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On state secrets and official secrets

Case No. 22/2008-31/2008-9/2010-35/2010

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF ITEM 13 OF PARAGRAPH 2 OF ARTICLE 16 AND ITEM 4 OF PARAGRAPH 1 OF ARTICLE 18 OF THE REPUBLIC OF LITHUANIA LAW ON STATE SECRETS AND OFFICIAL SECRETS (WORDING OF 16 DECEMBER 2003) AND ARTICLE 28 (WORDING OF 15 MAY 2007) OF THE STATUTE OF THE INTERNAL SERVICE AS APPROVED BY THE REPUBLIC OF LITHUANIA LAW ON THE APPROVAL OF THE STATUTE OF THE INTERNAL SERVICE WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

7 July 2011
Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretary—Sigutė Brusovienė,

in the presence of the representatives of the Seimas of the Republic of Lithuania, the party concerned, who were Vitalij Dmitrijev, Head of the Office of the National Security and Defence Committee of the Office of the Seimas, and Girius Ivoška, Adviser at the Criminal and Administrative Law Unit of the Legal Department of the Office of the Seimas,

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing on 30 June 2011 heard constitutional justice case No. 22/2008-31/2008-9/2010-35/2010 subsequent to the petitions of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether:

1) Item 4 of Paragraph 1 of Article 18 of the Republic of Lithuania Law on State Secrets and Official Secrets (wording of 16 December 2003), insofar as it is established therein that an authorisation to handle or familiarise with classified information or a security clearance is revoked where, in respect of a person, after he is suspected of committing an intentional criminal deed, a pre-trial or operational investigation is being conducted, is not in conflict with Paragraph 1 of Article 31 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law, and whether Article 28 (wording of 15 May 2007) of the Statute of the Internal Service as approved by the Republic of Lithuania Law on the Approval of the Statute of the Internal Service, insofar as it does not provide for a possibility for the superior, who has the right to appoint an official to the position, to suspend the official from office in cases where a pre-trial or operational investigation is being conducted, if the question of the suspension of the official from service is not dealt with in the manner prescribed by the Code of Criminal Procedure of the Republic of Lithuania by the persons authorised for this purpose, is not in conflict with Paragraph 1 of Article 31 of the Constitution of the Republic of Lithuania (petition No. 1B-24/2008);

2) Item 4 of Paragraph 1 of Article 18 of the Republic of Lithuania Law on State Secrets and Official Secrets (wording of 16 December 2003), insofar as it is established therein that an authorisation to handle or familiarise with classified information or a security clearance is revoked where, in respect of a person, after he is suspected of committing an intentional criminal deed, a pre-trial or operational investigation is being conducted, and whether Article 28 (wording of 15 May 2007) of the Statute of the Internal Service as approved by the Republic of Lithuania Law on the Approval of the Statute of the Internal Service, insofar as it does not provide for a possibility for the superior, who has the right to appoint an official to the position, to suspend the official from office in cases where a pre-trial or operational investigation is being conducted, if the question of the suspension of the official from service is not dealt with in the manner prescribed by the Code of Criminal Procedure of the Republic of Lithuania by the persons authorised for this purpose, are not in conflict with Paragraph 1 of Article 31 and the provision “Each human being may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-34/2008);

3) Item 13 of Paragraph 2 of Article 16 of the Republic of Lithuania Law on State Secrets and Official Secrets (wording of 16 December 2003), insofar as it is established therein that an authorisation to handle or familiarise with classified information or a security clearance is not issued to a person where the person is being brought to criminal liability for an intentional criminal deed, is not in conflict with Paragraph 1 of Article 31, Paragraph 1 of Article 33 and Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania and the constitutional principles of a state under the rule of law and proportionality (petition No. 1B-9/2010);

4) Item 4 of Paragraph 1 of Article 18 of the Republic of Lithuania Law on State Secrets and Official Secrets (wording of 16 December 2003), insofar as it is established therein that an authorisation to handle or familiarise with classified information is revoked where a person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation as a result of the said deed, is not in conflict with Paragraph 1 of Article 31 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-47/2010).

By the Constitutional Court decision of 21 June 2011, the said petitions of the Vilnius Regional Administrative Court, the petitioner, were joined into one case.

The Constitutional Court

has established:

I

The petitions of the Vilnius Regional Administrative Court, the petitioner (Nos. 1B-24/2008, 1B-34/2008, 1B-9/2010 and 1B-47/2010) are substantiated by the following arguments.

1. The doubts regarding the compliance, with the Constitution, of Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), wherein it is established that an authorisation to handle or familiarise with classified information or a security clearance is not issued to a person where the person is being brought to criminal liability for an intentional criminal deed, are substantiated by the petitioner by the fact that, according to the petitioner, a democratic society may not pursue any reasonable and legitimate objective of prohibiting a person, who is being brought to criminal liability, from holding a position of the state servant which is connected with the use of classified information or protection thereof, since such a person is not to be regarded as having committed a criminal deed until he is recognised guilty of committing such a deed by an effective court judgement according to the procedure established by laws. The petitioner has had doubts as to whether the limitation of the constitutional right to a job—prohibiting a person from holding a position of the state servant which is connected with the use of classified information or protection thereof—is a proportionate one to the objective of a democratic society to protect the state against possible criminal deeds or consequences of other dangerous violations.

2. Once a pre-trial investigation (or even only an operational one) has been launched in respect of an official, under Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), an authorisation to handle or familiarise with classified information and a security clearance are revoked, and this constitutes a ground for compulsory dismissal of the official from service before the final judgement is passed by the court in the criminal case. In this situation the superior of the official has no other choice, as he is not empowered to suspend the official from office until the final judgement is passed in the criminal case. Paragraph 3 of Article 28 (wording of 15 May 2007) of the Statute of the Internal Service provides that, once a pre-trial investigation is launched, an official may be suspended from office in the manner prescribed by the Code of Criminal Procedure, however, if the authorised persons fail to do this, the superior of the official, who has the right to appoint to the position, may not suspend the official from office himself—under Paragraph 2 of Article 28 (wording of 15 May 2007) of the Statute of the Internal Service, he has the powers to suspend the official from office only during a service-related inspection, whereas, once a pre-trial investigation has been launched, a service-related inspection, as a rule, is not being conducted or, if it has been started, it is then discontinued.

Whatever the nature of a criminal deed in relation to which a pre-trial or operational investigation is conducted, in a democratic society the interest as well as the objective to dismiss from state service an official in respect of whom such an investigation is being conducted is not and may not be a reasonable one, since launching and conducting such an investigation does not mean that the person is indeed guilty of the commission of the criminal deed. The dismissal from office of a person in respect of whom a pre-trial or operational investigation is being conducted is assessed by the petitioner as a disproportionate restriction of the freedom to choose a job or business.

3. The petitioner is invoking the provisions of the official constitutional doctrine that the presumption of innocence, which is entrenched in Paragraph 1 of Article 31 of the Constitution, is one of the main guarantees of administering justice in a democratic state under the rule of law. This principle is a fundamental one for the administration of justice in the process of criminal cases and it is an important guarantee of human rights and freedoms. A person is presumed innocent of the crime until proved guilty according to the procedure established by law and declared guilty by an effective court judgement. The presumption of innocence is inseparably related with the respect for and protection of other constitutional rights and freedoms of a human being as well as his acquired rights.

Under the Constitution, it is permitted to limit the constitutional human rights and freedoms where inter alia such limitations are necessary in a democratic society in order to protect the rights and freedoms of other persons and other values entrenched in the Constitution, as well as the constitutionally important objectives, also where the limitations do not deny the nature and essence of the rights and freedoms, and where the constitutional principle of proportionality is followed. The freedom to choose a job and business, which is entrenched in Paragraph 1 of Article 48 of the Constitution, is one of the conditions for satisfying necessary vital needs of a human being and ensuring his proper position in society.

II

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 V. Dmitrijev, Head of the Office of the National Security and Defence Committee of the Office of the Seimas, and G. Ivoška, Adviser at the Criminal and Administrative Law Unit of the Legal Department of the Office of the Seimas, wherein it is maintained that the disputed provisions of the Law on State Secrets and Official Secrets as well as those of the Statute of the Internal Service are not in conflict with the Constitution. The representatives of the party concerned have only expressed doubts regarding the provision of Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), to the extent that, according to this provision, the authorisation to handle or familiarise with classified information or the security clearance of a person must be revoked due to the fact that the person is subject to an operational investigation in relation to an intentional criminal deed other than that related to violation of the regime of the protection of state secrets.

The position of the representatives of the party concerned is substantiated by the following arguments.

1. Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) lays down the conditions for the issuance of an authorisation to handle or familiarise with classified information and a security clearance, as well as the circumstances under which (where such circumstances arise or transpire) the authorisation or security clearance entitling to handle or familiarise with classified information may not be issued to a person who seeks to hold or holds a corresponding office.

The state, while granting a person a special right to handle or familiarise with classified information, also establishes certain requirements and the circumstances under which (where such circumstances arise or transpire) the said right is not granted or is revoked. This enables to prevent threats (or even causing harm) to those state interests that are protected by classifying corresponding information.

2. The person’s right to handle or familiarise with classified information is not a person’s constitutional right, the limitation of which would determine the implementation of the person’s constitutional right to a job or his constitutional right to enter on equal terms into state service. Nor does the limitation of the right to handle or familiarise with classified information deny the principle of the presumption of a person’s innocence, as by means of the said limitation one seeks to protect the state interests the vulnerability whereof may be conditioned by the connections of a person or even his personal qualities. The protection of important state interests constitutes a ground for limitation of the said right.

3. The fact that a person is being brought to criminal liability for an intentional criminal deed or that he is subject to a pre-trial or operational investigation in relation to the said deed is only one of the circumstances in which an authorisation to handle or familiarise with classified information may be not issued to the person or may be revoked. At the same time one also needs to assess the reliability of a person standing as a candidate for a corresponding position or already holding such a position, which determines the trust of the state in that person. The presence of the circumstances in which a person’s right to handle or familiarise with classified information is limited determines the distrust of the state in the person, since the said circumstances provide a ground to believe that a threat may arise or harm may be caused to the state interests. As it was held in the Constitutional Court ruling of 15 May 2007, a person who lost the trust of the state in him must be deprived of the right to familiarise himself or work with the information constituting a state secret. In order that a person be granted the right to handle or familiarise oneself with classified information, the state must have unconditional confidence in him.

4. Besides other conditions under which a threat is raised to the protection of state interests (in this situation, state secrets), the legislator has specified the circumstance where a person is being brought to criminal liability for an intentional criminal deed. This allows preventing even a possible threat to the state interests that are protected by classifying information which is important to the state.

5. The bringing of charges against a person does not yet mean in a criminal case any final judgement whereby one would confirm or deny the guilt of the person. At the same time it needs to be noted that the holding of an authorisation to handle classified information is not guaranteed to all other persons who are not recognised guilty by an effective court judgement in the manner prescribed by law; this requirement is set for persons standing as candidates to take up or hold a position which is connected with the protection of the independence of the State of Lithuania, its territorial integrity and constitutional order, therefore, restrictions on a person’s possibilities of implementing the said requirement are of significance not in terms of the presumption of a person’s innocence, but in terms of the protection of state interests.

6. While assessing the compliance, with the Constitution, of the provision of Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) that an authorisation to handle or familiarise with classified information and a security clearance are revoked where a person is subject to a pre-trial investigation in relation to an intentional criminal deed, one needs to take into account the meaning of the formulation “is subject to a pre-trial investigation” of Item 13 of Paragraph 2 of Article 16 of this law. A pre-trial investigation conducted in relation to an intentional criminal deed is not merely a launched pre-trial investigation in the course of which any procedural actions have not been carried out yet and which allows of only an approximate qualification of the deed, in other words, when it is only clear that the deed corresponds to the objective characteristics of the body of one or several criminal deeds, though it is not clear yet whether this deed is an intentional criminal one. The pre-trial investigation in question is such an investigation when at least one procedural action has already been carried out and the amount of the collected evidence is sufficient to specify in more exact terms the qualification of the deed and to draw up a report on the suspicion of the commission of a criminal deed. The legal regulation under which, as a result of the said investigation, an authorisation to handle or familiarise with classified information or a security clearance is revoked provides an opportunity of removing though a minimal, but real doubt that an authorisation to handle or familiarise with classified information or a security clearance is held by an individual who has committed an intentional criminal deed. Therefore, in the opinion of the representatives of the party concerned, there is no ground to maintain that conducting a pre-trial investigation in relation to an intentional criminal deed in respect of a person who holds an authorisation to handle or familiarise with classified information constitutes an insufficient and disproportionate precondition to revoke an authorisation to handle or familiarise with classified information.

7. As regards the provision of Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) that an authorisation to handle or familiarise with classified information and a security clearance are revoked where a person is subject to an operational investigation in relation to an intentional criminal deed, the representatives of the party concerned have noted that it is permitted to revoke such an authorisation (clearance) on the said ground only in cases where an operational investigation regarding an intentional criminal deed is conducted in the course of implementing the task of operational activities to protect state secrets, which is specified in Item 7 of Article 5 of the Republic of Lithuania Law on Operational Activities.

8. Paragraph 6 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) prescribes that where the circumstances provided for in this article are suspected to have arisen, a person may be prohibited from handling classified information by a decision of the head of an entity of secrets. Thus, the law provides for a possibility of suspending the said right of a person while not dealing with other issues which are related to the holding of the corresponding position as well as not questioning the constitutional principle of presumption of innocence.

9. According to the representatives of the party concerned, if in Paragraph 3 of Article 28 (wording of 15 May 2007) of the Statute of the Internal Service one established the powers of the superior, who has the right to appoint an official to the position, to suspend the official from office where a pre-trial or operational investigation is being conducted, if the question of the suspension of the official from service is not dealt with by the persons authorised for this purpose in the manner prescribed by the Code of Criminal Procedure, one would virtually deny the competence of the persons authorised to adopt a decision on applying the coercive procedural measure of temporary suspension from office or temporary suspension of the right to engage in certain activity, which is entrenched in the Code of Criminal Procedure.

Temporary suspension from office and temporary suspension of the right to engage in certain activity depend upon the grounds and procedures provided for in legal acts, and decisions regarding the application thereof may be adopted only by the persons authorised for this purpose; in addition, Paragraph 7 of Article 26 of the Statute of the Internal Service provides that in a situation of existing characteristics of a criminal deed the material of a service-related inspection is referred to a competent institution for investigation.

Once a possibility is given for the superior, who has the right to appoint a person to the position, to suspend an official from office where a pre-trial investigation is being conducted, he would gain the discretion to revise and deny the decisions of the prosecutor and pre-trial judge on the application of the corresponding coercive procedural measure, and this would be in conflict with the principle of independence of judges and the principle of independence of the prosecutor entrenched in Paragraph 2 of Article 109 and Paragraph 3 of Article 118 of the Constitution, respectively.

III

In the course of the preparation of the case for the Constitutional Court hearing explanations were submitted by the specialists Renaldas Grigas, Director of the Classified Information Protection Board of the State Security Department of the Republic of Lithuania, Algirdas Bložė, Deputy Director of the Office of the Classified Information Protection Board of the State Security Department, and Laimutė Paulauskienė, Head of the Confidentiality Division of the Administrative Department of the Ministry of the Interior of the Republic of Lithuania.

IV

At a Constitutional Court hearing the representatives of the Seimas, the party concerned, who were V. Dmitrijev, Head of the Office of the National Security and Defence Committee of the Office of the Seimas, and G. Ivoška, Adviser at the Criminal and Administrative Law Unit of the Legal Department of the Office of the Seimas, virtually reiterated the arguments set forth in their written explanations and answered to questions of the justices.

The Constitutional Court

holds that:

I

1. The Vilnius Regional Administrative Court, the petitioner, requests investigation into whether Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) is not in conflict with inter alia Paragraph 1 of Article 33 of the Constitution (petition No. 1B-9/2010).

Paragraph 1 of Article 33 of the Constitution prescribes: “Citizens shall have the right to participate in the governance of their State both directly and through their democratically elected representatives as well as the right to enter on equal terms in the State service of the Republic of Lithuania.”

From the arguments of the petitioner it is clear that it has had doubts as to whether Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) is not in conflict with the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution.

2. The Vilnius Regional Administrative Court, the petitioner, requests investigation into whether Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) is not in conflict with inter alia Paragraph 1 of Article 48 of the Constitution (petition No. 1B-9/2010).

The petitioner also requests to investigate whether Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), also Article 28 (wording of 15 May 2007) of the Statute of the Internal Service are not in conflict with inter alia the provision “Each human being may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution (petition No. 1B-34/2008).

Paragraph 1 of Article 48 of the Constitution prescribes: “Each human being may freely choose a job or business, and shall have the right to have proper, safe and healthy conditions at work, to receive fair pay for work and social security in the event of unemployment.”

From the arguments of the petitions of the petitioner it is clear that it has had doubts as to whether Item 13 of Paragraph 2 of Article 16 and Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) and Article 28 (wording of 15 May 2007) of the Statute of the Internal Service, in the aspects indicated by the petitioner, are not in conflict with the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution.

3. The Vilnius Regional Administrative Court, the petitioner, requests investigation into whether Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) is not in conflict with inter alia the constitutional principles of a state under the rule of law and proportionality (petition No. 1B-9/2010).

It needs to be noted that the Constitutional Court has held more than once that the constitutional principle of proportionality is one of the elements of the constitutional principle of a state under the rule of law (inter alia Constitutional Court rulings of 29 December 2004, 29 September 2005 and 10 April 2009).

4. The Vilnius Regional Administrative Court, the petitioner, requests investigation into the constitutionality of Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), insofar as it is established therein that an authorisation to handle or familiarise with classified information or a security clearance is not issued to a person where the person is being brought to criminal liability for an intentional criminal deed (petition No. 1B-9/2010).

Item 13 of Paragraph 2 of Article 16 “Conditions of the Issuance of an Authorisation to Handle or Familiarise with Classified Information and a Security Clearance” of the Law on State Secrets and Official Secrets (wording of 16 December 2003), which is being disputed by the petitioner, prescribes:

An authorisation to handle or familiarise with classified information or a security clearance shall not be issued to a person where the person:

<...>

13) is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial investigation or operational investigation in relation to the said deed.”

Thus, besides the circumstance where a person is being brought to criminal liability for an intentional criminal deed, Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), which is being disputed by the petitioner, specifies two more circumstances in which an authorisation to handle or familiarise with classified information or a security clearance is not issued to a person: where the person is subject to a pre-trial investigation or operational investigation in relation to an intentional criminal deed.

In petitions Nos. 1B-24/2008, 1B-34/2008 and 1B-47/2010 the petitioner requests investigation into the compliance of Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) with the Constitution, insofar as it is established in this item that an authorisation to handle or familiarise with classified information or a security clearance is revoked where a person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed.

Item 4 of Paragraph 1 of Article 18 “Revocation of an Authorisation to Handle or Familiarise with Classified Information and a Security Clearance” of the Law on State Secrets and Official Secrets (wording of 16 December 2003), which is being disputed by the petitioner, prescribes:

An authorisation to handle or familiarise with classified information and a security clearance shall be revoked where:

<...>

4) any of the circumstances referred to in Paragraph 2 of Article 16 of this Law arises or transpires.”

Thus, Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), which is being disputed by the petitioner, provides that an authorisation to handle or familiarise with classified information and a security clearance are revoked where any of the circumstances referred to in Paragraph 2 of Article 16 of this law arises or transpires, inter alia any of the circumstances referred to in Item 13 thereof: where the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial investigation or operational investigation in relation to the said deed.

Consequently, the provisions of the Law on State Secrets and Official Secrets that are disputed by the petitioner in the constitutional justice case at issue are inseparable. Therefore, while investigating the compliance of the provision of Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) with the Constitution in the aspects disputed by the petitioner, in the constitutional justice case at issue the Constitutional Court will also carry out investigation, to a full extent, into the legal regulation established in Item 13 of Paragraph 2 of Article 16 of this law.

5. The Vilnius Regional Administrative Court, the petitioner, has had doubts as to the compliance of Article 28 (wording of 15 May 2007) of the Statute of the Internal Service with the Constitution, insofar as this article does not provide for a possibility for the superior, who has the right to appoint an official to the position, to suspend the official from office where a pre-trial or operational investigation is being conducted, if the question of the suspension of the official from service is not dealt with in the manner prescribed by the Code of Criminal Procedure by the persons authorised for this purpose (petitions Nos. 1B-24/2008 and 1B-34/2008). From the arguments indicated by the petitioner it is clear that the petitioner is disputing the compliance of Article 28 (wording of 15 May 2007) of the Statute of the Internal Service with the Constitution only in the aspect that the said article does not provide for the powers of the superior, who has the right to appoint a person to the position, to suspend an official from a position the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, in cases where, in respect of the said official, a pre-trial or operational investigation is being conducted regarding his intentional criminal deed, and the question of the suspension of the official from service is not dealt with in the manner prescribed by the Code of Criminal Procedure by the persons authorised for this purpose.

It needs to be noted that, under Article 157 “Temporary Suspension from Office or Temporary Suspension of the Right to Engage in Certain Activity” of the Code of Criminal Procedure, upon receiving a request of the prosecutor, during an investigation regarding a criminal deed the suspect may be temporarily removed from office by a ruling of the judge of pre-trial investigation, whereas after the case is referred to court, the question of temporary suspension from office is decided by the court at whose disposal the case has been placed. When it is necessary, temporary suspension from office is imposed in order that a criminal deed be investigated more speedily and more impartially or that a possibility of committing new criminal deeds be prevented.

It also needs to be noted that, under Paragraph 2 of Article 12 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), the head of an entity of secrets is responsible for an overall organisation and condition of the protection of the classified information at the disposal of the entity of secrets, whereas heads of structural divisions, the persons authorised by them as well as the persons whereto information has been entrusted are responsible for the carrying out of requirements for the protection of classified information in the structural divisions of the entity of secrets wherein the classified information is stored or used. Authorisations to handle or familiarise with classified information might also be issued by entities of secrets (Paragraph 7 of Article 15 of the Law on State Secrets and Official Secrets (wording of 16 December 2003)). Entities of secrets are the state and municipal institutions the activities of which are related to the classification and declassification of information, the use of classified information and/or protection thereof; the area of regulation under these institutions comprises the establishments and enterprises to which the said institutions, after coordinating with the Commission for Secrets Protection Coordination, have granted the status of the entity of secrets (Paragraph 8 (wording of 14 December 2010) of Article 2 of the Law on State Secrets and Official Secrets (wording of 16 December 2003)).

Thus, heads of corresponding entities of secrets and of structural divisions thereof as well as the persons authorised by them are responsible for the protection of the classified information at the disposal of the entity of secrets. While taking account of this, in the constitutional justice case at issue one needs to investigate the compliance of Article 28 (wording of 15 May 2007) of the Statute of the Internal Service with the Constitution, insofar as this article does not provide for the powers of the head of an entity of secrets or a structural division thereof, or of a person authorised by the head, who have the right to appoint a person to the position (i.e. in the context of the constitutional justice case at issue—the superior who has the right to appoint a person to the position) to suspend an official from a position the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, in cases where, in respect of the said official, a pre-trial or operational investigation is being conducted regarding his intentional criminal deed.

After having held in the constitutional justice case at issue that it will investigate, to a full extent, the legal regulation established in Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), the Constitutional Court will also investigate the compliance of Article 28 (wording of 15 May 2007) of the Statute of the Internal Service with the Constitution, to the extent that this article does not provide for the powers of the superior, who has the right to appoint a person to the position, to suspend an official from a position the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, in cases where the said official is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed.

6. Thus, taking account of the arguments set forth, in the constitutional justice case at issue the Constitutional Court will investigate whether:

Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) is not in conflict with Paragraph 1 of Article 31, the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 and the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law;

Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), insofar as it is established therein that an authorisation to handle or familiarise with classified information or a security clearance is revoked where any of the circumstances referred to in Item 13 of Paragraph 2 of Article 16 of this law arises or transpires, is not in conflict with Paragraph 1 of Article 31, the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law;

Article 28 (wording of 15 May 2007) of the Statute of the Internal Service, insofar as it does not provide for the powers of the superior, who has the right to appoint a person to the position, to suspend an official from a position the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, in cases where the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed, is not in conflict with Paragraph 1 of Article 31, the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

II

1. It has been mentioned that the petitioner has had doubts as to whether the legal regulation disputed in the constitutional justice case at issue is not in conflict with Paragraph 1 of Article 31, the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 and the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

2. In the constitutional justice case at issue one is disputing inter alia the provisions of the Law on State Secrets and Official Secrets (wording of 16 December 2003), which consolidate the conditions and grounds for the issuance and revocation of an authorisation to handle or familiarise with classified information and a security clearance. Thus, in this context it is important to disclose inter alia the constitutional institute of the state secret.

The notion “state secret” is employed expressis verbis in the Constitution (Paragraph 1 of Article 117). In its ruling of 15 May 2007 the Constitutional Court held that the state secret is a constitutional institute; the state secret is such information which is not subject to publishing or dissemination, whose disclosure could inflict damage on the state as the common good of entire society as well as on the political organisation of entire society whose purpose is to ensure human rights and freedoms and to guarantee the public interest.

In its ruling of 15 May 2007 the Constitutional Court noted that certain requirements are raised for a person who is granted the right to familiarise himself with the information constituting a state secret; such requirements are related with the person’s credibility and his loyalty to the State of Lithuania, which are to be linked to the trust of the state in that person. The distrust of the state in a certain person could be determined by the activity of that person, inter alia committed violations of law, also personal qualities of that person, his connections as well as other important circumstances. One can permit only such a person to familiarise himself with state secrets whose activity, personal qualities, connections, etc. cannot give any ground to fear that in case he learns a state secret there would be a threat, let alone damage, inflicted upon the sovereignty of the state, its territorial integrity, constitutional order and defence power, as well as upon other especially important state interests and the bases of the life of society and the state, or that there would be violations of the most important relations regulated, defended and protected by the Constitution, which are protected and defended precisely by the fact that certain information, according to laws, is classified. A person who has lost the trust of the state in him must be deprived of the right to familiarise himself or work with the information constituting a state secret.

In its ruling of 15 May 2007 the Constitutional Court also held that disclosure of a state secret may raise a threat or even inflict damage upon the sovereignty of the state, its territorial integrity, constitutional order and defence power, as well as upon other especially important state interests and the bases of the life of society and the state. If the disclosure (finding out, dissemination) of the information constituting a state secret were not prevented, if such revelation were not legally persecuted, preconditions would be created to violate even the most important relations regulated, defended and protected by the Constitution, thus, to give priority to the interest of a certain person or persons to know and impart certain information at the expense of the public interest.

3. In Paragraph 1 of Article 48 of the Constitution it is inter alia consolidated that each human being may freely choose a job. This freedom is one of the conditions for satisfying necessary vital needs of a human being and ensuring his proper position in society. The constitutional freedom of each human being to choose a job implies a duty for the legislator to create legal preconditions for the implementation of this freedom. While creating the legal preconditions for the implementation of the right to freely choose a job, the legislator is empowered, by taking account of the nature of a job, to establish the conditions for the implementation of the right to freely choose a job. While doing this, he must observe the Constitution (Constitutional Court rulings of 25 November 2002, 4 July 2003, 29 December 2004, 13 August 2007, 7 January 2008, 20 February 2008 and 22 March 2010).

4. Under Paragraph 1 of Article 33 of the Constitution, citizens inter alia have the right to enter on equal terms in the State service of the Republic of Lithuania.

4.1. The constitutional right to enter on equal terms in the state service is to be linked to inter alia the right of each human being to freely choose a job, which is entrenched in Article 48 of the Constitution. In its rulings of 13 December 2004 and 13 August 2007 the Constitutional Court inter alia noted that the constitutional right of the citizen to enter on equal terms in the state service of the Republic of Lithuania is a version of the constitutional right of each person to freely choose a job.

4.2. It needs to be noted that the provision of Paragraph 1 of Article 33 of the Constitution, which consolidates the right of citizens to enter on equal terms in the state service of the Republic of Lithuania, should not be construed only linguistically and should not be understood only as the right to enter in state service, i.e. only as the one linked to the admission of a person to state service. As the Constitutional Court has noted more than once, the relations of the state service comprise not only the relations linked to the implementation of the right of the citizen to enter on equal terms in the state service of the Republic of Lithuania, but also the relations that arise after the citizen enters in the state service and while he performs his duties at the state service (Constitutional Court rulings of 13 December 2004 and 13 August 2007).

4.3. In its ruling of inter alia 13 August 2007 the Constitutional Court held that, while creating the legal preconditions for the implementation of the right to freely choose a job (thus, and to enter in the state service), the legislator is empowered, by taking account of the nature of a job, to establish the conditions for the implementation of the right to freely choose a job.

The Constitutional Court has also held that the right of the citizen to enter on equal terms in the state service of the Republic of Lithuania is not absolute: the state cannot oblige itself and it does not oblige itself to accept each person to work in the state service. The state service must be qualified, and it must be able to fulfil the tasks commissioned to it. Those who wish to become state servants or officials must also have corresponding education, professional experience and certain personal characteristics; in addition, the higher the position or the more important the area of activities is, the higher are the requirements raised before the person holding such a position (Constitutional Court rulings of 4 March 1999, 13 August 2007 and 22 January 2008).

Under the Constitution, the state service is service to the State of Lithuania and the civil Nation, therefore the state service should be loyal to the State of Lithuania and its constitutional order; one of the general conditions of entering in the state service is loyalty to the State of Lithuania and its constitutional order (Constitutional Court rulings of 13 December 2004 and 13 August 2007). Only the persons who are loyal to that state and whose loyalty to that state and credibility do not raise any doubts may work in state institutions (Constitutional Court rulings of 11 November 1998, 4 March 1999 and 13 August 2007).

The legislator not only may but also must establish such legal regulation that would permit to verify the credibility—loyalty to the State of Lithuania, reputation, etc.—of those persons who seek to hold a position in the state service. The credibility of applicants to the positions at the state service must be verified yet before they start holding office. When the state servants are in office, their credibility may be also verified if there appear reasonable doubts. If there is the reasonably stated non-credibility of a person who seeks for a certain position in the state service, such a person may not be accepted to the corresponding position (Constitutional Court ruling of 13 August 2007).

In its ruling of 13 December 2004 the Constitutional Court held that one needs to mention the requirements linked to the reputation of a person who enters in the state service, his personal characteristics, etc. as the special conditions of entering in the state service. When admitting one to a certain position, a great variety of special conditions may be provided for as, for example, those linked to the health of the person, his physical abilities, relations with other persons, etc. These special conditions of entering in the state service may be differentiated according to the content of respective duties at the state service. All the established special requirements for entering in the state service must be constitutionally reasonable.

4.4. In the context of the constitutional justice case at issue it needs to be noted that, under the Constitution, a special condition established for persons seeking to hold or holding a position in the state service which is connected with the use of classified information or protection thereof, is an especial and not in the least questionable reliability of these persons as well as their loyalty to the Sate of Lithuania. The reliability of a person who seeks to hold or holds a position in the state service which is connected with the use of classified information or protection thereof, as well as the loyalty of that person to the State of Lithuania, must be assessed by taking account of all the significant circumstances characterising that person, inter alia his activity, the committed violations of law, his professional and personal qualities, reputation, and relations with other persons. Therefore, the legislator enjoys broad discretion while regulating the relations connected with the protection of state secrets and official secrets, inter alia when establishing the criteria for the reliability of persons who seek to hold or hold a position in the state service which is connected with the use of classified information or protection thereof and for the loyalty of these persons to the State of Lithuania, as well as the procedures for screening such persons. In the course of implementing the said discretion the legislator must pay heed to the norms and principles of the Constitution, inter alia the constitutional principle of a state under the rule of law.

4.5. In this context it also needs to be mentioned that in its ruling of 13 August 2007 the Constitutional Court inter alia noted that the legal regulation of the relations of verification of the credibility of the person (both the one who seeks to hold a position in the state service and the one who already holds such a position) must be such that minor, coincidental and similar facts and circumstances would not become the basis for non-credibility of a person seeking to hold or holding a position in a state or municipal institution, let alone that the non-credibility of such person would not be stated by referring to presumptions alone.

In the context of the constitutional justice case at issue it needs to be noted that one is not permitted to establish any such legal regulation that would allow a state institution authorised by law to state the unreliability of a person seeking to hold or holding a position in the state service which is connected with the use of classified information or protection thereof (or his disloyalty to the State of Lithuania) on the basis of minor circumstances alone. However, this does not mean that the legislator may not provide for such measures of protection of classified information that would enable to prevent, in advance, threats to the security of classified information, and at the same time—threats to state interests.

5. As the Constitutional Court has held more than once, the constitutional principle of a state under the rule of law, which is entrenched in the Constitution, in addition to other requirements, also implies that human rights and freedoms must be ensured (inter alia Constitutional Court rulings of 12 July 2001, 13 December 2004, 29 December 2004 and 16 January 2006). In this Constitutional Court ruling it has been mentioned that the constitutional principle of proportionality is one of the elements of the constitutional principle of a state under the rule of law, as well.

In its rulings the Constitutional Court has also held more than once that, according to the Constitution, it is permitted to limit the human rights and freedoms provided that the following conditions are observed: this is done by law; the limitations are necessary in a democratic society in order to protect the rights and freedoms of other persons and the values entrenched in the Constitution, as well as the constitutionally important objectives; the limitations do not deny the nature and essence of the rights and freedoms; the constitutional principle of proportionality is followed. The constitutional principle of proportionality also means that the measures provided for in a law must be in line with the legitimate objectives that are important to society, that these measures must be necessary in order to reach these objectives, and that these measures must not restrain the rights and freedoms of a person clearly more than necessary in order to reach these objectives (Constitutional Court ruling of 11 December 2009, decision of 20 April 2010 and ruling of 29 June 2010).

In the context of the constitutional justice case at issue it needs to be noted that the requirement of the constitutional principle of proportionality that the human rights and freedoms be not limited by law more than necessary in order to reach the legitimate objectives that are important to society inter alia implies a requirement for the legislator to establish such legal regulation that would create preconditions to sufficiently individualise the limitations of the human rights and freedoms: the legal regulation limiting the rights and freedoms of a person, which is provided for by law, must be such that would create preconditions to assess as much as possible an individual position of each person and, by taking account of all the important circumstances, to individualise respectively the concrete measures that are applicable to and limit the rights of a concrete person.

6. The presumption of innocence entrenched in Paragraph 1 of Article 31 of the Constitution is one of the main guarantees of the administration of justice in a democratic state under the rule of law. It is a fundamental principle of the administration of justice in the process of criminal cases, one of the most important guarantees of the administration of justice in a democratic state under the rule of law and, alongside, an important guarantee of human rights and freedoms (Constitutional Court rulings of 29 December 2004, 16 January 2006, 16 January 2007 and 8 June 2009). In its ruling of 18 April 1996 the Constitutional Court noted that the courts administer justice, i.e. they judge legal conflicts by adopting legal decisions. A person is presumed innocent of the crime until proved guilty according to the procedure established by law and declared guilty by an effective court judgement (Constitutional Court ruling of 29 December 2004).

In its acts the Constitutional Court has held more than once that the principle of presumption of innocence may not be construed only linguistically and as the one which is linked only to the administration of justice in the process of criminal cases. The presumption of innocence, when evaluated in the context of other provisions of the Constitution, has broader content, it may not be linked to the penal legal relations alone. It is especially important that state institutions and officials follow the presumption of innocence, that public persons in general restrain from referring to a person as a criminal until the guilt of the person in committing the crime is proven upon the procedure established by law and the person is recognised guilty by an effective court judgment (Constitutional Court rulings of 29 December 2004, 16 January 2006 and 16 January 2007).

Thus, administration of justice, inter alia recognition of a person as guilty of committing a criminal deed, is an exceptional function of courts. No matter what issues are being decided, no other state institution or official may hold a person guilty of committing a criminal deed until the guilt of the person in committing the crime is proven upon the procedure established by law and recognised by an effective court judgement. Nevertheless, the fact that a person is not held guilty of committing a criminal deed until the guilt of the person in committing the said deed is proven in accordance with the procedure established by law and recognised by an effective court judgement does not yet mean that a person seeking to hold or holding a position in the state service which is connected with the use of classified information and protection thereof necessarily deserves the trust of the state and that a state institution authorised by law cannot have certain doubts as to the reliability of that person or his loyalty to the State of Lithuania, which would be raised not by the established guilt of the person in committing a criminal deed but by certain factual circumstances, activity of the person, his personal qualities, reputation, connections or other significant circumstances, inter alia the ones relating to a possibly committed criminal deed.

Thus, the circumstances that raise doubts regarding the reliability of a person seeking to hold or holding a position in the state service which is connected with the use of classified information or protection thereof, or regarding the loyalty of such a person to the State of Lithuania, can be also related to a criminal deed possibly committed by the person. When assessing the said circumstances, a state institution authorised by law does not administer justice, nor does it judge the issue of the person’s guilt in committing a criminal deed.

7. In the constitutional justice case at issue the petitioner disputes a legislative omission which, in its opinion, exists in Article 28 (wording of 15 May 2007) of the Statute of the Internal Service, i.e. it disputes something which has not been established in this legal act, even though, in the opinion of the petitioner, under the Constitution, it should be established by the legislator; thus, the petitioner disputes such a gap in the legal regulation which, in the opinion of the petitioner, is prohibited by the Constitution.

The Constitutional Court has held that a legal gap, inter alia legislative omission, always means that the legal regulation of corresponding social relations is established neither explicitly, nor implicitly, neither in a concrete legal act (part thereof), nor any other legal acts at all, even though there exists a need for the legal regulation of these social relations, while the said legal regulation, in case of legislative omission, must be established precisely in that legal act (precisely in that part thereof), since this is required by a certain legal act of higher power, inter alia the Constitution itself (Constitutional Court decisions of 8 August 2006, 5 November 2008, rulings of 2 March 2009, 22 June 2009, 11 December 2009, 29 September 2010 and 29 November 2010).

In the Constitutional Court ruling of 2 March 2009 it was held that internal harmony of the legal system, which is implied by the constitutional principle of a state under the rule of law, is inter alia linked to the legal gaps, i.e. lack of legal regulation, inter alia legislative omission. In its decision of 8 August 2006 and ruling of 29 November 2010, the Constitutional Court held that the elimination of legal gaps (without excluding legislative omission) is a matter of competence of a respective (competent) law-making subject. In addition, in its 8 August 2006 decision and its 7 June 2007 and 29 November 2010 rulings, the Constitutional Court held: it is possible to completely remove legal gaps only when the law-making institutions issue respective legal acts.

8. In its ruling of 15 May 2007 the Constitutional Court noted that the constitutional obligation to protect state secrets (or other classified information) also arises from the international treaties that are ratified by the Seimas and which are a constituent part of the legal system of the Republic of Lithuania (Paragraph 3 of Article 138 of the Constitution). Inter alia such treaties are the international treaties upon which the membership of the Republic of Lithuania in international organisations is based. The constitutional obligation to protect state secrets (other classified information) also includes an obligation to protect the secrets of other states or international organisations that are at the disposition of the Republic of Lithuania (its institutions and officials).

It needs to be mentioned that the general grounds for the international co-operation (entrenched in the Constitution) of the state are characterised inter alia by the fact that the geopolitical orientation of the State of Lithuania is established—participation of the state in the European integration while being a Member of the European Union (EU), striving for ensuring the independence and security of the state by contributing to the creation of international order based on law and justice (Constitutional Court ruling of 15 March 2011).

In the context of the constitutional justice case at issue it needs to be noted that the geopolitical orientation of the State of Lithuania is also inseparable from other international commitments of the Republic of Lithuania, inter alia the ones arising from the membership of Lithuania in the transatlantic security and defence organisation—the North Atlantic Treaty Organisation (NATO); such membership provides Lithuania not only with additional security guarantees, but also implies the necessity to follow the undertaken international commitments.

Thus, the geopolitical orientation of the State of Lithuania means the membership of the Republic of Lithuania in the EU and NATO as well as the necessity to fulfil the corresponding international commitments related with the said membership inter alia in the field of the protection of classified information. Therefore, while regulating the protection of state secrets, the Republic of Lithuania may not establish lower standards of the protection in question than those pertaining to the protection of classified information in the EU and NATO. By following the norms and principles of the Constitution, one may also establish higher standards of the protection of state secrets of the Republic of Lithuania.

III

1. In the constitutional justice case at issue one is disputing inter alia the compliance of Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) with the Constitution, also the compliance of Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) with the Constitution, insofar as it is established in this item that an authorisation to handle or familiarise with classified information or a security clearance is revoked where any of the circumstances referred to in Item 13 of Paragraph 2 of Article 16 of this law arises or transpires.

2. On 16 December 2003, the Seimas adopted the Republic of Lithuania Law on Amending the Law on State Secrets and Official Secrets, by Article 1 whereof it amended the Law on State Secrets and Official Secrets (wording of 25 November 1999 with subsequent amendments and supplements) and set it forth in a new wording. This law came into force on 1 May 2004, and the procedure for implementation thereof is set by the Republic of Lithuania Law on Implementing the Law on Amending the Law on State Secrets and Official Secrets, which was adopted by the Seimas on the same said day (16 December 2003) and which came into force on 7 January 2004.

3. The Law on State Secrets and Official Secrets (wording of 16 December 2003) regulates the relations connected with classifying, storing, using, declassifying of the information comprising a state or official secret, as well as with coordinating and controlling protection actions, and sets minimum requirements for separate fields of protection of classified information (personnel security, administration of classified information, physical security, security of classified contracts, protection of automated data processing systems and networks). This law inter alia prescribes that the classified information of foreign states, the European Union or international organisations released to the Republic of Lithuania is stored and used in accordance with the procedure laid down by international treaties of the Republic of Lithuania, decisions of the international organisations that are based on and implement these treaties, legal acts of the European Union, and this law; in the cases when international treaties of the Republic of Lithuania and/or decisions of the international organisations based on and/or implementing these treaties and legal acts of the European Union set other requirements for the storage and use of classified information of foreign states or international organisations than specified in this law, the provisions of the international treaties and/or decisions of the international organisations based on and/or implementing these treaties, as well as those of legal acts of the European Union, apply (Article 1 of the Law on State Secrets and Official Secrets (wording of 16 December 2003)).

4. Chapter 4 “Personnel Security” of the Law on State Secrets and Official Secrets (wording of 16 December 2003) is designed to regulate the relations connected with the issuance and revocation of an authorisation to handle or familiarise with classified information and a security clearance. This chapter includes Articles 16 and 18, the provisions whereof are disputed by the petitioner in the constitutional justice case at issue.

In Item 15 of Article 2 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) it is consolidated that an authorisation to handle or familiarise with classified information means a document issued in accordance with the procedure laid down by this law and confirming a person’s right to handle or familiarise with the Republic of Lithuania information classified “Top Secret”, “Secret” or “Confidential” or to store or transport such information. In Item 16 of Article 2 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) it is prescribed that a security clearance means a document issued in accordance with the procedure laid down by this law and confirming a person’s right to handle or familiarise with the classified information released by foreign states or international organisations and classified “Top Secret”, “Secret” or “Confidential” or to store or transport such information.

Thus, an authorisation to handle or familiarise with classified information and a security clearance confirm a special right to handle or familiarise with classified information.

5. It needs to be mentioned that after the Seimas had adopted, on 14 December 2010, the Republic of Lithuania Law on Amending and Supplementing Articles 2, 5, 7, 8, 11, 12, 16, 18, 31, 36, 37, 40, 41, 42, 43 and 44 of the Law on State Secrets and Official Secrets and on Amending the Title of Chapter Eight Thereof, inter alia Article 16 (Items 2 and 4 of Paragraph 2 and Paragraph 7 thereof) and Article 18 (Paragraph 5 thereof) of the Law on State Secrets and Official Secrets (wording of 16 December 2003) were amended. However, the disputed Item 13 of Paragraph 2 of Article 16 and Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) as well as other provisions of this law that are of importance in the constitutional justice case at issue have not been amended.

6. Article 16 “Conditions of the Issuance of an Authorisation to Handle or Familiarise with Classified Information and a Security Clearance” of the Law on State Secrets and Official Secrets (wording of 16 December 2003), the provision of Item 13 of Paragraph 2 thereof is being disputed by the petitioner, prescribes:

1. A person applying for an authorisation to handle or familiarise with classified information or for a security clearance shall be issued the said authorisation or clearance where:

1) the person is a citizen of the Republic of Lithuania;

2) the person submits a completed questionnaire of the set form and provides a written consent for screening of his candidacy;

3) the person pledges in writing to protect classified information;

4) the facts collected in the course of the screening cast no doubt as to the person’s reliability or his loyalty to the State of Lithuania;

5) the screening does not establish any circumstance referred to in Paragraph 2 of this Article.

2. An authorisation to handle or familiarise with classified information or a security clearance shall not be issued to a person where the person:

1) does not meet at least one condition referred to in Paragraph 1 of this Article;

2) has permanently resided in the Republic of Lithuania for less than last 5 years, and the Commission for Secrets Protection Coordination has, in accordance with the procedure laid down in Item 11 of Paragraph 5 of Article 11 of this Law, taken a decision not to issue an authorisation to handle or familiarise with classified information or a security clearance;

3) has applied to appropriate state institutions for renunciation of the citizenship of the Republic of Lithuania;

4) has dual citizenship, and the Commission for Secrets Protection Coordination has, in accordance with the procedure laid down in Item 11 of Paragraph 5 of Article 11 of this Law, taken a decision not to issue an authorisation to handle or familiarise with classified information or a security clearance;

5) has been convicted for a crime against the independence of the State of Lithuania, territorial integrity and constitutional order thereof or for any particularly serious crime or a criminal deed related to the seizure of an official secret, other unauthorised acquisition or compromise;

6) has a record of conviction for a serious or less serious crime;

7) has been recognised incapable or of limited capability in accordance with the procedure laid down by laws;

8) has collaborated with or maintains relations with a special service of another state or with the persons collaborating with the special service of another state due to the interests hostile to the Republic of Lithuania;

9) maintains relations with the persons belonging to organised criminal groups or criminal associations;

10) takes part in the activities of a non-registered religious community, political organisation or formations thereof;

11) deliberately concealed from or submitted to the institutions screening his candidacy false biographical facts or other personal data, the data on his connections and surroundings likely to influence a decision on the issuance of an authorisation to handle or familiarise with classified information or a security clearance;

12) has been dismissed for a violation of the procedure for handling classified information in accordance with the procedure laid down by laws or other legal acts or where an authorisation to handle classified information or a security clearance has been revoked for such violations;

13) is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial investigation or operational investigation in relation to the said deed;

14) is subject to the application of preventive measures in accordance with the Law on Organised Crime Prevention;

15) receives income from the military or special services of other states, where this is not provided for in international treaties or agreements of the Republic of Lithuania;

16) cannot prove the lawfulness of acquisition of the property which he manages, uses or has at his disposal, and where his standard of living does not correspond to actual income;

17) abuses alcohol, consumes narcotic, psychotropic or other substances with psychological effects or where other personal and professional qualities due to which he is not suitable for handling classified information are established;

18) suffers from mental disorders or other health disorders which may limit his capabilities and negatively influence his actions.

3. The persons holding authorisations or security clearances granting the right to handle or familiarise with the information applied a higher classification shall not need a separate authorisation or a security clearance to handle or familiarise themselves with the information applied a lower classification.

4. Where a person needs to handle or familiarise with the information applied a higher classification than specified in an authorisation or a security clearance issued to him, his candidacy shall be screened anew.

5. A security clearance and an authorisation to handle or familiarise with the information classified “Top Secret” shall be issued for a time period not exceeding five years, and that to handle or familiarise with the information classified “Secret”, “Confidential”—for a time period not exceeding ten years. This time period shall start from the date of signing the consent of the State Security Department to issue the said authorisation or from the date of submission of a conclusion of an institution which has carried out the screening of a candidacy, where the authorisation to handle or familiarise with classified information or the security clearance is issued to covert participants in operational investigative activities, undercover intelligence staff members and the persons engaged in undercover cooperation with intelligence services.

6. Additional screening of a person shall be carried out six months prior to the expiry of validity of an authorisation to handle or familiarise with classified information or a security clearance. The person may also be subject to repeated screening prior to the expiry of the time periods established by this Article, where the circumstances provided for in Paragraph 2 of this Article are suspected to have arisen. In the course of the repeated screening and by a decision of the head of an entity of secrets, the person may be prohibited from handling classified information.

7. A decision on the denial of an authorisation to handle or familiarise with classified information, the denial of a security clearance, an objection of the State Security Department on the issuance to a person of the said authorisation as well as a decision of the institutions screening the candidacy to terminate the screening of the candidacy, upon the establishment of the circumstances referred to in Paragraph 2 of this Article, may be appealed against by the person or an entity of secrets to the Commission for Secrets Protection Coordination within 30 working days of the receipt of such a decision. Where necessary, the Commission shall require the institutions which have carried out the screening of the candidacy to collect and submit additional data on the person. The decision of the Commission for Secrets Protection Coordination shall be binding on the entity of secrets.

8. The persons whose duties involve the use of the information comprising an official secret and classified “Restricted” or the protection thereof shall be granted the right to handle or familiarise with the said information by an entity of secrets. The consent of the State Security Department shall not be required. The procedure for the granting of the right to handle or familiarise with such information shall be laid down by entities of secrets on the basis of the basic principles approved by the Commission for Secrets Protection Coordination.”

7. Thus, under Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), which is being disputed in the constitutional justice case at issue, an authorisation to handle or familiarise with classified information or a security clearance is not issued where at least one of the following circumstances arises:

the person is being brought to criminal liability for an intentional criminal deed;

in respect of the person, a pre-trial investigation is being conducted in relation to an intentional criminal deed;

in respect of the person, an operational investigation is being conducted in relation to an intentional criminal deed.

8. Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), which is being disputed in the constitutional justice case at issue, is to be construed together with other provisions of this law.

8.1. Item 4 of Paragraph 1 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) prescribes that a person applying for an authorisation to handle or familiarise with classified information or for a security clearance is issued the said authorisation or clearance where the facts collected in the course of the screening cast no doubt as to the person’s reliability or his loyalty to the State of Lithuania.

Thus, Item 4 of Paragraph 1 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) consolidates a general requirement for personnel security that an authorisation to handle or familiarise with classified information or a security clearance may be held only by such a person whose reliability and loyalty to the State of Lithuania cast no doubt. While taking account of this, in the context of the constitutional justice case at issue it needs to be noted that the disputed Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) is designed for ensuring the said general requirement for personnel security.

8.2. Paragraph 1 of Article 15 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) prescribes that a position connected with the use of the information of the Republic of Lithuania classified “Top Secret”, “Secret”, “Confidential” or assigned equivalent classifications, or with the protection of the said information, may be held only by persons holding appropriate authorisations to handle or familiarise with classified information, while a position connected with the use of the classified information of foreign states or international organisations assigned the classifications equivalent to “Top Secret”, “Secret” or “Confidential”, or with the protection of the said information, may be held only by persons holding appropriate security clearances.

Thus, in the context of the constitutional justice case at issue it needs to be noted that the holding of an authorisation to handle or familiarise with classified information or a security clearance is an essential special condition established to the person in order to hold a position in the state service which is connected with the use of classified information or protection thereof.

9. While summing up the legal regulation established in Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) in the context of the other aforementioned provisions of this law, it needs to be noted that by means of the said legal regulation one seeks to ensure the general requirement for personnel security that an authorisation to handle or familiarise with classified information or a security clearance may be held only by such a person whose reliability and loyalty to the State of Lithuania cast no doubt: the said Item 13 specifies the circumstances casting doubt as to the reliability of a person seeking to hold a position in the state service the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, as well as to the loyalty of such a person to the State of Lithuania—where the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed. In cases where any of these circumstances arises, the person may not be issued an authorisation to handle or familiarise with classified information or a security clearance. Therefore, until there exists any of the circumstances specified in Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), a person seeking to hold a position in the state service the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance may not be appointed to such a position.

10. It has been mentioned that in the constitutional justice case at issue the petitioner also disputes Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), insofar as it is established therein that an authorisation to handle or familiarise with classified information or a security clearance is revoked where any of the circumstances referred to in Item 13 of Paragraph 2 of Article 16 of this law arises or transpires.

Article 18 “Revocation of an Authorisation to Handle or Familiarise with Classified Information and a Security Clearance” of the Law on State Secrets and Official Secrets (wording of 16 December 2003) prescribes:

1. An authorisation to handle or familiarise with classified information and a security clearance shall be revoked where:

1) the person renounces or loses the citizenship of the Republic of Lithuania;

2) the person has on repeated occasions violated the procedure laid down for handling classified information, or where, due to a grave breach of this procedure, a threat has arisen of a loss or compromise of classified information;

3) the employment (service) relations are terminated with an entity of secrets or the powers of the persons elected or appointed to the position expire;

4) any of the circumstances referred to in Paragraph 2 of Article 16 of this Law arises or transpires.

2. An entity of secrets shall, on its own initiative or upon a reasoned recommendation of the State Security Department, revoke an authorisation to handle or familiarise with classified information. The entity of secrets shall give a written notice of a decision taken on the revocation of the authorisation to handle or familiarise with classified information to the State Security Department within 10 working days.

3. Upon the request of a person whose authorisation to handle or familiarise with classified information or security clearance has been revoked, an entity of secrets must provide a written specification of the reasons for the revocation of the authorisation to handle or familiarise with classified information.

4. The Commission for Secrets Protection Coordination shall revoke a security clearance on its own initiative or upon a reasoned recommendation of the State Security Department or an entity of secrets.

5. Upon the receipt of a reasoned recommendation of the State Security Department on the revocation of an authorisation, the person or the entity of secrets shall have the right to appeal against a decision on the revocation of an authorisation to handle or familiarise with classified information or a security clearance to the Commission for Secrets Protection Coordination within 30 working days of the receipt of the decision. Where necessary, this commission shall require the institutions that have carried out the screening of a candidacy to collect and submit additional data on the person. The decision of the Commission for Secrets Protection Coordination shall be binding on the entity of secrets.

6. The revocation of an authorisation to handle or familiarise with classified information or a security clearance shall not relieve the person from the obligation not to disclose the classified information obtained in the course of service as well as from liability for a disclosure of such information.”

11. Thus, under Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), an authorisation to handle or familiarise with classified information or a security clearance issued to a person is revoked where inter alia any of the circumstances referred to in Item 13 of Paragraph 2 of Article 16 of this law arises or transpires:

the person is being brought to criminal liability for an intentional criminal deed;

in respect of the person, a pre-trial investigation is being conducted in relation to an intentional criminal deed;

in respect of the person, an operational investigation is being conducted in relation to an intentional criminal deed.

12. It has been mentioned that in the constitutional justice case at issue Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), in the aspects disputed by the petitioner, is inseparable from Item 13 of Paragraph 2 of Article 16 of the same law. Therefore, the disputed provisions of Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), as well as Item 13 of Paragraph 2 of Article 16 of the of this law, are to be construed alongside Item 4 of Paragraph 1 of Article 16 and Paragraph 1 of Article 15 of the same law.

12.1. It has been mentioned that Item 4 of Paragraph 1 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) consolidates the general requirement for personnel security that an authorisation to handle or familiarise with classified information or a security clearance may be held only by such a person whose reliability and loyalty to the State of Lithuania cast no doubt. It has also been mentioned that Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) is designed for ensuring the general requirement for personnel security.

Consequently, the legal regulation laid down in Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) also serves for the purpose of ensuring the general requirement for personnel security that an authorisation to handle or familiarise with classified information or a security clearance may be held only by such a person whose reliability and loyalty to the State of Lithuania cast no doubt. However, differently from Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), Item 4 of Paragraph 1 of Article 18 of this law relates not to persons seeking to hold a position in the state service the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, but it relates to persons already holding such a position, i.e. persons who already hold an authorisation to handle or familiarise with classified information or a security clearance. In other words, Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) regulates the revocation of the said authorisation or clearance and prescribes that such an authorisation or clearance must be revoked where inter alia any of the circumstances referred to in Item 13 of Paragraph 2 of Article 16 of this law arises or transpires.

12.2. It has been mentioned that, under Paragraph 1 of Article 15 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), the holding of an authorisation to handle or familiarise with classified information or a security clearance is an essential condition for holding a position in the state service which is connected with the use of classified information or protection thereof.

While taking account of this, it needs to be noted that, under Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), once an authorisation to handle or familiarise with classified information or a security clearance is revoked, inter alia where any of the circumstances referred to in Item 13 of Paragraph 2 of Article 16 of this law arises or transpires, a person, who used to hold such an authorisation or clearance, no longer meets a necessary special condition for holding a position in the state service which is connected with the use of classified information or protection thereof.

13. The disputed legal regulation established in Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) is also to be construed in the context of Paragraph 6 of Article 16 of the same law. Paragraph 6 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) inter alia prescribes that the person may be subject to repeated screening where the circumstances provided for in Paragraph 2 of this article are suspected to have arisen.

To the extent the said fact is related to the disputed legal regulation established in Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), such repeated screening of the person, under Paragraph 6 of Article 16 of this law, would be possible only when seeking to determine whether there are no circumstances referred to in Item 13 of Paragraph 2 of Article 16, i.e. whether the person is not being brought to criminal liability for an intentional criminal deed or whether the person is not subject to a pre-trial or operational investigation in relation to the said deed. However, once in the course of such screening it is established that there is any of the said circumstances, under Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), in all cases an authorisation to handle or familiarise with classified information or a security clearance must be revoked without any additional screening of the person who is issued such an authorisation or clearance.

14. The provision of Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), which is being disputed in the context of the constitutional justice case at issue, is also to be construed together with the legal regulation established in the Statute of the Internal Service.

Item 17 of Paragraph 1 of Article 53 of the Statute of the Internal Service prescribes:

An official shall be dismissed from the internal service:

<…>

17) Where, in the manner prescribed by laws, he is deprived of the special rights related to the performance of his direct duties.”

Thus, Item 17 of Paragraph 1 of Article 53 of the Statute of the Internal Service provides for a ground for dismissing an official from the internal service—where, in the manner prescribed by laws, he is deprived of a special right necessary for the performance of his direct duties. In respect of the officials of the internal service whose duties are connected with the use of classified information and protection thereof, such a special right is the right to handle or familiarise with classified information, since, as mentioned, Paragraph 1 of Article 15 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) prescribes that a position connected with the use of classified information or protection thereof may be held only by persons holding an authorisation to handle or familiarise with classified information or a security clearance. Such an authorisation or clearance confirms this special right which is necessary for holding the said position (Paragraphs 15 and 16 of Article 2 of the Law on State Secrets and Official Secrets (wording of 16 December 2003)).

Consequently, upon the revocation of the authorisation to handle or familiarise with classified information or the security clearance of an official of the internal service whose position is connected with the use of classified information or protection thereof, according to Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), inter alia where any of the circumstances referred to in Paragraph 2 of Article 16 of this law arises or transpires (the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed), the official must be dismissed from the internal service in accordance with Item 17 of Paragraph 1 of Article 53 of the Statute of the Internal Service.

15. It needs to be noted that Paragraph 1 of Article 56 of the Statute of the Internal Service prescribes:

If there are the grounds referred to in Items 2–10, 13, 14 and 17 of Paragraph 1 of Article 53 of this Statute, an official shall be dismissed from the internal service on the next day after the occurrence or establishment of the fact (circumstance) because of which the official may not continue the service. If there are such grounds, the official may be dismissed from the internal service also during the period of his temporary incapacity for work and the period of his leave.”

Thus, under Paragraph 1 of Article 56 of the Statute of the Internal Service, an official of the internal service whose position is connected with the use of classified information and protection thereof must be dismissed from service on the next day after the revocation, in the manner prescribed by the Law on State Secrets and Official Secrets, of his authorisation to handle or familiarise with classified information or his security clearance. The Statute of the Internal Service, inter alia Paragraph 6 of Article 56 thereof, does not prescribe that a person, after being deprived of a special right necessary for the performance of his direct duties (in the context of the constitutional justice case at issue—the right to handle or familiarise with classified information), in case there is a possibility, must be transferred to an equivalent position or, upon his consent—to a lower position the holding of which does not require the said special right.

16. While summing up the disputed legal regulation laid down in Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) in the context of the other aforementioned provisions of this law and the Statute of the Internal Service, it needs to be noted that:

Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) is designed to ensure the general requirement for personnel security that an authorisation to handle or familiarise with classified information or a security clearance may be held only by such a person whose reliability and loyalty to the State of Lithuania cast no doubt: the said item specifies the circumstances casting doubts as to the reliability of a person holding a position in the state service which requires an authorisation to handle or familiarise with classified information or a security clearance, as well as to the loyalty of such a person to the State of Lithuania, inter alia these are the circumstances referred to in Item 13 of Paragraph 2 of Article 16 of this law (the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed);

in all cases where any of the circumstances referred to in Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) arises or transpires (the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed), according to Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), the authorisation to handle or familiarise with classified information or the security clearance of the person must be revoked; a person, who is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed, may not be subject to repeated screening as to his reliability and loyalty to the State of Lithuania, by prohibiting him, in the course of such screening, from handling classified information;

after, in accordance with Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), the authorisation to handle or familiarise with classified information or a security clearance of a person is revoked, the person, who used to hold such an authorisation or clearance, no longer meets a necessary special condition for holding a position in the state service which is connected with the use of classified information or protection thereof; where such a person is an official of the internal service, he must be dismissed from the internal service in accordance with Item 17 of Paragraph 1 of Article 53 of the Statute of the Internal Service (once, in the manner prescribed by laws, he is deprived of a special right necessary for the performance of his direct duties).

17. In the constitutional justice case at issue one is also disputing the compliance of Article 28 (wording of 15 May 2007) of the Statute of the Internal Service with the Constitution, insofar as this article does not provide for the powers of the superior, who has the right to appoint a person to the position, to suspend an official from a position the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, in cases where the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed.

18. On 29 April 2003, the Seimas adopted the Republic of Lithuania Law on the Approval of the Statute of the Internal Service, which came into force on 1 May 2003. By Article 1 “Approval of the Statute of the Internal Service” of this law the Statute of the Internal Service was approved.

The Statute of the Internal Service laid down the principles of the internal service, the status of the officials of the internal service system, recruitment to and dismissal from the service, enrolment and training at establishments of professional training in the field of internal affairs, responsibility of the officials, incentives, social and other guarantees, peculiarities of activities of the trade unions in statutory institutions of internal affairs, as well as peculiarities of recruitment of other state servants to the service in statutory institutions of internal affairs (Article 1 of the Statute of the Internal Service).

19. On 15 May 2007, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing Articles 14 and 28 of the Statute of the Internal Service, which came into force on 29 May 2007. By means of this law, the legislator amended and supplemented inter alia Article 28 “Suspension from Office of an Official” of the Statute of the Internal Service, inter alia it supplemented this article with a new Paragraph 3, which provides that an official may be suspended from office in the manner prescribed by the Code of Criminal Procedure where a pre-trial investigation is being launched.

20. Article 28 “Suspension from Office of an Official” (wording of 15 May 2007) of the Statute of the Internal Service prescribes:

1. An official intoxicated with alcohol, drugs, psychotropic substances or other toxic substances during office hours shall be suspended by his immediate superior for the rest office hours of that working day.

2. During a service-related inspection an official may be suspended from office by order of the superior who has the right to appoint to the position, but no longer than for 3 months. This period shall not include the duration of the official’s illness or his annual leave.

3. If a pre-trial investigation is being launched, an official may be suspended from office in the manner prescribed by the Code of Criminal Procedure.

4. If an official is suspended from office, as well as in the cases when he is suspended from office in the manner prescribed by the Code of Criminal Procedure, the remuneration for work shall not be paid to the official during the period of his suspension from office. In these cases the restrictions specified in Paragraph 3 of Article 24 of this Statute shall not apply to the official.

5. An official suspended from office in the manner prescribed in Paragraphs 1, 2, 3 and 4 of this Article shall, from the moment of suspension from office, return the certificate of employment, special badge, service firearm, special means and explosives to the superior who has the right to appoint to the position or to the official authorised by him, and hand over to him the service-related documents, inventories, other work equipment entrusted to him.

6. Upon the establishment in the course of a service-related inspection that an official has not performed the misconduct in office, that he has not been found guilty in the manner prescribed by law for the administrative violation of law or commission of a criminal deed, as well as in the cases when it is established that the official has performed the misconduct in office, but the time limits of prescription with regard to the imposing of a service-related penalty have expired, he shall continue holding the position, and within 5 days from the moment he started holding the position anew he shall be paid the work remuneration for the period during which he was suspended from office, as well as the surcharges for the late payment, calculated in the manner prescribed by the Government.

7. The period during which an official has been suspended from office shall not be included in the length of the internal service, with the exception of the cases when in the course of a service-related inspection it is recognised that the official has not performed the misconduct in office, that he has not been found guilty in the manner prescribed by law for the administrative violation of law or commission of a criminal deed, as well as in the cases when it is established that the official has performed the misconduct in office, but the time limits of prescription with regard to the imposing of a service-related penalty have expired.

8. Inscriptions about the decisions to suspend an official from office shall be included in the official’s service record.”

21. Thus, Article 28 (wording of 15 May 2007) of the Statute of the Internal Service provides for the following cases of suspension from office of an official of the internal service:

due to the intoxication with alcohol, drugs, psychotropic substances or other toxic substances during office hours—by a decision of his immediate superior;

during a service-related inspection—by order of the superior who has the right to appoint to the position; under Paragraph 6 of Article 26 of the Statute of the Internal Service, a service-related inspection is carried out if there is information about the misconduct in office done by an official;

upon launching a pre-trial investigation—in the manner prescribed by the Code of Criminal Procedure.

It needs to be noted that the Statute of the Internal Service provides for no other cases of suspension from office of an official of the internal service.

In this context one needs to mention one more case of temporary suspension from office which is provided for in Paragraph 4 of Article 157 of the Code of Criminal Procedure: after referring the case to court, the court, at whose disposal the case has been placed, may adjudicate on the question of the temporary suspension of an official from office.

22. In the context of the constitutional justice case at issue the legal regulation established in Article 28 of the Statute of the Internal Service is to be construed alongside Article 157 “Temporary Suspension from Office or Temporary Suspension of the Right to Engage in Certain Activity” (wording of 21 September 2010) of the Code of Criminal Procedure, wherein it is established:

1. In the course of an investigation into a criminal deed a judge of pre-trial investigation, upon the receipt of a prosecutor’s request, shall have the right, by his ruling, to temporarily suspend the suspect from office or to temporarily suspend the suspect’s right to engage in certain activity if it is necessary, so that the criminal deed be investigated more speedily and more objectively or the suspect be prevented from the possibility of committing new criminal deeds. The ruling on the temporary suspension of the suspect from office shall be sent to the suspect’s employer for execution.

2. Temporary suspension from office or temporary suspension of the right to engage in certain activity may not last longer than six months. Where necessary, the application of the said measure may be extended for up to three additional months. The number of extensions shall be unlimited.

3. A ruling on the temporary suspension from office or temporary suspension of the right to engage in certain activity, as well as a ruling on extending the term of application of the said measure, may be appealed against to a higher court by the suspect or his defender within seven days of the day of the announcement of the ruling to the suspect. A ruling adopted by the said court shall be final and not subject to appeal.

4. After the case is referred to court, a decision regarding the temporary suspension from office or temporary suspension of the right to engage in certain activity shall be adopted by the court at whose disposal the case has been placed.

5. In the course of a pre-trial investigation the prosecutor, and after the case is referred to court—the court, must rescind the temporary suspension from office or temporary suspension of the right to engage in certain activity, once this measure becomes no longer necessary.”

Thus, although Paragraph 3 of Article 28 (wording of 15 May 2007) of the Statute of the Internal Service provides that an official may be suspended from office in the manner prescribed by the Code of Criminal Procedure once a pre-trial investigation is launched, under Paragraph 1 of Article 157 of the Code of Criminal Procedure, one may temporarily suspend from office an official of the internal service who is suspected of committing a criminal deed (the suspect). In this case the official is temporarily suspended from office not by his superior, who has the right to appoint a person to the position, but he is suspended from office by a ruling of the judge of pre-trial investigation upon the receipt of a prosecutor’s request. By means of such suspension one seeks not to ensure the protection of classified information, but to investigate a criminal deed in a more speedy and objective manner or to prevent a possibility of committing new criminal deeds.

23. In the context of the constitutional justice case at issue, while summing up the regulation laid down in Article 28 (wording of 15 May 2007) of the Statute of the Internal Service, it needs to be noted that this article does not provide for the powers of the superior, who has the right to appoint a person to the position, to suspend an official from a position the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, in the cases where the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed, nor does it provide for any other cases of suspension from office of an official of the internal service when it is necessary to ensure the protection of classified information.

In this context it also needs to be noted that an establishment of internal affairs, which, under Paragraph 3 of Article 2 of the Statute of the Internal Service, is defined as a public legal entity falling under the management of the Ministry of the Interior, implementing the national policy in the field of public security, and the service of the officials of which is organised on the statutory basis, is at the same time also an entity of secrets, which, under Paragraph 8 (wording of 14 December 2010) of Article 2 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), is inter alia defined as a state institution the activities of which are related to classifying and declassifying of information, use of classified information and/or protection thereof. Thus, the head of an establishment of internal affairs, who has the right to appoint a person to the position, is at the same time also the head of an entity of secrets, who, under Paragraph 2 of Article 12 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), is responsible for an overall organisation and condition of the protection of classified information.

IV

1. It needs to be noted that from the intentions of the legislator recorded in the travaux préparatoires it is clear that the Law on State Secrets and Official Secrets (wording of 16 December 2003) was adopted while implementing the legal acts of NATO and the EU which regulate the protection of classified information, inter alia the standards for personnel security.

2. In the Annex of the Law on State Secrets and Official Secrets (wording of 16 December 2003) one indicates an EU legal act which is being implemented—the decision of the Council of the EU of 19 March 2001 (2001/264/EC) adopting the security regulations of the Council of the European Union (special issue of the OJ of 2004, Chapter 1, Vol. 3., pp. 263–328).

The security regulations of the Council of the European Union, which were approved by the said decision of the Council of the EU, inter alia consolidated that the security measures must be such that would enable to detect individuals whose position might endanger the security of classified information and important installations housing classified information and provide for their exclusion or removal.

The security regulations of the Council of the European Union also provided that individuals who require access to information classified CONFIDENTIEL UE or above must be appropriately cleared before such access is authorised. This clearance must be designed to determine whether such individuals: are inter alia of unquestioned loyalty; are of such character and discretion as to cast no doubt upon their integrity in the handling of classified information; may be vulnerable to pressure from foreign or other sources, e.g. due to former residence or past associations which might constitute a risk to security. Personnel security measures also include the procedures established to ensure that, when adverse information becomes known concerning an individual, it is determined whether the individual is employed on classified work or has access to mission-critical communication or information systems, and the authority concerned informed; if it is established that such an individual constitutes a security risk, he or she shall be barred from assignments or removed from positions where he or she might endanger security.

3. It needs to be noted that the EU legal act under implementation that is indicated in the Annex of the Law on State Secrets and Official Secrets (wording of 16 December 2003)—the decision of the Council of the EU of 19 March 2001 (2001/264/EC) adopting the security regulations of the Council of the European Union—was repealed and replaced by the decision of the Council of the EU of 31 March 2011 (2011/292/EU) on the security rules for protecting EU classified information (OJ L 141, 2011 5 27, pp. 17–65), which came into force on 27 May 2011.

3.1. The decision of the EU Council of 31 March 2011 (2011/292/EU) on the security rules for protecting EU classified information lays down the basic principles and minimum standards of security for protecting EU classified information, which apply to the Council and the General Secretariat of the Council and must be respected by the Member States in accordance with their respective national laws and regulations, in order that each may be assured that an equivalent level of protection is afforded to EU classified information (Article 1).

Article 7 “Personnel Security” of the said decision lays down the bases for measures of personnel security assurance. This article inter alia provides that investigative personnel security procedures are designed to determine whether an individual, taking into account his loyalty, trustworthiness and reliability, may be authorised to access EU classified information; all individuals in the General Secretariat of the Council whose duties may require them to have access to EU information classified CONFIDENTIEL UE/EU CONFIDENTIAL or above must be security cleared to the relevant level before being granted access to such EU classified information.

In Appendix A of the decision of the EU Council of 31 March 2011 (2011/292/EU) personnel security investigation is defined as the investigative security procedures conducted, following the national laws in force and regulations, by a competent institution, in order to obtain assurance that there is no adverse information concerning an individual which would not allow to grant the individual a national or EU personnel security clearance enabling to have access to EU classified information up to a specified level (CONFIDENTIEL UE/EU CONFIDENTIAL or above).

3.2. Provisions for implementing Article 7 of the decision of the EU Council of 31 March 2011 (2011/292/EU) are set out in Annex I of this decision. Annex I of the said decision inter alia specifies the criteria for personnel security investigation, on the basis of which it is determined whether an individual, taking into account his loyalty, trustworthiness and reliability, may be issued a personnel security clearance authorising to have access to EU information classified CONFIDENTIEL UE/EU CONFIDENTIAL or above. Taking account of national laws and regulations, the said principal criteria inter alia include an examination of whether the individual has been convicted of a criminal offence or offences, is or has been involved in conduct which may give rise to the risk of vulnerability to blackmail or pressure, by his act or through speech, has demonstrated dishonesty, disloyalty, unreliability or untrustworthiness, may be liable to pressure (e.g., through holding one or more non-EU nationalities or through relatives or close associates who could be vulnerable to foreign intelligence services, terrorist groups or other subversive organisations, or individuals, whose aims may threaten the security interests of the EU and/or Member States); where appropriate and in accordance with national laws and regulations, an individual’s financial and medical background, also spouse’s, cohabitant’s or close family member’s character, conduct and circumstances may also be considered relevant during the security investigation.

Annex I of the decision of the EU Council of 31 March 2011 (2011/292/EU) lays down the investigative and administrative procedures that are to be followed for the purposes of personnel security investigation. It is provided therein inter alia that, where necessary and in accordance with national laws and regulations, additional investigations may be conducted to develop all relevant information available on an individual and to substantiate or disprove adverse information. Where information becomes known concerning a security risk posed by an individual who holds a valid EU personnel security clearance, the relevant national security authority must be notified thereon by acting in accordance with the relevant rules and regulations. If the adverse information is confirmed, the EU personnel security clearance is withdrawn and the individual is excluded from access to EU classified information and from positions where such access is possible or where he might endanger security.

4. The security standards of NATO classified information are inter alia established in the Agreement Between the Parties to the North Atlantic Treaty for the Security of Information of 6 March 1997, which was concluded for the implementation of the commitments of the NATO members, laid down in Article 3 of the North Atlantic Treaty, to collaborate in developing collective capacity to resist armed attack. The Agreement Between the Parties to the North Atlantic Treaty for the Security of Information was ratified by Article 1 of the Republic of Lithuania Law “On the Ratification of the Agreement Between the Parties to the North Atlantic Treaty for the Security of Information, the NATO Agreement for the Mutual Safeguarding of Secrecy of Inventions Relating to Defence and for which Applications for Patents Have Been Made, and the NATO Agreement on the Communication of Technical Information for Defence Purposes”, which was adopted by the Seimas on 15 July 2004. Under Paragraph 2 of Article 3 of the said law, in the Republic of Lithuania, the Agreement Between the Parties to the North Atlantic Treaty for the Security of Information must be implemented by following the security standards established by the decisions of the North Atlantic Council and other requirements for the implementation procedure and application of such agreements.

4.1. Article 3 of the Agreement Between the Parties to the North Atlantic Treaty for the Security of Information lays down the obligation for the Parties to ensure that all persons of their respective nationality who, in the conduct of their official duties, require or may have access to information classified CONFIDENTIAL and above are appropriately cleared before they take up their duties; the investigative security procedures must be designed to determine whether an individual can, taking into account his or her loyalty, trustworthiness and reliability, have access to classified information without constituting an unacceptable risk to security.

4.2. In other NATO documents, which were adopted in the course of implementing the Agreement Between the Parties to the North Atlantic Treaty for the Security of Information (inter alia NATO document C-M(2002)49 “Security Within the North Atlantic Treaty Organisation (NATO)”) inter alia it is prescribed that personnel security procedures must be designed to assess whether an individual can, taking into account his loyalty, trustworthiness and reliability, be authorised to have access to classified information without constituting an unacceptable risk to security, also that all individuals whose duties require access to information classified NATO CONFIDENTIAL and above must be sufficiently investigated to give a satisfactory level of confidence as to their eligibility for access to such information. The said documents inter alia also set out the principal criteria for assessing the loyalty, trustworthiness and reliability of an individual when the question of a personnel security clearance is being decided. These criteria are applied in establishing the aspects of an individual’s reputation or the circumstances that may pose potential security problems. The said criteria inter alia include information on whether an individual and, where necessary and in accordance with national regulations, his spouse, cohabitant or close family member, by act or through speech, has not demonstrated dishonesty, disloyalty, unreliability or untrustworthiness, whether he has not been convicted of a criminal offence or offences showing the recidivism tendencies, whether he may not be liable to pressure through relatives or close associates who could be vulnerable to foreign intelligence services, terrorist groups or other subversive organisations or individuals whose aims may threaten the security interests of NATO and/or NATO Member States. Personnel security measures also include the procedures established to ensure that, when adverse information becomes known concerning an individual, it is determined whether the individual may be authorised to continue to hold a personnel security clearance; if it is determined that such an individual constitutes an unacceptable risk to security, the personnel security clearance must be withdrawn and the individual must be excluded from access to NATO classified information and from positions where he might endanger security.

5. Thus, the NATO and EU documents set similar standards for protection of classified information. While summing up these standards, in the context of the constitutional justice case at issue it needs to be noted that they are inter alia designed to ensure that only such individuals are authorised to have access to classified information whose loyalty, trustworthiness and reliability have been verified and cast no doubt. Personnel security procedures must be designed to assess whether an individual, taking into account his or her loyalty, trustworthiness and reliability, may be authorised to have access to classified information without constituting an unacceptable risk to the security of such information. The principal and minimum criteria for assessing the loyalty, trustworthiness and reliability of an individual are not related only to the guilt of the individual in committing a criminal deed or other violation of law; these criteria also include information on potential security threats: personal qualities, activity and other circumstances providing evidence on the person’s dishonesty, disloyalty, unreliability or negligence, also his vulnerability through his close associates. The applicable security measures should also be such that would enable to detect the persons already employed on and having access to classified information whose position might endanger the security of classified information and would provide for their exclusion or removal. When adverse information becomes known concerning an individual, an investigation must be carried out on whether his continued employment on work with classified information does not constitute an unacceptable risk to the security of such information, and if such a security risk is established, the individual must be denied a possibility to have access to classified information—he must be barred from assignments connected with classified information, excluded from duties requiring access to classified information, or be removed from such positions. In this context it needs to be mentioned that it is important that an individual whose continued employment on work with classified information would constitute an unacceptable risk to the security of such information would not be allowed to have access to classified information and would not perform corresponding duties. This may be achieved by means of various legal measures, i.e. not only by removing an individual from office, but also by applying the measures milder in nature—excluding from duties or barring from assignments connected with classified information.

It also needs to be mentioned that NATO and EU documents lay down the principal and minimum (most essential) personnel security standards, i.e. national law may also provide for additional and more stringent criteria used for assessing the loyalty and reliability of a person, as well as additional and more stringent measures for ensuring personnel security.

V

On the compliance of Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) with Paragraph 1 of Article 31, the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 and the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

1. It has been mentioned that in the constitutional justice case at issue the petitioner doubts as to whether Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) is not in conflict with Paragraph 1 of Article 31, the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 and the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

2. As mentioned, the disputed Item 13 of Paragraph 2 of Article 16 “Conditions of the Issuance of an Authorisation to Handle or Familiarise with Classified Information and a Security Clearance” of the Law on State Secrets and Official Secrets prescribes:

An authorisation to handle or familiarise with classified information or a security clearance shall not be issued to a person where the person:

<…>

13) is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial investigation or operational investigation in relation to the said deed.”

3. It has been mentioned that the disputed Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) specifies the circumstances under which doubts are raised as to the reliability of a person seeking to hold a position in the state service, the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, as well as to the loyalty of such a person to the State of Lithuania, and under which such an authorisation or clearance may not be issued.

4. In the opinion of the petitioner, Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) is in conflict with inter alia the principle of the presumption of a person’s innocence, which is entrenched in Paragraph 1 of Article 31 of the Constitution, since a person may not be regarded as guilty of committing a criminal deed and, due to such a deed, he may not be prohibited from holding a position connected with the use of classified information or protection thereof, until his guilt is established by an effective court judgement.

4.1. In this Constitutional Court ruling it has been noted that a special condition established for persons seeking to hold or holding a position in the state service which is connected with the use of classified information or protection thereof is an especial and not in the least questionable reliability of these persons as well as their loyalty to the Sate of Lithuania; this condition is to be linked to the trust of the state in such persons.

4.2. When construing in this Constitutional Court ruling the principle of the presumption of a person’s innocence, which is entrenched in Paragraph 1 of Article 31 of the Constitution, it has been mentioned that the fact that a person is not regarded as guilty of committing a criminal deed until his guilt in committing the said deed is proven in accordance with the procedure established by law and recognised by an effective court judgement does not yet mean that a person seeking to hold or holding a position in the state service which is connected with the use of classified information or protection thereof necessarily deserves the trust of the state, and that a state institution authorised by law cannot have certain doubts as to the reliability of that person or his loyalty to the State of Lithuania, which would be raised not by the established guilt of the person in committing a criminal deed, but by certain significant circumstances, inter alia the ones relating to a possibly committed criminal deed. It has also been mentioned that, in assessing the said circumstances, a state institution authorised by law does not administer justice, nor does it judge the person’s guilt in committing a criminal deed.

4.3. Thus, when the question of the issuance of an authorisation to handle or familiarise with classified information is being decided, the screening of the person is carried out in order to determine whether the person may be trusted, i.e. whether there are no doubts as to his reliability or loyalty to the State of Lithuania, so that no threat would be posed to the security of classified information. Therefore, in the area of the relations regulated by the Law on State Secrets and Official Secrets, when one is deciding on the reliability of a person and his loyalty to the State of Lithuania, inter alia on the issuance of an authorisation to handle or familiarise with classified information or a security clearance, the question of the person’s guilt in committing a criminal deed is not considered.

4.4. Taking account of the arguments set forth, one is to draw a conclusion that Item 13 of Paragraph 2 of Article16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) is not in conflict with Paragraph 1 of Article 31 of the Constitution.

5. In the opinion of the petitioner, Item 13 of Paragraph 2 of Article16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) is in conflict with inter alia the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 and the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law, since the limitation of the constitutional right to a job—prohibiting a person from holding a position of the state servant which is connected with the use of classified information or protection thereof, which is established by the disputed legal regulation, is a disproportionate one to the objective of a democratic society to protect the state against possible criminal deeds or other consequences of dangerous violations.

5.1. It has been mentioned that the right to enter on equal terms in the State service, which is entrenched in Paragraph 1 of Article 33 of the Constitution, is to be linked to inter alia the right of each human being to freely choose a job, which is entrenched in Paragraph 1 of Article 48 of the Constitution. The constitutional right of the citizen to enter on equal terms in the state service of the Republic of Lithuania is a version of the constitutional right of each person to freely choose a job.

5.2. It has also been mentioned that, while creating the legal preconditions for the implementation of the right to freely choose a job (thus, also to enter in the state service), the legislator is empowered, by taking account of the nature of a job, to establish the conditions for the implementation of the right to freely choose a job. The right of citizens to enter in the state service of the Republic of Lithuania is not absolute.

5.3. In this Constitutional Court ruling the following has been inter alia held:

a special condition established for persons seeking to hold or holding a position in the state service which is connected with the use of classified information or protection thereof is an especial and not in the least questionable reliability of these persons as well as their loyalty to the Sate of Lithuania;

the legislator enjoys broad discretion while regulating the relations connected with the protection of state secrets and official secrets, inter alia when establishing the criteria for the reliability of persons seeking to hold or holding a position in the state service which is connected with the use of classified information or protection thereof and the loyalty of these persons to the State of Lithuania, as well as when setting the procedures for screening these persons;

the legislator may provide for such measures of the protection of classified information that would enable to prevent, in advance, threats to the security of classified information and at the same time—threats to state interests.

5.4. It needs to be noted that the circumstances that a person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed, may imply the person’s vulnerability and at the same time raise doubts as to his reliability and loyalty to the State of Lithuania.

5.5. By establishing in the disputed Item 13 of Paragraph 2 of Article16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) that an authorisation to handle or familiarise with classified information or a security clearance is not issued due to the fact that a person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed, the legislator, differently from what is maintained by the petitioner, was seeking not to protect the state from possible criminal deeds or other consequences of dangerous violations, but it has created the preconditions that no person whose reliability and loyalty to the State of Lithuania raise doubts be authorised to have access to classified information. Therefore, such legal regulation is to be assessed as preventing possible damage to the state interests related to the protection of classified information.

In this Constitutional Court ruling it has also been held that one can permit only such a person to familiarise himself with state secrets whose activity, qualities, connections, etc. cannot give grounds to fear that in case he learns a state secret, there would be a threat, let alone damage, inflicted upon important state interests.

5.6. Thus, by the legal regulation established in Item 13 of Paragraph 2 of Article16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), under which an authorisation to handle or familiarise with classified information or a security clearance is not issued to a person where the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed, the right of the citizen to enter on equal terms in the state service of the Republic of Lithuania, entrenched in Paragraph 1 of Article 33 of the Constitution, as well as the right of a person to choose a job, entrenched in Paragraph 1 of Article 48 of the Constitution, is neither denied nor restricted more than necessary in order to reach the legitimate objectives that are important to society.

Taking account of the arguments set forth it needs to be held that Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) is not in conflict with the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 and the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

VI

On the compliance of Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), insofar as it is established therein that an authorisation to handle or familiarise with classified information or a security clearance is revoked where any of the circumstances referred to in Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) arises or transpires, with Paragraph 1 of Article 31, the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

1. It has been mentioned that in the constitutional justice case at issue the petitioner doubts as to whether Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), insofar as it is established therein that an authorisation to handle or familiarise with classified information or a security clearance is revoked where any of the circumstances referred to in Item 13 of Paragraph 2 of Article 16 of this law arises or transpires, is not in conflict with Paragraph 1 of Article 31, the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

2. It has been mentioned that the disputed Item 4 of Paragraph 1 of Article 18 “Revocation of an Authorisation to Handle or Familiarise with Classified Information and a Security Clearance” of the Law on State Secrets and Official Secrets (wording of 16 December 2003) prescribes:

An authorisation to handle or familiarise with classified information and a security clearance shall be revoked where:

<...>

4) any of the circumstances referred to in Paragraph 2 of Article 16 of this Law arises or transpires.”

As mentioned, the petitioner is disputing the said provision of Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) not to its full extent, but insofar as it is established therein that an authorisation to handle or familiarise with classified information or a security clearance is revoked where any of the circumstances referred to in Item 13 of Paragraph 2 of Article 16 of this law arises or transpires.

3. It has also been mentioned that:

by means of the legal regulation established in Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), inasmuch as it is related to Item 13 of Paragraph 2 of Article 16 of this law, one seeks to ensure the general requirement for personnel security that an authorisation to handle or familiarise with classified information or a security clearance may be held only by such a person whose reliability and loyalty to the State of Lithuania cast no doubt: the said legal regulation specifies the circumstances casting doubts as to the reliability of a person holding a position in the state service the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, as well as to the loyalty of such a person to the State of Lithuania—where the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed;

where any of the circumstances referred to in Item 13 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) arises or transpires (a person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed), under Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), in all cases the authorisation to handle or familiarise with classified information or the security clearance issued to the person must be revoked, and it is not provided that such a person may be subject to repeated screening regarding his reliability and loyalty to the State of Lithuania;

once, in accordance with Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), an authorisation to handle or familiarise with classified information or a security clearance is revoked, a person, who used to hold such an authorisation or clearance, no longer meets a necessary special condition for holding a position in the state service which is connected with the use of classified information or protection thereof. In such a situation an official of the internal service must be dismissed from the internal service in accordance with Item 17 of Paragraph 1 of Article 53 of the Statute of the Internal Service (once, in the manner prescribed by laws, he is deprived of a special right connected with the performance of his direct duties).

4. In the opinion of the petitioner, the legal regulation established in Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), to the specified extent, is in conflict with inter alia the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law, as this legal regulation is to be assessed as a disproportionate restriction of the constitutional freedom of a person to choose a job.

5. In this Constitutional Court ruling it has been mentioned that the constitutional right of the citizen to enter on equal terms in the state service, which is entrenched in Paragraph 1 of Article 33 of the Constitution, is a version of the constitutional right of each person to choose a job, which is entrenched in Paragraph 1 of Article 48 of the Constitution. It has also been mentioned that the provision of Paragraph 1 of Article 33 of the Constitution, which consolidates the right of citizens to enter on equal terms in the state service of the Republic of Lithuania, should not be construed only linguistically and should not be understood only as the right to enter in state service, i.e. only as the one linked to the admission of a person to state service; the relations of the state service comprise not only the relations linked to the implementation of the right of the citizen to enter on equal terms in the state service of the Republic of Lithuania, but also the relations that arise after the citizen enters in the state service and while he performs his duties at the state service.

Taking account of the said, the Constitutional Court will also investigate whether the disputed legal regulation established in Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) is not in conflict with the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution.

6. It has been mentioned that, under the Constitution, it is permitted to limit the human rights and freedoms provided that the following conditions are observed: this is done by law; the limitations are necessary in a democratic society in order to protect the rights and freedoms of other persons and the values entrenched in the Constitution, as well as the constitutionally important objectives; the limitations do not deny the nature and essence of the rights and freedoms; the constitutional principle of proportionality is followed.

It has been held in this Constitutional Court ruling that the requirement of the constitutional principle of proportionality that the human rights and freedoms be not limited by law more than necessary in order to reach the legitimate objectives that are important to society inter alia implies a requirement for the legislator to establish such legal regulation which would create preconditions to sufficiently individualise the limitations of the human rights and freedoms: the legal regulation limiting the rights and freedoms of a person, which is provided for by law, must be such that would create preconditions to assess as much as possible an individual position of each person and, by taking account of all the important circumstances, to individualise respectively the concrete measures that are applicable to and limit the rights of a concrete person.

7. When assessing the disputed legal regulation established in Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), it needs to be noted that it aims to ensure the constitutionally important objectives such as ensuring that positions in the state service which are connected with the use of classified information or protection thereof would be held only by such persons whose reliability and loyalty to the State of Lithuania cast no doubt and, at the same time, preventing possible threats to the security of classified information and the state interests related to such information.

8. It has been mentioned that, under the disputed legal regulation established in Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), in all cases where any of the circumstances referred to in Item 13 of Paragraph 2 of Article 16 of this law arises or transpires, i.e. where a person is being brought to criminal liability for any intentional criminal deed or is subject to a pre-trial or operational investigation in relation to any intentional deed, an authorisation to handle or familiarise with classified information or a security clearance must be revoked without any additional screening of the person, who was issued such an authorisation or clearance, and this person may no longer hold a position in the state service the holding of which requires such an authorisation or clearance.

8.1. Alongside, it needs to be noted that a person may be brought to criminal liability or be subject to the launching of a pre-trial investigation due to a great variety of intentional criminal deeds. A person may be brought to criminal liability inter alia as a result of minor intentional crimes and intentional criminal offences, due to which, under Item 6 of Paragraph 2 of Article 16 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), the person’s record of conviction would not constitute an obstacle to the issuance of an authorisation to handle or familiarise with classified information or a security clearance.

It also needs to be noted that, under Article 9 of the Law on Operational Activities, an operational investigation may be launched not only in cases where it is necessary to take action on implementing the protection of state secrets, but also in other cases, inter alia where characteristics of a criminal deed have not been established, but information is available about a particularly serious or serious crime being prepared, being committed or having been committed or about certain less serious crimes, where information is available about the activities of the special services of other states, where information is available about the deeds posing a threat to the constitutional system of the state, independence and economic security thereof, ensuring of the defence power of the state or other interests of importance to national security, i.e. a ground for launching an operational investigation in relation to an intentional criminal deed possibly committed by a person may be unverified operational information about such a deed.

Therefore, once, in Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), no possibility has been established of assessing the significant circumstances relating to a concrete situation, where a person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed, and, at the same time, of verifying the reliability of the person and his loyalty to the State of Lithuania, preconditions have been created for the appearance of also such situations in which the person’s authorisation to handle or familiarise with classified information or his security clearance is revoked and, as a result of this, the person loses a position in the state service the holding of which requires such an authorisation or clearance, even in those cases where the circumstances related to the person’s prosecution and a pre-trial or operational investigation are not such which would cast doubt as to the reliability of that person and his loyalty to the State of Lithuania and due to which the person’s continued employment on work with classified information could pose a threat to the security of such information.

Thus, under the legal regulation established in the disputed Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), there also may occur such cases where minor circumstances would constitute a ground to doubt the reliability of a person and his loyalty to the State of Lithuania and, as a result of this, the person would lose the position in the state service.

8.2. Although the legislator enjoys broad discretion in regulating the relations connected with the protection of state and official secrets, it is not permitted to establish such legal regulation that would create preconditions for a state institution authorised by law to hold, on the basis of minor circumstances, the unreliability of a person holding a position in the state service which is connected with the use of classified information and protection thereof, as well as the disloyalty of such a person to the Sate of Lithuania, and, as a result of this—preconditions for the person to lose the position in the state service.

9. Thus, the disputed legal regulation established in Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003) does not create preconditions for an institution authorised by the state to assess the circumstances related to a person’s prosecution and a pre-trial or operational investigation and to individualise respectively the concrete measures that are applicable to and limit the rights of that person; the sole measure, which is applied in all cases where a person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed, is the revocation of an authorisation to handle or familiarise with classified information or a security clearance and the subsequent dismissal of the person from a position in the state service the holding of which requires such an authorisation or clearance.

Therefore, it needs to be held that the disputed legal regulation established in Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), under which no possibility is established of assessing whether the circumstances related to the prosecution of a person and the pre-trial or operational investigation cast such doubts as to the reliability of the person and his loyalty to the State of Lithuania that his continued employment on work with classified information would pose a threat to the security of such information, is not in line with the requirement, arising from the constitutional principle of proportionality, to sufficiently individualise limitations of the rights and freedoms of a person, and it is to be assessed as a disproportionate restriction of the right of the citizen to enter on equal terms in the state service, which is entrenched in Paragraph 1 of Article 33 of the Constitution.

10. Taking account of the arguments set forth, one is to draw a conclusion that Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), insofar as it is established therein that an authorisation to handle and familiarise with classified information or a security clearance is revoked where the circumstances specified in Item 13 of Paragraph 2 of Article 16 of this law arise or transpire, also insofar as it is not provided therein that before deciding on the revocation of the said authorisation or clearance where the said circumstances arise or transpire, the reliability of the person and his loyalty to the State of Lithuania must be subject to additional verification in order to determine whether the continued employment of the person would not pose a threat to the security of classified information, is in conflict with the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution and the constitutional principle of a state under the rule of law.

11. While taking account of the fact that, as mentioned, the right of the citizen to enter on equal terms in the state service, which is entrenched in Paragraph 1 of Article 33 of the Constitution, is a version of the constitutional right of each person to choose a job, which is entrenched in Paragraph 1 of Article 48 of the Constitution, on grounds of the same arguments, it needs to be held that Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), insofar as it is established therein that an authorisation to handle and familiarise with classified information or a security clearance is revoked where the circumstances specified in Item 13 of Paragraph 2 of Article 16 of this law arise or transpire, also insofar as it is not provided therein that, before deciding on the revocation of the said authorisation or clearance where the said circumstances arise or transpire, the reliability of a person and his loyalty to the State of Lithuania must be subject to additional verification in order to determine whether the continued employment of the person on work with classified information would not pose a threat to the security of such information, is also in conflict with the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution.

12. Having held in this ruling that Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), insofar as it is established therein that an authorisation to handle and familiarise with classified information or a security clearance is revoked where the circumstances specified in Item 13 of Paragraph 2 of Article 16 of this law arise or transpire, also insofar as it is not provided therein that, before deciding on the revocation of the said authorisation or clearance where the said circumstances arise or transpire, the reliability of a person and his loyalty to the State of Lithuania must be subject to additional verification in order to determine whether the continued employment of the person on work with classified information would not pose a threat to the security of such information, is in conflict with the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution, the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law, the Constitutional Court will not further investigate whether Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), to the same extent, is not in conflict with Paragraph 1 of Article 31 of the Constitution.

VII

On the compliance of Article 28 (wording of 15 May 2007) of the Statute of the Internal Service, insofar as it does not provide for the powers of the superior, who has the right to appoint a person to the position, to suspend an official from a position the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, in cases where the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed, with Paragraph 1 of Article 31, the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

1. It has been mentioned that in the constitutional justice case at issue the petitioner doubts as to whether Article 28 (wording of 15 May 2007) of the Statute of the Internal Service, insofar as it does not provide for the powers of the superior, who has the right to appoint a person to the position, to suspend an official from a position the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, in cases where the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed, is not in conflict with Paragraph 1 of Article 31, the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

2. It has been mentioned that Article 28 “Suspension from Office of an Officer” (wording of 15 May 2007) of the Statute of the Internal Service provides for the following three cases of suspending from office an official of the internal service:

due to the intoxication with alcohol, drugs, psychotropic substances or other toxic substances during office hours—by a decision of his immediate superior;

during a service-related inspection—by order of the superior who has the right to appoint to the position;

upon launching a pre-trial investigation—in the manner prescribed by the Code of Criminal Procedure.

It needs to be noted that the Statute of the Internal Service provides for no other cases of suspension from office of an official of the internal service.

It has also been mentioned that Article 157 of the Code of Criminal Procedure provides for the powers of the court to temporarily suspend from office, however, these powers are aimed not at ensuring the protection of classified information, but at a more speedy and more objective investigation of a criminal deed or prevention of a possibility of committing new criminal deeds.

It has also been mentioned that the responsibility for the protection of classified information falls on inter alia the superior who has the right to appoint a person to the position; the sole measure that may be applied by the superior in cases where a person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed is the revocation of an authorisation to handle or familiarise with classified information or a security clearance and the subsequent dismissal of the person from a position in the state service the holding of which requires the said authorisation or clearance.

3. In the opinion of the petitioner, Article 28 (wording of 15 May 2007) of the Statute of the Internal Service, which does not provide for the powers of the superior, who has the right to appoint a person to the position, to suspend an official from office, in cases where the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed, is in conflict with inter alia the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law, since once, under Item 4 of Paragraph 1 of Article 18 of the Law on State Secrets and Official Secrets (wording of 16 December 2003), the authorisation to handle or familiarise with classified information or the security clearance issued to an official of the internal service is revoked due to the said reason, the superior, who has the right to appoint the person to the position, is left with no other choice but to dismiss such an official from the internal service, even though in a democratic society there is no and there may be no reasonable interest to apply such a disproportionate measure.

4. It has been mentioned that the right of the citizen to enter on equal terms in the state service, which is entrenched in Paragraph 1 of Article 33 of the Constitution, is a version of the constitutional right of each person to choose a job, which is entrenched in Paragraph 1 of Article 48 of the Constitution. It has also been mentioned that the provision of Paragraph 1 of Article 33 of the Constitution, which consolidates the right of citizens to enter on equal terms in the state service of the Republic of Lithuania, should not be construed only linguistically and should not be understood only as the right to enter in state service, i.e. only as the one linked to the admission of a person to state service; the relations of the state service comprise not only the relations linked to the implementation of the right of the citizen to enter on equal terms in the state service of the Republic of Lithuania, but also the relations that arise after the citizen enters in the state service and while he performs his duties at the state service.

Taking account of the said, in the constitutional justice case at issue the Constitutional Court will also investigate whether Article 28 (wording of 15 May 2007) of the Statute of the Internal Service, which is being disputed by the petitioner, is not in conflict with the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution.

5. It has been mentioned that the petitioner is disputing a legislative omission which, in its opinion, exists in Article 28 (wording of 15 May 2007) of the Statute of the Internal Service, i.e. the petitioner is disputing something which has not been established in this legal act, even though, in the opinion of the petitioner, under the Constitution, it should be established by the legislator; thus, the petitioner is disputing such a gap in the legal regulation which, in the opinion of the petitioner, is prohibited by the Constitution.

As mentioned, a legal gap, inter alia legislative omission, always means that the legal regulation of corresponding social relations is established neither explicitly, nor implicitly, neither in the said legal act (part thereof), nor any other legal acts, even though there exists a need for legal regulation of these social relations, while the said legal regulation, in the case of legislative omission, must be established precisely in that legal act (precisely in that part thereof), since this is required by a certain legal act of higher power, inter alia the Constitution itself.

6. Article 28 (wording of 15 May 2007) of the Statute of the Internal Service is designed to regulate the suspension from office of an official of the internal service. However, neither this article, nor other provisions of this statute provide for the powers of the superior, who has the right to appoint a person to the position, to suspend an official from a position the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, in cases where the official is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed.

It needs to be noted that no cases of the suspension of an official of the internal service from a position connected with the use of classified information or protection thereof, for the purposes of ensuring the protection of classified information, are provided for in either the Law on State Secrets and Official Secrets (wording of 16 December 2003) or the Republic of Lithuania Law on the State Service (wording of 23 April 2002 with subsequent amendments and supplements).

7. While construing in this Constitutional Court ruling the provision of Paragraph 1 of Article 33 of the Constitution, which consolidates the right of citizens to enter on equal terms in the state service of the Republic of Lithuania, as well as the imperatives stemming from the constitutional principle of a state under the rule of law, it has been mentioned that:

a special condition established for persons holding a position in the state service which is connected with the use of classified information or protection thereof is an especial and not in the least questionable reliability of these persons as well as their loyalty to the Sate of Lithuania;

the legislator enjoys broad discretion while regulating the relations connected with the protection of state secrets and official secrets, inter alia when establishing the criteria for the reliability of persons holding a position in the state service which is connected with the use of classified information or protection thereof and for their loyalty to the State of Lithuania, as well as when setting the procedures for the screening of these persons; in the course of implementing the said discretion the legislator must pay heed to the norms and principles of the Constitution, inter alia the constitutional principle of a state under the rule of law;

in regulating the relations of the state service, inter alia the relations connected with the protection of state secrets and official secrets, one must heed inter alia the constitutional principle of a state under the rule of law, which means that the measures provided for in a law must be in line with the legitimate objectives that are important to society, that these measures must be necessary in order to reach the said objectives and must not restrain the rights and freedoms of a person clearly more than necessary in order to reach these objectives;

the requirement of the constitutional principle of proportionality that the rights and freedoms of a person be not limited by law more than necessary in order to reach the legitimate objectives that are important to society inter alia implies a requirement for the legislator to establish such legal regulation that would create preconditions to sufficiently individualise the limitations of the rights and freedoms of a person: the legal regulation limiting the rights and freedoms of a person, which is provided for by law, must be such that would create preconditions to assess as much as possible an individual position of each person and, by taking account of all the important circumstances, to individualise respectively the concrete measures that are applicable to and limit the rights of a concrete person.

8. Thus, from the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution and from the aforementioned constitutional imperatives of the principle of a state under the rule of law, a duty arises for the legislator to establish such legal regulation that would lay down an alternative measure for the revocation of an authorisation to handle or familiarise with classified information or a security clearance and the subsequent dismissal of a person from a position in the state service, which would create preconditions to sufficiently individualise the limitations of the rights and freedoms of a person and to assess as much as possible an individual situation of each person. Such a measure inter alia is suspension from office, which is applied in the cases where a person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed, and which creates preconditions for additional verification of a person’s reliability and his loyalty to the State of Lithuania in order to determine whether his continued employment would not pose a threat to the security of classified information.

9. Taking account of the arguments set forth, one is to draw a conclusion that Article 28 (wording of 15 May 2007) of the Statute of the Internal Service, insofar as it does not provide for the powers of the superior, who has the right to appoint a person to the position, to suspend an official from a position the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, in cases where the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed, is in conflict with the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution and the constitutional principle of a state under the rule of law.

10. While taking account of the fact that, as mentioned, the right of the citizen to enter on equal terms in the state service, which is entrenched in Paragraph 1 of Article 33 of the Constitution, is a version of the constitutional right of each person to choose a job, which is entrenched in Paragraph 1 of Article 48 of the Constitution, on the grounds of the same arguments, it needs to be held that Article 28 (wording of 15 May 2007) of the Statute of the Internal Service, insofar as it does not provide for the powers of the superior, who has the right to appoint a person to the position, to suspend an official from a position the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, in cases where the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed, is also in conflict with the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution.

11. Having held in this ruling that Article 28 (wording of 15 May 2007) of the Statute of the Internal Service, insofar as it does not provide for the powers of the superior, who has the right to appoint a person to the position, to suspend an official from a position the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, in cases where the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed, is in conflict with the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 and the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law, the Constitutional Court will not further investigate whether Article 28 (wording of 15 May 2007) of the Statute of the Internal Service, to the same extent, is not in conflict with Paragraph 1 of Article 31 of the Constitution.

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 13 of Paragraph 2 of Article16 of the Republic of Lithuania Law on State Secrets and Official Secrets (wording of 16 December 2003) (Official Gazette Valstybės žinios, 2004, No. 4-29) is not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that Item 4 of Paragraph 1 of Article 18 of the Republic of Lithuania Law on State Secrets and Official Secrets (wording of 16 December 2003) (Official Gazette Valstybės žinios, 2004, No. 4-29), insofar as it is established therein that an authorisation to handle or familiarise with classified information or a security clearance is revoked where the circumstances specified in Item 13 of Paragraph 2 of Article 16 of this law arise or transpire, and insofar as it is not provided therein that, before deciding on the revocation of the said authorisation or clearance where the said circumstances arise or transpire, the reliability of a person and his loyalty to the State of Lithuania must be subject to additional verification in order to determine whether the continued employment of the person on work with classified information would not pose a threat to the security of such information, is in conflict with the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 and the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

3. To recognise that that Article 28 (wording of 15 May 2007) (Official Gazette Valstybės žinios, 2007, No. 59-2282) of the Statute of the Internal Service as approved by the Republic of Lithuania Law on the Approval of the Statute of the Internal Service, insofar as it does not provide for the powers of the superior, who has the right to appoint a person to the position, to suspend an official from a position the holding of which requires an authorisation to handle or familiarise with classified information or a security clearance, in cases where the person is being brought to criminal liability for an intentional criminal deed or is subject to a pre-trial or operational investigation in relation to the said deed, is in conflict with the provision “Citizens shall have <...> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 and the provision “Each human being may freely choose a job” of Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

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: Egidijus Bieliūnas
                                                                      Toma Birmontienė
                                                                      Pranas Kuconis
                                                                      Gediminas Mesonis
                                                                      Ramutė Ruškytė
                                                                      Egidijus Šileikis
                                                                      Algirdas Taminskas
                                                                      Romualdas Kęstutis Urbaitis
                                                                      Dainius Žalimas