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On the Procedure for Compilation and Making Use of Operative Record Files

Case No. 24/99

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Subitem 4.7 of the Regulations for Operational Activities of the Interior System of the Republic of Lithuania as approved by the Resolution Government of the Republic of Lithuania (No. 731-19) “On the Approval of the Regulations for Operational Activities of the Interior System of the Republic of Lithuania” of 30 September 1993 with the Constitution of the Republic of Lithuania and Item 7 of Paragraph 3 of Article 7 of the Republic of Lithuania’s Law on Operational Activities

 

Vilnius, 5 April 2000

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

Olegas Rimanas, a commissioner of the Operational Service of the Police Department under the Ministry of the Interior, a deputy senior commissioner, acting as the representative of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 4 April 2000, in its closed hearing, considered case No. 24/99 subsequent to the petition submitted to the Court by the Higher Administrative Court, the petitioner, requesting an investigation into whether Subitem 4.7 of the Regulations for Operational Activities of the Interior System of the Republic of Lithuania as approved by the Resolution of the Government of the Republic of Lithuania (No. 731-19) “On the Approval of the Regulations for Operational Activities of the Interior System of the Republic of Lithuania” of 30 September 1993 was in compliance with Items 2 and 7 of Article 94 of the Constitution of the Republic of Lithuania and Item 7 of Paragraph 3 of Article 7 of the Republic of Lithuania’s Law on Operational Activities.

The Constitutional Court

has established:

I

1.1. The petitioner—the Higher Administrative Court—considered an administrative case containing a request to investigate the lawfulness of orders of the Minister of the Interior.

By means of its ruling, the said court has suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Subitem 4.7 of the Regulations for Operational Activities of the Interior System of the Republic of Lithuania (hereinafter referred to as the Regulations) as approved by the Government Resolution (No. 731-19) “On the Approval of the Regulations for Operational Activities of the Interior System of the Republic of Lithuania” of 30 September 1993 was in compliance with Items 2 and 7 of Article 94 of the Constitution and Item 7 of Paragraph 3 of Article 7 of the Law on Operational Activities (hereinafter also referred to as the Law).

The aforesaid government resolution is marked “top secret”. This legal act has not been published in the official gazette Valstybės žinios. The Constitutional Court received the said government resolution together with the petition of the Higher Administrative Court.

1.2. The petition of the petitioner is grounded on the following arguments.

Item 7 of Paragraph 3 of Article 7 of the Law on Operational Activities provides that under the procedure established by the Government, the operational entities shall have the right to compile an operative record file and make use of it. It is established in Subitem 4.7 of the Regulations approved by the government resolution of 30 September 1993 that the operational entities shall have the right to compile an operative record file and make use of it under the procedure established by the Minister of the Interior. In the opinion of the petitioner, there is a conflict between these legal norms.

The petitioner also points out that under Items 2 and 7 of Article 94 of the Constitution, the Government shall implement laws and resolutions of the Seimas concerning the implementation of laws and also discharge other duties prescribed to the Government by the Constitution and other laws. The petitioner is of the opinion that the Constitution does not grant the right to the Government to delegate the duties prescribed to it by law to other subjects. Therefore, Subitem 4.7 of the Regulations by which the Government delegates the duty to establish the procedure for compilation and making use of an operative record file to the Minister of the Interior conflicts with Items 2 and 7 of Article 94 of the Constitution.

II

In the course of the preparation of the case for the Constitutional Court hearing, a written explanation of the representatives of the party concerned—the Government—V. Rimkus, a senior commissioner of the Advisers Service of the Police Department under the Ministry of the Interior and O. Rimanas, a commissioner of the Operational Service of the Police Department under the Ministry of the Interior, a deputy senior commissioner, was received. The arguments are set down therein on the grounds of which it is maintained that the Government was entitled to empower the Minister of the Interior to determine the procedure for compilation and making use of an operative record file. In the opinion of the representatives of the Government, Subitem 4.7 of the Regulations is in compliance with Item 7 of Paragraph 3 of Article 7 of the Law on Operational Activities, as well as Items 2 and 7 of Article 94 of the Constitution.

III

At the Constitutional Court hearing, O. Rimanas virtually reiterated the arguments set forth in the written explanation and informed that the impugned Subitem 4.7 of the Regulations had been amended by the government resolution of 31 March 2000 wherein it had been provided that the procedure for compilation and making use of an operative record file shall be established by the Government.

The Constitutional Court

holds that:

I

1.1. Doubting as for the compliance of Subitem 4.7 of the Regulations approved by the government resolution with the Constitution and the Law, the Higher Administrative Court appealed to the Constitutional Court. The aforesaid court had doubts regarding the constitutionality of the said subitem while it was considering an administrative case subsequent to an appeal of an individual concerning the lawfulness of orders of the Minister of the Interior. The court suspended the consideration of the administrative case until the Constitutional Court has ruled as for the compliance of Subitem 4.7 of the Regulations with the Constitution and the Law.

By means of the government resolution of 31 March 2000, Subitem 4.7 of the Regulations was amended and it was provided for therein that the procedure for compilation and making use of an operative record file shall be established by the Government. Thus, the legal norm set down in the impugned Subitem 4.7 of the Regulations by which the procedure for compilation and making use of an operative record file shall be established by the Ministry of the Interior became null and void.

Under Paragraph 4 of Article 69 of the Law on the Constitutional Court, the annulment of a disputable legal act shall be grounds to adopt a decision to dismiss the initiated legal proceedings. The wording “shall be grounds to adopt a decision to dismiss the initiated legal proceedings” should be construed as establishing the right of the Constitutional Court to dismiss the initiated legal proceedings while taking account of the circumstances of the case under investigation, but not as establishing that in every case when the impugned legal act is annulled the initiated legal proceedings should be dismissed.

It needs to be noted that after the Higher Administrative Court has applied with the petition requesting an investigation into whether Subitem 4.7 of the Regulations is in compliance with the Constitution and the Law (even though the said subitem has been amended), and unless the Constitutional Court decides the question in essence, the doubts of the court regarding the constitutionality of the legal act will not be removed. Unless the doubts regarding the constitutionality of the applicable legal act are removed and upon the application of the legal act wherein this question has not been decided in the decision of the case, the constitutional rights and freedoms of the individual might be violated.

Taking account of the circumstances pointed out, the Constitutional Court will investigate whether the wording of Subitem 4.7 of the Regulations which was in effect at the moment of issuance of the orders of the Minister of the Interior the lawfulness of which were appealed against by the individual at the Higher Administrative Court are in compliance with the Constitution and Item 7 of Paragraph 3 of Article 7 of the Law.

1.2. The Government Resolution (No. 731-19) “On the Approval of the Regulations for Operational Activities of the Interior System of the Republic of Lithuania” of 30 September 1993 is marked “top secret”.

Article 105 of the Constitution provides that the Constitutional Court shall consider and adopt decisions concerning the conformity of laws of the Republic of Lithuania and legal acts adopted by the Seimas with the Constitution, and that of legal acts of the President of the Republic and legal acts of the Government with the Constitution and the laws.

The Constitutional Court notes that, under Article 105 of the Constitution, in case there is a petition grounded on legal reasoning by the subjects pointed out in Article 106 of the Constitution, the Constitutional Court enjoys the powers and has to consider and adopt decisions concerning the conformity of any laws and legal acts adopted by the Seimas with the Constitution, and regarding the conformity of any legal acts of the President of the Republic and any legal acts of the Government with the Constitution and the laws irrespective of the fact whether the legal act is (should be) marked “top secret”, “secret”, “confidential” or marked in any other way.

1.3. Paragraph 1 of Article 107 of the Constitution provides that laws (or parts thereof) of the Republic of Lithuania or any other acts (or parts thereof) of the Seimas, acts of the President of the Republic of Lithuania, and acts (or parts thereof) of the Government may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is inconsistent with the Constitution of the Republic of Lithuania. Paragraph 8 of Article 18 of the Law on the Constitutional Court provides that “the ruling of the Constitutional Court shall always be announced publicly in the court room”. By Article 84 of the Law on the Constitutional Court, the rulings of the Constitutional Court shall be officially publicised in an individual chapter of the official gazette Valstybės žinios, a special publication of the Seimas, and in newspapers. If necessary, the Constitutional Court may publicise its rulings in a publication of the Constitutional Court. Rulings of the Constitutional Court shall become effective on the day that they are publicised in one of the above-mentioned publications.

The Constitutional Court notes that, under Paragraph 1 of Article 107 of the Constitution, Article 84 and Paragraph 8 of Article 18 of the Law on the Constitutional Court the Constitutional Court must always announce its decisions concerning the compliance of laws and other acts adopted by the Seimas with the Constitution, or regarding the compliance of the legal acts adopted by the President of the Republic or legal acts adopted by the Government with the Constitution irrespective of the fact whether the legal act investigated by the Constitutional Court is (should be) marked “top secret”, “secret”, “confidential” or marked in any other way.

1.4. The petitioner requests an investigation into whether Subitem 4.7 of the Regulations approved by the government resolution is in compliance with Items 2 and 7 of Article 94 of the Constitution and Item 7 of Paragraph 3 of Article 7 of the Law. His doubts are based on the fact that Subitem 4.7 of the Regulations points out another subject that has the right to determine the procedure for compilation and making use of an operative record file but not the one pointed out in Item 7 of Paragraph 3 of Article 7 of the Law.

Taking account of the arguments of the petitioner, the Constitutional Court will investigate the compliance of Subitem 4.7 of the Resolution with the Constitution only from the aspect and to the extent as pointed out in the petition of the petitioner and in this case it will not investigate whether the impugned government resolution was lawfully and reasonably marked “top secret”.

Alongside, the Constitutional Court emphasises that the legal normative acts regulating relations linked with the constitutional human rights and freedoms as well as their implementation should not contain any classification markings.

II

On the compliance of Subitem 4.7 of the Regulations for Operational Activities of the Interior System of the Republic of Lithuania as approved by the Government Resolution (No. 731-19) “On the Approval of the Regulations for Operational Activities of the Interior System of the Republic of Lithuania” of 30 September 1993 with Item 7 of Paragraph 3 of Article 7 of the Law on Operational Activities.

Item 7 of Paragraph 3 of Article 7 of the Law on Operational Activities provides:

3. 3. Under the procedure established by the Government, the operational entities shall have the right to:

<…> 7) compile an operative record file and make use of it.”

Thus, under the said norm of the Law, the procedure for compilation and making use of an operative record file must be established by the Government.

It was established in Subitem 4.7 of the Regulations that the procedure for compilation and making use of an operative record file had to be established by the Minister of the Interior.

It needs to be noted that the law is a legal act having the highest juridical power. The government resolution is a substatutory legal act, therefore, it may not be in conflict with the law, nor may it contain any legal norms competing with those of the law. In cases when a government resolution containing the norms conflicting with a law is adopted prior to the adoption of the law, such a government resolution must be harmonised with the norms of the subsequently adopted law.

As mentioned before, Item 7 of Paragraph 3 of Article 7 of the Law provides that the procedure for compilation and making use of an operative record file must be established by the Government, meanwhile, it was stipulated in Subitem 4.7 of the Regulations that the procedure for compilation and making use of an operative record file shall be established by the Minister of the Interior.

Taking account of the fact that another subject was pointed out in Subitem 4.7 of the Regulations but not the one indicated in Item 7 of Paragraph 3 of Article 7 of the Law, it should be concluded that said Subitem 4.7 of the Regulations to the extent that the procedure for compilation and making use of an operative record file shall be established by the Minister of the Interior conflicted with Item 7 of Paragraph 3 of Article 7 of the Law on Operational Activities.

III

On the compliance of Subitem 4.7 of the Regulations for Operational Activities of the Interior System of the Republic of Lithuania as approved by the Government Resolution (No. 731-19) “On the Approval of the Regulations for Operational Activities of the Interior System of the Republic of Lithuania” of 30 September 1993 with Items 2 and 7 of Article 94 of the Constitution.

Item 2 of Article 94 of the Constitution provides that the Government shall implement laws and resolutions of the Seimas concerning the implementation of laws; Item 7 of the said article establishes that the Government shall discharge other duties prescribed to it by the Constitution and other laws.

The government resolution was adopted on 30 September 1993, while the Law on Operational activities—on 22 May 1997. As mentioned before, in cases when a government resolution containing the norms conflicting with a law is adopted prior to the adoption of the law, such a government resolution must be harmonised with the norms of the subsequently adopted law.

It needs to be noted that the norms of Items 2 and 7 of Article 94 of the Constitution providing that the Government shall implement laws and discharge other duties prescribed to it by the Constitution and other laws should be interpreted as establishing the duty to the Government to amend and supplement its previously adopted acts so that they might be in conformity with subsequently adopted laws or to repeal its previously adopted acts in case the legal norms established therein are in conflict with those of the law.

As mentioned before, Item 7 of Paragraph 3 of Article 7 of the 22 May 1997 Law on Operational Activities provides that the operational entities shall have the right to compile an operative record file and make use of it under the procedure established by the Government. After this law had gone into effect, Subitem 4.7 of the Regulations approved by the government resolution of 30 September 1993 which provided that the procedure for compilation and making use of an operative record file shall be established by the Ministry of the Interior ought to have been amended so that it would be in conformity with the requirements of Item 7 of Paragraph 3 of Article 7 of the Law on Operational Activities. However, Subitem 4.7 of the Regulations was amended only by the government resolution of 31 March 2000. Until then the legal norms set down in Subitem 4.7 of the Regulations, even though they were in conflict with the legal norms established in the Law, were in effect.

Thus, there existed such a legal situation when the legal norm established in Subitem 4.7 of the Regulations approved by the government resolution was in effect and, at the same time, conflicted with the legal norm established in Item 7 of Paragraph 3 of Article 7 of the Law on Operational Activities. Taking account of this, it should be concluded that Subitem 4.7 of the Regulations to the extent that the procedure for compilation and making use of an operative record file shall be established by the Minister of the Interior conflicted with Items 2 and 7 of Article 94 of the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that Subitem 4.7 of the Regulations for Operational Activities of the Interior System of the Republic of Lithuania as approved by the Resolution of the Government of the Republic of Lithuania (No. 731-19) “On the Approval of the Regulations for Operational Activities of the Interior System of the Republic of Lithuania” of 30 September 1993 conflicted with Items 2 and 7 of Article 94 of the Constitution of the Republic of Lithuania and Item 7 of Paragraph 3 of Article 7 of the Republic of Lithuania’s Law on Operational Activities.

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

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

Justices of the Constitutional Court:

 

Egidijus Jarašiūnas       Egidijus Kūris      Zigmas Levickis

 

Augustinas Normantas       Vladas Pavilonis       Jonas Prapiestis

 

Vytautas Sinkevičius       Stasys Stačiokas       Teodora Staugaitienė