paragraph 2 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002), a decision to send military units of the Republic of Lithuania to another state shall be taken by the Government by adopting a resolution upon the proposal of the Minister of National Defence, whereas under Paragraph 3 thereof, a decision to send military units of the Republic of Lithuania shall be taken by the Minister of National Defence.

9. The provision “Military units, servicemen and civil servants assigned to the armed forces of the CIS countries may participate, on the territory of the Republic of Lithuania, only in international search and rescue operations as well as operations aimed at liquidation of consequences of major accidents” of Paragraph 2 of Article 14 of the Law (wording of 15 January 2002), the provision “Military units, servicemen and civil servants assigned to the armed forces of the CIS countries may participate, on the territory of the Republic of Lithuania, only in exercises under the NATO Partnership for Peace Programme or in exercises organised jointly with the members of NATO, European Union and Western European Union” of Paragraph 3 thereof, the provision “Military units, servicemen and civil servants assigned to the armed forces of the CIS countries may participate in other events organised on the territory of the Republic of Lithuania” of Paragraph 5 thereof deny Item 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions” wherein it is entrenched that “There may be no military bases or army units of Russia, the Commonwealth of Independent States or its constituent states on the territory of the Republic of Lithuania”.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representatives of the Seimas, the party concerned, who were Saulius Pečeliūnas, a Member of the Seimas, Liucija Schulte-Ebbert, Head of the European Union and International Law Unit of the Legal Department of the Office of the Seimas, Girius Ivoška, an adviser of the Criminal and Administrative Law Unit of the same department, Dainius Žalimas, a lawyer, wherein it is maintained that the disputed legal regulation is not in conflict with the Constitution. The position of the representatives of the party concerned is substantiated by the following arguments.

1. The Constitution has not established expressis verbis any forms of international military co-operation of the Republic of Lithuania and any forms of assistance of other states to the Republic of Lithuania, however, such forms, inter alia those established in Articles 5 and 6 of the Law (wording of 15 January 2002), are not in conflict with the Constitution, if they are applied for the defence of the values—national security and independence, the welfare of the citizens, the basic rights and freedoms of a human being, international order based on law and justice—entrenched in Paragraph 1 of Article 135 of the Constitution, as well as for the defence of other constitutional values and strivings of the Nation. A different construction of the Constitution would mean that the Republic of Lithuania may defend itself only individually, and this would deny the right of the state, which is recognised in Article 51 of the Charter of the United Nations, to individual and collective self-defence.

The representatives of the party concerned note that for this purpose Articles 5 and 6 of the Law (wording of 15 January 2002) establish time-limited arrival of military units of other states and their use in Lithuania; the Law does not regulate establishment of military bases of foreign states in Lithuania. Thus, the disputed legal regulation is not in conflict with the prohibition of military bases of foreign states, which is entrenched in Article 137 of the Constitution. In addition, Article 137 of the Constitution should not be construed as an absolute prohibition, i.e. as the one prohibiting establishment of military bases of countries (including NATO members) bound by collective defence self-obligations with Lithuania for purposes of joint defence and joint safeguarding of security.

2. The powers of the Seimas entrenched in Item 20 of Article 67 and Article 142 of the Constitution to adopt a decision to use the armed forces include not only the powers to adopt a decision to use the armed forces of Lithuania, but also a decision to use the armed forces of other states in Lithuania. Otherwise, the right of the state, which is recognised in international law, to individual and collective self-defence would be restricted unreasonably and the constitutional values would be denied.

The said provisions of the Constitution should not be construed in a manner that only the Seimas decides the issue of using the armed forces. The Seimas is an institution which adopts a final decision on the use of the armed forces, however, the powers of the President of the Republic, which are established in Paragraph 2 of Article 142 of the Constitution, to adopt a decision on the defence against the armed aggression also include the powers to adopt a decision to use the armed forces, otherwise the defence against the aggression would not be efficient.

In addition, Paragraph 2 of Article 140 of the Constitution provides that the President of the Republic shall be the Commander-in-Chief of the Armed Forces of the state. Thus, in the course of adoption of a decision by the Seimas regarding the use of the armed forces, the President of the Republic must take part, since the right of initiative to use the armed forces belongs only to him.

According to the fundamental principle of treaties on collective defence, an attack against one or several Parties of such a treaty means an attack against all Parties of the treaty. Thus, in case of an attack of one or several other states (including NATO members) with which the Republic of Lithuania has concluded a treaty on collective defence, the Republic of Lithuania must act in the same manner as in case of a direct attack against itself, i.e. the President of the Republic must adopt a decision on the defence against the armed aggression provided for in Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution. The defence of the state against the armed aggression may be either individual or collective, therefore the decision (specified in the said provisions of the Constitution) of the President of the Republic regarding the defence against the armed aggression also includes a decision to take part in an operation of collective defence. If the decision of the President of the Republic regarding the defence against the armed aggression were not executed immediately, a decision of the Seimas might not be necessary, because during that time the aggressor could eliminate the State of Lithuania.

Paragraph 1 of Article 135 of the Constitution inter alia enshrines the principle of respect of the universally recognised principles and norms of international law; one of them is the principle pacta sunt servanda. The powers of the Seimas entrenched in Paragraph 2 of Article 142 of the Constitution to approve or overrule the decision of the President of the Republic regarding the defence against the armed aggression must be construed while taking account of these principles. The Seimas, having ascertained that there was the ground—an armed attack—established in the Constitution, must approve the decision of the President of the Republic, which is necessary to repulse the armed attack and to execute the self-obligations of collective defence subsequent to an international treaty ratified by the Seimas.

3. The list of powers of the President of the Republic entrenched in the Constitution is not final; laws can also establish other powers of the President of the Republic, providing they are not in conflict with the Constitution. The powers of the President of the Republic which are established in the Law (wording of 15 January 2002), inter alia Article 6 thereof, stem from the constitutional status of the President of the Republic as the Commander-in-Chief of the Armed Forces of the state. Under the provisions of Article 6 of the Law (wording of 15 January 2002), the President of the Republic decides only on deployment of the Lithuanian armed forces outside Lithuania or on deployment of the armed forces of other states in Lithuania, while as regards the use of these forces, it is decided by the Seimas in the same resolution whereby the decision of the President of the Republic of Lithuania is approved.

The decisions of the President of the Republic provided for in Article 6 of the Law (wording of 15 January 2002) regarding participation in other military operations are adopted only in urgent situations. If such decisions were not executed immediately, a subsequent decision of the Seimas might not be necessary, because the values which one strives to defend might be destroyed.

4. The use of the armed forces, which is regulated in Article 142 of the Constitution, also means their use according to their direct purpose—carrying out military operations. Military exercises and other events of military co-operation regulated by Article 10 of the Law on International Operations, Exercises and Other Events of Military Co-operation (wording of 15 January 2002) is part of preparation of the armed forces, but not their use. Decisions regarding military exercises and other events of military co-operation within the competence established in laws are adopted by the institutions established in Paragraph 3 of Article 140 of the Constitution—the Government, the Minister of National Defence and the Commander of the Armed Forces.

5. Article 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions” prohibits not any presence of military units of the Commonwealth of Independent States (CIS) on the territory of the Republic of Lithuania, but only such presence which could draw Lithuania to post-Soviet Eastern unions or which could threaten security of this country otherwise. The arrival of CIS military units of limited size (smaller than that of a military grouping) and for short-time humanitarian, educational purposes, or other purposes of military co-operation useful for Lithuania, is not in conflict with Article 3 of the Constitutional Act.

IV

At the Constitutional Court hearing, the representatives of the group of Members of the Seimas, the petitioner, who were E. Klumbys and J. Veselka, Members of the Seimas, virtually reiterated the arguments set forth in the petition of the petitioner and answered to questions.

The representatives of the Seimas, the party concerned, who were the Member of the Seimas S. Pečeliūnas, Liucija Schulte-Ebbert, Head of the European Union and International Law Unit of the Legal Department of the Office of the Seimas, and Girius Ivoška, an adviser of the Criminal and Administrative Law Unit of the same department, virtually reiterated the arguments set forth in their written explanations and also answered to questions.

The Constitutional Court

holds that:

I

1. Although, as it has been mentioned, a group of Members of the Seimas, the petitioner, has requested to investigate whether Paragraphs 1, 2, 3, 4 of Article 5, Paragraphs 2, 3, 4 of Article 6, Paragraphs 1, 2, 3 of Article 10, Paragraphs 2, 3, 5 of Article 14 of the Law (wording of 15 January 2002) are not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, Articles 137, 142 of the Constitution, and with Item 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”, from the petition (from the arguments submitted therein) it is clear that the petitioner has had doubts regarding:

the compliance of Item 2 of Paragraph 1 of Article 5 of the Law (wording of 15 January 2002) with Articles 137 and 142 of the Constitution;

the compliance of Paragraph 2 of Article 5 of the Law (wording of 15 January 2002) with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution;

the compliance of Paragraph 3 of Article 5 of the Law (wording of 15 January 2002) with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Article 142 of the Constitution;

the compliance of Paragraph 4 of Article 5 of the Law (wording of 15 January 2002) with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution;

the compliance of Paragraph 2 of Article 6 of the Law (wording of 15 January 2002) with Paragraph 2 of Article 5, Item 20 of Article 67, Article 137, and Paragraph 1 of Article 142 of the Constitution;

the compliance of Paragraph 3 of Article 6 of the Law (wording of 15 January 2002) with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution;

the compliance of Paragraph 4 of Article 6 of the Law (wording of 15 January 2002) with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution;

the compliance of Paragraphs 1, 2 and 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) with Paragraph 2 of Article 5, Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution;

the compliance of Paragraphs 2, 3 and 5 of Article 14 of the Law (wording of 15 January 2002) with Article 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”.

2. Even though the petitioner, while requesting to investigate whether Paragraphs 1, 2, 3, 4 of Article 5, Paragraphs 2, 3, 4 of Article 6, Paragraphs 1, 2, 3 of Article 10, Paragraphs 2, 3, 5 of Article 14 of the Law (wording of 15 January 2002) are not in conflict with the Constitution, indicates the concrete wording (15 January 2002) of the Law, however, from the petition it is clear that the petitioner inter alia disputes the compliance of Paragraphs 1, 2, 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) with the Constitution.

3. Thus, the petition of the group of Members of the Seimas, the petitioner, requesting to investigate whether Paragraphs 1, 2, 3, 4 of Article 5, Paragraphs 2, 3, 4 of Article 6, Paragraphs 1, 2, 3 of Article 10, Paragraphs 2, 3, 5 of Article 14 of the Law on International Operations, Exercises and Other Events of Military Co-operation (wording of 15 January 2002) are not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, Articles 137, 142 of the Constitution, and with Item 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”, is to be treated as a petition, requesting to investigate whether:

Item 2 of Paragraph 1 of Article 5 of the Law (wording of 15 January 2002) is not in conflict with Articles 137 and 142 of the Constitution;

Paragraph 2 of Article 5 of the Law (wording of 15 January 2002) is not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution;

Paragraph 3 of Article 5 of the Law (wording of 15 January 2002) is not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Article 142 of the Constitution;

Paragraph 4 of Article 5 of the Law (wording of 15 January 2002) is not in conflict with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution;

Paragraph 2 of Article 6 of the Law (wording of 15 January 2002) is not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Article 137, and Paragraph 1 of Article 142 of the Constitution;

Paragraph 3 of Article 6 of the Law (wording of 15 January 2002) is not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution;

Paragraph 4 of Article 6 of the Law (wording of 15 January 2002) is not in conflict with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution;

Paragraphs 1, 2 and 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) are not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution;

Paragraphs 2, 3 and 5 of Article 14 of the Law (wording of 15 January 2002) are not in conflict with Article 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”.

4. Thus, taking account of the petition (the arguments presented therein), in the constitutional justice case at issue the Constitutional Court will investigate:

the compliance of Item 2 of Paragraph 1 of Article 5 of the Law (wording of 15 January 2002) with Articles 137 and 142 of the Constitution, the compliance of Paragraph 2 of Article 5 of the Law with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution, the compliance of Paragraph 3 of Article 5 of the Law with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Article 142 of the Constitution, the compliance of Paragraph 4 of Article 5 of the Law with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution;

the compliance of Paragraph 2 of Article 6 of the Law (wording of 15 January 2002) with Paragraph 2 of Article 5, Item 20 of Article 67, Article 137, and Paragraph 1 of Article 142 of the Constitution, the compliance of Paragraph 3 of Article 6 of the Law with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution, the compliance of Paragraph 4 of Article 6 of the Law with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution;

the compliance of Paragraphs 1, 2 and 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) with Paragraph 2 of Article 5, Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution;

the compliance of Paragraphs 2, 3 and 5 of Article 14 of the Law (wording of 15 January 2002) with Article 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”.

II

1. As mentioned, in the constitutional justice case at issue the Constitutional Court will investigate the compliance of the disputed provisions (related with events of international military operations, those of international military exercises and those of international military co-operation) of the Law (wording of 15 January 2002) with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, Articles 137, 142 of the Constitution, and with Article 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”.

2. In the context of the constitutional justice case at issue it is important to disclose the development of the regulation established by laws of the Republic of Lithuania and the international commitments of the Republic of Lithuania in the area of ensuring security of the state and of its independence.

3. After the independent State of Lithuania had been restored on 11 March 1990, the creation of the legal foundations of defence of the state and the related international co-operation was begun.

4. On 11 March 1990, the Supreme Council of the Republic of Lithuania adopted the Republic of Lithuania Law “On the Provisional Basic Law of the Republic of Lithuania” by Article 2 whereof it approved the Provisional Basic Law of the Republic of Lithuania—the provisional constitution of the restored independent State of Lithuania.

Article 8 of the Provisional Basic Law prescribed that the defence of the country shall be regulated by law, whereas Item 13 of Paragraph 1 of Article 78 thereof inter alia established that establishment of appropriate measures to guarantee state security is within the competence of the Supreme Council of the Republic of Lithuania. The Provisional Basic Law was amended and supplemented more than once, however, the specified provisions thereof were not amended or supplemented.

5. On 17 September 1991, the Republic of Lithuania became a Member of the United Nations, an international organisation founded and acting under the Charter of the United Nations signed on 26 June 1945.

5.1. In the context of the constitutional justice case at issue it needs to be noted that the following purposes of this international organisation were entrenched in Article 1 of the Charter of the United Nations: to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; to be a centre for harmonising the actions of nations in the attainment of these common ends.

5.2. Article 2 of the Charter of the United Nations has entrenched the principles which are followed by the United Nations and its Members in their actions:

1. The Organization is based on the principle of the sovereign equality of all its Members.

2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.

3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

6. The Organisation shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.

7. Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.”

5.3. In the context of the constitutional justice case at issue it needs to be noted that the Republic of Lithuania, having become (being) a Member of the United Nations, is guided by the principles entrenched in the Charter of the United Nations, inter alia fulfilment, in good faith, of the obligations assumed by it in accordance with the present Charter (Paragraph 2 of Article 2), settlement of international disputes by peaceful means (Paragraph 3 of Article 2), prohibition of the use of force in international relations (Paragraph 4 of Article 2), giving assistance to the United Nations in the actions it takes in accordance of the Charter of the United Nations (Paragraph 5 of Article 2).

5.4. In the context of the constitutional justice case at issue it also needs to be noted that, according to the provisions of the Charter of the United Nations, primary responsibility for the maintenance of international peace and security was conferred on the Security Council, which, in carrying out its duties under this responsibility, acts on behalf of the United Nations (Paragraph 1 of Article 24). The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security (Article 39). Article 41 of the Charter of the United Nations establishes the measures not involving the use of armed force; Article 42 prescribes that should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security; such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

5.5. It needs to be noted that Paragraph 1 of Article 43 of the Charter of the United Nations provides that all Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

5.6. It needs to be emphasised that Article 51 of the Charter of the United Nations recognises the right of individual or collective self-defence of every state, a Member of the United Nations.

This article prescribes: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

6. On 8 June 1992, the Supreme Council, while invoking the acts of 16 February 1918 and 11 March 1990 on restoration of the independent State of Lithuania and the will of the entire Nation expressed on 9 February 1991, adopted the Constitutional Act of the Republic of Lithuania “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”.

7. On 25 October 1992, by referendum, the Nation adopted the Constitution of the Republic of Lithuania, which came into force on 2 November 1992.

Under Article 1 of the Law of the Republic of Lithuania “On the Procedure for Entry into Force of the Constitution of the Republic of Lithuania”, which was adopted together with the Constitution of the Republic of Lithuania by the Nation by means of the 25 October 1992 referendum, and which is a constituent part of the Constitution, upon the entry into force of the Constitution, the Provisional Basic Law became null and void.

Under Article 150 of the Constitution, inter alia the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions” became a constituent part of the Constitution.

From the day of the entry into force of the Constitution, the Lithuanian national legal system was to be created and developed only on the grounds of the Constitution.

8. On 19 July 1994, the Seimas adopted the Republic of Lithuania Law “On Participation of Sub-Units of the Lithuanian Army in International Operations”, in which inter alia the following was established:

– “Sub-units of the Lithuanian army may participate in international operations only when international commitments of the Republic of Lithuania are fulfilled” (Article 1);

– “Sub-units of the Lithuanian army may be placed under command of the structures of the Security Council of the United Nations for the purpose of carrying out individual operations under the Charter of the United Nations.

Joint military units with the Western European Union, NATO, as well as with other states, may be founded without violating Article 11 of this Law.

On the territory of the Republic of Lithuania joint exercises of sub-units of the Lithuanian army with sub-units of the armed forces of the foreign states specified in the second paragraph of this Article may be arranged.

Sub-units of the Lithuanian army may be sent to take part in joint exercises arranged by the organisations and the states listed in this Article.

Sub-units of the Lithuanian army may participate in international rescue and humanitarian operations” (Article 3);

– “No provision of this Law shall limit the right of the Republic of Lithuania to implement individual or collective self-defence under the Charter of the United Nations” (Article 10);

– “Any participation of the Lithuanian army, sub-units thereof, and structures of the Republic of Lithuania in international operations and exercises with CIS countries on the territories of the Baltic Sates and on the territories of CIS countries shall be prohibited” (Article 11).

Thus, the specified provisions of the Law “On Participation of Sub-Units of the Lithuanian Army in International Operations” (wording of 19 July 1994) used to regulate the relations related with participation by the armed forces of the Republic of Lithuania in international operations (as well as in international rescue and humanitarian operations) carried out under the Charter of the United Nations, with sending the armed forces of the Republic of Lithuania to participate in joint exercises abroad, and with arrival of foreign armed forces to joint exercises on the territory of the Republic of Lithuania. The legal regulation established in this law did not limit the right of the Republic of Lithuania to implement individual and collective self-defence under the Charter of the United Nations.

9. On 19 December 1996, the Seimas adopted the Republic of Lithuania Law on the Basics of National Security, the annex whereof inter alia established the following:

– “The system of Lithuania’s national security and defence shall be developed as part of the common European security and transatlantic defence systems” (Chapter 1);

– “The main goal of the Lithuanian foreign policy shall be to develop Lithuania’s integration into the European and transatlantic structures and ensure international security guarantees. <...>

The main tasks of the Lithuanian foreign policy shall be:

to participate actively and in all ways in the European integration: to implement the Europe (Association) Agreement and seek to join the North Atlantic Treaty Organisation (NATO) and the Western European Union (WEU) as soon as possible; <…>” (Chapter 5);

– “The armed forces and other structures of national defence of Lithuania shall be built up and trained for defence of the State of Lithuania and interoperability with the NATO Forces.

In peace time the State armed forces shall comprise all the services of the armed forces and its active reserve. Upon the introduction of martial law, or during the armed defence from aggression in war time, the armed forces shall include: the border police and other specialised police units, the Military Academy, the paramilitary units of the Šauliai (Riflemen) Union and voluntary citizens’ (partisan) units of armed resistance” (Section Two of Chapter 7);

– “From the onset of aggression against Lithuania the armed forces shall defend the State with arms seeking to deplete and destroy the enemy forces; Lithuania shall ask NATO and its members for help in the defence and for other international assistance” (Section Three of Chapter 7);

– “In addition to the foreign, domestic and defence policies defined in Part One of these Basics, the other measures ensuring Lithuanian national security shall be:

participation in international security consolidating organisations;

membership in the North Atlantic Treaty Organisation, the Western European Union and the European Union; <…>” (Section One of Chapter 10);

– “Lithuania’s security is part of the European security. Lithuania is prepared to make its contribution to the strengthening of international security and assume its share of responsibilities. Lithuania shall participate in the activities of the United Nations (UN), Council of Europe (CE), Organisation for Security and Co-operation in Europe (OSCE), North Atlantic Co-operation Council (NACC), North Atlantic Assembly (NAA) and other international organisations the purpose of which is to ensure peace, enhance security and stability in Europe; Lithuania shall also participate in peace-keeping missions and other activities” (Section Two of Chapter 10).

Thus, the Law on the Basics of National Security (wording of 19 December 1996) regulates the relations related to ensuring security of the state, defence of the state and international co-operation, inter alia the seeking to join the North Atlantic Treaty Organisation and the Western European Union as soon as possible, participation in the international organisations enhancing security and in peacekeeping missions.

10. On 3 February 1998, the Seimas adopted the Republic of Lithuania Law on Amending the Law “On Participation of Sub-Units of the Lithuanian Army in International Operations” by Article 1 whereof the Law “On Participation of Sub-Units of the Lithuanian Army in International Operations” (wording of 19 July 1994 with subsequent amendments and/or supplements) was amended and set forth in a new wording. Alongside, by the same article the title of the law was amended—it was titled the Law on Participation of Units of the Army of the Republic of Lithuania in International Operations and Exercises and on Arranging International Exercises on the Territory of Lithuania.

This law inter alia prescribed:

– “The principal definitions of the present Law are as follows:

1) ‘International operation’ means a peace support operation implemented on the territory of another state under a mandate of the United Nations Organisation, for execution of which Lithuanian army units are used; <...>” (Paragraph 2 of Article 1);

– “Lithuanian army units may take part in international operations, only when international commitments of the Republic of Lithuania are being implemented and when the Seimas shall take a decision to send a Lithuanian army unit to take part in an international operation” (Article 2);

– “When implementing international agreements of the Republic of Lithuania, also, international military co-operation plans as well as programmes and being in conformance with the limitations set forth by Article 13 of this Law, the following shall be observed:

1) Joint exercises with participation of Lithuanian army and foreign states’ military units, as well as military units of international organisations defined by this Law, may be arranged on the territory of the Republic of Lithuania;

2) Lithuanian military units may participate in international exercises on other states’ territories” (Article 6);

– “No provision of this Law shall limit the right of the Republic of Lithuania to carry out individual or collective self-defence in accordance with the Charter of the United Nations” (Article 12);

– “1. Any participation of CIS members’ armed force units or any other type of military structures in international operations and exercises on the territory of Lithuania shall be prohibited. Similarly, any participation of Lithuanian army units and any other structures of the National Defence System in international operations and exercises on the territory of CIS countries shall be prohibited.

2. Prohibitions defined by this Article shall not be applied to military officials who have been invited by the Host State to participate in international exercises in the role of observers” (Article 13).

Thus, the Law on Participation of Units of the Army of the Republic of Lithuania in International Operations and Exercises and on Arranging International Exercises on the Territory of Lithuania (wording of 3 February 1998) regulated the relations related to participation of the armed forces of the Republic of Lithuania in peace support operations and military exercises carried out abroad, and to participation of the armed forces of foreign states in international exercises arranged on the territory of the Republic of Lithuania. The legal regulation established in this law did not limit the right of the Republic of Lithuania to carry out individual and collective self-defence in accordance with the United Nations’ Charter.

11. On 17 July 2000, the Seimas adopted the Republic of Lithuania Law on Amending the Title of the Law on Participation of Units of the Army of the Republic of Lithuania in International Operations and Exercises and on Arranging International Exercises on the Territory of Lithuania and on Amending and Supplementing Articles 1, 6, 8, 9, 10, 11 Thereof. By Article 1 of this law, the title of the Law on Participation of Units of the Army of the Republic of Lithuania in International Operations and Exercises and on Arranging International Exercises on the Territory of Lithuania (wording of 3 February 1998) was amended—it was titled the Republic of Lithuania Law on International Operations, Military Exercises and Other Military Events.

11.1. Article 1 of the Law on International Operations, Military Exercises and Other Military Events (wording of 17 July 2000) defined the purpose of the law and definitions used in the law:

1. This Law shall regulate participation of Lithuanian army units in international exercises, and other international military co-operation events and also in international operations abroad as well as participation of foreign states’ military units in international exercises and other international military co-operation events conducted on the territory of Lithuania.

2. The principal definitions of the present Law are as follows:

<...>

3) ‘other type international military co-operation events’ (hereinafter referred to as ‘other international events’) mean events that are included into military co-operation plans and programmes but that are not ascribed to an international operation, or international exercises as well as events agreed upon between the appropriate institutions of Lithuania and foreign states; <...>”

11.2. Thus, the Law on International Operations, Military Exercises and Other Military Events (wording of 17 July 2000) inter alia entrenched a new form of military co-operation—it regulated participation of Lithuanian army units in other events of international military co-operation, as well as participation of military units of foreign states on the territory of Lithuania.

12. On 17 July 2000, the Seimas adopted the Republic of Lithuania Law on Armed Defence and Resistance Against Aggression. Article 7 of this law provides that, while implementing its right to collective self-defence against an armed attack, in the event of aggression the Republic of Lithuania requests NATO and its members for assistance in the defence, as well as for other international assistance. This provision of the law has not been amended and/or supplemented.

13. On 15 January 2002, the Seimas adopted the Republic of Lithuania Law on Amending the Law on International Operations, Military Exercises and Other Military Events by Article 1 whereof the Republic of Lithuania Law on International Operations, Military Exercises and Other Military Events was amended and set forth in a new wording. Alongside, the title of the law was amended—it was titled the Republic of Lithuania Law on International Operations, Exercises and Other Events of Military Co-operation.

The Law on International Operations, Exercises and Other Events of Military Co-operation (wording of 15 January 2002) came into force on 6 February 2002, save Article 5 thereof, which came into force on the day when the North Atlantic Treaty came into force for the Republic of Lithuania (Article 16 of the Law).

14. In the 21 November 2002 meeting of the North Atlantic Council in Prague, Heads of NATO States and Governments invited the Republic of Lithuania and other six states of Eastern and Central Europe—Bulgaria, Estonia, Latvia, Romania, Slovakia and Slovenia—to join NATO. On 26 March 2003, in Brussels, the representatives of 19 states, present NATO Members, signed the Protocol to the North Atlantic Treaty on the accession of the Republic of Lithuania.

15. On 10 March 2004, the Seimas ratified the North Atlantic Treaty signed on 4 April 1949 in Washington (Republic of Lithuania Law on the Ratification of the North Atlantic Treaty). The treaty came into force on 29 March 2004, when Lithuania deposited its instrument of accession with the Government of the United States of America.

15.1. Article 3 of the North Atlantic Treaty prescribes: “In order more effectively to achieve the objectives of this Treaty, the Parties, separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack.”

15.2. According to provisions of the North Atlantic Treaty, in its activities NATO is guided by three basic principles: settlement of international disputes by peaceful means, refraining from the use of force, and collective self-defence.

The principles of peaceful settlement of international disputes and refraining from the use of force are entrenched in Article 1 of the Treaty, which provides that the Parties to the Treaty undertake to settle any international dispute in which they may be involved by peaceful means and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.

The principle of collective self-defence, which could be regarded as the basis of the entire North Atlantic Treaty and of NATO activities, is entrenched in Article 5 of the Treaty, whereby the Parties to the Treaty agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all. If such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. The same Article 5 provides that any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council of the United Nations.

16. Thus, after the North Atlantic Treaty came into force for the Republic of Lithuania on 29 March 2004, alongside, the Law on International Operations, Exercises and Other Events of Military Co-operation (wording of 15 January 2002) (including Article 5 thereof) came into force to its full extent.

Paragraphs 1, 2, 3, 4 of Article 5, Paragraphs 2, 3, 4 of Article 6, Paragraphs 1, 2, 3 of Article 10, Paragraphs 2, 3, 5 of Article 14 of the said law are being disputed in the constitutional justice case at issue.

16.1. Article 5 “Collective Defence Operations” of the Law (wording of 15 January 2002) prescribes:

1. When implementing the rights and commitments of the Republic of Lithuania under the collective defence treaty:

1) military units of the Republic of Lithuania may be deployed and used for the purposes of collective defence operations on the territory of other states;

2) military units of other states—allies of the Republic of Lithuania—may be deployed and used for the purposes of collective defence operations on the territory of the Republic of Lithuania.

2. The decision on the deployment and use of Lithuanian military units for the purposes of collective defence operations on the territory of other states, as well as on the deployment and use of military units of other states for the purposes of collective defence operations on the territory of the Republic of Lithuania shall be taken by the Seimas of the Republic of Lithuania by adopting a resolution on the recommendation of the President of the Republic.

3. In the event of an armed attack against the Republic of Lithuania, other Party or Parties to the collective defence treaty, the President of the Republic shall immediately adopt a decision concerning defence against armed aggression, including a decision to participate in a collective defence operation, when necessary, to deploy and use Lithuanian military units on the territory of other states or to allow deployment and use of military units of other states on the territory of the Republic of Lithuania, as well as to take other measures necessary to achieve the objectives of a respective collective defence operation.

4. The decision of the President of the Republic referred to in Paragraph 3 of this Article must be executed immediately. The President of the Republic shall submit this decision for approval at the next sitting of the Seimas and, in the period between sessions, shall immediately convene an extraordinary session of the Seimas. When ensuring the implementation of the collective defence treaty ratified by the Seimas and of joint decisions of the Parties to that treaty as well as armed defence and resistance against an armed attack, the Seimas shall adopt a resolution on the approval of the decision of the President of the Republic.

5. The number and size of military units of the Republic of Lithuania used for the purposes of collective defence operations on the territory of other states and duration of their stay on the territory of other states, as well as the number and size of military units of other states—allies of the Republic of Lithuania—and duration of their stay on the territory of the Republic of Lithuania, shall be established in accordance with treaties or agreements between the Republic of Lithuania and other Parties to the collective defence treaty or other allies of the Republic of Lithuania, as well as by joint decisions of the Parties to the collective defence treaty.”

16.2. In this context it needs to be noted that Paragraphs 1, 2, 3, 7 of Article 2 (wording of 12 May 2005) “Principal Definitions of the Law” of the Law (wording of 15 January 2002) prescribe:

1. ‘International operation’ means a collective defence operation or other military operation involving joint participation of military units of the Republic of Lithuania and foreign states.

2. ‘Collective defence treaty’ means an international treaty of the Republic of Lithuania, based on the provisions of Article 51 of the United Nations Charter, recognising each state’s inherent right of individual and collective self-defence, which defines commitments with regard to joint defence, whereby an armed attack against one or more Parties to the Treaty is considered an armed attack against all the countries, Parties to the Treaty.

3. ‘Collective defence operation’ means a common defence operation carried out under the collective defence treaty in the event of an armed attack against one or more Parties to the treaty, as well as preparation for such an operation. <...>

7. ‘Military unit’ means each any-size unit of the army (armed forces) of Lithuania or another state, subordinate to a single commander and having a common task to participate in international operations, exercises and other events.”

16.3. Thus, when Article 5 of the Law (wording of 15 January 2002) is construed together with Paragraphs 1, 2, 3 and 7 of Article 2 (wording of 12 May 2005) thereof, it is clear that the disputed provisions of Article 5 of the Law (wording of 15 January 2002) regulate the relations related to carrying out one of international operations—a collective defence operation (joint defence operation or preparation for such an operation), i.e. the use of military units of the Republic of Lithuania together with military units of other states—allies of the Republic of Lithuania—pursuant to the collective defence treaty (and the inherent right of individual or collective self-defence of every state recognised by Article 51 of the Charter of the United Nations) in the event of an armed attack against one or several Parties to the Treaty and/or in the course of preparation for such an operation, as well as the implementation of the powers of the Seimas and the President of the Republic related thereto.

The disputed legal regulation established in Item 2 of Paragraph 1 of Article 5 of the Law (wording of 15 January 2002) (“When implementing the rights and commitments of the Republic of Lithuania under the collective defence treaty <…> military units of other states—allies of the Republic of Lithuania—may be deployed and used for the purposes of collective defence operations on the territory of the Republic of Lithuania”) also means that one of the means of implementation of the rights and commitments of the Republic of Lithuania pursuant to the collective defence treaty is possible arrival of military units of states—allies of the Republic of Lithuania—in the Republic of Lithuania and their use on the territory of the Republic of Lithuania for the purpose of a collective defence operation.

The disputed legal regulation established in Paragraph 2 of Article 5 of the Law (wording of 15 January 2002) (“The decision on the deployment and use of Lithuanian military units for the purposes of collective defence operations on the territory of other states, as well as on the deployment and use of military units of other states for the purposes of collective defence operations on the territory of the Republic of Lithuania shall be taken by the Seimas of the Republic of Lithuania by adopting a resolution on the recommendation of the President of the Republic”), if it is construed together with Paragraph 1 of Article 5 of Law (wording of 15 January 2002), also means that, in the course of implementation of the rights and commitments of the Republic of Lithuania pursuant to the collective defence treaty the President of the Republic may present a decision to the Seimas regarding departure and use of military units of the Republic of Lithuania on the territories of other states for the purpose of a collective defence operation, as well as regarding arrival and use of military units of other states on the territory of the Republic of Lithuania for the purpose of a collective defence operation, whereas the Seimas may adopt such a decision by means of its resolution.

The disputed legal regulation established in Paragraph 3 of Article 5 of the Law (wording of 15 January 2002) (“In the event of an armed attack against the Republic of Lithuania, other Party or Parties to the collective defence treaty, the President of the Republic shall immediately adopt a decision concerning defence against armed aggression, including a decision to participate in a collective defence operation, when necessary, to deploy and use Lithuanian military units on the territory of other states or to allow deployment and use of military units of other states on the territory of the Republic of Lithuania, as well as to take other measures necessary to achieve the objectives of a respective collective defence operation”) also means that in the event of an armed attack against the Republic of Lithuania, against other Party or Parties of the collective defence treaty, the President of the Republic is empowered to immediately adopt a decision on defence against the armed aggression (including a decision to participate in a collective defence operation, in case of need, to send and use Lithuanian military units on the territories of other states, to allow that military units of other sates arrive in Lithuania and be used in its territory, and to resort to other measures necessary in order to achieve the aims of the collective defence operation).

The disputed legal regulation established in Paragraph 4 of Article 5 of the Law (wording of 15 January 2002) (“The decision of the President of the Republic referred to in Paragraph 3 of this Article must be executed immediately. The President of the Republic shall submit this decision for approval at the next sitting of the Seimas and, in the period between sessions, shall immediately convene an extraordinary session of the Seimas. When ensuring the implementation of the collective defence treaty ratified by the Seimas and of joint decisions of the Parties to that treaty as well as armed defence and resistance against an armed attack, the Seimas shall adopt a resolution on the approval of the decision of the President of the Republic”) also means that in the event of an armed attack against the Republic of Lithuania, against other Party or Parties of the collective defence treaty, the immediately adopted decision by the President of the Republic regarding the defence against the armed aggression (inter alia a decision to participate in a collective defence operation, in case of need, to send and use Lithuanian military units on the territories of other states, to allow that military units of other sates arrive in Lithuania and be used in its territory, and to resort to other measures necessary in order to achieve the aims of the collective defence operation) acquires legal power from the moment of its adoption and must be executed immediately, however, the President of the Republic must present this decision at the nearest sitting of the Seimas (between sessions of the Seimas—at the immediately convened extraordinary session of the Seimas) for approval, whereas the Seimas has the right to adopt a resolution on approval of the decision of the President of the Republic, whereby the execution of the collective defence treaty ratified by the Seimas and of joint decisions of Parties to the treaty implementing it as well as the armed defence and resistance to the armed attack are secured.

16.4. Article 6 “Other Operations” of the Law (wording of 15 January 2002) prescribes:

1. When implementing other than collective defence rights and commitments of the Republic of Lithuania:

1) military units of the Republic of Lithuania may be deployed and used for the purposes of other operation on the territory of other states;

2) military units of other states may be deployed and used for the purposes of other operation on the territory of the Republic of Lithuania.

2. The decision on the deployment and use of military units of the Republic of Lithuania for the purposes of other operation on the territory of other states, as well as on the deployment and use of military units of other states for the purposes of other operation on the territory of the Republic of Lithuania shall be taken by the Seimas of the Republic of Lithuania by adopting a resolution on the recommendation of the President of the Republic.

3. In emergency cases the President of the Republic shall adopt a decision on the participation in other operation, including the deployment of military units of the Republic of Lithuania, permission for deployment of military units of other states on the territory of the Republic of Lithuania, as well as other measures necessary to achieve the objectives of a respective operation.

4. The decision of the President of the Republic referred to in Paragraph 3 of this Article must be executed immediately. The President of the Republic shall submit forthwith the decision at the next sitting of the Seimas for approval. Without prejudice to the commitments of the Republic of Lithuania under a collective defence treaty and joint decisions of the Parties to that treaty, the Seimas shall approve or repeal by its resolution the decision of the President of the Republic and shall, by the same resolution, adopt a decision on the use of military units of the Republic of Lithuania for the purposes of other operation on the territory of other states, and/or on the use of military units of other states for the purposes of other operation on the territory of the Republic of Lithuania.

5. The maximum size of Lithuanian military units used for the purposes of other operation on the territory of other states and maximum duration of their stay on the territory of other states, as well as the maximum size of military units of other states used for the purposes of other operation on the territory of the Republic of Lithuania and maximum duration of their stay on the territory of the Republic of Lithuania shall be established by the Seimas by adopting a resolution, referred to in Paragraph 2 of this Article, on the recommendation of the President of the Republic, or in the case defined in Paragraph 3 of this Article—by the President of the Republic and by the Seimas, when approving the decision of the President of the Republic in accordance with Paragraph 4 of this Article. The exact size and duration of deployment of military units of the Republic of Lithuania used for the purposes of other operation on the territory of other states, as well as the exact size and duration of deployment of military units of other states used for the purposes of other operation on the territory of the Republic of Lithuania and duration of their stay on the territory of the Republic of Lithuania shall be fixed by the Minister for National Defence, in compliance with the maximum size and maximum duration established or approved by the resolution of the Seimas.

6. Taking into consideration the national interests of Lithuania, the maximum size of military units of the Republic of Lithuania and duration of their stay on the territory of other states, as well as the maximum size of military units of other states and duration of their stay on the territory of the Republic of Lithuania established in accordance with Paragraph 5 of this Article, when necessary, may be reduced by the resolution of the Seimas of the Republic of Lithuania, without prejudice to the commitments of the Republic of Lithuania under the collective defence treaty and joint decisions of the Parties to that treaty.”

16.5. In this context it needs to be noted that Paragraphs 1, 3, 4, 7 of Article 2 (wording of 12 May 2005) “Principal Definitions of the Law” of the Law (wording of 15 January 2002) prescribe:

1. ‘International operation’ means a collective defence operation or other military operation involving joint participation of military units of the Republic of Lithuania and foreign states. <...>

3. ‘Collective defence operation’ means a common defence operation carried out under the collective defence treaty in the event of an armed attack against one or more Parties to the treaty, as well as preparation for such an operation.

4. ‘Other military operation’ (hereinafter referred to as other operation) means any other than collective defence international operation (as well as preparation for such an operation) consistent with the purposes and principles of the United Nations Organisation, including collective self-defence operations, not specified in Paragraph 3 of this Article in implementing the inherent right of each state to individual and collective self-defence, recognised in Article 51 of the United Nations Charter. <...>

7. ‘Military unit’ means each any-size unit of the army (armed forces) of Lithuania or another state, subordinate to a single commander and having a common task to participate in international operations, exercises and other events.”

16.6. Thus, when Paragraphs 2, 3, 4 of Article 6 of the Law (wording of 15 January 2002) are construed together with Paragraphs 1, 3, 4, 7 of Article 2 (wording of 12 May 2005) thereof, it is clear that disputed Paragraphs 2, 3, 4 of Article 6 of the Law (wording of 15 January 2002) regulate the relations related with carrying out (as well as preparation for) of one of the two international operations, which is not a collective military defence operation, but which is in conformity with the purposes and principles of the United Nations (including operations of collective self-defence while implementing the inherent right of every state to individual or collective self-defence, which is recognised by Article 51 of the Charter of the United Nations), i.e. the use of military units of the Republic of Lithuania together with military units of other sates according to corresponding decisions of the Seimas and the President of the Republic adopted in the course of implementation of international commitments of the Republic of Lithuania, which are not those regarding collective defence.

The disputed legal regulation established in Paragraph 2 of Article 6 of the Law (wording of 15 January 2002) (“The decision on the deployment and use of military units of the Republic of Lithuania for the purposes of other operation on the territory of other states, as well as on the deployment and use of military units of other states for the purposes of other operation on the territory of the Republic of Lithuania shall be taken by the Seimas of the Republic of Lithuania by adopting a resolution on the recommendation of the President of the Republic”), if it is construed together with Paragraph 1 of Article 6 of the Law (wording of 15 January 2002) (“When implementing other than collective defence rights and commitments of the Republic of Lithuania: 1) military units of the Republic of Lithuania may be deployed and used for the purposes of other operation on the territory of other states; 2) military units of other states may be deployed and used for the purposes of other operation on the territory of the Republic of Lithuania”), also means that, in the course of implementing international commitments of the Republic of Lithuania, the President of the Republic may submit a decision to the Seimas on departure and use of military units of the Republic of Lithuania for the purposes of other operation on the territories of other states, as well as on arrival of military units of other states and their use for the purposes of other operation on the territory of the Republic of Lithuania, whereas the Seimas can adopt such a decision by means of a resolution.

The disputed legal regulation established in Paragraph 3 of Article 6 of the Law (wording of 15 January 2002) (“In emergency cases the President of the Republic shall adopt a decision on the participation in other operation, including the deployment of military units of the Republic of Lithuania, permission for deployment of military units of other states on the territory of the Republic of Lithuania, as well as other measures necessary to achieve the objectives of a respective operation”), if it is construed together with Paragraph 3 of Article 5 of the Law (wording of 15 January 2002) (“In the event of an armed attack against the Republic of Lithuania, other Party or Parties to the collective defence treaty, the President of the Republic shall immediately adopt a decision concerning defence against the armed aggression, including a decision to participate in a collective defence operation, when necessary, to deploy and use Lithuanian military units on the territory of other states or to allow deployment and use of military units of other states on the territory of the Republic of Lithuania, as well as to take other measures necessary to achieve the objectives of a respective collective defence operation”) and with Paragraph 1 of Article 6 thereof, also means that the President of the Republic, in the course of implementation of the international commitments of the Republic of Lithuania which are not those of collective defence, is empowered in emergency situations to adopt a decision on participation in other operation, including departure of military units of the Republic of Lithuania, permission to arrive for military units of other states in the Republic of Lithuania and other measures necessary in order to achieve the purposes of the operation.

The disputed legal regulation established in Paragraph 4 of Article 6 of the Law (wording of 15 January 2002) (“The decision of the President of the Republic referred to in Paragraph 3 of this Article must be executed immediately. The President of the Republic shall submit forthwith the decision at the next sitting of the Seimas for approval. Without prejudice to the commitments of the Republic of Lithuania under a collective defence treaty and joint decisions of the Parties to that treaty, the Seimas shall approve or repeal by its resolution the decision of the President of the Republic and shall, by the same resolution, adopt a decision on the use of military units of the Republic of Lithuania for the purposes of other operation on the territory of other states, and/or on the use of military units of other states for the purposes of other operation on the territory of the Republic of Lithuania”) also means that the decision by the President of the Republic, taken in emergency situations, in the course of implementation of international commitments of the Republic of Lithuania which are other than those of collective defence, regarding participation in other operation, including departure of military units of the Republic of Lithuania, permission for military units of other states to arrive in the Republic of Lithuania and other measures necessary in order to achieve the purposes of the operation, acquires legal power from the moment of its adoption and must be executed immediately. However, the legal power of this decision is conditional (temporary), since it is bound by the duty of the President of the Republic to immediately submit this decision for approval at the nearest sitting of the Seimas and by the right of the Seimas to adopt a resolution on either approval or annulment of this decision of the President of the Republic, as well as by the right of the Seimas to adopt a decision, by means of the said resolution, on the use of military units of the Republic of Lithuania for the purposes of other operation on the territories of other states and/or the use of military units of other states for the purposes of other operation on the territory of the Republic of Lithuania, and by this not violating the commitments of the Republic of Lithuania subsequent to the collective defence treaty and joint decisions of the Parties to this treaty.

16.7. Article 10 (wording of 12 May 2005) “Taking Decisions to Send Military Units of the Republic of Lithuania, Servicemen and Civil Servants of National Defence System to Exercises and Other Events Abroad” of the Law (wording of 15 January 2002) prescribes:

1. A decision to send military units of the Republic of Lithuania, whose total number of servicemen and civil servants of the national defence system is at least 800, to participate in exercises and other events held abroad shall be taken by the Seimas by adopting a resolution on the proposal of the Government of the Republic of Lithuania. The decision shall set the maximum number of Lithuanian servicemen and civil servants of the national defence system authorised to leave as well as the maximum duration of their stay on the territories of other states.

2. Except for the cases defined by Paragraph 1 and Item 2 of Paragraph 3 of this Article, a decision to send military units of the Republic of Lithuania, whose total number of servicemen and civil servants of the national defence system is at least 150, to participate in exercises and other events held abroad shall be taken by the Government of the Republic of Lithuania by adopting a resolution upon the proposal of the Minister of National Defence. The decision shall set the maximum number of Lithuanian servicemen and civil servants of the national defence system authorised to leave as well as the maximum duration of their stay on the territories of other states.

3. The Minister of National Defence shall take a decision to send military units of the Republic of Lithuania, servicemen and civil servants of the national defence system to participate in exercises and other events abroad in the following cases:

1) when less than 150 Lithuanian servicemen and civil servants assigned to the armed forces may participate in the exercise and other event at a time;

2) when joint exercise of a military unit or other event is arranged with other state (states), in which less than 800 of Lithuanian servicemen and civil servants of the national defence system can participate at one time, or joint exercises or other event is arranged with NATO or with European Union institutions or states, in which less than 800 of Lithuanian servicemen and civil servants of the national defence system can participate at a time.”

16.8. In this context it needs to be noted that Article 2 “Principal Definitions of the Law” (wording of 12 May 2005) of the Law (wording of 15 January 2002) prescribes:

1. ‘International operation’ means a collective defence operation or other military operation involving joint participation of military units of the Republic of Lithuania and foreign states. <...>

5. ‘International military exercises’ (hereinafter referred to as exercises) means preparation exercises for military operations and other combat preparedness exercises involving joint participation of military units of the Republic of Lithuania and foreign states, or involving the use by foreign states’ military units of infrastructure facilities and military training grounds assigned to the national defence system of the Republic of Lithuania.

6. ‘Other events of military co-operation’ (hereinafter referred to as other events) means events of military co-operation with other states or/and international institutions, which are not ascribed to an international operation or international exercises.”

16.9. Thus, when Paragraphs 1, 2, 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) are construed together with Paragraphs 1, 5, 6 of Article 2 (wording of 12 May 2005) thereof, it is clear that the disputed Paragraphs 1, 2, 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) regulate the relations related to participation of military units of the Republic of Lithuania and military units of other states in preparation exercises for international operations and in other combat preparedness exercises, as well as to participation in other events of military co-operation, which are not ascribed to an international operation or exercises, as well as to implementation of the powers of the Seimas, the Government and the Minister of National Defence.

The disputed legal regulation established in Paragraphs 1, 2, 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) also means that:

under Paragraph 1 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002), the Government has the right to propose that the Seimas adopt a decision to send military units of the Republic of Lithuania of the established size to another state in order that they only participate in exercises and other events, whereas the Seimas has the right to adopt, by means of a resolution, the decision proposed by the Government;

under Paragraph 2 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002), the Minister of National Defence has the right to propose that the Government adopt a decision to send military units of the Republic of Lithuania of the established size to another state in order that they only participate in exercises and other events, whereas the Government has the right to adopt, by means of a resolution, the decision proposed by the Minister of National Defence;

under Paragraph 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002), the Minister of National Defence has the right in certain cases to adopt a decision to send military units of the Republic of Lithuania of the established size, servicemen and civil servants of the national defence system to another state in order that they only participate in exercises and other events;

16.10. Paragraphs 2, 3 and 5 of Article 14 “Limitations Related to Provisions of the Constitutional Act ‘On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions’” of the Law (wording of 15 January 2002) prescribe:

2. Military units, servicemen and civil servants assigned to the armed forces of the CIS countries may participate, on the territory of the Republic of Lithuania, only in international search and rescue operations as well as operations aimed at liquidation of consequences of major accidents, if the total number of servicemen and civil servants assigned to the armed forces of the CIS members at a time is smaller than the respective number of Lithuanian servicemen and civil servants of the national defence system within a military grouping of the Lithuanian army (in the size of at least two companies).

3. Military units, servicemen and civil servants assigned to the armed forces of the CIS countries may participate on the territory of the Republic of Lithuania only in exercises under the NATO Partnership for Peace Programme or in exercises organised jointly with the members of NATO, European Union and Western European Union, if the total number of servicemen and civil servants assigned to the armed forces of the CIS countries at a time is smaller than the respective number of Lithuanian servicemen and civil servants of the national defence system within a military grouping of the Lithuanian army (in the size of at least two companies). Such conditions shall not apply to military officers from the member countries of the CIS who have been invited by the Republic of Lithuania to act in the capacity of observers. <...>

5. Military units, servicemen and civil servants assigned to the armed forces of the CIS countries may participate in other events organised on the territory of the Republic of Lithuania, provided that the total number of military units, servicemen and civil servants assigned to the armed forces of the CIS countries at a time is smaller than the respective number of Lithuanian servicemen and civil servants of the national defence system within a military grouping of the Lithuanian army (in the size of at least two companies). Military units of the CIS countries may come to other events organised in the Republic of Lithuania for a period not longer than two weeks.”

16.11. In this context it needs to be noted that Paragraphs 6 and 7 of Article 2 “Principal Definitions of the Law” (wording of 12 May 2005) of the Law (wording of 15 January 2002) prescribe:

6. ‘Other events of military co-operation’ (hereinafter referred to as other events) means events of military co-operation with other states or/and international institutions, which are not ascribed to an international operation or international exercises.

7. ‘Military unit’ means each any-size unit of the army (armed forces) of Lithuania or another state, subordinate to a single commander and having a common task to participate in international operations, exercises and other events.”

16.12. Thus, as mentioned, when Paragraphs 2, 3, 5 of Article 14 of the Law (wording of 15 January 2002) are construed together with Paragraphs 6, 7 of Article 2 (wording of 12 May 2005) thereof it is clear that the disputed Paragraphs 2, 3, 5 of Article 14 of the Law (wording of 15 January 2002) regulate the relations which are inter alia related to participation, on the territory of the Republic of Lithuania, of military units, servicemen and civil servants assigned to the armed forces of the CIS countries in international search and rescue operations as well as operations aimed at liquidation of consequences of major accidents, in exercises under the NATO Partnership for Peace Programme or in exercises organised jointly with the members of NATO, European Union and Western European Union, in other events of military co-operation, which are not ascribed to an international operation or exercises.

The disputed legal regulation established in Paragraphs 2, 3, 5 of Article 14 of Law (wording of 15 January 2002) inter alia means that military units, servicemen and civil servants assigned to the armed forces of the CIS countries are allowed to participate on the territory of the Republic of Lithuania:

only in international search and rescue operations as well as operations aimed at liquidation of consequences of major accidents, if the total number of servicemen and civil servants assigned to the armed forces of the CIS members at a time does not exceed the permissible size established in Paragraph 2 of Article 14 of the Law (wording of 15 January 2002), i.e. it is smaller than the respective number of Lithuanian servicemen and civil servants of the national defence system within a military grouping of the Lithuanian army (in the size of at least two companies);

only in exercises under the NATO Partnership for Peace Programme or in exercises organised jointly with the members of NATO, European Union and Western European Union, if the total number of servicemen and civil servants assigned to the armed forces of the CIS countries at a time does not exceed the permissible size established in Paragraph 3 of Article 14 of the Law (wording of 15 January 2002), i.e. it is smaller than the respective number of Lithuanian servicemen and civil servants of the national defence system within a military grouping of the Lithuanian army (in the size of at least two companies), by not applying such conditions to military officers from the member countries of the CIS who have been invited by the Republic of Lithuania to act in the capacity of observers;

in other arranged events, which are not ascribed to an international operation and exercises, if the total number of servicemen and civil servants assigned to the armed forces of the CIS countries at a time does not exceed the permissible size established in Paragraph 5 of Article 14 of the Law (wording of 15 January 2002), i.e. it is smaller than the respective number of Lithuanian servicemen and civil servants of the national defence system within a military grouping of the Lithuanian army (in the size of at least two companies), and if military units of the CIS countries come to other events (which are not ascribed to an international operation and exercises) organised in the Republic of Lithuania for a period not longer than two weeks.

16.13. The specified provisions of Article 2 (wording of 12 May 2005) of the Law (wording of 15 January 2002), Paragraphs 1, 2, 3, 4 of Article 5, Paragraphs 2, 3, 4 of Article 6, Paragraphs 1, 2, 3 of Article 10 (wording of 12 May 2005), and Paragraphs 2, 3, 5 of Article 14 thereof have not been amended and/or supplemented.

17. On 1 May 2004, the Republic of Lithuania became a Member State of the European Union.

17.1. On 13 July 2004, the Seimas adopted the Law on Supplementing the Constitution of the Republic of Lithuania with the Constitutional Act “On Membership of the Republic of Lithuania in the European Union” and Supplementing Article 150 of the Constitution of the Republic of Lithuania, by Article 1 whereof it supplemented the Constitution with the Constitutional Act of the Republic of Lithuania “On Membership of the Republic of Lithuania in the European Union”, which is a constituent part of the Constitution (Article 150 of the Constitution).

This Constitutional Act came into force on 14 August 2004. Thereby the membership of the Republic of Lithuania in the European Union was constitutionally confirmed (Constitutional Court rulings of 13 December 2004 and 14 March 2006).

Pursuant to Paragraph 2 of the Constitutional Act “On Membership of the Republic of Lithuania in the European Union”, the norms of the European Union law shall be a constituent part of the legal system of the Republic of Lithuania; where it concerns the founding Treaties of the European Union, the norms of the European Union law shall be applied directly, while in the event of collision of legal norms, they shall have supremacy over the laws and other legal acts of the Republic of Lithuania.

17.2. On 8 May 2008, the Seimas adopted the Republic of Lithuania Law on Ratifying the Treaty of Lisbon Amending the Treaty on the European Union and the Treaty Establishing the European Community.

Article 42 of the Treaty on European Union amended by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (hereinafter referred to as the Treaty of Lisbon) prescribes:

1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.

2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements. <...>

3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. <...>

4. Decisions relating to the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council acting unanimously on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy or an initiative from a Member State. The High Representative may propose the use of both national resources and Union instruments, together with the Commission where appropriate.

5. The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union’s values and serve its interests. <...>

7. If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. <...>

Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.”

17.3. Thus, the international commitments of the Republic of Lithuania arising from its membership in the European Union, inter alia from the Treaty of Lisbon (inter alia from the Treaty on European Union amended by it) which was ratified by the Seimas, are related with implementation of the common security and defence policy of the European Union, inter alia with such missions outside the Union which are designed for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the Charter of the United Nations.

18. Alongside, it needs to be noted that the now valid Chapter 5 (wording of 19 February 2004) of the Appendix to the Law on the Basics of National Security inter alia prescribes:

The main goal of the Lithuanian foreign policy shall be to strengthen Lithuania’s integration into the European and trans-Atlantic institutions and to ensure international security guarantees. <...>

The main long-term tasks of the Lithuanian foreign policy shall be:

as a member of the North Atlantic Treaty Organisation and of the European Union, to ensure the country’s security and to properly perform the commitments related to the membership in these organisations; <...>

to actively contribute to the establishment of an international order based on international law and justice as well as to the efforts of the international community to consolidate the principles of democracy, rule of law and respect for human rights;

to actively contribute to the international community’s efforts to prevent terrorism, conflicts and to bring, re-establish and maintain peace in the regions affected by crises.”

The now valid Section I (wording of 22 April 2003) of Chapter 7 of the Appendix to the Law on the Basics of National Security inter alia prescribes:

The defence of Lithuania shall be total and unconditional and shall also be co-ordinated with the implementation of the principles of NATO’s collective defence.

Total defence shall mean that Lithuania shall be defended with arms by the armed forces of the State and NATO Allies, that the resources of the State shall be employed in the defence effort and that each citizen and the Nation shall offer resistance by every means allowed under international law.”

The now valid Section II (wording of 23 July 2009) of Chapter 7 of the Appendix to the Law on the Basics of National Security inter alia prescribes:

The defence power of Lithuania shall be based upon: <...>

the assistance and solidarity provided by NATO Allies; <...>

The Lithuania armed forces and other institutions of national defence shall be set up and trained for the defence of the State of Lithuania and interoperability with NATO forces.

In peace time the State armed forces shall comprise all the services of the armed forces and its active reserve. Upon the introduction of martial law, or during the armed defence against aggression (in wartime), the armed forces shall also include: the State Border Guard Service, the Public Security Service, the combat platoons of the Riflemen’s Union and other armed resistance combat (partisan) platoons of citizens and their organisations subordinate to the command of the armed forces. <...>

In the event Lithuania perceives a direct threat to its territorial integrity, political independence or security, it shall immediately ask NATO for consultations. As a Party to the North Atlantic Treaty and to other collective defence treaties of European states, Lithuania shall, in the event of an armed assault, immediately apply for armed assistance of the countries parties to these treaties in resisting the assault.”

The now valid Section III (wording of 20 March 2008) of Chapter 7 of the Appendix to the Law on the Basics of National Security inter alia prescribes: “The Lithuanian armed forces shall defend the State independently and in conjunction with the allied forces. In the event of an armed assault or threat thereof, Lithuania shall ask NATO allies for assistance in defence and for other international assistance.”

19. Wile summing up the discussed development of the regulation and international commitments of the Republic of Lithuania established by laws in the area of state security and ensuring its independence, one is to note that the established legal regulation and undertaken commitments by the State of Lithuania inter alia are grounded upon the right of every state, a Member of the United Nations, to individual and collective self-defence, which is recognised in Article 51 of the Charter of the United Nations, as well as upon striving for maintaining international peace.

III

1. As mentioned, in the constitutional justice case at issue the Constitutional Court will investigate the compliance of the disputed provisions (related with events of international military operations, those of international military exercises and those of international military co-operation) of the Law on International Operations, Exercises and Other Events of Military Co-operation (wording of 15 January 2002) with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, Articles 137, 142 of the Constitution, and with Article 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”.

2. While assessing the disputed legal regulation of international military operations, international military exercises and events of international military co-operation, it is important to disclose the general constitutional grounds of state defence as well as those of international co-operation (foreign policy) related with the latter.

3. The general constitutional grounds of state defence are entrenched in various provisions of the Constitution.

3.1. Article 3 of the Constitution provides that no one may restrict or limit the sovereignty of the Nation or make claims to the sovereign powers belonging to the entire Nation (Paragraph 1); the Nation and each citizen shall have the right to resist anyone who encroaches on the independence, territorial integrity, and constitutional order of the State of Lithuania by force (Paragraph 2).

3.2. Article 8 of the Constitution prescribes that seizure of state power or of its institution by force shall be considered anti-constitutional actions, which are unlawful and invalid.

3.3. Article 139 of the Constitution provides that the defence of the State of Lithuania against a foreign armed attack shall be the right and duty of each citizen of the Republic of Lithuania (Paragraph 1); citizens of the Republic of Lithuania must perform military or alternative national defence service according to the procedure established by law (Paragraph 2); the organisation of national defence shall be established by laws (Paragraph 3).

3.4. It is entrenched in Article 140 of the Constitution that the main issues of state defence shall be considered and co-ordinated by the State Defence Council which consists of the President of the Republic, the Prime Minister, the Speaker of the Seimas, the Minister of National Defence, and the Commander of the Armed Forces. The State Defence Council shall be headed by the President of the Republic. The procedure for its formation, activities and its powers shall be established by law (Paragraph 1); the President of the Republic shall be the Commander-in-Chief of the Armed Forces of the State (Paragraph 2); the Government, the Minister of National Defence, and the Commander of the Armed Forces shall be responsible to the Seimas for the administration and command of the armed forces of the state; the Minister of National Defence may not be a serviceman who has not yet retired to the reserve (Paragraph 3).

3.5. Item 20 of Article 67 of the Constitution, wherein the list of constitutional powers of the Seimas is entrenched, provides that “The Seimas <...> shall impose <...> martial law, and a state of emergency, declare mobilisation, and adopt a decision to use the armed forces”.

The powers of the Seimas established in Item 20 of Article 67 of the Constitution, which are related to the use of armed forces, are particularised in Paragraph 1 of Article 142 of the Constitution, wherein it is established that “The Seimas shall impose martial law, announce mobilisation or demobilisation, adopt a decision to use the armed forces when a need arises to defend the Homeland or to fulfil the international obligations of the State of Lithuania”.

3.6. It needs to be emphasised that the list of the constitutional powers of the Seimas consolidated in Article 67 of the Constitution is not a final one (Constitutional Court rulings of 13 May 2004 and 13 May 2010).

In this context it needs to be noted that, in its ruling of 13 May 2004, the Constitutional Court provided construction that, under the Constitution, the powers of the Seimas may be and are established not only in the Constitution, but also in laws. In certain cases the fact that certain powers of the Seimas entrenched in the Constitution may be particularised in laws is pointed out directly. For instance, under Item 16 of Article 67 of the Constitution, the Seimas shall ratify and denounce international treaties of the Republic of Lithuania as well as consider other issues of foreign policy, Paragraph 1 of Article 138 of the Constitution stipulates as to which international treaties of the Republic of Lithuania are ratified and denounced by the Seimas, while Paragraph 2 of the same article provides that laws as well as international treaties may also provide for other cases in which the Seimas shall ratify international treaties of the Republic of Lithuania. While implementing the right, which is directly consolidated in the Constitution, to particularise its certain constitutional powers by means of laws, the Seimas must pay heed to the norms and principles of the Constitution.

In its 13 May 2004 ruling, the Constitutional Court provided construction whereby the Seimas, as the representation of the Nation, has the right to establish, by laws, also such its powers that are not expressis verbis indicated in the Constitution which, however, are designed for the implementation of the constitutional functions of the Seimas.

3.7. Thus, the legislator may also entrench such powers of the Seimas, which are not expressis verbis specified in the Constitution, which, however, are in line with the constitutional legal status of the Seimas. On the other hand, laws may not establish any such powers of the Seimas, which could deny the constitutional powers of other state institutions.

3.8. Item 16 of Article 84 of the Constitution, wherein the list of constitutional powers of the President of the Republic is entrenched, provides that “The President of the Republic <...> shall adopt, in the event of an armed attack which threatens State sovereignty or territorial integrity, decisions concerning defence against such armed aggression, the imposition of martial law as well as mobilisation, and submit these decisions at the next sitting of the Seimas for approval”.

The powers of the President of the Republic entrenched in Item 16 of Article 84 of the Constitution are particularised in Paragraph 2 of Article 142 of the Constitution wherein it is established: “In the event of an armed attack which threatens the sovereignty of the State or its territorial integrity, the President of the Republic shall immediately adopt a decision on the defence against the armed aggression, impose martial law throughout the State or in its separate part, announce mobilisation, and submit these decisions to the next sitting of the Seimas for approval, while in the period between sessions of the Seimas he shall immediately convene an extraordinary session of the Seimas. The Seimas shall approve or overrule the decision of the President of the Republic.”

In the context of the constitutional justice case at issue it needs to be noted that, under the legal regulation established in Paragraph 2 of Article 142 of the Constitution, in the event of an armed attack which threatens the sovereignty of the state or its territorial integrity, a decision immediately adopted by the President of the Republic on the defence against the armed aggression, on imposition of martial law throughout the state or in its separate part, on the announcement of mobilisation, acquires legal power from the moment of its adoption, however, the President of the Republic must submit this decision at the next sitting of the Seimas for approval, while in the period between sessions of the Seimas, an extraordinary session of the Seimas must be convened immediately for this purpose, whereas the Seimas has the right either to approve or overrule the decision of the President of the Republic.

3.9. In this context it needs to be noted that from Paragraph 2 of Article 140 of the Constitution, wherein it is established that the President of the Republic shall be the Commander-in-Chief of the Armed Forces of the State, arise the specific constitutional powers of the President of the Republic, which are inter alia related with those established in Paragraph 2 of Article 142 of the Constitution. Under the Constitution, inter alia the provision of Paragraph 2 of Article 5 thereof, whereby the scope of power shall be limited by the Constitution, these specific constitutional powers of the President of the Republic, as the Commander-in-Chief of the Armed Forces of the State, may not be granted to any other subject by law or other legal act.

3.10. Under Paragraph 2 of Article 77 of the Constitution, the President of the Republic shall perform everything with which he is charged by the Constitution and laws.

Thus, the list of the constitutional powers of the President of the Republic consolidated in Article 84 of the Constitution is not a final one.

Consequently, the legislator may also entrench such powers of the President of the Republic, which are not expressis verbis specified in the Constitution, which, however, are in line with the constitutional legal status of the President of the Republic, as the Commander-in-Chief of the Armed Forces of the State.

3.11. Article 94 of the Constitution has entrenched the provision that the Government of the Republic of Lithuania shall protect the inviolability of the territory of the Republic of Lithuania and guarantee state security.

4. Consequently, under the Constitution, inter alia Article 140 thereof, in the course of deliberating and deciding state defence issues various state institutions and officials take part, inter alia the State Defence Council which considers and co-ordinates the main issues of state defence (which consists of the President of the Republic, the Prime Minister, the Speaker of the Seimas, the Minister of National Defence, and the Commander of the Armed Forces), the Government, the Minister of National Defence and the Commander of the Armed Forces that are responsible before the Seimas for management and governance of the armed forces of the state, however, decisions on the main state defence issues are taken by two state institutions: the Seimas and the President of the Republic. The Seimas is empowered to adopt final decisions on imposition of martial law, on declaration of mobilisation and demobilisation, on adoption of a decision to use the armed forces when a need arises to defend the Homeland or to fulfil the international obligations of the State of Lithuania, whereas the President of the Republic, in the event of an armed attack which threatens the sovereignty of the State or its territorial integrity, enjoys the powers to immediately adopt such decisions (on the defence against the armed aggression, imposition of martial law throughout the state or in its separate part, announcement of mobilisation), which are submitted at the next sitting of the Seimas for approval.

It needs to be noted that the Seimas, while implementing the constitutional empowerment entrenched in Paragraph 2 of Article 142 of the Constitution to approve or overrule the decision of the President of the Republic concerning defence against such armed aggression, the imposition of martial law as well as mobilisation in the event of an armed attack which threatens the sovereignty of the State or its territorial integrity, is bound by the values entrenched in the Constitution and constitutionally important objectives, inter alia the independence of the state and execution of international commitments.

5. In this context it needs to be noted that, as mentioned, Article 139 of the Constitution provides that the defence of the State of Lithuania against a foreign armed attack shall be the right and duty of each citizen of the Republic of Lithuania (Paragraph 1); citizens of the Republic of Lithuania must perform military or alternative national defence service according to the procedure established by law (Paragraph 2); the organisation of national defence shall be established by laws (Paragraph 3).

While construing these provisions of the Constitution, as well as the other provisions of the Constitution related to the former provisions, in its ruling of 24 September 2009, the Constitutional Court held:

from the Constitution, inter alia the provisions of Articles 3 and 139 thereof, a duty stems for the legislator to establish such legal regulation whereby the Republic of Lithuania would have regular, well-organised armed forces able to implement the constitutional functions, inter alia the obligation to defend the state against a foreign armed attack;

under the Constitution, the legal regulation on national defence must be established by taking account of the geopolitical situation and other factors which influence state security; the legislator must assess possible threats for the state security, the long-term political processes, the state’s participation in the organisations of mutual assistance of states, the international obligations of the state in the missions ensuring security and peacekeeping, etc.;

the Republic of Lithuania, while seeking to protect the values which are expressis verbis enshrined in the Constitution—independence of the state, territorial inviolability, constitutional order—as well as while executing the constitutionally grounded commitments arising from international treaties, must organise the national defence system, inter alia military service, so that the state would have the units which would be well-prepared, regular, ready to expeditiously react to threats for state security, which would be able to participate in collective defence operations and peacekeeping missions, and also the units which would be formed on the grounds of military service.

6. In this context it also needs to be noted that from the Constitution, inter alia from the constitutional requirement that the Lithuanian state power be organised in a democratic manner, from the constitutional imperative of an open, just and harmonious society, from the constitutional principle of responsible governance arises the fact that state military institutions may not enjoy priority before state civil institutions, that decisions of state military institutions and officials must be grounded upon decisions of state civil institutions, that state military institutions must be accountable to state civil institutions and should be controlled by the latter. Democratic civil control of state military institutions (armed forces) is a necessary precondition of civil democratic governance, thus, also that of a state under the rule of law.

The constitutional requirement that the Lithuanian state power must be organised in a democratic manner is inseparable from the provision of Paragraph 3 of Article 5 of the Constitution that state institutions shall serve the people, and from the provision of Paragraph 2 of the same article that the scope of power shall be limited by the Constitution.

7. The general constitutional grounds of international co-operation of the state related to inter alia state defence are entrenched in various provisions of the Constitution.

7.1. Article 135 of the Constitution provides that, in implementing its foreign policy, the Republic of Lithuania shall follow the universally recognised principles and norms of international law, shall seek to ensure national security and independence, the welfare of the citizens and their basic rights and freedoms, and shall contribute to the creation of the international order based on law and justice (Paragraph 1); in the Republic of Lithuania, war propaganda shall be prohibited (Paragraph 2).

7.2. It is entrenched in Article 136 of the Constitution that the Republic of Lithuania shall participate in international organisations provided that this is not in conflict with the interests and independence of the state.

7.3. Article 138 of the Constitution provides that the Seimas shall ratify or denounce the following international treaties of the Republic of Lithuania: 1) on the alteration of the State boundaries of the Republic of Lithuania; 2) on political co-operation with foreign states, mutual assistance treaties as well as treaties of defensive nature related to the defence of the state; 3) on the renunciation of the use of force or threatening by force as well as peace treaties; 4) on the presence and status of the armed forces of the Republic of Lithuania on the territories of foreign states; 5) on the participation of the Republic of Lithuania in universal international organisations and regional international organisations; 6) multilateral or long-term economic treaties (Paragraph 1); laws as well as international treaties may also provide for other cases when the Seimas ratifies international treaties of the Republic of Lithuania (Paragraph 2); international treaties ratified by the Seimas of the Republic of Lithuania shall be a constituent part of the legal system of the Republic of Lithuania (Paragraph 3).

7.4. The Constitutional Act “On Membership of the Republic of Lithuania in the European Union” adopted while “seeking to ensure a fully-fledged participation of the Republic of Lithuania in the European integration as well as the security of the Republic of Lithuania and welfare of its citizens” (Preamble), inter alia provides that the Republic of Lithuania as a Member State of the European Union shall share with or confer on the European Union the competences of its State institutions in the areas provided for in the founding Treaties of the European Union and to the extent that, together with the other Member States of the European Union, it would, together with other Member States of the European Union, meet its membership commitments in those areas as well as enjoy the membership rights (Paragraph 1); the norms of the European Union law shall be a constituent part of the legal system of the Republic of Lithuania; where it concerns the founding Treaties of the European Union, the norms of the European Union law shall be applied directly, while in the event of collision of legal norms, they shall have supremacy over the laws and other legal acts of the Republic of Lithuania (Paragraph 2).

8. Thus, the general grounds of the international co-operation (entrenched in the Constitution) of the state related inter alia to defence of the state are characteristic inter alia of the fact that the geopolitical orientation of the State of Lithuania is established—participation of the state in European integration while being a Member of the European Union, striving for ensuring the independence and security of the state by contributing to the creation of international order based on law and justice.

In the context of the constitutional justice case at issue it needs to be noted that the geopolitical orientation of the State of Lithuania—the participation of the state in European integration—is inseparable from other international commitments of the Republic of Lithuania, arising from the membership of Lithuania in other international organisations, inter alia the United Nations and the North Atlantic Treaty Organisation; this membership provides Lithuania not only with additional security guarantees, but also implies the necessity to follow the undertaken international commitments.

9. In this context it needs to be noted that the provisions of the Constitution whereby the general constitutional grounds of state defence and international co-operation (foreign policy) are entrenched are related inter alia to the fact that, under Paragraph 1 of Article 138 of the Constitution, the Seimas shall ratify the international treaties of the Republic of Lithuania on political co-operation with foreign states, mutual assistance treaties as well as treaties of defensive nature related to the defence of the state (Item 2), treaties on the renunciation of the use of force or threatening by force as well as peace treaties (Item 3), treaties on the presence and status of the armed forces of the Republic of Lithuania on the territories of foreign states (Item 4), on the participation of the Republic of Lithuania in universal international organisations and regional international organisations (Item 5). The empowerment of the Seimas, which is entrenched in Paragraph 1 of Article 142 of the Constitution, to adopt a decision to use the armed forces when a need arises to defend the Homeland or to fulfil the international obligations of the State of Lithuania also encompasses such a decision to use the armed forces when it is necessary to fulfil the international obligations of the Republic of Lithuania subsequent to international treaties of the Republic of Lithuania.

These provisions of the Constitution imply that the ensuring of the independence and security of the state, inter alia while using the armed forces, may be organised, under the Constitution, both on the national and international scale (level).

10. The observance of international obligations undertaken on its own free will, respect to the universally recognised principles of international law (as well as the principle pacta sunt servanda) are a legal tradition and a constitutional principle of the restored independent State of Lithuania (Constitutional Court ruling of 14 March 2006).

11. In the context of the constitutional justice case at issue it needs to be noted that in the course of implementation of the constitutional provisions on defence of the sate and of international co-operation related thereto, one is not allowed inter alia to disregard the prohibitions established in Article 137 of the Constitution and the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”.

11.1. Article 137 of the Constitution provides that there may not be any weapons of mass destruction and foreign military bases on the territory of the Republic of Lithuania.

11.2. The Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”, which is a constituent part of the Constitution and which was adopted while “invoking the 16 February 1918 and 11 March 1990 Acts on the Restoration of the Independent State of Lithuania and basing itself on the will of the entire Nation as expressed on 9 February 1991” (Preamble), has entrenched the principled provision “To develop mutually advantageous relations with each state which was formerly a component of the USSR, but to never join in any form any new political, military, economic or other unions or commonwealths of states formed on the basis of the former USSR” (Article 1). In addition, the Constitutional Act provides that the activities seeking to draw the State of Lithuania into the unions or commonwealths of states specified in the First Article of this Constitutional Act shall be regarded as hostile to the independence of Lithuania and liability for them shall be established by laws (Article 2); there may be no military bases or army units of Russia, the Commonwealth of Independent States or its constituent states on the territory of the Republic of Lithuania (Article 3).

12. In the context of the constitutional justice case at issue it needs to be noted that the provision of Article 137 of the Constitution that there may not be any foreign military bases on the territory of the Republic of Lithuania also inter alia means that on the territory of the Republic of Lithuania there may not be any such military bases which are directed and controlled by foreign states. Such a prohibition inter alia does not mean that on the territory of the Republic of Lithuania there may not be any such military bases which, subsequent to international treaties of the Republic of Lithuania, inter alia the collective defence treaty ratified by the Seimas, are directed and controlled by the Republic of Lithuania jointly (together) with states-allies.

In the context of the constitutional justice case at issue it also needs to be noted that in Article 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions” there is an established imperative that there may be no military bases or army units of Russia, the Commonwealth of Independent States or its constituent states on the territory of the Republic of Lithuania, i.e.:

there is a constitutional prohibition for military bases of Russia, the Commonwealth of Independent States or its constituent states to be on the territory of the Republic of Lithuania; this prohibition inter alia means that on the territory of the Republic of Lithuania there may not be any such military bases which are directed and controlled by Russia, the Commonwealth of Independent States or its constituent states;

there is a constitutional prohibition for army units of Russia, the Commonwealth of Independent States or its constituent states to be on the territory of the Republic of Lithuania. This prohibition inter alia means that on the territory of the Republic of Lithuania there may not be any such military units the presence (deployment, use) of which is directed and controlled by Russia, the Commonwealth of Independent States or its constituent states. Such a prohibition does not mean that, subsequent to international treaties of the Republic of Lithuania, inter alia the collective defence treaty ratified by the Seimas, and subsequent to the laws adopted for the purpose of implementation of such treaties, any such short-term presence of military units of limited size of Russia, the Commonwealth of Independent States and its constituent states in international military exercises on the territory of the Republic of Lithuania, which are directed and controlled by the Republic of Lithuania jointly (together) with states-allies, is not allowed. Neither does the said constitutional prohibition mean that, subsequent to international treaties of the Republic of Lithuania and subsequent to the laws adopted for the purpose of implementation of such treaties, it would not be allowed to invite military units of limited size of Russia, the Commonwealth of Independent States and its constituent states for a short time in international measures to help to remove the consequences of catastrophes, epidemics, natural or other calamities on the territory of the Republic of Lithuania, when the grounds, purpose and character of such invitation for help are clear and constitutionally reasoned and when such measures are directed and controlled by the Republic of Lithuania.

13. Thus, under the Constitution, inter alia the provisions of Articles 135, 136, 138 thereof, while heeding the limitations and prohibitions entrenched in the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”, international treaties of the Republic of Lithuania and the laws adopted for the purpose of implementation of such treaties may provide for various measures for ensuring state independence and security on the international scale (level), inter alia collective and/or other joint international defence, strengthening of international peace and security, other international co-operation of military character, whose grounds, purpose and character are clear and constitutionally reasoned.

In this context it needs to be noted that, under the Constitution, inter alia Article 135 thereof, the legislator, while heeding the limitations and prohibitions entrenched in the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”, may also establish such legal regulation designed for implementation of international treaties of the Republic of Lithuania, inter alia the collective defence treaty ratified by the Seimas, whereby inter alia one provides for short-term participation of strictly limited size of military units of Russia, the Commonwealth of Independent States and its constituent states in the exercises of the defence treaty Parties and of other states arranged on the territory of the Republic of Lithuania, which are directed and controlled by the Republic of Lithuania jointly (together) with states-allies, as well as invitation of such military units in international measures to help to remove the consequences of catastrophes, epidemics, natural or other calamities on the territory of the Republic of Lithuania, when the grounds, purpose and character of such invitation for help are clear and constitutionally reasoned and when such measures are directed and controlled by the Republic of Lithuania.

IV

On the compliance of Item 2 of Paragraph 1 of Article 5 of the Law on International Operations, Exercises and Other Events of Military Co-operation (wording of 15 January 2002) with Articles 137 and 142 of the Constitution, the compliance of Paragraph 2 of Article 5 of the Law with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution, on the compliance of Paragraph 3 of Article 5 of the Law with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Article 142 of the Constitution, and on the compliance of Paragraph 4 of Article 5 of the Law with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution.

1. As mentioned, the group of Members of the Seimas, the petitioner, doubts whether inter alia Item 2 of Paragraph 1 of Article 5 of the Law on International Operations, Exercises and Other Events of Military Co-operation (wording of 15 January 2002) is not in conflict with Articles 137 and 142 of the Constitution, whether Paragraph 2 of Article 5 of the Law is not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution, whether Paragraph 3 of Article 5 of the Law is not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Article 142 of the Constitution, and whether Paragraph 4 of Article 5 of the Law is not in conflict with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution.

2. As mentioned, Article 5 “Collective Defence Operations” of the Law (wording of 15 January 2002) prescribes:

1. When implementing the rights and commitments of the Republic of Lithuania under the collective defence treaty:

1) military units of the Republic of Lithuania may be deployed and used for the purposes of collective defence operations on the territory of other states;

2) military units of other states—allies of the Republic of Lithuania—may be deployed and used for the purposes of collective defence operations on the territory of the Republic of Lithuania.

2. The decision on the deployment and use of Lithuanian military units for the purposes of collective defence operations on the territory of other states, as well as on the deployment and use of military units of other states for the purposes of collective defence operations on the territory of the Republic of Lithuania shall be taken by the Seimas of the Republic of Lithuania by adopting a resolution on the recommendation of the President of the Republic.

3. In the event of an armed attack against the Republic of Lithuania, other Party or Parties to the collective defence treaty, the President of the Republic shall immediately adopt a decision concerning defence against armed aggression, including a decision to participate in a collective defence operation, when necessary, to deploy and use Lithuanian military units on the territory of other states or to allow deployment and use of military units of other states on the territory of the Republic of Lithuania, as well as to take other measures necessary to achieve the objectives of a respective collective defence operation.

4. The decision of the President of the Republic referred to in Paragraph 3 of this Article must be executed immediately. The President of the Republic shall submit this decision for approval at the next sitting of the Seimas and, in the period between sessions, shall immediately convene an extraordinary session of the Seimas. When ensuring the implementation of the collective defence treaty ratified by the Seimas and of joint decisions of the Parties to that treaty as well as armed defence and resistance against an armed attack, the Seimas shall adopt a resolution on the approval of the decision of the President of the Republic.

5. The number and size of military units of the Republic of Lithuania used for the purposes of collective defence operations on the territory of other states and duration of their stay on the territory of other states, as well as the number and size of military units of other states—allies of the Republic of Lithuania—and duration of their stay on the territory of the Republic of Lithuania, shall be established in accordance with treaties or agreements between the Republic of Lithuania and other Parties to the collective defence treaty or other allies of the Republic of Lithuania, as well as by joint decisions of the Parties to the collective defence treaty.”

3. In this context it needs to be noted that, as mentioned, Paragraphs 1, 2, 3, 7 of Article 2 (wording of 12 May 2005) “Principal Definitions of the Law” of the Law (wording of 15 January 2002) prescribe:

1. ‘International operation’ means a collective defence operation or other military operation involving joint participation of military units of the Republic of Lithuania and foreign states.

2. ‘Collective defence treaty’ means an international treaty of the Republic of Lithuania, based on the provisions of Article 51 of the United Nations Charter, recognising each state’s inherent right of individual and collective self-defence, which defines commitments with regard to joint defence, whereby an armed attack against one or more Parties to the Treaty is considered an armed attack against all the countries, Parties to the Treaty.

3. ‘Collective defence operation’ means a common defence operation carried out under the collective defence treaty in the event of an armed attack against one or more Parties to the treaty, as well as preparation for such an operation. <...>

7. ‘Military unit’ means each any-size unit of the army (armed forces) of Lithuania or another state, subordinate to a single commander and having a common task to participate in international operations, exercises and other events.”

4. Thus, while construing Item 2 of Paragraph 1 of Article 5 of the Law (wording of 15 January 2002) and Paragraphs 2, 3, and 4 of the same article together with Paragraphs 1, 2, 3 and 7 of Article 2 (wording of 12 May 2005) of the said law, it is clear that the disputed provisions of Article 5 of the Law (wording of 15 January 2002) regulate the relations related to carrying out of one out of two international operations—the collective defence operation (the collective defence operation or preparation for such an operation), i.e. using military units of the Republic of Lithuania together with military units of states—allies of the Republic of Lithuania—subsequent to the collective defence treaty (and subsequent to the inherent right of every state, recognised in Article 51 of the Charter of the United Nations, to individual and collective self-defence) in the event of an armed attack against one or several Parties to the treaty and/or in the course of preparation for this operation, as well as related to implementation of the powers of the Seimas and the President of the Republic.

5. It has been mentioned that the petitioner grounds its doubts regarding the compliance of Item 2 of Paragraph 1 of Article 5 of the Law (wording of 15 January 2002) with Articles 137 and 142 of the Constitution on the fact that, according to the petitioner, the Constitution does not provide that in the course of carrying out collective defence operations military units of other states may be deployed and used on the territory of the Republic of Lithuania, however, Item 2 of Paragraph 1 of Article 5 of the Law (wording of 15 January 2002) provides that military units of other states—allies of the Republic of Lithuania—may be deployed and used for the purposes of collective defence operations on the territory of the Republic of Lithuania.

5.1. It has also been mentioned that the disputed legal regulation established in Item 2 of Paragraph 1 of Article 5 of the Law (wording of 15 January 2002) (“When implementing the rights and commitments of the Republic of Lithuania under the collective defence treaty <…> military units of other states—allies of the Republic of Lithuania—may be deployed and used for the purposes of collective defence operations on the territory of the Republic of Lithuania”) also means that one of the means of implementation of the rights and commitments of the Republic of Lithuania pursuant to the collective defence treaty is possible arrival of military units of states—allies of the Republic of Lithuania—in the Republic of Lithuania and their use on the territory of the Republic of Lithuania for the purpose of a collective defence operation.

It needs to be noted that the disputed legal regulation:

regulates the relations related to arrival of military units of the states—allies of the Republic of Lithuania—in the Republic of Lithuania and their use on the territory of the Republic of Lithuania for the purposes of a collective defence operation;

does not regulate the relations related with the operation of such military bases of foreign states on the territory of the Republic of Lithuania, which would be designed for deployment of armed forces (units thereof) of foreign states for the purposes other than a collective defence operation.

5.2. While deciding whether Item 2 of Paragraph 1 of Article 5 of the Law (wording of 15 January 2002) is not in conflict with Articles 137 and 142 of the Constitution, it needs to be noted that, as it has been mentioned:

the provisions of the Constitution imply that the ensuring of the independence and security of the state, inter alia while using the armed forces, may be organised, under the Constitution, both on the national and international scale (level);

under the Constitution, inter alia the provisions of Articles 135, 136, 138 thereof, while heeding the limitations and prohibitions entrenched in the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”, international treaties of the Republic of Lithuania and the laws adopted for the purpose of implementation of such treaties may provide for various measures for ensuring state independence and security on the international scale (level), inter alia collective and/or other joint international defence, strengthening of international peace and security, other international co-operation of military character, whose grounds, purpose and character are clear and constitutionally reasoned;

the provision of Article 137 of the Constitution that there may not be any foreign military bases on the territory of the Republic of Lithuania also inter alia means that on the territory of the Republic of Lithuania there may not be any such military bases, which are directed and controlled by foreign states. Such a prohibition inter alia does not mean that on the territory of the Republic of Lithuania there may not be any such military bases which, subsequent to international treaties of the Republic of Lithuania, inter alia the collective defence treaty ratified by the Seimas, are directed and controlled by the Republic of Lithuania jointly (together) with states-allies.

Thus, under the Constitution, the legislator, while heeding the constitutional norms and principles, inter alia the limitations entrenched in the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”—a constituent part of the Constitution—may provide for such a manner of implementation of the rights and commitments of the Republic of Lithuania subsequent to the collective defence treaty, which is arrival of military units of the states—allies of the Republic of Lithuania—in the Republic of Lithuania and their use for the purposes of a collective defence operation.

Consequently, there are no legal grounds for asserting that, under the Constitution, inter alia Articles 137 and 142 thereof, it is not permitted to establish, by means of a law, that military units of the states—allies of the Republic of Lithuania—may arrive in the Republic of Lithuania for the purposes of a collective defence operation and be used on the territory of the Republic of Lithuania.

5.3. It needs to be held that the legal regulation established in Item 2 of Paragraph 1 of Article 5 of the Law (wording of 15 January 2002) (“When implementing the rights and commitments of the Republic of Lithuania under the collective defence treaty <…> military units of other states—allies of the Republic of Lithuania—may be deployed and used for the purposes of collective defence operations on the territory of the Republic of Lithuania”) does not deny (distort) the prohibition (entrenched in Article 137 of the Constitution) for military bases of foreign states to be on the territory of the Republic of Lithuania and the use of the armed forces (established in Article 142 of the Constitution) when a need arises to defend the Homeland or to fulfil the international obligations of the State of Lithuania.

5.4. Taking account of the arguments set forth, one is to draw a conclusion that Item 2 of Paragraph 1 of Article 5 of the Law (wording of 15 January 2002) is not in conflict with Articles 137 and 142 of the Constitution.

6. It has been mentioned that the petitioner substantiates its doubts regarding the compliance of Paragraph 2 of Article 5 of the Law (wording of 15 January 2002) with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution on the fact that, according to the petitioner, the right of the Seimas, which is established in Paragraph 2 of Article 5 of the Law (wording of 15 January 2002), to adopt a decision, on the recommendation of the President of the Republic, regarding the deployment and use of military units of other states for the purposes of collective defence operations on the territory of the Republic of Lithuania, is in conflict with Item 20 of Article 67 of the Constitution, which does not grant such a right to the Seimas. In addition, according to the petitioner, the recommendation of the President of the Republic for the Seimas provided for in Paragraph 2 of Article 5 of the Law is in conflict with Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution, since these provisions of the Constitution do not provide for such a recommendation of the President of the Republic, as well as with Paragraph 2 of Article 5 of the Constitution, since it limits the powers of the Seimas established in Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution—the right to adopt such a decision to use the armed forces, which does not require a recommendation of the President of the Republic.

Thus, from the arguments of the petitioner it is clear that it doubts the compliance of the legal regulation established in Paragraph 2 of Article 5 of the Law (wording of 15 January 2002) with the Constitution, since, allegedly:

the Constitution does not provide for the right of the President of the Republic to submit a recommendation to the Seimas to adopt a decision on the deployment and use of Lithuanian military units for the purposes of collective defence operations on the territory of other states, as well as on the deployment and use of military units of other states for the purposes of collective defence operations on the territory of the Republic of Lithuania;

the Constitution does not provide for the right of the Seimas to adopt a decision on arrival of military units of other states and their use on the territory of the Republic of Lithuania for the purposes of a collective defence operation;

the right of the Seimas, which is established in the Constitution, to adopt a decision use of the armed forces when a need arises to defend the Homeland or to fulfil the international obligations of the State of Lithuania, is limited insofar as the recommendation by the President of the Republic is necessary so that the Seimas might adopt a decision on departure of military units of the Republic of Lithuania and their use for the purposes of a collective defence operation on the territories of other states.

6.1. As mentioned, the legal regulation established in Paragraph 2 of Article 5 of the Law (wording of 15 January 2002) (“The decision on the deployment and use of Lithuanian military units for the purposes of collective defence operations on the territory of other states, as well as on the deployment and use of military units of other states for the purposes of collective defence operations on the territory of the Republic of Lithuania shall be taken by the Seimas of the Republic of Lithuania by adopting a resolution on the recommendation of the President of the Republic”), if it is construed together with Paragraph 1 of Article 5 of Law (wording of 15 January 2002), also means that, in the course of implementation of the rights and commitments of the Republic of Lithuania pursuant to the collective defence treaty the President of the Republic may present to the Seimas a decision for adoption regarding departure and use of military units of the Republic of Lithuania on the territories of other states for the purpose of a collective defence operation, as well as regarding arrival and use of military units of other states on the territory of the Republic of Lithuania for the purpose of a collective defence operation, whereas the Seimas may adopt such a decision by means of its resolution.

6.2. While deciding whether Paragraph 2 of Article 5 of the Law (wording of 15 January 2002) is not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution, it needs to be noted that, as it has been mentioned:

the list of the constitutional powers of the Seimas consolidated in Article 67 of the Constitution is not a final one; the legislator may also entrench such powers of the Seimas, which are not expressis verbis specified in the Constitution, which, however, are in line with the constitutional legal status of the Seimas; on the other hand, laws may not establish any such powers of the Seimas, which could deny the constitutional powers of other state institutions;

the list of the constitutional powers of the President of the Republic consolidated in Article 84 of the Constitution is not a final one; the legislator may also entrench such powers of the President of the Republic, which are not expressis verbis specified in the Constitution, which, however, are in line with the constitutional legal status of the President of the Republic, as the Commander-in-Chief of the Armed Forces of the State; on the other hand, laws may not establish any such powers of the President of the Republic, which could deny the constitutional powers of other state institutions;

from Paragraph 2 of Article 140 of the Constitution, wherein it is established that the President of the Republic shall be the Commander-in-Chief of the Armed Forces of the State, arise the specific constitutional powers of the President of the Republic, which are inter alia related with those established in Paragraph 2 of Article 142 of the Constitution; under the Constitution, inter alia the provision of Paragraph 2 of Article 5 thereof, whereby the scope of power shall be limited by the Constitution, these specific constitutional powers of the President of the Republic, as the Commander-in-Chief of the Armed Forces of the State, may not be granted to any other subject by law or other legal act.

Consequently, there are no legal grounds to maintain that, under the Constitution, it is not allowed to establish by law that, in the course of carrying out international commitments of the Republic of Lithuania subsequent to the collective defence treaty, the Seimas may, upon recommendation of the President of the Republic, adopt a corresponding decision on the collective defence in the Republic of Lithuania and in other states.

6.3. It needs to be held that the legal regulation established in Paragraph 2 of Article 5 of the Law (wording of 15 January 2002) (“The decision on the deployment and use of Lithuanian military units for the purposes of collective defence operations on the territory of other states, as well as on the deployment and use of military units of other states for the purposes of collective defence operations on the territory of the Republic of Lithuania shall be taken by the Seimas of the Republic of Lithuania by adopting a resolution on the recommendation of the President of the Republic”) does not deny (distort) the constitutional empowerments of the Seimas entrenched in Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution and the constitutional empowerments of the President of the Republic established in Item 16 of Article 84 of the Constitution.

Having held that the legal regulation established in Paragraph 2 of Article 5 of the Law (wording of 15 January 2002) does not deny (distort) the constitutional empowerments of the Seimas entrenched in Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution and the constitutional empowerments of the President of the Republic established in Item 16 of Article 84 of the Constitution, one is also to hold that the disputed legal regulation does not deviate from the imperatives of limitation of the scope of power arising from Paragraph 2 of Article 5 of the Constitution.

6.4. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 2 of Article 5 of the Law (wording of 15 January 2002) is not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution.

7. It has been mentioned that the petitioner substantiates its doubts as regards the compliance of Paragraph 3 of Article 5 of the Law (wording of 15 January 2002) with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Article 142 of the Constitution upon the fact that, according to the petitioner, the disputed legal regulation has allegedly legalised the duties of the President of the Republic, which are not provided for in the Constitution, in the event of an armed attack of the Republic of Lithuania, or other Party or Parties of the collective defence treaty. According to the petitioner, the established duty of the President of the Republic to immediately adopt a decision on defence in case of an armed attack of the Republic of Lithuania, of other Party or Parties of the collective defence treaty, including a decision to take part in a collective defence operation, is in conflict with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution, since these provisions only provide that, in the event of an armed attack which threatens the sovereignty of the state or its territorial integrity, the President of the Republic shall immediately adopt a decision on the defence against the armed aggression, i.e. these provisions of the Constitution do not provide for any other conditions, under which the President of the Republic might be able to adopt decisions on the defence against aggression. In addition, under Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution, it is only the Seimas that adopts a decision on the use of the armed forces. Therefore, according to the petitioner, the established duty of the President of the Republic, in case of need to deploy and use Lithuanian military units for the purposes of collective defence operations on the territory of other states, as well as to allow the deployment and use of military units of other states for the purposes of collective defence operations on the territory of the Republic of Lithuania is in conflict not only with Item 16 of Article 84, Paragraph 2 of Article 142 of the Constitution, but also with Item 20 of Article 67, Paragraph 1 of Article 142, as well as with Paragraph 2 of Article 5 thereof.

Thus, from the arguments of the petitioner it is clear that it doubts the compliance of the legal regulation established in Paragraph 3 of Article 5 of the Law (wording of 15 January 2002) with the Constitution, since, allegedly:

the Constitution does not provide for the powers of the President of the Republic, in the event of an armed attack against the Republic of Lithuania, other Party or Parties to the collective defence treaty, to immediately adopt a decision concerning defence against armed aggression, including a decision to participate in a collective defence operation, when necessary, to deploy and use Lithuanian military units on the territory of other states or to allow deployment and use of military units of other states on the territory of the Republic of Lithuania, as well as to take other measures necessary to achieve the objectives of a respective collective defence operation;

the powers of the Seimas established in the Constitution to adopt a decision to use the armed forces are violated insofar as the President of the Republic may adopt, in case of need, a decision to use Lithuanian military units on the territories of other states.

7.1. As mentioned, the legal regulation established in Paragraph 3 of Article 5 of the Law (wording of 15 January 2002) (“In the event of an armed attack against the Republic of Lithuania, other Party or Parties to the collective defence treaty, the President of the Republic shall immediately adopt a decision concerning defence against armed aggression, including a decision to participate in a collective defence operation, when necessary, to deploy and use Lithuanian military units on the territory of other states or to allow deployment and use of military units of other states on the territory of the Republic of Lithuania, as well as to take other measures necessary to achieve the objectives of a respective collective defence operation”) also means that in the event of an armed attack against the Republic of Lithuania, against other Party or Parties of the collective defence treaty, the President of the Republic enjoys the powers to immediately adopt a decision on defence against the armed aggression (including a decision to participate in a collective defence operation, in case of need, to send and use Lithuanian military units on the territories of other states, to allow that military units of other sates arrive in Lithuania and be used on its territory, and to resort to other measures necessary in order to achieve the aims of the collective defence operation).

7.2. While deciding whether Paragraph 3 of Article 5 of the Law (wording of 15 January 2002) is not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Article 142 of the Constitution, it needs to be noted that, as it has been mentioned:

the list of the constitutional powers of the President of the Republic consolidated in Article 84 of the Constitution is not a final one; the legislator may also entrench such powers of the President of the Republic, which are not expressis verbis specified in the Constitution, which, however, are in line with the constitutional legal status of the President of the Republic, as the Commander-in-Chief of the Armed Forces of the State; on the other hand, laws may not establish any such powers of the President of the Republic, which could deny the constitutional powers of other state institutions;

from Paragraph 2 of Article 140 of the Constitution, wherein it is established that the President of the Republic shall be the Commander-in-Chief of the Armed Forces of the State, arise the specific constitutional powers of the President of the Republic, which are inter alia related with those established in Paragraph 2 of Article 142 of the Constitution; under the Constitution, inter alia the provision of Paragraph 2 of Article 5 thereof, whereby the scope of power shall be limited by the Constitution, these specific constitutional powers of the President of the Republic, as the Commander-in-Chief of the Armed Forces of the State, may not be granted to any other subject by law or other legal act.

It also needs to be noted that when the law provides for securing the independence and security of the state on the international scale (level), one must heed inter alia the rule established in Article 142 of the Constitution whereby it is two state institutions that are constitutionally empowered to adopt decisions on the main issues of defence of the state, i.e. the Seimas adopts final decisions, whereas the President of the Republic immediately (in the event of a threat) adopts such decisions which are submitted at the next sitting for the Seimas for approval. While heeding this rule of delimitation and co-ordination of the powers of the Seimas and the President of the Republic in the area of defence of the state, which is entrenched in Article 142 of the Constitution, the legislator, under Paragraph 2 of Article 140 of the Constitution, wherein it is established that the President of the Republic shall be the Commander-in-Chief of the Armed Forces of the State, may also establish the legal regulation whereby the President of the Republic would be empowered to immediately adopt a decision against armed aggression not only in the event of an armed attack which threatens the sovereignty of the state or its territorial integrity, which is provided for in Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution, but also in the event (which is provided for in the collective defence treaty ratified by the Seimas) of an armed attack against the Republic of Lithuania and a state, which is its ally, in case such a decision must immediately be submitted at the next sitting of the Seimas.

It needs to be emphasised that Paragraph 4 of Article 5 of the Law (wording of 15 January 2002) (“<...>The President of the Republic shall submit this decision for approval at the next sitting of the Seimas and, in the period between sessions, shall immediately convene an extraordinary session of the Seimas. <…>”) provides that, under Paragraph 3 of Article 5 of the Law (wording of 15 January 2002), a decision of the President of the Republic of Lithuania adopted in the event of an armed attack of the Republic of Lithuania, other Party or Parties of the collective defence treaty, regarding the armed defence against the armed aggression (including inter alia a decision to use, in case of need, Lithuanian military units on the territories of other states) must be submitted to the Seimas for approval.

Thus, even though, under the legal regulation established in Paragraph 3 of Article 5 of the Law (wording of 15 January 2002), if it is construed together with the one established in Paragraph 4 of Article 5 of the Law (wording of 15 January 2002), the President of the Republic is granted the powers to adopt a decision related to the use of the armed forces in order to achieve the purposes of a collective defence operation, it is allowed to do so in implementing international commitments of the Republic of Lithuania in the event of an armed attack of the Republic of Lithuania, other Party or Parties of the collective defence treaty, and the President of the Republic is bound by the requirement to immediately submit the adopted decision at the next sitting of the Seimas for approval.

Consequently, there are no legal grounds for maintaining that, under the Constitution, it is not allowed to establish, by means of a law, any such powers of the President of the Republic, which are entrenched in the disputed Paragraph 3 of Article 5 of the Law (wording of 15 January 2002).

7.3. It needs to be held that the legal regulation Paragraph 3 of Article 5 of the Law (wording of 15 January 2002) (“In the event of an armed attack against the Republic of Lithuania, other Party or Parties to the collective defence treaty, the President of the Republic shall immediately adopt a decision concerning defence against armed aggression, including a decision to participate in a collective defence operation, when necessary, to deploy and use Lithuanian military units on the territory of other states or to allow deployment and use of military units of other states on the territory of the Republic of Lithuania, as well as to take other measures necessary to achieve the objectives of a respective collective defence operation”) does not deny (distort) the constitutional powers of the President of the Republic entrenched in Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution and the constitutional powers of the Seimas entrenched in Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution.

Having held that the legal regulation established in Paragraph 3 of Article 5 of the Law (wording of 15 January 2002) does not deny (distort) the constitutional powers of the President of the Republic entrenched in Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution and the constitutional powers of the Seimas entrenched in Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution, one is also to hold that the disputed legal regulation does not deviate from the imperatives of limitation of the scope of power arising from Paragraph 2 of Article 5 of the Constitution.

7.4. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 3 of Article 5 of the Law (wording of 15 January 2002) is not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Article 142 of the Constitution.

8. It has been mentioned that the doubts of the petitioner regarding the compliance of Paragraph 4 of Article 5 of the Law (wording of 15 January 2002) with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution are substantiated by the fact that, under the disputed legal regulation, the decision of the President of the Republic (which is specified in Paragraph 3 of Article 5 of the Law and which is in conflict with the Constitution) on the defence against armed aggression or in case of an armed attack against other Party or Parties of the collective defence treaty must be executed immediately, even though the Constitution, according to the petitioner, does not mention any situations of an armed attack against other Party or Parties of the collective defence treaty. In addition, according to the petitioner, the provision of Paragraph 4 of Article 5 of the Law (wording of 15 January 2002), whereby, when ensuring the implementation of the collective defence treaty ratified by the Seimas and of joint decisions of the Parties to that treaty as well as the armed defence and resistance against an armed attack, the Seimas shall adopt a resolution on the approval of the decision of the President of the Republic, limits the powers of the Seimas established in the Constitution, since Paragraph 2 of Article 142 of the Constitution provides that the Seimas shall approve or overrule the decision of the President of the Republic.

8.1. As mentioned, the disputed legal regulation established in Paragraph 4 of Article 5 of the Law (wording of 15 January 2002) (“The decision of the President of the Republic referred to in Paragraph 3 of this Article must be executed immediately. The President of the Republic shall submit this decision for approval at the next sitting of the Seimas and, in the period between sessions, shall immediately convene an extraordinary session of the Seimas. When ensuring the implementation of the collective defence treaty ratified by the Seimas and of joint decisions of the Parties to that treaty as well as armed defence and resistance against an armed attack, the Seimas shall adopt a resolution on the approval of the decision of the President of the Republic”) also means that in the event of an armed attack against the Republic of Lithuania, against other Party or Parties of the collective defence treaty, the immediately adopted decision by the President of the Republic regarding the defence against the armed aggression (inter alia a decision to participate in a collective defence operation, in case of need, to send and use Lithuanian military units on the territories of other states, to allow that military units of other sates arrive in Lithuania and be used on its territory, and to resort to other measures necessary in order to achieve the aims of the collective defence operation) acquires legal power from the moment of its adoption and must be executed immediately, however, the President of the Republic must submit this decision at the next sitting of the Seimas (between sessions of the Seimas—at the immediately convened extraordinary session of the Seimas) for approval, whereas the Seimas has the right to adopt a resolution on approval of the decision of the President of the Republic, whereby the execution of the collective defence treaty ratified by the Seimas and of joint decisions of Parties to the treaty implementing it as well as the armed defence and resistance to the armed attack are secured.

8.2. While deciding whether Paragraph 4 of Article 5 of the Law (wording of 15 January 2002) is not in conflict with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution, it needs to be noted that, as it has been mentioned:

under the Constitution, decisions on main issues of defence of the state are adopted by two state institutions: the Seimas and the President of the Republic. The Seimas is empowered to adopt final decisions on imposition of martial law, on declaration of mobilisation and demobilisation, on adoption of a decision to use the armed forces when a need arises to defend the Homeland or to fulfil the international obligations of the State of Lithuania, whereas the President of the Republic, in the event of an armed attack which threatens the sovereignty of the State or its territorial integrity, enjoys the powers to immediately adopt such decisions (on the defence against the armed aggression, imposition of martial law throughout the state or in its separate part, announcement of mobilisation), which are submitted at the next sitting of the Seimas for approval;

under the legal regulation established in Paragraph 2 of Article 142 of the Constitution, in the event of an armed attack which threatens the sovereignty of the state or its territorial integrity, a decision immediately adopted by the President of the Republic on the defence against the armed aggression, on imposition of martial law throughout the state or in its separate part, on the announcement of mobilisation, acquires legal power from the moment of its adoption, however, the President of the Republic must submit this decision at the next sitting of the Seimas for approval, while in the period between sessions of the Seimas, an extraordinary session of the Seimas must be convened immediately for this purpose, whereas the Seimas has the right either to approve or overrule the decision of the President of the Republic;

when the law provides for securing the independence and security of the state on the international scale (level), one must heed inter alia the rule established in Article 142 of the Constitution whereby it is two state institutions that are constitutionally empowered to adopt decisions on the main issues of defence of the state, i.e. the Seimas adopts final decisions, whereas the President of the Republic immediately (in the event of a threat) adopts such decisions which are submitted at the next sitting for the Seimas for approval;

the Seimas, while implementing the constitutional powers entrenched in Paragraph 2 of Article 142 of the Constitution to approve or overrule the decision of the President of the Republic concerning defence against armed aggression, in the event of an armed attack which threatens the sovereignty of the state or its territorial integrity, is bound by the values entrenched in the Constitution and constitutionally important objectives, inter alia the independence of the state and execution of international commitments;

the observance of international obligations undertaken on its own free will, respect to the universally recognised principles of international law (as well as the principle pacta sunt servanda) are a legal tradition and a constitutional principle of the restored independent State of Lithuania.

Consequently, there are no legal grounds for maintaining that, under the Constitution, it is not permitted to establish, by means of a law, that the decision of the President of the Republic concerning defence against armed aggression (including inter alia a decision to participate in a collective defence operation, to allow deployment and use of military units of other states on the territory of the Republic of Lithuania, as well as to take other measures necessary to achieve the objectives of the collective defence operation) in the event of an armed attack against the Republic of Lithuania, other Party or Parties to the collective defence treaty, be executed immediately. In addition, there are no legal grounds for maintaining that, allegedly, the powers of the Seimas established in the Constitution are limited, when the said decision of the President of the Republic is approved by means of such a decision of the Seimas, whereby the execution of the collective defence treaty, which was ratified by the Seimas itself, and the execution of joint decisions of Parties to this treaty and armed defence as well as resistance against the armed aggression are secured.

8.3. It needs to be held that the legal regulation established in Paragraph 4 of Article 5 of the Law (wording of 15 January 2002) (whereby in the event of an armed attack against the Republic of Lithuania, other Party or Parties to the collective defence treaty, a decision immediately taken by the President of the Republic concerning defence against armed aggression (inter alia a decision to participate in a collective defence operation, when necessary, to deploy and use Lithuanian military units on the territory of other states or to allow deployment and use of military units of other states on the territory of the Republic of Lithuania, as well as to take other measures necessary to achieve the objectives of a respective collective defence operation) must be executed immediately; the President of the Republic shall submit this decision for approval at the next sitting of the Seimas and, in the period between sessions, shall immediately convene an extraordinary session of the Seimas; when ensuring the implementation of the collective defence treaty ratified by the Seimas and of joint decisions of the Parties to that treaty as well as armed defence and resistance against an armed attack, the Seimas shall adopt a resolution on the approval of the decision of the President of the Republic) does not distort the powers of the President of the Republic, which are established in Item 16 of Article 84 of the Constitution, to adopt a decision concerning defence against armed aggression in the event of an armed attack which threatens the sovereignty of the state or its territorial integrity; alongside, the constitutional powers of the Seimas, which are established in Paragraph 2 of Article 142 of the Constitution, to use the armed forces when a need arises to defend the Homeland or to fulfil the international obligations of the State of Lithuania, are not denied, either.

8.4. Taking account of the arguments set forth, also of the fact that it has been held in this ruling of the Constitutional Court that Paragraph 3 of Article 5 of the Law (wording of 15 January 2002) is not in conflict with the Constitution, one is to draw a conclusion that Paragraph 4 of Article 5 of the Law (wording of 15 January 2002) is not in conflict with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution.

V

On the compliance of Paragraph 2 of Article 6 of the Law on International Operations, Exercises and Other Events of Military Co-operation (wording of 15 January 2002) with Paragraph 2 of Article 5, Item 20 of Article 67, Article 137, and Paragraph 1 of Article 142 of the Constitution, on the compliance of Paragraph 3 of Article 6 of the Law with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution, and on the compliance of Paragraph 4 of Article 6 of the Law with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution.

1. As mentioned, the group of Members of the Seimas, the petitioner, doubts whether inter alia Paragraphs 2, 3, and 4 of Article 6 of the Law (wording of 15 January 2002) are not in conflict with the provisions of the Constitution.

2. As mentioned, Article 6 “Other Operations” of the Law (wording of 15 January 2002) prescribes:

1. When implementing other than collective defence rights and commitments of the Republic of Lithuania:

1) military units of the Republic of Lithuania may be deployed and used for the purposes of other operation on the territory of other states;

2) military units of other states may be deployed and used for the purposes of other operation on the territory of the Republic of Lithuania.

2. The decision on the deployment and use of military units of the Republic of Lithuania for the purposes of other operation on the territory of other states, as well as on the deployment and use of military units of other states for the purposes of other operation on the territory of the Republic of Lithuania shall be taken by the Seimas of the Republic of Lithuania by adopting a resolution on the recommendation of the President of the Republic.

3. In emergency cases the President of the Republic shall adopt a decision on the participation in other operation, including the deployment of military units of the Republic of Lithuania, permission for deployment of military units of other states on the territory of the Republic of Lithuania, as well as other measures necessary to achieve the objectives of a respective operation.

4. The decision of the President of the Republic referred to in Paragraph 3 of this Article must be executed immediately. The President of the Republic shall submit forthwith the decision at the next sitting of the Seimas for approval. Without prejudice to the commitments of the Republic of Lithuania under a collective defence treaty and joint decisions of the Parties to that treaty, the Seimas shall approve or repeal by its resolution the decision of the President of the Republic and shall, by the same resolution, adopt a decision on the use of military units of the Republic of Lithuania for the purposes of other operation on the territory of other states, and/or on the use of military units of other states for the purposes of other operation on the territory of the Republic of Lithuania.

5. The maximum size of Lithuanian military units used for the purposes of other operation on the territory of other states and maximum duration of their stay on the territory of other states, as well as the maximum size of military units of other states used for the purposes of other operation on the territory of the Republic of Lithuania and maximum duration of their stay on the territory of the Republic of Lithuania shall be established by the Seimas by adopting a resolution, referred to in Paragraph 2 of this Article, on the recommendation of the President of the Republic, or in the case defined in Paragraph 3 of this Article—by the President of the Republic and by the Seimas, when approving the decision of the President of the Republic in accordance with Paragraph 4 of this Article. The exact size and duration of deployment of military units of the Republic of Lithuania used for the purposes of other operation on the territory of other states, as well as the exact size and duration of deployment of military units of other states used for the purposes of other operation on the territory of the Republic of Lithuania and duration of their stay on the territory of the Republic of Lithuania shall be fixed by the Minister for National Defence, in compliance with the maximum size and maximum duration established or approved by the resolution of the Seimas.

6. Taking into consideration the national interests of Lithuania, the maximum size of military units of the Republic of Lithuania and duration of their stay on the territory of other states, as well as the maximum size of military units of other states and duration of their stay on the territory of the Republic of Lithuania established in accordance with Paragraph 5 of this Article, when necessary, may be reduced by the resolution of the Seimas of the Republic of Lithuania, without prejudice to the commitments of the Republic of Lithuania under the collective defence treaty and joint decisions of the Parties to that treaty.”

3. In this context it needs to be noted that, as mentioned, Paragraphs 1, 3, 4, 7 of Article 2 (wording of 12 May 2005) “Principal Definitions of the Law” of the Law (wording of 15 January 2002) prescribe:

1. ‘International operation’ means a collective defence operation or other military operation involving joint participation of military units of the Republic of Lithuania and foreign states. <...>

3. ‘Collective defence operation’ means a common defence operation carried out under the collective defence treaty in the event of an armed attack against one or more Parties to the treaty, as well as preparation for such an operation.

4. ‘Other military operation’ (hereinafter referred to as other operation) means any other than collective defence international operation (as well as preparation for such an operation) consistent with the purposes and principles of the United Nations Organisation, including collective self-defence operations, not specified in Paragraph 3 of this Article in implementing the inherent right of each state to individual and collective self-defence, recognised in Article 51 of the United Nations Charter. <...>

7. ‘Military unit’ means each any-size unit of the army (armed forces) of Lithuania or another state, subordinate to a single commander and having a common task to participate in international operations, exercises and other events.”

4. Thus, as mentioned, when Paragraphs 2, 3, 4 of Article 6 of the Law (wording of 15 January 2002) are construed together with Paragraphs 1, 3, 4, 7 of Article 2 (wording of 12 May 2005) thereof, it is clear that disputed Paragraphs 2, 3, 4 of Article 6 of the Law (wording of 15 January 2002) regulate the relations related with carrying out (as well as preparation for) of one of the two international operations, which is not a collective military defence operation, but which is in conformity with the purposes and principles of the United Nations (including operations of collective self-defence while implementing the inherent right of every state to individual or collective self-defence, which is recognised by Article 51 of the Charter of the United Nations), i.e. the use of military units of the Republic of Lithuania together with military units of other sates according to corresponding decisions of the Seimas and the President of the Republic adopted in the course of implementation of international commitments of the Republic of Lithuania, which are not those regarding collective defence.

It needs to be noted that although the notions “collective defence operation” and “other military operation” are entrenched as different notions in Articles 2, 5, and 6 of the Law (wording of 15 January 2002), i.e. as types of international military operations, these notions are interrelated, they cannot be opposed to each other, since, under the Law, both the “collective defence operation” and “other military operation” may be carried out in implementing international commitments of the Republic of Lithuania and the inherent right of every state, which is recognised in Article 51 of the Charter of the United Nations, to individual and collective self-defence.

5. In this context it also needs to be noted that, as mentioned, since 17 September 1991, the Republic of Lithuania has been a Member of the United Nations, an international organisation founded and acting under the Charter of the United Nations signed on 26 June 1945, and is following the principles entrenched in the Charter of the United Nations, inter alia fulfilment in good faith the obligations assumed in accordance with the this charter (Paragraph 2 of Article 2) and giving the United Nations every assistance in any action it takes in accordance with this charter (Paragraph 5 of Article 2). Under the provisions of the Charter of the United Nations, the Security Council of the United Nations is entrusted with the main responsibility for maintaining international peace and security; the Security Council inter alia shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken to maintain or restore international peace and security; such measures may include inter alia operations by air, sea, or land forces of Members of the United Nations. Paragraph 1 of Article 43 of the Charter of the United Nations provides that all Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. Article 51 of the Charter of the United Nations prescribes: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

6. It has been mentioned that the group of Members of the Seimas, the petitioner, substantiates its doubts regarding the compliance of Paragraph 2 of Article 6 of the Law (wording of 15 January 2002) with Paragraph 2 of Article 5, Item 20 of Article 67, Article 137, and Paragraph 1 of Article 142 of the Constitution by the fact that, the recommendation (provided for by the disputed legal regulation) of the President of the Republic to the Seimas limits the powers of the Seimas established in the Constitution, i.e. it limits the right of the Seimas to adopt a decision to use the armed forces without the recommendation of the President of the Republic. On the other hand, according to the petitioner, under the Constitution, the Seimas has not been granted the right to adopt a decision regarding the deployment and use of military units of other states, as well as for the purposes of other operation on the territory of the Republic of Lithuania. Therefore, according to the petitioner, the disputed legal regulation is in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Article 137, and Paragraph 1 of Article 142 of the Constitution.

6.1. In addition, it has been mentioned that the disputed legal regulation established in Paragraph 2 of Article 6 of the Law (wording of 15 January 2002) (“The decision on the deployment and use of Lithuanian military units for the purposes of other operation on the territory of other states, as well as on the deployment and use of military units of other states for the purposes of other operation on the territory of the Republic of Lithuania shall be taken by the Seimas of the Republic of Lithuania by adopting a resolution on the recommendation of the President of the Republic”), if it is construed together with Paragraph 1 of Article 6 of Law (wording of 15 January 2002), also means that, in the course of implementation of international commitments of the Republic of Lithuania the President of the Republic may present a decision to the Seimas regarding departure and use of military units of the Republic of Lithuania on the territories of other states for the purpose of other operation, as well as regarding arrival and use of military units of other states on the territory of the Republic of Lithuania for the purpose of other operation, whereas the Seimas may adopt such a decision by means of its resolution.

6.2. While deciding whether Paragraph 2 of Article 6 of the Law (wording of 15 January 2002) is not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Article 137, and Paragraph 1 of Article 142 of the Constitution, it needs to be noted that, as it has been mentioned:

the provisions of the Constitution imply that the ensuring of the independence and security of the state, inter alia while using the armed forces, may be organised, under the Constitution, both on the national and international scale (level);

under the Constitution, inter alia the provisions of Articles 135, 136, 138 thereof, while heeding the limitations and prohibitions entrenched in the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”, international treaties of the Republic of Lithuania and the laws adopted for the purpose of implementation of such treaties may provide for various measures for ensuring state independence and security on the international scale (level), inter alia collective and/or other joint international defence, strengthening of international peace and security, other international co-operation of military character, whose grounds, purpose and character are clear and constitutionally reasoned.

It also needs to be noted that it has been held in this ruling of the Constitutional Court that Item 2 of Paragraph 1 of Article 5 of the Law (wording of 15 January 2002) (“When implementing the rights and commitments of the Republic of Lithuania under the collective defence treaty <…> military units of other states—allies of the Republic of Lithuania—may be deployed and used for the purposes of collective defence operations on the territory of the Republic of Lithuania”), the compliance whereof with inter alia Article 137 of the Constitution is being disputed (in the context of collective defence operations) by the petitioner in the same aspect as it is disputing the compliance of Paragraph 2 of Article 6 of the Law (wording of 15 January 2002) with inter alia Article 137 of the Constitution (in the context of other operations), i.e. as regards the possibility of military units of other states to arrive in the Republic of Lithuania and their use on the territory of the Republic of Lithuania, is not in conflict with inter alia Article 137 of the Constitution.

In addition, in this ruling of the Constitutional Court it has been held that Paragraph 2 of Article 5 of the Law (wording of 15 January 2002) (“The decision on the deployment and use of Lithuanian military units for the purposes of collective defence operations on the territory of other states, as well as on the deployment and use of military units of other states for the purposes of collective defence operations on the territory of the Republic of Lithuania shall be taken by the Seimas of the Republic of Lithuania by adopting a resolution on the recommendation of the President of the Republic”), the compliance whereof with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution is being disputed by the petitioner (in the context of collective defence operation) in the same aspects as it is disputing the compliance of Paragraph 2 of Article 6 of the Law (wording of 15 January 2002) with inter alia Paragraph 2 of Article 5, Item 20 of Article 67, and Paragraph 1 of Article 142 of the Constitution (in the context of other operations), i.e. as regards the right (not provided for in the Constitution) of the Seimas to adopt a decision on arrival of military units of other states and their use on the territory of the Republic of Lithuania, as well as regards the right (not provided for in the Constitution and limiting the powers of the Seimas) of the President of the Republic to recommend that the Seimas adopt a decision on the use of military units of the Republic of Lithuania on the territories of other states, is not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84 and Paragraph 1 of Article 142 of the Constitution.

It has been mentioned that, as it has been held in this ruling of the Constitutional Court, although the notions “collective defence operation” and “other military operation” are entrenched as different notions in Articles 2, 5, and 6 of the Law (wording of 15 January 2002), i.e. as types of international military operations, these notions are interrelated, they cannot be opposed to each other, since, under the Law, both the “collective defence operation” and “other military operation” may be carried out in implementing international commitments of the Republic of Lithuania and the inherent right of every state, which is recognised in Article 51 of the Charter of the United Nations, to individual and collective self-defence.

It needs to be noted that the relations regulated in Item 2 of Paragraph 1 of Article 5 of the Law (wording of 15 January 2002) (“When implementing the rights and commitments of the Republic of Lithuania under the collective defence treaty <…> military units of other states—allies of the Republic of Lithuania—may be deployed and used for the purposes of collective defence operations on the territory of the Republic of Lithuania”), Paragraph 2 of Article 5 (“The decision on the deployment and use of Lithuanian military units for the purposes of collective defence operations on the territory of other states, as well as on the deployment and use of military units of other states for the purposes of collective defence operations on the territory of the Republic of Lithuania shall be taken by the Seimas of the Republic of Lithuania by adopting a resolution on the recommendation of the President of the Republic”), Paragraph 2 of Article 6 (“The decision on the deployment and use of Lithuanian military units for the purposes of other operation on the territory of other states, as well as on the deployment and use of military units of other states for the purposes of other operation on the territory of the Republic of Lithuania shall be taken by the Seimas of the Republic of Lithuania by adopting a resolution on the recommendation of the President of the Republic”) are similar in the aspects disputed by the petitioner, i.e. adoption of decisions, subsequent to the powers of the Seimas and the and President of the Republic, related to carrying out the international commitments of the Republic of Lithuania and the implementation of the inherent right of each state, which is recognised in Article 51 of the Charter of the United Nations, to individual and collective self-defence.

6.3. Taking account of the arguments set forth, as well as of the fact that it has been held in this ruling of the Constitutional Court that Item 2 of Paragraph 1 of Article 5 of the Law (wording of 15 January 2002) is not in conflict with inter alia Article 137 of the Constitution, whereas Paragraph 2 of Article 5 of the Law (wording of 15 January 2002) is not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution, one is to draw a conclusion that Paragraph 2 of Article 6 of the Law (wording of 15 January 2002) (“The decision on the deployment and use of Lithuanian military units for the purposes of other operation on the territory of other states, as well as on the deployment and use of military units of other states for the purposes of other operation on the territory of the Republic of Lithuania shall be taken by the Seimas of the Republic of Lithuania by adopting a resolution on the recommendation of the President of the Republic”) is not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Article 137, and Paragraph 1 of 142 of the Constitution.

7. It has been mentioned that the group of Members of the Seimas, the petitioner, substantiates its doubts regarding the compliance of Paragraph 3 of Article 6 of the Law (wording of 15 January 2002) with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84 and Paragraph 1 of Article 142 of the Constitution by the fact that, according to the petitioner, under the Constitution, it is only the Seimas that can adopt a decision to use the armed forces, i.e. no right has been granted to the President of the Republic to use the armed forces. In addition, according to the petitioner, under the Constitution, no right has been granted to the President of the Republic to allow that military units of other states be deployed in the Republic of Lithuania.

Thus, from the arguments of the petitioner it is clear that it doubts the compliance of the legal regulation established in Paragraph 3 of Article 6 of the Law (wording of 15 January 2002) with the Constitution, since, allegedly:

the powers of the Seimas established in the Constitution to adopt a decision to use the armed forces are violated insofar as the President of the Republic has allegedly been granted the right to use the armed forces;

the Constitution has not provided for any powers of the President of the Republic to allow that military units of other states be deployed in the Republic of Lithuania.

7.1. It has also been mentioned that the disputed legal regulation established in Paragraph 3 of Article 6 of the Law (wording of 15 January 2002) (“In emergency cases the President of the Republic shall adopt a decision on the participation in other operation, including the deployment of military units of the Republic of Lithuania, permission for deployment of military units of other states on the territory of the Republic of Lithuania, as well as other measures necessary to achieve the objectives of a respective operation”), if it is construed together with Paragraph 3 of Article 5 and Paragraph 1 of Article 6 of the Law (wording of 15 January 2002), also means that the President of the Republic, in the course of implementation of the international commitments of the Republic of Lithuania which are not those of collective defence, is empowered in emergency situations to adopt a decision on participation in other operation, including departure of military units of the Republic of Lithuania, permission to arrive for military units of other states in the Republic of Lithuania and other measures necessary in order to achieve the purposes of the operation.

7.2. While deciding whether Paragraph 3 of Article 6 of the Law (wording of 15 January 2002) is not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution, it needs to be noted that, as it has been mentioned:

the list of the constitutional powers of the President of the Republic consolidated in Article 84 of the Constitution is not a final one; the legislator may also entrench such powers of the President of the Republic, which are not expressis verbis specified in the Constitution, which, however, are in line with the constitutional legal status of the President of the Republic, as the Commander-in-Chief of the Armed Forces of the State; on the other hand, laws may not establish any such powers of the President of the Republic, which could deny the constitutional powers of other state institutions;

from Paragraph 2 of Article 140 of the Constitution, wherein it is established that the President of the Republic shall be the Commander-in-Chief of the Armed Forces of the State, arise the specific constitutional powers of the President of the Republic, which are inter alia related with those established in Paragraph 2 of Article 142 of the Constitution; under the Constitution, inter alia the provision of Paragraph 2 of Article 5 thereof, whereby the scope of power shall be limited by the Constitution, these specific constitutional powers of the President of the Republic, as the Commander-in-Chief of the Armed Forces of the State, may not be granted to any other subject by law or other legal act;

when the law provides for securing the independence and security of the state on the international scale (level), one must heed inter alia the rule established in Article 142 of the Constitution whereby it is two state institutions that are constitutionally empowered to adopt decisions on the main issues of defence of the state, i.e. the Seimas adopts final decisions, whereas the President of the Republic immediately (in the event of a threat) adopts such decisions which are submitted at the next sitting for the Seimas for approval.

It also needs to be noted that Paragraph 4 of Article 6 of the Law (wording of 15 January 2002) provides that, under Paragraph 3 of Article 6 of the Law (wording of 15 January 2002), the decision by the President of the Republic, taken in emergency situations, in the course of implementation of international commitments of the Republic of Lithuania which are other than those of collective defence, regarding participation in other operation, including departure of military units of the Republic of Lithuania, permission for military units of other states to arrive in the Republic of Lithuania and other measures necessary in order to achieve the purposes of the operation, must immediately be submitted to the Seimas for approval.

Thus, even though, under the legal regulation established in Paragraph 3 of Article 6 of the Law (wording of 15 January 2002), if it is construed together with the one established in Paragraph 4 of Article 6 of the Law (wording of 15 January 2002), the President of the Republic is granted the powers to adopt decisions related to the use of the armed forces in order to achieve the purposes of an international military operation, it is allowed to do so in emergency situations of implementing international commitments and rights of the Republic of Lithuania, and the President of the Republic is bound by the requirement to immediately submit the adopted decision at the next sitting of the Seimas for approval.

Consequently, there are no grounds for maintaining that, under the Constitution, it is not allowed to establish in a law any such powers of the President of the Republic, which are entrenched in the disputed Paragraph 3 of Article 6 of the Law (wording of 15 January 2002).

7.3. It needs to be held that Paragraph 3 of Article 6 of the Law (wording of 15 January 2002) does not distort the powers of the President of the Republic established in Item 16 of Article 84 of the Constitution, nor does it deny the powers of the Seimas entrenched in Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution.

7.4. Having held that Paragraph 3 of Article 6 of the Law (wording of 15 January 2002) does not distort the constitutional powers of the President of the Republic established in Item 16 of Article 84 of the Constitution and that it does not deny the constitutional powers of the Seimas entrenched in Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution, one is also to hold that the disputed legal regulation does not deviate from the imperatives of limitation of the scope of power arising from Paragraph 2 of Article 5 of the Constitution.

7.5. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 3 of Article 6 of the Law (wording of 15 January 2002) is not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67, Item 16 of Article 84, and Paragraph 1 of Article 142 of the Constitution.

8. It has been mentioned that the group of Members of the Seimas, the petitioner, substantiates its doubts regarding the compliance of Paragraph 4 of Article 6 of the Law (wording of 15 January 2002) with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution by the fact that, according to the petitioner, under the disputed legal regulation, the decision of the President of the Republic specified in Paragraph 3 of Article 6 of the Law, but which is not legalised in the Constitution, must be executed immediately. On the other hand, according to the petitioner, under the Constitution, the President of the Republic immediately adopts only a decision on the defence against armed aggression.

8.1. It has also been mentioned that the legal regulation established in Paragraph 4 of Article 6 of the Law (wording of 15 January 2002) (“The decision of the President of the Republic referred to in Paragraph 3 of this Article must be executed immediately. The President of the Republic shall submit forthwith the decision at the next sitting of the Seimas for approval. Without prejudice to the commitments of the Republic of Lithuania under a collective defence treaty and joint decisions of the Parties to that treaty, the Seimas shall approve or repeal by its resolution the decision of the President of the Republic and shall, by the same resolution, adopt a decision on the use of military units of the Republic of Lithuania for the purposes of other operation on the territory of other states, and/or on the use of military units of other states for the purposes of other operation on the territory of the Republic of Lithuania”) also means that the decision by the President of the Republic, taken in emergency situations, in the course of implementation of international commitments of the Republic of Lithuania which are other than those of collective defence, regarding participation in other operation, including departure of military units of the Republic of Lithuania, permission for military units of other states to arrive in the Republic of Lithuania and other measures necessary in order to achieve the purposes of the operation, acquires legal power from the moment of its adoption and must be executed immediately. However, the legal power of this decision is conditional (temporary), since it is bound by the duty of the President of the Republic to immediately submit this decision for approval at the nearest sitting of the Seimas and by the right of the Seimas to adopt a resolution on either approval or annulment of this decision of the President of the Republic, as well as by the right of the Seimas to adopt a decision, by means of the said resolution, on the use of military units of the Republic of Lithuania for the purposes of other operation on the territories of other states and/or the use of military units of other states for the purposes of other operation on the territory of the Republic of Lithuania, and by this not violating the commitments of the Republic of Lithuania subsequent to the collective defence treaty and joint decisions of the Parties to this treaty.

8.2. While deciding whether Paragraph 4 of Article 6 of the Law (wording of 15 January 2002) is not in conflict with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution, it needs to be noted that, as it has been mentioned:

under the Constitution, decisions on main issues of defence of the state are adopted by two state institutions: the Seimas and the President of the Republic;

when the law provides for securing the independence and security of the state on the international scale (level), one must heed inter alia the rule established in Article 142 of the Constitution whereby it is two state institutions that are constitutionally empowered to adopt decisions on the main issues of defence of the state, i.e. the Seimas adopts final decisions, whereas the President of the Republic immediately (in the event of a threat) adopts such decisions which are submitted at the next sitting for the Seimas for approval.

It also needs to be noted that in this Constitutional Court ruling it has been held that:

the legal regulation established in Paragraph 3 of Article 6 of the Law (wording of 15 January 2002) whereby, in emergency situations, in the course of implementation of international commitments of the Republic of Lithuania which are other than those of collective defence, the President of the Republic adopts a decision regarding participation in other operation, including departure of military units of the Republic of Lithuania, permission for military units of other states to arrive in the Republic of Lithuania and other measures necessary in order to achieve the purposes of the operation, is not in conflict with the Constitution;

Paragraph 4 of Article 5 of the Law (wording of 15 January 2002) (“The decision of the President of the Republic referred to in Paragraph 3 of this Article must be executed immediately. The President of the Republic shall submit this decision for approval at the next sitting of the Seimas and, in the period between sessions, shall immediately convene an extraordinary session of the Seimas. When ensuring the implementation of the collective defence treaty ratified by the Seimas and of joint decisions of the Parties to that treaty as well as armed defence and resistance against an armed attack, the Seimas shall adopt a resolution on the approval of the decision of the President of the Republic”), which is being disputed by the petitioner regarding its compliance (in the context of collective defence operations) with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution inter alia in the same aspect as it is disputing the compliance of Paragraph 4 of Article 6 of the Law (wording of 15 January 2002) (“The decision of the President of the Republic referred to in Paragraph 3 of this Article must be executed immediately. The President of the Republic shall submit forthwith the decision at the next sitting of the Seimas for approval. Without prejudice to the commitments of the Republic of Lithuania under a collective defence treaty and joint decisions of the Parties to that treaty, the Seimas shall approve or repeal by its resolution the decision of the President of the Republic and shall, by the same resolution, adopt a decision on the use of military units of the Republic of Lithuania for the purposes of other operation on the territory of other states, and/or on the use of military units of other states for the purposes of other operation on the territory of the Republic of Lithuania”) with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution (in the context of other operations)—owing to the fact that the decision of the President of the Republic not provided for in the Constitution must be executed immediately—is not in conflict with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution.

It needs to be noted that, as mentioned, although the notions “collective defence operation” and “other military operation” are entrenched as different notions in Articles 2, 5, and 6 of the Law (wording of 15 January 2002), i.e. as types of international military operations, these notions are interrelated, they cannot be opposed to each other, since, under the Law, both the “collective defence operation” and “other military operation” may be carried out in implementing international commitments of the Republic of Lithuania and the inherent right of every state, which is recognised in Article 51 of the Charter of the United Nations, to individual and collective self-defence.

It also needs to be noted that the relations regulated in Paragraph 4 of Article 5 of the Law (wording of 15 January 2002) (“The decision of the President of the Republic referred to in Paragraph 3 of this Article must be executed immediately. The President of the Republic shall submit this decision for approval at the next sitting of the Seimas and, in the period between sessions, shall immediately convene an extraordinary session of the Seimas. When ensuring the implementation of the collective defence treaty ratified by the Seimas and of joint decisions of the Parties to that treaty as well as armed defence and resistance against an armed attack, the Seimas shall adopt a resolution on the approval of the decision of the President of the Republic”) and in Paragraph 4 of Article 6 (“The decision of the President of the Republic referred to in Paragraph 3 of this Article must be executed immediately. The President of the Republic shall submit forthwith the decision at the next sitting of the Seimas for approval. Without prejudice to the commitments of the Republic of Lithuania under a collective defence treaty and joint decisions of the Parties to that treaty, the Seimas shall approve or repeal by its resolution the decision of the President of the Republic and shall, by the same resolution, adopt a decision on the use of military units of the Republic of Lithuania for the purposes of other operation on the territory of other states, and/or on the use of military units of other states for the purposes of other operation on the territory of the Republic of Lithuania”) are similar in the aspects disputed by the petitioner, i.e. as regards the adoption of decisions, subsequent to the powers of the Seimas and the President of the Republic, related to carrying out international commitments of the Republic of Lithuania and implementation of the inherent right of each state, which is recognised in Article 51 of the Charter of the United Nations, to individual and collective self-defence.

8.3. Taking account of the arguments set forth, also of the fact that it has been held in this ruling of the Constitutional Court that Paragraph 4 of Article 5 and Paragraph 3 of Article 6 of the Law (wording of 15 January 2002) are not in conflict with the Constitution, one is to draw a conclusion that Paragraph 4 of Article 6 of the Law (wording of 15 January 2002) is not in conflict with Item 16 of Article 84 and Paragraph 2 of Article 142 of the Constitution.

VI

On the compliance of Paragraphs 1, 2 and 3 of Article 10 (wording of 12 May 2005) of the Law on International Operations, Exercises and Other Events of Military Co-operation (wording of 15 January 2002) with Paragraph 2 of Article 5, Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution.

1. As mentioned, the group of Members of the Seimas, the petitioner, doubts whether inter alia Paragraphs 1, 2 and 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) are not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution.

2. As mentioned, Article 10 (wording of 12 May 2005) “Taking Decisions to Send Military Units of the Republic of Lithuania, Servicemen and Civil Servants of National Defence System to Exercises and Other Events Abroad” of the Law (wording of 15 January 2002) prescribes:

1. A decision to send military units of the Republic of Lithuania, whose total number of servicemen and civil servants of the national defence system is at least 800, to participate in exercises and other events held abroad shall be taken by the Seimas by adopting a resolution on the proposal of the Government of the Republic of Lithuania. The decision shall set the maximum number of Lithuanian servicemen and civil servants of the national defence system authorised to leave as well as the maximum duration of their stay on the territories of other states.

2. Except for the cases defined by Paragraph 1 and Item 2 of Paragraph 3 of this Article, a decision to send military units of the Republic of Lithuania, whose total number of servicemen and civil servants of the national defence system is at least 150, to participate in exercises and other events held abroad shall be taken by the Government of the Republic of Lithuania by adopting a resolution upon the proposal of the Minister of National Defence. The decision shall set the maximum number of Lithuanian servicemen and civil servants of the national defence system authorised to leave as well as the maximum duration of their stay on the territories of other states.

3. The Minister of National Defence shall take a decision to send military units of the Republic of Lithuania, servicemen and civil servants of the national defence system to participate in exercises and other events abroad in the following cases:

1) when less than 150 Lithuanian servicemen and civil servants assigned to the armed forces may participate in the exercise and other event at a time;

2) when joint exercise of a military unit or other event is arranged with other state (states), in which less than 800 of Lithuanian servicemen and civil servants of the national defence system can participate at one time, or joint exercises or other event is arranged with NATO or with European Union institutions or states, in which less than 800 of Lithuanian servicemen and civil servants of the national defence system can participate at a time. <...>”

3. In this context it needs to be noted that, as mentioned, Article 2 “Principal Definitions of the Law” (wording of 12 May 2005) of the Law (wording of 15 January 2002) prescribes:

1. ‘International operation’ means a collective defence operation or other military operation involving joint participation of military units of the Republic of Lithuania and foreign states. <...>

5. ‘International military exercises’ (hereinafter referred to as exercises) means preparation exercises for military operations and other combat preparedness exercises involving joint participation of military units of the Republic of Lithuania and foreign states, or involving the use by foreign states’ military units of infrastructure facilities and military training grounds assigned to the national defence system of the Republic of Lithuania.

6. ‘Other events of military co-operation’ (hereinafter referred to as other events) means events of military co-operation with other states or/and international institutions, which are not ascribed to an international operation or international exercises.”

4. Thus, when Paragraphs 1, 2, 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) are construed together with Paragraphs 1, 5, 6 of Article 2 (wording of 12 May 2005) thereof, it is clear that the disputed Paragraphs 1, 2, 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) regulate the relations related to participation of military units of the Republic of Lithuania and military units of other states in preparation exercises for international operations and in other combat preparedness exercises, as well as to participation in other events of military co-operation, which are not ascribed to an international operation or exercises, as well as to implementation of the related powers of the Seimas, the Government and the Minister of National Defence.

5. It has been mentioned that the group of Members of the Seimas, the petitioner, substantiates its doubts regarding the compliance of Paragraphs 1, 2 and 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) with Paragraph 2 of Article 5, Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution by the fact that, according to the petitioner, Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution do not establish the size of the armed forces to be used by decision of the Seimas. Therefore, according to the petitioner, after Paragraph 1 of Article 10 of the Law (wording of 15 January 2002) had established the size of the armed forces for the use of which a resolution of the Seimas is necessary, limitations were placed upon the powers of the Seimas. In addition, according to the petitioner, the powers of the Seimas were limited also after Paragraph 1 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) had established that, under the disputed legal regulation, the Seimas adopts the said resolution on the proposal of the Government, since no such proposal is provided for in Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution. Furthermore, according to the petitioner, the right to adopt a decision to use the armed forces, which is granted by the Constitution only to the Seimas, is limited by the fact that, under Paragraph 2 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002), a decision to send military units of the Republic of Lithuania to another state shall be taken by the Government by adopting a resolution upon the proposal of the Minister of National Defence, whereas under Paragraph 3 thereof, a decision to send military units of the Republic of Lithuania shall be taken by the Minister of National Defence.

6. It has been mentioned that the legal regulation established in Paragraphs 1, 2, 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) also means that:

under Paragraph 1 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002), the Government has the right to propose that the Seimas adopt a decision to send military units of the Republic of Lithuania of the established size to another state in order that they only participate in exercises and other events, whereas the Seimas has the right to adopt, by means of a resolution, the decision proposed by the Government;

under Paragraph 2 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002), the Minister of National Defence has the right to propose that the Government adopt a decision to send military units of the Republic of Lithuania of the established size to another state in order that they only participate in exercises and other events, whereas the Government has the right to adopt, by means of a resolution, the decision proposed by the Minister of National Defence;

under Paragraph 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002), the Minister of National Defence has the right in certain cases to adopt a decision to send military units of the Republic of Lithuania of the established size, servicemen and civil servants of the national defence system to another state in order that they only participate in exercises and other events;

7. While deciding whether Paragraphs 1, 2 and 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) are not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution, it needs to be noted that, as it has been mentioned:

under the Constitution, inter alia Article 140 thereof, various state institutions and officials take part in deliberating and deciding issues of defence of the state;

international treaties of the Republic of Lithuania and the laws adopted for the purpose of implementation of such treaties may, while heeding the Constitution, provide for various measures for ensuring state independence and security on the international scale (level), inter alia collective and/or other joint international defence, strengthening of international peace and security, other international co-operation of military character.

It also needs to be noted that, under the Constitution, inter alia Articles 135 and 136 thereof, the legislator, while regulating the implementation (execution) of the rights and commitments, which could arise from international treaties of the Republic of Lithuania, inter alia from the collective defence treaty ratified by the Seimas, while heeding the powers (related with the use of the armed forces) of the Seimas and the President of the Republic established in Article 142 of the Constitution, also enjoys the discretion to determine other state institutions that may adopt decisions on participation of units of the armed forces in international military exercises.

In this context it needs to be noted that, as mentioned, under Paragraph 3 of Article 140 of the Constitution, the Government, the Minister of National Defence, and the Commander of the Armed Forces shall be responsible to the Seimas for the administration and command of the armed forces of the state.

Thus, under the Constitution, the legislator may also establish such legal regulation whereby the powers are granted to the Seimas, the Government and the Minister of National Defence to send military units (of corresponding size) of the Republic of Lithuania to another state for participation in international military exercises or other international military events.

8. Consequently, there are no legal grounds for maintaining that the legal regulation established in Paragraphs 1, 2 and 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) limits the constitutional powers of the Seimas to adopt a decision to use the armed forces when a need arises to defend the Homeland or to fulfil the international obligations of the State of Lithuania.

9. Taking account of the arguments set forth, one is to draw a conclusion that Paragraphs 1, 2 and 3 of Article 10 (wording of 12 May 2005) of the Law (wording of 15 January 2002) are not in conflict with Paragraph 2 of Article 5, Item 20 of Article 67 and Paragraph 1 of Article 142 of the Constitution.

VII

On the compliance of Paragraphs 2, 3 and 5 of Article 14 of the Law on International Operations, Exercises and Other Events of Military Co-operation (wording of 15 January 2002) with Article 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”.

1. As mentioned, the group of Members of the Seimas, the petitioner, doubts whether Paragraphs 2, 3 and 5 of Article 14 of the Law (wording of 15 January 2002) are not in conflict with Article 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”.

2. As mentioned, Paragraphs 2, 3 and 5 of Article 14 “Limitations Related to Provisions of the Constitutional Act ‘On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions’” of the Law (wording of 15 January 2002) prescribe:

2. Military units, servicemen and civil servants assigned to the armed forces of the CIS countries may participate, on the territory of the Republic of Lithuania, only in international search and rescue operations as well as operations aimed at liquidation of consequences of major accidents, if the total number of servicemen and civil servants assigned to the armed forces of the CIS members at a time is smaller than the respective number of Lithuanian servicemen and civil servants of the national defence system within a military grouping of the Lithuanian army (in the size of at least two companies).

3. Military units, servicemen and civil servants assigned to the armed forces of the CIS countries may participate on the territory of the Republic of Lithuania only in exercises under the NATO Partnership for Peace Programme or in exercises organised jointly with the members of NATO, European Union and Western European Union, if the total number of servicemen and civil servants assigned to the armed forces of the CIS countries at a time is smaller than the respective number of Lithuanian servicemen and civil servants of the national defence system within a military grouping of the Lithuanian army (in the size of at least two companies). Such conditions shall not apply to military officers from the member countries of the CIS who have been invited by the Republic of Lithuania to act in the capacity of observers. <...>

5. Military units, servicemen and civil servants assigned to the armed forces of the CIS countries may participate in other events organised on the territory of the Republic of Lithuania, provided that the total number of military units, servicemen and civil servants assigned to the armed forces of the CIS countries at a time is smaller than the respective number of Lithuanian servicemen and civil servants of the national defence system within a military grouping of the Lithuanian army (in the size of at least two companies). Military units of the CIS countries may come to other events organised in the Republic of Lithuania for a period not longer than two weeks.”

3. In this context it needs to be noted that, as mentioned, Paragraphs 6 and 7 of Article 2 “Principal Definitions of the Law” (wording of 12 May 2005) of the Law (wording of 15 January 2002) prescribe:

6. ‘Other events of military co-operation’ (hereinafter referred to as other events) means events of military co-operation with other states or/and international institutions, which are not ascribed to an international operation or international exercises.

7. ‘Military unit’ means each any-size unit of the army (armed forces) of Lithuania or another state, subordinate to a single commander and having a common task to participate in international operations, exercises and other events. <...>”

4. Thus, as mentioned, when Paragraphs 2, 3, 5 of Article 14 of the Law (wording of 15 January 2002) are construed together with Paragraphs 6, 7 of Article 2 (wording of 12 May 2005) of the Law (wording of 15 January 2002), it is clear that the disputed Paragraphs 2, 3, 5 of Article 14 of the Law (wording of 15 January 2002) regulate the relations which are inter alia related to participation, on the territory of the Republic of Lithuania, of military units, servicemen and civil servants assigned to the armed forces of the CIS countries in international search and rescue operations as well as operations aimed at liquidation of consequences of major accidents, in exercises under the NATO Partnership for Peace Programme or in exercises organised jointly with the members of NATO, European Union and Western European Union, in other events of military co-operation, which are not ascribed to an international operation or exercises.

5. It has been mentioned that it is clear from the petition of the petitioner, that it has substantiated its doubts regarding the compliance of the disputed legal regulation with the Constitution by the fact that, according to the petitioner, the provision “Military units, servicemen and civil servants assigned to the armed forces of the CIS countries may participate, on the territory of the Republic of Lithuania, only in international search and rescue operations as well as operations aimed at liquidation of consequences of major accidents” of Paragraph 2 of Article 14 of the Law (wording of 15 January 2002), the provision “Military units, servicemen and civil servants assigned to the armed forces of the CIS countries may participate, on the territory of the Republic of Lithuania, only in exercises under the NATO Partnership for Peace Programme or in exercises organised jointly with the members of NATO, European Union and Western European Union” of Paragraph 3 thereof, the provision “Military units, servicemen and civil servants assigned to the armed forces of the CIS countries may participate in other events organised on the territory of the Republic of Lithuania” of Paragraph 5 thereof deny Item 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions” wherein it is entrenched that “There may be no military bases or army units of Russia, the Commonwealth of Independent States or its constituent states on the territory of the Republic of Lithuania”.

6. It has also been mentioned that the disputed legal regulation established in Paragraphs 2, 3, 5 of Article 14 of Law (wording of 15 January 2002) inter alia means that military units, servicemen and civil servants assigned to the armed forces of the CIS countries are allowed to participate on the territory of the Republic of Lithuania:

only in international search and rescue operations as well as operations aimed at liquidation of consequences of major accidents, if the total number of servicemen and civil servants assigned to the armed forces of the CIS members at a time does not exceed the permissible size established in Paragraph 2 of Article 14 of the Law (wording of 15 January 2002), i.e. it is smaller than the respective number of Lithuanian servicemen and civil servants of the national defence system within a military grouping of the Lithuanian army (in the size of at least two companies);

only in exercises under the NATO Partnership for Peace Programme or in exercises organised jointly with the members of NATO, European Union and Western European Union, if the total number of servicemen and civil servants assigned to the armed forces of the CIS countries at a time does not exceed the permissible size established in Paragraph 3 of Article 14 of the Law (wording of 15 January 2002), i.e. it is smaller than the respective number of Lithuanian servicemen and civil servants of the national defence system within a military grouping of the Lithuanian army (in the size of at least two companies), by not applying such conditions to military officers from the member countries of the CIS who have been invited by the Republic of Lithuania to act in the capacity of observers;

in other arranged events, which are not ascribed to an international operation and exercises, if the total number of servicemen and civil servants assigned to the armed forces of the CIS countries at a time does not exceed the permissible size established in Paragraph 5 of Article 14 of the Law (wording of 15 January 2002), i.e. it is smaller than the respective number of Lithuanian servicemen and civil servants of the national defence system within a military grouping of the Lithuanian army (in the size of at least two companies), and if military units of the CIS countries come to other events (which are not ascribed to an international operation and exercises) organised in the Republic of Lithuania for a period not longer than two weeks.

Thus, the disputed legal regulation established in Paragraphs 2, 3, 5 of Article 14 of Law (wording of 15 January 2002) encompasses three possible situations:

military units of the CIS countries may participate, on the territory of the Republic of Lithuania, in international search and rescue operations as well as operations aimed at liquidation of consequences of major accidents;

military units of the CIS countries may participate, on the territory of the Republic of Lithuania, in exercises under the NATO Partnership for Peace Programme or in exercises organised jointly with the members of NATO, European Union and Western European Union;

military units of the CIS countries may participate “in other events organised on the territory of the Republic of Lithuania”.

7. While assessing whether Paragraphs 2, 3 and 5 of Article 14 of the Law (wording of 15 January 2002) are not in conflict with Article 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”, one is to note that, as it has been mentioned, in the latter article there is an established imperative that there may be no military bases or army units of Russia, the Commonwealth of Independent States or its constituent states on the territory of the Republic of Lithuania, i.e.:

there is a constitutional prohibition for military bases of Russia, the Commonwealth of Independent States or its constituent states to be on the territory of the Republic of Lithuania;

there is a constitutional prohibition for army units of Russia, the Commonwealth of Independent States or its constituent states to be on the territory of the Republic of Lithuania.

In this context it needs to be noted that Paragraphs 2, 3 and 5 of Article 14 of the Law (wording of 15 January 2002), which are being disputed in the constitutional justice case at issue, do not regulate the relations related to the presence of military bases of the CIS countries on the territory of the Republic of Lithuania.

8. While deciding whether Paragraphs 2, 3 and 5 of Article 14 of the Law (wording of 15 January 2002) are not in conflict with the imperative of Article 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions” whereby “There may be no <…> army units of Russia, the Commonwealth of Independent States or its constituent states on the territory of the Republic of Lithuania”, one is to note that, as it has been mentioned, this prohibition:

inter alia means that on the territory of the Republic of Lithuania there may not be any such military units the presence (deployment, use) of which is directed and controlled by Russia, the Commonwealth of Independent States or its constituent states;

does not mean that, subsequent to international treaties of the Republic of Lithuania, inter alia the collective defence treaty ratified by the Seimas, and subsequent to the laws adopted for the purpose of implementation of such treaties, any such short-term presence of military units of limited size of Russia, the Commonwealth of Independent States and its constituent states in international military exercises on the territory of the Republic of Lithuania, which are directed and controlled by the Republic of Lithuania jointly (together) with states-allies, is not allowed;

does not mean that, subsequent to international treaties of the Republic of Lithuania and subsequent to the laws adopted for the purpose of implementation of such treaties, it would not be allowed to invite military units of limited size of Russia, the Commonwealth of Independent States and its constituent states for a short time in international measures to help to remove the consequences of catastrophes, epidemics, natural or other calamities on the territory of the Republic of Lithuania, when the grounds, purpose and character of such invitation for help are clear and constitutionally reasoned and when such measures are directed and controlled by the Republic of Lithuania.

It also needs to be noted that, as mentioned:

the grounds of the international co-operation (entrenched in the Constitution) of the state related inter alia to defence of the state are characteristic inter alia of the fact that the geopolitical orientation of the State of Lithuania is established—participation of the state in European integration while being a Member of the European Union, striving for ensuring the independence and security of the state by contributing to the creation of international order based on law and justice;

the geopolitical orientation of the State of Lithuania—the participation of the state in European integration—is inseparable from other international commitments of the Republic of Lithuania, arising from the membership of Lithuania in other international organisations, inter alia the United Nations and the North Atlantic Treaty Organisation; this membership provides Lithuania not only with additional security guarantees, but also implies the necessity to follow the undertaken international commitments.

Thus, as mentioned, under the Constitution, inter alia Article 135 thereof, the legislator, while heeding the limitations and prohibitions entrenched in the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”, may also establish such legal regulation designed for implementation of international treaties of the Republic of Lithuania, inter alia the collective defence treaty ratified by the Seimas, whereby inter alia one provides for short-term participation of strictly limited size of military units of Russia, the Commonwealth of Independent States and its constituent states in the exercises of the defence treaty Parties and of other states arranged on the territory of the Republic of Lithuania, which are directed and controlled by the Republic of Lithuania jointly (together) with states-allies, as well as invitation of such military units in international measures to help to remove the consequences of catastrophes, epidemics, natural or other calamities on the territory of the Republic of Lithuania, when the grounds, purpose and character of such invitation for help are clear and constitutionally reasoned and when such measures are directed and controlled by the Republic of Lithuania.

However, under the Constitution, inter alia Article 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”, no such legal regulation may be established, whereby short-termed participation of limited-size army units of Russia, the Commonwealth of Independent States or its constituent states in international military events taking place on the territory of the Republic of Lithuania is provided for, where, however, no clear and constitutionally reasoned grounds, aims and character of such participation are established.

In this context it also needs to be noted that:

it is clear from the travaux préparatoires of the Law that the fact that the participation, on the territory of the Republic of Lithuania, of military units, servicemen and civil servants assigned to the armed forces of the CIS countries in international search and rescue operations as well as operations aimed at liquidation of consequences of major accidents, in exercises under the NATO Partnership for Peace Programme or in exercises organised jointly with the members of NATO, European Union and Western European Union, which is provided for in Paragraphs 2, 3, 5 of Article 14 of the Law (wording of 15 January 2002), is determined by the objectives of the adoption of the Law (wording of 15 January 2002), inter alia the determination of Lithuania specified in the Preamble to the Law (wording of 15 January 2002) to become a full-fledged member of the transatlantic collective defence organisation—the North Atlantic Treaty Organisation, to assume its share of common responsibilities in this organisation, and to participate in the European security and defence policy;

in the explanatory note to draft Law (wording of 15 January 2002) No. IXP-1296 it is inter alia specified that “in Article 14, while following the existing constitutional limitations, the possibilities of military co-operation with the CIS countries are developed. Two essential conditions are established for the development of such co-operation: first, it should not be developed on the grounds of belonging to the former territories run by the former USSR and it must be conducted only jointly with NATO, EU and WEU states or other states which are members of the NATO Partnership for Peace Programme, but which do not belong to the CIS; second, it is necessary to avoid the possibility of the presence of military units of the CIS countries on the territory of Lithuania, while permitting only smaller-size military units of the CIS countries to arrive at exercises and other events of military co-operation conducted in Lithuania”.

It needs to be noted that the disputed legal regulation established in Paragraphs 2 and 3 of Article 14 of Law (wording of 15 January 2002):

strictly limits the total number of servicemen and civil servants assigned to the armed forces of the CIS members, whose presence on the territory of the Republic of Lithuania is allowed: “<...> if the total number of servicemen and civil servants assigned to the armed forces of the CIS members at a time is smaller than the respective number of Lithuanian servicemen and civil servants of the national defence system within a military grouping of the Lithuanian army (in the size of at least two companies” (Paragraph 2 of Article 14 of the Law (wording of 15 January 2002)), “<...> if the total number of servicemen and civil servants assigned to the armed forces of the CIS countries at a time is smaller than the respective number of Lithuanian servicemen and civil servants of the national defence system within a military grouping of the Lithuanian army (in the size of at least two companies). Such conditions shall not apply to military officers from the member countries of the CIS who have been invited by the Republic of Lithuania to act in the capacity of observers” (Paragraph 3 of Article 14 of the Law (wording of 15 January 2002));

relates the presence of military units, servicemen and civil servants assigned to the armed forces of the CIS members on the territory of the Republic of Lithuania only with their participation “in international search and rescue operations as well as operations aimed at liquidation of consequences of major accidents” (Paragraph 2 of Article 14 of the Law (wording of 15 January 2002)), “in exercises under the NATO Partnership for Peace Programme or in exercises organised jointly with the members of NATO, European Union and Western European Union” (Paragraph 3 of Article 14 of the Law (wording of 15 January 2002)).

Thus, the disputed legal regulation established in Paragraphs 2 and 3 of Article 14 of the Law (wording of 15 January 2002) provides for short-termed presence (participation) of strictly limited military units of the CIS members on the territory of the Republic of Lithuania:

in such exercises conducted under the NATO Partnership for Peace Programme or in exercises organised jointly with the members of NATO, European Union and Western European Union, which are directed and controlled by the Republic of Lithuania jointly (together) with states-allies;

in such international search and rescue operations as well as operations aimed at liquidation of consequences of major accidents, whose grounds, purpose, and character are clear and constitutionally reasoned. Such legal regulation of the said operations implies that the Republic of Lithuania directs and controls these operations conducted on the territory of the Republic of Lithuania.

Consequently, the disputed legal regulation established in Paragraphs 2 and 3 of Article 14 of the Law (wording of 15 January 2002) do not create preconditions to deny the imperative entrenched in Article 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”.

9. Taking account of the arguments set forth, one is to draw a conclusion that Paragraphs 2 and 3 of Article 14 of the Law (wording of 15 January 2002) are not in conflict with Article 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”.

10. The legal regulation established in Paragraph 5 of Article 14 of the Law (wording of 15 January 2002) (“Military units, servicemen and civil servants assigned to the armed forces of the CIS countries may participate in other events organised on the territory of the Republic of Lithuania, provided that the total number of military units, servicemen and civil servants assigned to the armed forces of the CIS countries at a time is smaller than the respective number of Lithuanian servicemen and civil servants of the national defence system within a military grouping of the Lithuanian army (in the size of at least two companies). Military units of the CIS countries may come to other events organised in the Republic of Lithuania for a period not longer than two weeks”), whereby the participation of military units, servicemen and civil servants assigned to the armed forces of the CIS countries in “other events” arranged on the territory of the Republic of Lithuania is provided for, however, no clear and constitutionally reasoned grounds, purpose and character of such participation are established, is to be assessed differently.

Consequently, the legal regulation established in Paragraph 5 of Article 14 of the Law (wording of 15 January 2002) virtually creates preconditions to deny the imperative that “There may be no <…> army units of Russia, the Commonwealth of Independent States or its constituent states on the territory of the Republic of Lithuania”, which is entrenched in Article 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”.

11. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 5 of Article 14 of the Law (wording of 15 January 2002) is in conflict with Article 3 of the Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions”.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

ruling:

1. To recognise that Item 2 of Paragraph 1 and Paragraphs 2, 3, and 4 of Article 5 of the Republic of Lithuania Law on International Operations, Exercises and Other Events of Military Co-operation (wording of 15 January 2002; Official Gazette Valstybės žinios, 2002, No. 13-465) are not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that Paragraphs 2, 3, and 4 of Article 6 of the Republic of Lithuania Law on International Operations, Exercises and Other Events of Military Co-operation (wording of 15 January 2002; Official Gazette Valstybės žinios, 2002, No. 13-465) are not in conflict with the Constitution of the Republic of Lithuania.

3. To recognise that Paragraphs 1, 2, and 3, of Article 10 (wording of 12 May 2005; Official Gazette Valstybės žinios, 2005, No. 66-2351) of the Republic of Lithuania Law on International Operations, Exercises and Other Events of Military Co-operation (wording of 15 January 2002; Official Gazette Valstybės žinios, 2002, No. 13-465) are not in conflict with the Constitution of the Republic of Lithuania.

4. To recognise that Paragraphs 2 and 3 of Article 14 of the Republic of Lithuania Law on International Operations, Exercises and Other Events of Military Co-operation (wording of 15 January 2002; Official Gazette Valstybės žinios, 2002, No. 13-465) are not in conflict with the Constitution of the Republic of Lithuania.

5. To recognise that Paragraph 5 of Article 14 of the Republic of Lithuania Law on International Operations, Exercises and Other Events of Military Co-operation (wording of 15 January 2002; Official Gazette Valstybės žinios, 2002, No. 13-465) is in conflict with the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court: Armanas Abramavičius
                                                                      Toma Birmontienė
                                                                      Pranas Kuconis
                                                                      Kęstutis Lapinskas
                                                                      Zenonas Namavičius
                                                                      Ramutė Ruškytė
                                                                      Egidijus Šileikis
                                                                      Algirdas Taminskas
                                                                      Romualdas Kęstutis Urbaitis