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On operational activities

Case No. 12/99-27/99-29/99-1/2000-2/2000

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7, Paragraph 1 of Article 11 of the Republic of Lithuania’s Law on Operational Activities and Paragraphs 1 and 2 of Article 1981 of the Code of Criminal Procedure of the Republic of Lithuania with the Constitution of the Republic of Lithuania

 

Vilnius, 8 May 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

Judge Kęstutis Jucys, Chairman of the College of Criminal Cases Division of the Vilnius Regional Court which has applied to the Constitutional Court by means of its 12 October 1999 ruling, acting as the representative of the petitioner

Dr. Gintaras Goda, a senior consultant to the Law Department of the Office of the Seimas of the Republic of Lithuania, acting as the representative of the Seimas 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 6 April 2000, in its public hearing, considered case No. 12/99-27/99-29/99-1/2000-2/2000 subsequent to the following petitions:

The petition of a group of members of the Seimas of the Republic of Lithuania requesting an investigation into whether Article 11 of the Republic of Lithuania’s Law on Operational Activities was in compliance with Paragraph 1 of Article 86 and Paragraph 1 of Article 62 of the Constitution of the Republic of Lithuania;

The petition of 8 October 1999 of the Vilnius Regional Court requesting an investigation into whether Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7 and Article 11 of the Republic of Lithuania’s Law on Operational Activities were in compliance with Paragraphs 1, 2, 3 and 4 of Article 22, Paragraph 1 of Article 29, Paragraph 1 of Article 30, Paragraph 2 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution of the Republic of Lithuania;

The petition of 21 October 1999 of the Vilnius Regional Court requesting an investigation into whether Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7 and Article 11 of the Republic of Lithuania’s Law on Operational Activities were in compliance with Paragraphs 1, 2, 3 and 4 of Article 22, Paragraph 1 of Article 29, Paragraph 1 of Article 30, Paragraph 2 of Article 31 and Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania;

The petition of 10 November 1999 of the First Vilnius City Local Court requesting an investigation into whether Item 3 of Paragraph 2 of Article 7 and Paragraph 1 of Article 11 of the Republic of Lithuania’s Law on Operational Activities were in compliance with Paragraph 3 of Article 22 of the Constitution of the Republic of Lithuania, and whether Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7 and Article 11 of the same law were in compliance with Article 28 of the Constitution of the Republic of Lithuania;

The petition of 16 November 1999 of the First Vilnius City Local Court requesting an investigation into whether Item 3 of Paragraph 2 of Article 7 and Paragraph 1 of Article 11 of the Republic of Lithuania’s Law on Operational Activities were in compliance with Paragraph 3 of Article 22 of the Constitution of the Republic of Lithuania, and whether Paragraph 1 of Article 11 of the same law was in compliance with Paragraph 1 of Article 29 of the Constitution, and whether Paragraphs 1 and 2 of Article 1981 of the Code of Criminal Procedure of the Republic of Lithuania were in compliance with Paragraph 3 of Article 22 of the Constitution of the Republic of Lithuania.

By means of the Constitutional Court decision of 10 February 2000, all these petitions were joined into one case.

The Constitutional Court

has established:

I

1. On 22 May 1997, the Seimas adopted the Law on Operational Activities (Official Gazette Valstybės žinios, 1997, No. 50-1190; hereinafter also referred to as the Law) Paragraph 12 of Article 2 whereof provides: “Mode of conduct simulating a criminal act means authorised acts exhibiting criminal characteristics aimed at protecting the key interests of the state, the public, or an individual.”

Item 3 of Paragraph 2 of Article 7 of the Law prescribes:

2. If there is probable cause pursuant to Paragraph 2 of Article 4 of this Law and if operational entities have received authorisation as provided in Articles 10 and 11 of this Law, they shall have the right to: <…> 3) model conduct simulating a criminal act.”

Article 11 of the Law provides:

1. The mode of conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him on the reasoned written request by the operational entity. The request shall contain:

1) the surname and position of the officer who submitted the request;

2) the facts warranting a request to employ the mode of conduct simulating a criminal act;

3) the limits of concrete actions performed during the application of the mode of conduct simulating a criminal act in accordance with the appropriate article of the Criminal Code of the Republic of Lithuania;

4) information about the person, who will use the mode of conduct simulating a criminal act;

5) the targeted objective, indicating the interim and ultimate goals of the mode of conduct simulating a criminal act;

6) the anticipated duration of the mode of conduct simulating a criminal act.

2. The mode of conduct simulating a criminal act devised by an operational entity shall be authorised for a one-year period. It may be extended after the expiration of the said term.”

Paragraphs 1 and 2 of Article 1981 of the Code of Criminal Procedure (hereinafter referred to as the CCP) provide:

In the course of conduct of operational actions, the officer of the interrogative body may take photographs, film, make video or audio recordings of a crime prepared, being committed or committed.

The officer of the interrogative body shall draw up a protocol as regards the use of technical facilities, recording a crime prepared, being committed or committed. In the protocol the technical data of the technical facilities used, as well as the time, place and contents of the recorded action, shall be entered. The negatives and pictures of the photographs, films, video and audio recordings shall be attached to the protocol. The protocol together with its additions shall be attached to the criminal case and shall have the power of evidence.”

3. The petitioners—a group of Seimas members, the Vilnius Regional Court, the First Vilnius City Local Court—have applied to the Constitutional Court with the petitions requesting an investigation into whether Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7, Paragraph 1 of Article 11 of the Law on Operational Activities were in conformity with Articles 22, 28, Paragraph 1 of Article 29, Paragraph 1 of Article 30, Paragraph 2 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution, whether Paragraph 1 of Article 11 of the said law was in conformity with Paragraph 1 of Article 62 and Paragraph 1 of Article 86 of the Constitution, and whether Paragraphs 1 and 2 of Article 1981 of the Code of Criminal Procedure were in conformity with Paragraph 3 of Article 22 of the Constitution.

II

The arguments of the petitioners are based on the following arguments.

1. In its petition, the group of Seimas members points out that under the meaning of Article 11 of the Law the mode of conduct simulating a criminal act (hereinafter also referred to as the mode) may be used against any person. The Law ignores personal immunity guarantees conferred to certain categories of persons. Under the Law, the mode of conduct simulating a criminal act may be applied to the President of the Republic as well as Seimas members, meanwhile, the provisions of the Constitution regarding the immunity of these persons guarantee their protection against possible provocation (unlawful ways of political fight). In the opinion of the petitioner, Article 11 of the Law unreasonably narrows the immunity of the President of the Republic or that of a Seimas member. The group of Seimas members maintains that the deficiency of the said article is increased by the fact that the mode of conduct simulating a criminal act is authorised by the Prosecutor General or the Deputy Prosecutor General designated by him but not by the court—an impartial institution administering justice.

2. The Vilnius Regional Court, a petitioner, points out in its petition of 8 October 1999 that Paragraph 12 of Article 2 of the Law provides that by the mode of conduct simulating a criminal act it is aimed at protecting the key interests of the state, the public, or an individual. Article 8 of the Law stipulates that the operational entities must collect, store, and analyse information, protect the rights and legitimate interests of citizens, protect persons from active inducement against their will to commit criminal deeds. The petitioner doubts whether under such conditions the mode could be carried out at all, as the situation of the parties is different, which conflicts with the principle of the equality before the law as established in Paragraph 1 of Article 29 of the Constitution.

In the opinion of the petitioner, the application of Item 3 of Paragraph 2 of Article 7 and Article 11 of the Law conflicts with Paragraph 1 of Article 109 of the Constitution wherein it is established that in the Republic of Lithuania the courts shall have the exclusive right to administer justice. In the course of carrying out of the said norms of the Law, the Office of the Prosecutor General, by authorising the mode, exonerates the person applying it from criminal liability and punishment, i.e. it administers justice.

The petitioner maintains that the procedure for authorisation of the mode is in conflict with Paragraph 1 of Article 118 of the Constitution wherein it is established that public prosecutors shall prosecute criminal cases on behalf of the State, shall carry out criminal prosecutions, and shall supervise the activities of the interrogative bodies. The authorisation to apply the mode may not be equated with criminal prosecution as such prosecution is bound by institution of a criminal case and it is regulated by the rules for criminal procedure. Therefore, the petitioner is of the opinion that the mode might be authorised only by a court or a judge.

The petitioner maintains that as the Law has not defined the contents, intensity, mechanism of accomplishment of the actions carried out at the time of the application of the mode, as well as other issues: this is left for the person and officers conducting the mode. Therefore, the impugned norms of the Law do not protect the person to whom the mode is applied from provocation and active inducement so that the latter either performed or did not perform certain actions, either uttered certain words, phrases or did not utter them etc. Nor does the Law regulate the beginning of the carrying out of the mode, i.e., it is not linked with the beginning of the crime which one attempts to detect, therefore, one begins to carry out the mode earlier than the crime is committed. This instigates the commission of a crime which, otherwise, might never have been committed if artificial conditions had not been created for it to happen. In this way the freedom of an individual to act independently is restricted. Therefore, the individual is brought to criminal liability and punished not for the crime committed but for the possibility of committing a crime, as the crime itself is committed under artificial circumstances and is instigated.

The petitioner points out that, under Paragraph 1 of Article 30 of the Constitution, any person whose constitutional rights or freedoms are violated shall have the right to apply to court. The person to whom the mode is applied is made act against the Constitution and accomplish actions contrary to the Constitution. Subsequently these actions become evidence accusing the person.

The petitioner maintains that the impugned norms of the Law are also in conflict with Paragraph 1 of Article 30 and Paragraph 2 of Article 31 of the Constitution.

In the opinion of the petitioner, the accomplishment of the mode does not cover the tapping of telephone conversations. The authorisation of the Prosecutor General or his deputy to carry out the mode may not be likened to the authorisation of the judge which is given under the procedure of Article 1982 of the CCP. Under Article 10 of the Law, the authorisation of the judge is necessary in order to accomplish actions provided for in Paragraph 1 of the same article. By tapping telephone conversations, recording telephone or direct conversations, one interferes with private life of individuals in an arbitrary and unlawful manner. The disclosure of such conversations violates the inviolability of private life of individuals, which conflicts with Article 22 of the Constitution.

3. The Vilnius Regional Court, a petitioner, in its petition of 21 October 1999 virtually reiterated the arguments pointed out in the petition of 8 October 1999, however, it did not raise the question as to the compliance of the impugned provisions of the Law with Paragraph 1 of Article 118 of the Constitution.

4. By submitting its own reasoning in its petitions of 10 November 1999 and 16 November 1999 requesting an investigation into whether Item 3 of Paragraph 2 of Article 7 and Paragraph 1 of Article 11 of the Law are in conformity with the Constitution, the First Vilnius City Local Court, a petitioner, virtually set forth the same legal reasoning as the Vilnius Regional Court in its petitions to the Constitutional Court did.

The petitioner maintains that the whole of the norms of Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7 and Article 11 of the Law constitute legal grounds for a certain person lawfully to commit a crime. This conflicts with Article 28 of the Constitution wherein it is established that, while exercising their rights and freedoms, persons must observe the Constitution and the laws of the Republic of Lithuania, and must not impair the rights and interests of other people.

In the opinion of the petitioner, the person applying the mode is aware of his non-punishment. On the grounds of the application of the mode, there appears information as regards the person who commits a criminal deed, and which becomes the evidence in the case. Thus, Paragraph 1 of Article 11 of the Law constitutes grounds to form an advantageous situation for the person applying the mode if compared to the situation of the accused. Therefore, the court has doubts as for the compliance of Paragraph 1 of Article 11 of the Law with Paragraph 1 of Article 29 of the Constitution.

Doubting as for the conformity of Paragraphs 1 and 2 of Article 1981 of the CCP with Paragraph 3 of Article 22 of the Constitution, the petitioner pointed out that special technology may be used not only for tapping telephone conversations but also in the course of conduct of other operational actions by which the principle of the inviolability of private life of may be violated.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations of the representative of the party concerned—the Seimas—G. Goda were received.

1. The representative of the party concerned noted that Articles 62 and 86 of the Constitution establish a certain guarantee, i.e. immunity, for the activity of the President of the Republic and that of a Seimas member. Paragraph 1 of Article 62 of the Constitution provides that the person of a Seimas member shall be inviolable, while Paragraph 1 of Article 86 of the Constitution establishes the inviolability of the person of the President of the Republic. Paragraph 2 of Article 62 of the Constitution provides for a special procedure for bringing a Seimas member to criminal liability or restriction of his personal freedom. While in office, the President of the Republic may neither be arrested nor charged with criminal or administrative proceedings (Paragraph 1 of Article 86 of the Constitution). Thus, Articles 62 and 86 of the Constitution provide for additional guarantees of the inviolability of the person and freedom of Seimas members and the President of the Republic.

G. Goda is of the opinion that there are not any grounds to discern any possible conflict of Article 11 of the Law with Articles 62 and 86 of the Constitution, however, the compliance of Article 11 of the Law with Article 22 of the Constitution which protects the private life of individuals and Paragraph 2 of Article 31 of the Constitution guaranteeing the right to a fair hearing of the case should be investigated.

2. According to the representative of the party concerned, the mode of conduct simulating a criminal act should not be directly linked with the restriction of the inviolability of the private life of individuals (Article 22 of the Constitution). The European Court of Human Rights has ruled that operations of undercover agents are in line with Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter also referred to as the Convention) which ensures the inviolability of private life of individuals. In the course of the application of the mode certain information concerning the private life of an individual may be recorded. In such a case there might appear problems as for the compliance of this operational measure with Paragraph 3 of Article 22 of the Constitution which provides that information concerning the private life of an individual may be collected only upon a justified court order. The application of the mode does not encompass the tapping of telephone conversations. The tapping of telephone conversations is an individual action which should be authorised by individual procedure. The authorisation for the application of the mode by the prosecutor may not be treated as a permission for tapping telephone conversations. The tapping of telephone conversations requires the authorisation of a higher level, i.e. that of a judge. In the opinion of the representative of the party concerned, cases which occur in reality when telephone conversations are tapped without the authorisation of a judge should be deemed to be a violation of the CCP and the Law. The information received in such a way may not be used as evidence in criminal procedure as the principle of permissiveness of evidence has been violated.

3. According to G. Goda, the persons to whom the mode is applied are not discriminated on the basis of their sex, race, nationality, language nor on any other grounds. Therefore, the conclusion should be drawn that in the course of the application of the Law, the principle of the equality of all persons established in Paragraph 1 of Article 29 of the Constitution is not violated.

4. In the opinion of the representative of the party concerned, the impugned norms of the Law are also in compliance with Paragraph 1 of Article 30 of the Constitution establishing that any person whose constitutional rights or freedoms are violated shall have the right to apply to court. The mode is an action which is carried out when the person to whom it is applied is unaware of it. It is possible to file a complaint against such an action only after such a measure has been accomplished and in case the person is informed about it. However, it does not mean that a complaint against the application of the mode is impossible at all. In the course of the judicial investigation complaints and appeals may be filed requesting that the information acquired during the application of the mode be not used as evidence.

5. G. Goda points out that the application of the mode to a particular person does not deprive him of his right to a fair and public hearing by an independent and impartial court. The fact that the mode has been applied in the case does not in any way change the duty of the court to elucidate thoroughly and consistently the factual circumstances of the case, justly to apply the laws and decide the criminal case in a fair manner. Thus, the impugned norms of the Law are in conformity with Paragraph 2 of Article 31 of the Constitution.

6. According to the representative of the party concerned, there exist no grounds to assert that the impugned provisions of the Law are in conflict with Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution. These articles of the Constitution correspondingly establish the main functions of courts and the prosecutor’s office. When the mode is applied, the separation of these functions is not violated. The authorisation and application of the mode is not administration of justice, and from this aspect it is impossible to perceive any conflict with Paragraph 1 of Article 109 of the Constitution. Authorising the mode, the prosecutor does not violate Paragraph 1 of Article 118 of the Constitution, either. By means of the mode one attempts to detect crimes and bring the offenders to criminal liability. Therefore, in the opinion of G. Goda, it is possible to maintain that authorisation of the mode is linked with implementation of functions of criminal prosecution. Alongside, one should not disregard the opinion that the evidence upon which one bases oneself while passing judgments must be collected under procedure of procedural laws.

7. The representative of the party concerned points out that Paragraphs 1 and 2 of Article 1981 of the Code of Criminal Procedure regarding an opportunity to use technical facilities in the course of operational actions and recording the results of these actions are co-ordinated with the Law. The procedure of carrying out operative actions is regulated in the Law. It is established therein that the operational actions which may be regarded as collection of information regarding the private life of an individual must be carried out by decision of the judge (Paragraph 1 of Article 10 of the Law). The interpretation and application of Article 1981 of the CCP are inseparable from these provisions of the Law concerning operational actions. Thus, both the Law and Article 1981 of the CCP retain the requirements raised to collection of information about the private life of individuals which are established in Paragraph 3 of Article 22 of the Constitution: 1) the information is collected under the procedure provided for in the Law; 2) this is done in case there is a court decision. The nature of the actions authorised by the judge indicates that the authorisation to perform these actions also means the permission to record the performance of these actions. Therefore, an opportunity to record the performance of operative actions as provided for in Article 1981 of the CCP may not be regarded as a circumstance permitting violating Article 22 of the Constitution.

IV

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the following persons: E. Zingeris, Chairman of the Seimas Human Rights Committee, A. Katkus, Chairman of the Seimas National Security Committee, Dr. K. Šimkus, a national security and foreign policy deputy advisor to the President of the Republic of Lithuania, Head of the Operational Tactics Department of the Law Academy of Lithuania, Č. Stankevičius, the Minister of Defence, Č. Blažys, the Minister of the Interior, S. Liutkevičius, Director of the Investigation Department under the Ministry of the Interior, V. Grigaravičius, the Criminal Police Chief Commissioner, Deputy Commissioner General, Dr. G. Švedas, Vice-Minister of Justice, K. Pėdnyčia, the Prosecutor General, R. Jancevičius, the chief prosecutor of the Vilnius region prosecutor’s office, M. Laurinkus, Director General of the State Security Department, V. Junokas, the Chief Commissioner of the Special Investigation Service under the Ministry of the Interior, Habil. Dr. V. Vadapalas, Director General of the European Law Department under the Government of the Republic of Lithuania, Dr. P. Ancelis, the Dean of the Police Faculty of the Law Academy of Lithuania, Assoc. Prof. Dr. K. Stungys, the Dean of the Law Faculty of the Law Academy of Lithuania, Assoc. Prof. Dr. T. Birmontienė, the Dean of the Public Administration Faculty of the Law Academy of Lithuania, A. Dapšys, Director of the Law Institute, the employees of the Law Institute Dr. K. Jovaišas and J. Misiūnas, S. Kaušinis, the secretary-in-chief of the Human Rights Association, J. Jasaitis, a member of the Board of the Lithuanian Lawyers’ Society, K. Motieka, Chairman of the Lithuanian Bar Council.

V

At the Constitutional Court hearing, Judge Kęstutis Jucys, acting as the representative of the Vilnius Regional Court, a petitioner, virtually reiterated the arguments set forth in the 12 October 1999 ruling of the Vilnius Regional Court.

At the Constitutional Court hearing, G. Goda, acting as the representative of the party concerned, virtually reiterated the arguments set forth in his written explanations to the Constitutional Court.

The Constitutional Court

holds that:

I

Paragraph 12 of Article 2 of the Law on Operational Activities provides:

Mode of conduct simulating a criminal act means authorised acts exhibiting criminal characteristics aimed at protecting the key interests of the state, the public, or an individual.”

Item 3 of Paragraph 2 of Article 7 of the Law prescribes:

2. If there is probable cause pursuant to Paragraph 2 of Article 4 of this Law and if operational entities have received authorisation as provided in Articles 10 and 11 of this Law, they shall have the right to: <…> 3) model conduct simulating a criminal act.”

Article 11 of the Law provides:

1. The mode of conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him on the reasoned written request by the operational entity. The request shall contain:

1) the surname and position of the officer who submitted the request;

2) the facts warranting a request to employ the mode of conduct simulating a criminal act;

3) the limits of concrete actions performed during the application of the mode of conduct simulating a criminal act in accordance with the appropriate article of the Criminal Code of the Republic of Lithuania;

4) information about the person, who will use the mode of conduct simulating a criminal act;

5) the targeted objective, indicating the interim and ultimate goals of the mode of conduct simulating a criminal act;

6) the anticipated duration of the mode of conduct simulating a criminal act.

2. The mode of conduct simulating a criminal act devised by an operational entity shall be authorised for a one-year period. It may be extended after the expiration of the said term.”

Paragraphs 1 and 2 of Article 1981 of the Code of Criminal Procedure provide:

In the course of conduct of operational actions, the officer of the interrogative body may take photographs, film, make video or audio recordings of a crime prepared, being committed or committed.

The officer of the interrogative body shall draw up a protocol as regards the use of technical facilities, recording a crime prepared, being committed or committed. In the protocol the technical data of the technical means used, as well as the time, place and contents of the fixed action, shall be entered. The negatives and pictures of the photographs, films, video and audio recordings shall be attached to the protocol. The protocol together with its additions shall be attached to the criminal case and shall have the power of evidence” (the law in its wording of 28 January 1993).

3. It needs to be noted that the petitioners in their petitions to the Constitutional Court formulate their request concerning the compliance of Article 11 of the Law with the Constitution to different extents. The group of the Seimas members requests an investigation into whether Article 11 of the Law to the extent of its application is in compliance with the Constitution, the Vilnius Regional Court requests a decision on whether the content of Article 11 is in compliance with the Constitution, the First Vilnius City Local Court requests the Constitutional Court to determine whether Article 11 of the Law is in compliance with Paragraph 3 of Article 22 of the Constitution, and whether Paragraph 1 of Article 11 of the Law is in conformity with Article 28 of the Constitution.

It is evident from the legal arguments set down in the petitions of the petitioners—the Vilnius Regional Court and the First Vilnius City Local Court—that the doubts of the petitioners concerning the compliance of Article 11 of the Law with the Constitution are essentially linked with the provision of Paragraph 1 of Article 11 by which the conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him. Therefore, the Constitutional Court will investigate the compliance of Paragraph 1 of Article 11 of the Law to the extent that the conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him with Articles 22, 28, Paragraph 1 of Article 29, Paragraph 1 of Article 30, Paragraph 2 of Article 31, Paragraph 1 of Article 109, Paragraph 1 of Article 118 of the Constitution.

II

1. The striving for an open, just, and harmonious civil society and a state established under the rule of law in the Preamble to the Constitution implies that every individual and the whole society must be safe from unlawful attempts against them. One of duties of the state and one of its priority tasks is to ensure such safety. This is necessary as crime violates the main rights and freedoms of persons, safe conditions of life, it has a negative effect on the public welfare and the bases of state economic, cultural and political life. With the spread of crime, especially organised crime and corruption, the confidence in state authority and laws is ruined, lack of respect for them and for the established order increases. Therefore, the state is compelled to undertake various lawful means permitting curbing crime.

The laws prohibit deeds by which essential harm is inflicted on the interests of persons, society and those of the state or in case there occurs a threat that such damage will be inflicted; they define as to what deeds are considered crimes and establish punishment for their commission; by threatening with criminal punishments, they protect individuals and society from criminal attempts against them and establish bases on the grounds of which the persons who have committed crimes are punished in an attempt to correct them.

2. By means of norms of laws, one attempts to create the conditions for detecting crimes promptly, incarcerating the culprits and applying the law in an appropriate manner so that everyone who has committed a crime would be justly punished and that no innocent person would be brought to criminal liability and convicted (Article 2 of the CCP). By means of norms of criminal procedure, one attempts to create the conditions for protecting society by lawful means from criminal deeds. Alongside, another aim of the criminal procedure which is of no less importance should be noted—to ensure the protection of the rights and freedoms of the person suspected of the commission of a crime, to avoid groundless criminal prosecution and unjust punishment. Therefore, in democratic states the system of norms regulating the investigation of criminal cases is based on the principles of the equality before the law and the court, the presumption of innocence, public and fair trial, the impartiality and independence of the court and judges, the separation of the functions of the court and those of other entities of criminal procedure, the guarantee of the right to defence, as well as other principles.

3. Penal laws and criminal procedure laws establish that every person who has committed a crime must answer for it according to the laws. Criminal prosecution of persons who committed crimes is one of the ways of enforcement of the norms of the Constitution ensuring the right of an individual to life (Article 19), the inviolability of his person and dignity (Article 21), the inviolability of his dwelling place (Article 24) and other rights and freedoms.

When criminal prosecution is carried out, the laws grant rights to apply various specific measures. They have to be efficient and modern. It needs to be noted that combat against crime must be conducted by lawful means and that such means may not violate the constitutional rights and freedoms of individuals.

Combating crime of various forms, states apply various special methods of investigation. The character and forms of such methods are determined by the dangerousness, complexity and spread of individual categories of crimes. It is justifiable and necessary to design such special measures and methods and use them in order to detect crimes and establish the culprits as it is often impossible to discover certain crimes by means of ordinary ways and methods of investigation, or to do so is extremely difficult. As a rule, these are the most serious, well organised or latent crimes posing threat to the security of a great number of people, that of society or even that of the state.

International legal acts also recognise special forms and methods of crime investigation as lawful and indispensable, for example, the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances adopted on 19 December 1988 (ratified by the Republic of Lithuania on 12 March 1998, came into force on 6 September 1998), the European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime adopted on 8 November 1990 (ratified by the Republic of Lithuania on 22 December 1994, came into force on 1 October 1995). In 1996 the intergovernmental body FATF (Financial Action Task Force on Money Laundering) presented 40 recommendations for member states and other states regarding efficient fight against money laundering.

On 27 January 1999, the Council of Europe promulgated the Criminal Law Convention on Corruption (ESS No. 173) for public signing. Article 23 thereof prescribes that each party to the Convention must resort to all measures as may be necessary to enable them to fight corruption, including “those permitting the use of special investigative techniques”. It is pointed out in the explanatory note to the Convention that special investigative techniques are the use of special or infiltrated agents, installation of tapping equipment, access to personal computer files and other means.

4. Under the Law adopted on 22 May 1997, operational activities mean intelligence and counter-intelligence activities conducted by institutions authorised by the state to combat crime (Paragraph 1 of Article 2). One of the forms of operational activities is the mode of conduct simulating a criminal act. As mentioned before, under Paragraph 12 of Article 2 of the Law, the mode of conduct simulating a criminal act means authorised acts exhibiting criminal characteristics aimed at protecting the key interests of the state, the public, or an individual. The mode is a special form of operational activities. The covert participants of operative activities implementing the mode perform actions which formally correspond to indications of crime. In applying the mode, one creates more favourable conditions for detecting or investigating serious or complex crimes. Certain crimes, e.g. cases of corruption, would be extremely difficult to detect without the application of the mode.

5. In its essence and purpose, the mode established in the Law is similar to the use of undercover investigators/agents provided in the laws (as a rule, criminal procedural laws) of other states in the course of investigation and detection of crimes of certain categories. Therefore, in the context of the case at issue the case-law of the European Court of Human Rights linked with the use of undercover investigators/agents as well as the use of secret means and methods in the course of detection of crimes is important. It needs to be noted that in these cases the said court investigated whether there had been any violations of Articles 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which is a constituent part of the legal system of the Republic of Lithuania.

According to the case-law of the European Court of Human Rights, in themselves secret methods of detection of crimes and offenders do not violate Article 8 of the Convention. In its judgment of 6 September 1978, in the Case of Klass and Others vs. Germany (European Court of Human Rights, Case of Klass and Others, Judgment of 6 September 1978, Series A No. 28) noted that the use of secret means is not incompatible with Article 8 of the Convention, since it is the fact of not informing the individual that ensures the efficacy of this measure.

The case-law of the European Court of Human Rights also indicates that the restriction and limitation on the rights and freedoms provided for in Paragraph 1 of Article 8 of the Convention are justifiable if the requirements established in Paragraph 2 of the same article are followed. First, such restrictions and limitations must be provided for in the law and when they are necessary in the protection of the interests of a democratic society. Second, such a law must provide detailed guarantees and protection against any arbitrary interference. The Court noted that the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such secret measures. The European Court of Human Rights noted that the laws permitting interference into the sphere protected by Article 8 of the Convention are lawful as long as such interference is necessary for the purpose of national security and public order and for attempt to fight criminal crime. States must have an opportunity for secret surveillance of various subversive activities in their territory as well as that of choice of forms of secret surveillance. On the other hand, the states do not dispose of unlimited freedom of application of measures of secret surveillance. The states must ensure that their laws contained guarantees against possible misuse in the course of secret surveillance of persons (European Court of Human Rights, judgment of 25 March 1998 in the case of Kopp vs. Switzerland).

In its judgment of 9 June 1998 in the Case of Teixeira de Castro vs. Portugal, the European Court of Human Rights held that the right to a fair administration of justice holds such a prominent place that it cannot be sacrificed for the sake of expedience. The Court noted that the general requirements of fairness embodied in Article 6 apply to proceedings concerning all types of criminal offence, from the most straightforward to the most complex. On the grounds of public interest one may not justify such evidence that is obtained when the actions of police officers go beyond those of undercover agents, i.e. when the undercover agents incite the commission of the offence. The public interest cannot justify the use of evidence obtained as a result of police incitement. The European Court of Human Rights noted that there had been a violation of Paragraph 1 of Article 6 of the Convention as the undercover agents instituted operational activities against the petitioner who had not been known to them before.

It needs to be noted that the jurisprudence of the European Court of Human Rights as a source of construction of law is also important to construction and applicability of Lithuanian law.

The Constitutional Court also underlines that the obligation of the state and its institutions is prevention of crime. The mode of conduct simulating a criminal act may only serve as one of the measures in detection of a crime prepared by a person or in that of a crime at an early stage of its commission. The state institutions may not establish such legal regulation which would permit state special services to incite or provoke a person to commit a crime so that after it there would appear the grounds to prosecute the said person.

III

On the compliance of Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7, Paragraph 1 of Article 11 of the Law on Operational Activities to the extent that the conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him and that of Paragraphs 1 and 2 of Article 1981 of the Code of Criminal Procedure of the Republic of Lithuania with Article 22 of the Constitution.

1. Article 22 of the Constitution provides:

The private life of an individual shall be inviolable.

Personal correspondence, telephone conversations, telegraph messages, and other intercommunications shall be inviolable.

Information concerning the private life of an individual may be collected only upon a justified court order and in accordance with the law.

The law and the court shall protect individuals from arbitrary or unlawful interference in their private or family life, and from encroachment upon their honour and dignity.”

The norms established in this article of the Constitution protect the individuals’ right to privacy. This right encompasses private, family and home life, the physical and psychological inviolability of individuals, his honour and reputation, secrecy of personal facts, the prohibition on publicising any received or acquired confidential information, etc. In case the private life of an individual is interfered with in an arbitrary and unlawful manner, then, alongside, his honour and dignity are encroached upon (the Constitutional Court’s ruling of 21 October 1999).

2. The human right to the inviolability of private life is entrenched in international legal acts. Article 12 of the Universal Declaration of Human Rights prescribes: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of his right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

3. In the context of the case at issue the concept of privacy (private life) as a value to which an individual has a right as established in the Constitution is of importance.

In its judgment of 16 December 1992 in the Case of Niemietz vs. Germany (European Court of Human Rights, judgment of 16 December 1992 in the case of Niemietz vs. Germany, Series A No. 251), the European Court of Human Rights did not consider it possible or necessary to attempt an exhaustive definition of the notion “private life”. It emphasised that it would be too restrictive to limit the notion to an “inner circle” in which the individual may live his personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. In the opinion of the Court, respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings. The European Court of Human Rights concluded that even in his professional or commercial activities an individual has a certain right to privacy, which is especially in the case of a person exercising a liberal profession the private residence of whom may also function as his working place, i.e. the “activities which are related to a profession or business may well be conducted from a person’s private residence and activities which are not so related may well be carried on in an office or commercial premises”.

The legal concept of private life is linked with the state of an individual when the individual may expect privacy, or with legitimate expectations of private life. When the person caries out actions of a public character and comprehends it or must comprehend it or is capable of understanding it, whether at home or other private premises, then such actions of a public character will not enjoy protection under Article 22 of the Constitution and Article 8 of the Convention and the person may not expect privacy.

The activities of state and municipal officials linked with the implementation of functions of state and municipal authority and administration are always of a public character. In a democratic state the public performance of duties by state officials and office workers is one of essential principles protecting one from their arbitrariness or abuse.

In cases when a person violates the norms of private law which regulate commercial or any other secrets of private nature, he may expect complete privacy. For example, a covenantee to an agreement containing a commercial secret appeals either to court or another institution of settling disputes, he reveals the content of the agreement and requests that the party that breached it should fulfil its conditions and pay damages. In such a case the party that breached the agreement may not expect that after it has breached the conditions of the agreement the other party to the agreement will not defend its rights in court or another institution of settling disputes.

The Constitutional Court notes that a person who commits criminal deeds or those contrary to law must not and may not expect privacy. The limits of the protection of private life of an individual disappear in cases when by his actions in a criminal or any other unlawful manner he violates the interests protected by law, inflicts damage on particular persons, society or the state.

Under Paragraph 3 of Article 7 of the Constitution, ignorance of the law shall not exempt a person from liability. The laws of the Republic of Lithuania prohibiting certain deeds and providing for liability in case of their commission are accessible and known to society. All laws and legal acts are officially publicised in the official gazette Valstybės žinios. Therefore, it is presumed that every individual, by violating prohibitions established in laws, is aware of the fact that this will cause corresponding reaction of state institutions of law and order and comprehends that for the crime committed the state will apply strict measures and that by such measures his unlawful behaviour will be corrected, hindered or stopped.

The concept of expectable privacy is also established in the case-law of the European Court of Human Rights. For instance, the Court pointed out in its judgment of 15 June 1992 in the Case of Lüdi vs. Switzerland (European Court of Human Rights, judgment of 15 June 1992 in the Case of Lüdi vs. Switzerland, Series A No. 238) that “Mr Lüdi must therefore have been aware from then on that he was engaged in a criminal act punishable under Article 19 of the Drugs Law and that consequently he was running the risk of encountering an undercover police officer whose task would in fact be to expose him”, and emphasised that “in the present case the use of an undercover agent did not, either alone or in combination with the telephone interception, affect private life”. Thus, a person suspected of committing crimes refuses himself from the right to private life to the extent that is determined by the crime committed by him. The principle of protection of the private life of an individual is not applicable to criminal deeds.

4. It is provided in the Universal Declaration of Human Rights that everyone has duties to the community in which alone the free and full development of his personality is possible. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society (Paragraphs 1 and 2 of Article 29). Thus, it is universally recognised that human rights and freedoms may be subject to limitation in case of necessity and in case the procedure and limitations of such restriction are established by law. The same meaning is expressed in Article 28 of the Constitution wherein it is established that “while exercising their rights and freedoms, persons must observe the Constitution and the laws of the Republic of Lithuania, and must not impair the rights and interests of other people”.

5. Paragraph 3 of Article 22 of the Constitution provides that information concerning the private life of an individual may be collected only upon a justified court order and in accordance with the law. These constitutional provisions are in line with the standards set in Paragraph 2 of Article 8 of the Convention providing when the right of an individual to private life may be restricted. Such restrictions are possible

1) when this is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others;

2) when cases of restriction of the right to private life are provided for in laws while information concerning the private life of an individual may be collected only upon a justified court order and in accordance with the law.

6. In the opinion of the petitioners (the Vilnius Regional Court and the First Vilnius City Local Court), in the course of the application of the mode there appear the grounds for entities of operational activities to interfere in the private life of individuals without a court order. This is done in the course of performance of certain operational actions, for instance, tapping telephone conversations. In the petitions of the petitioners it is pointed out that such situation occurs due to the fact that the process of carrying out of the mode is not sufficiently regulated by the Law, while the whole-complex of the norms of Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7 and Article 11 of the Law constitutes grounds to perform the actions provided in Paragraph 1 of Article 10 also without the authorisation of the judge.

7. The limits of the mode, i.e. acts imitating criminal deeds, are circumscribed by the system of norms established in the Law. This system is composed of the purpose of the mode, the bases for performing the mode, the procedure of the authorisation of the mode etc. as formulated in the Law. These actions are performed by the confidential full-time staff of the operational entities—respective state services—whose work for operational entities is encoded and co-operating natural persons with whom operational entities have concluded a written or verbal agreement on confidential co-operation (Articles 5 and 6 of the Law). The actions constituting the mode imitating a crime, from the formal point of view, correspond with the characteristics of the body of a crime (corpus delicti) as provided for in the Criminal Code (hereinafter referred to as the CC), however, under Paragraph 12 of Article 2 of the Law these acts of covert participants of operational activities are performed with the aim of detection of crimes, establishment of persons that committed them, protection of the key interests of the state, the public, or an individual.

It needs to be noted that by means of the mode it is only permitted to “connect oneself” to permanent or lasting crimes as well as the crimes that are taking place but are not finished. Such criminal deeds continue without the efforts of covert participants of operational activities. The covert participants only imitate the actions of the preparation of a crime or those of a crime which is being committed. It is not permitted that by means of the mode the commission of a new crime be incited or provoked nor that the commission of a criminal deed which was only prepared and later such an action was terminated by an individual be incited. Thus, under the Law the actions performed within the mode are held lawful in case the established limits of actions established in the mode are not overstepped. Disregard of the limits of the application of the mode established in the Law, provocation of the commission of a crime or any other abuse by means of the mode makes the mode unlawful. The investigation and assessment of these circumstances are a matter of judicial consideration.

8. The logical, systematic and comparative investigation into the notion “mode” established in Paragraph 12 of Article 2 of the Law together with the other provisions of same Article 2 indicates that the mode is an independent form of operational activities imitating a criminal deed. The mode is also singled out from among other forms of operational activities in Paragraph 5 of Article 4, Item 3 of Paragraph 2 of Article 7 and Paragraph 1 of Article 10 of the Law. Under the Law, the mode does not cover the following operational actions: covert monitoring of private correspondence, telegraph and other communications, mail and electronic communications, the wiretapping and recording of telephone conversations, the use of special equipment and covert monitoring of residential premises. Under Paragraph 1 of Article 10 of the Law, these operational actions by which private life may be interfered with, dignity and honour may be encroached upon, shall be authorised by presidents of regional courts and chairpersons of the criminal divisions of those courts on the reasoned written request of the Prosecutor General or the Deputy Prosecutor General designated by him.

Elucidating whether the impugned norms of the Law are in compliance with Article 22 of the Constitution, the fact is of essential importance that under Paragraph 2 of Article 4 of the Law the mode of conduct simulating a criminal act shall be applied when 1) the identity of an individual who is planning or has engaged in criminal activity has not yet been established; 2) preliminary verified information about an individual’s criminal activity is available; 3) preliminary verified information about an individual’s association with a criminal organisation is available; 4) data about the activities of foreign intelligence services are available; 5) the suspect, the defendant, or the convicted person goes into hiding. Under Item 3 of Paragraph 1 of Article 11 of the Law, the limits of concrete actions performed during the application of the mode of conduct simulating a criminal act are in accordance with the appropriate article of the CC. By means of the mode crimes are detected or criminal deeds are prevented, as well as the person committing the crime is found out. Under the Law, by means of actions constituting the mode, information about the private life of individuals is not collected. Therefore, the requirements provided for in Paragraph 3 of Article 22 and other articles of the Constitution are not applicable to the mode of conduct simulating a criminal act, i.e. for the application of the mode a reasoned court order is not necessary. Under Paragraph 1 of Article 11 of the Law, the mode of conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him on the reasoned written request by the operational entity when there are bases provided for in Paragraph 2 of Article 4 of the Law.

On the other hand, the mode is applied together with operative actions. As mentioned before, the Law provides that covert monitoring of private correspondence, telegraph and other communications, mail and electronic communications, the wiretapping of telephone conversations, the use of special equipment and covert monitoring of residential premises require an authorisation by court (Paragraph 1 of Article 10 of the Law).

In assessing the legal regulation established in Paragraph 1 of Article 10 and Paragraph 1 of Article 11 of the Law in a systemic manner, it should be concluded that the Law provides that in cases when the mode does not include covert monitoring of private correspondence, telegraph and other communications, mail and electronic communications, the wiretapping of telephone conversations, use of special equipment and covert monitoring of residential premises, i.e. the actions pointed out in Paragraph 1 of Article 10 of the Law, the mode is authorised by the Prosecutor General or the Deputy Prosecutor General designated by him. In cases when in course of the application of the mode the above-mentioned covert monitoring of private correspondence, telegraph and other communications, mail and electronic communications, the wiretapping of telephone conversations, use of special equipment or other actions pointed out in Paragraph 1 of Article 10 of the Law are performed, such actions, under Paragraph 1 of Article 10 of the Law, must be authorised by presidents of regional courts and chairpersons of the criminal divisions of those courts.

Thus, interpreting the legal regulation established in the Law, it should be concluded that the norms of Paragraph 1 of Article 11 of the Law establishing the procedure for the authorisation of the mode do not violate the provisions of Article 22 of the Constitution. A different interpretation of the norms of Paragraph 1 of Article 10 and Paragraph 1 of Article 11 of the Law, especially one by which upon authorisation of the mode by the prosecutor, the authorisation by court for covert monitoring of private correspondence, telegraph and other communications, mail and electronic communications, the wiretapping of telephone conversations, the use of special equipment and covert monitoring of residential premises would be unnecessary, would distort the legal regulation of the mode established in the Law.

Taking account of the reasoning set forth above, the conclusion should be drawn that Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7, Paragraph 1 of Article 11 of the Law to the extent that the conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him are in conformity with Article 22 of the Constitution.

Alongside, the Constitutional Court notes that the legal regulation by which in all cases decisions on the mode of conduct simulating a criminal act, in case there are bases for it established in laws, are adopted by courts would be more in line with the principles of constitutional protection of human rights.

9. In its ruling of 16 November 1999, the First Vilnius City Local Court, a petitioner, points out that in the course of conduct of operational actions it is permitted to take photographs, to film, make video or audio recordings of a crime prepared, being committed or committed. Under Article 1982 of the CCP, an authorisation by court is necessary for tapping telephone conversations. The technical facilities pointed out in Paragraph 1 of Article 1981 of the CCP may be used not only for tapping telephone conversations but also they may be used in the course of the performing of other actions by which the principle of the inviolability of the private life of an individual established in Paragraph 1 of Article 22 of the Constitution might be violated. The authorisation of the court is not necessary for the use of the technical facilities pointed out in Article 1981 of the CCP in the course of the performing of operational actions. Therefore, in the opinion of the petitioner, Paragraphs 1 and 2 of Article 1981 of the CCP conflict with Paragraph 3 of Article 22 of the Constitution.

As mentioned in this Ruling, the limits of the protection of private life of an individual disappear in cases when by his criminal actions he violates the interests protected by law. Therefore, it is established in the laws as to what is considered evidence in a criminal case, and it is provided therein as for the procedure for its collection and record in order to detect crimes and the persons that committed them.

Paragraph 2 of Article 13 of the Law provides that the information obtained in the course of operational actions may be used as evidence in a criminal case in accordance with the instances and procedure established by the CCP. Paragraph 2 of Article 74 of the CCP stipulates that sources of evidence in a criminal case are also protocols of tapping telephone conversations and audio recordings, protocols of the use of technical facilities in the course of performance of operational actions, as well as photographs, films, video or audio recordings.

Paragraphs 1 and 2 of Article 1981 of the CCP provide that technical facilities are used in the course of operational actions. Under the Law, operational actions are the use of facilities (including technical facilities) and methods of operational activities in an attempt to detect crimes and persons who committed them (Paragraph 3 of Article 2, Paragraphs 1 and 4 of Article 10 of the Law). The bases and procedure for performing operational actions are regulated by the Law on Operational Activities. Therefore, the provisions of Paragraphs 1 and 2 of Article 1981 of the CCP are inseparable from the Law wherein the procedure for performing operational actions is regulated.

Paragraph 1 of Article 10 of the Law provides that for covert monitoring of private correspondence, telegraph and other communications, mail and electronic communications, the wiretapping of telephone conversations, use of special equipment and covert monitoring of residential premises an authorisation of the court is necessary. Thus, it is presumed in the Law that by these operational actions the private life of individuals may be interfered with. Therefore, implementing the provisions of Paragraph 3 of Article 22 of the Constitution the Law provides for such a procedure for authorisation of these operational actions. The information obtained during operational actions may be regarded as evidence when it is duly established (Paragraph 2 of Article 74 of the CCP). Therefore, it is provided in Paragraph 2 of Article 1981 of the CCP that a protocol shall be drawn up as regards the use of technical facilities recording a crime prepared, being committed or committed, in the protocol the technical data of the technical facilities used, as well as the time, place and contents of the recorded action, shall be entered. The negatives and pictures of the photographs, films, video and audio recordings must be attached to the protocol. The protocol has the power of evidence.

Thus, the authorisation of the court permitting performing respective operational actions provided in Paragraph 1 of Article 10 of the Law encompasses the establishment of the information obtained in the course of the operational actions by technical facilities as this is, as a rule, an inseparable element of these actions.

Taking account of the arguments set forth above, it should be concluded that Paragraphs 1 and 2 of Article 1981 of the Code of Criminal Procedure are in compliance with Article 22 of the Constitution.

IV

On the compliance of Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7, Paragraph 1 of Article 11 of the Law on Operational Activities to the extent that the conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him with Article 28 of the Constitution.

1. In its petition of 10 November 1999, the First Vilnius City Local Court, a petitioner, asserts that the whole-complex of the impugned norms of the Law creates legal grounds for a certain person to commit a crime lawfully, therefore, the respective norms of the Law conflict with Article 28 of the Constitution.

2. Article 28 of the Constitution prescribes: “While exercising their rights and freedoms, persons must observe the Constitution and the laws of the Republic of Lithuania, and must not impair the rights and freedoms of other people.”

By means of this constitutional article, one of essential principles is established which means that lawful behaviour of an individual is not without imposed limitations and absolutely free. A human being, as he or she is a social being, lives in society among like human beings who are equal in their dignity and rights. Every human being has duties to society in which his or her person may develop freely and completely, while the main of these duties must not impair the rights and freedoms of other people.

Article 28 of the Constitution establishes the limits of behaviour of people but not those of state institutions. Under Paragraph 2 of Article 5 of the Law, the mode is implemented only by members of the confidential full-time staff of the operational entities whose work for operational entities is encoded, and co-operating natural persons with whom operational entities have concluded a written or verbal agreement on confidential co-operation. As mentioned before, the mode is not a criminal deed. The mode only simulates a criminal act in attempt to detect crimes. In other words, covert participants only carry out special functions which are within the competence of institutions of law and order and which are useful to society and the state. Their activities are not covered by the sphere regulated by Article 28 of the Constitution.

As already mentioned in this Ruling, the principle of the protection of private life of an individual is not applicable to criminal deeds. Thus, the activity of persons applying the mode simulating a criminal act and those committing a crime is not private and is not regulated by Article 28 of the Constitution.

Taking account of the reasoning set forth, it should be concluded that Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7, Paragraph 1 of Article 11 of the Law to the extent that the conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him are in compliance with Article 28 of the Constitution.

V

On the compliance of Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7, Paragraph 1 of Article 11 of the Law on Operational Activities to the extent that the conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him with Paragraph 1 of Article 29 of the Constitution.

1. In the opinion of the petitioners, the impugned norms of the Law conflict with Paragraph 1 of Article 29 of the Constitution as the covert participants of operational activities are permitted to commit a crime and they are not prosecuted for it, while the persons to whom the mode is applied are brought to criminal liability.

2. Paragraph 1 of Article 29 of the Constitution provides: “All persons shall be equal before the law, the court, and other State institutions and officers.”

The principle of the equality of all persons is established by means of these constitutional norms. This principle must be observed when passing and applying laws, as well as administering justice. This principle obligates one to apply a uniform legal assessment to homogeneous facts and prohibits against any arbitrary assessment of essentially homogeneous facts (the Constitutional Court’s ruling of 24 January 1996). This is the principle of a formal legal equality. This constitutional principle does not deny the fact that different legal regulation may be established in respect to categories of certain persons that are in different situations. The legal situation of persons applying the mode is essentially different from the legal situation of those to whom this mode is applied.

3. As mentioned before, the mode is lawful actions even though exhibiting elements of crime. These actions are aimed at protecting the key interests of the state, the public, or an individual. In case these actions are properly carried out, i.e. when the person to whom the mode is applied is not put under pressure, when he is neither incited nor provoked to commit a crime, then they are lawful, and the covert participants carrying it out may not be brought to criminal liability. The question whether the person to whom the mode was applied was not put under pressure, incited or provoked to commit a crime is decided by the court investigating that case.

The situation of the persons to whom the mode is applied is completely different. They commit crimes, they comprehend the danger of their deeds and that their deeds are in conflict with law, then they know or must know or are able to know that society and the state do not tolerate and that they prohibit such deeds for commission whereof criminal punishment is established. These persons know that various forms of operational activities, including the mode, might be applied to them. Besides, the person who is committing a crime may always refuse of his own will to finish it—in such a case, under penal laws, he is liable only if his deeds that actually have been performed constitute the body of another crime (corpus delicti) (Article 17 of the CC).

It needs to be noted that the authorisation of the mode does not mean permission to commit a crime. The prosecutor authorises simulation of a deed exhibiting elements of crime and only in order to detect a crime or the person that committed it but it never authorises a crime. Thus, the impugned provisions of the Law are not linked with the regulation established in Article 29 of the Constitution.

Taking account of the reasoning set forth, it should be concluded that Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7, Paragraph 1 of Article 11 of the Law to the extent that the conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him are in compliance with Paragraph 1 of Article 29 of the Constitution.

VI

On the compliance of Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7, Paragraph 1 of Article 11 of the Law on Operational Activities to the extent that the conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him with Paragraph 1 of Article 30 of the Constitution.

1. It is possible to conclude that the doubt of the Vilnius Regional Court, a petitioner, whether the impugned provisions of the Law are in conformity with Paragraph 1 of Article 30 of the Constitution is based on the fact that under the Law the person to whom the mode is applied is unaware of this and, therefore, in the opinion of the petitioner, does not have an opportunity to apply to court.

2. Paragraph 1 of Article 30 of the Constitution stipulates that “any person whose constitutional rights or freedoms are violated shall have the right to apply to court”.

By these provisions the right of a person to judicial protection of his violated rights and freedoms is established. The constitutional norms guarantee the right of the person to an independent and impartial arbiter which, under the Constitution and laws, might settle in essence the legal dispute that has arisen. It needs to be noted that every person has such a right. A person is guaranteed protection of his violated right in court regardless of the legal status of this person. The violated rights and legitimate interests of persons must be protected in court irrespective of the fact whether they are directly established in the Constitution or not. It needs to be emphasised that the rights of a person must be protected not in a perfunctory manner but in an actual and effective manner from unlawful actions of private persons as well as those of state institutions.

The right of a person to protection of his violated rights is also established in international legal acts. Article 8 of the Universal Declaration of Human Rights prescribes that “everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides that “everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.

3. Performing the actions exhibiting elements of crime the covert participants of operational activities may not use physical or psychological compulsion against persons suspected of the commission of crime, put them under any active pressure, incite or provoke them to commit a crime. Thus, in the course of application of the mode the requirements of the Law must be followed and the limits of the behaviour permitted by the Law and established in the mode may not be overstepped. The Law provides that officers and persons who have violated this shall be liable pursuant to the Criminal Code of the Republic of Lithuania and other laws (Paragraph 1 of Article 14 of the Law).

4. The mode is carried out in a covert manner, i.e. the person to whom it is applied is unaware of it as otherwise it would become ineffective. The persons to whom lawful actions, no matter that they exhibit elements of crime, are applied acquire a real opportunity to lodge a complaint against, in their opinion, unreasonable and unlawful actions of the covert participants of operative activities only after they become aware of the mode applied to them, however, this is justifiable. In the aforesaid Case of Klass and Others vs. Germany, the European Court of Human Rights noted that an effective remedy under Article 13 of the Convention must mean a remedy that is as effective as can be having regard to the restricted scope for recourse inherent in any system of secret surveillance.

Taking account of the reasoning set forth, it should be concluded that Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7, Paragraph 1 of Article 11 of the Law to the extent that the conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him are in compliance with Paragraph 1 of Article 30 of the Constitution.

VII

On the compliance of Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7, Paragraph 1 of Article 11 of the Law on Operational Activities to the extent that the conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him with Paragraph 2 of Article 31 of the Constitution.

1. Paragraph 2 of Article 31 of the Constitution provides: “Every indicted person shall have the right to a fair and public hearing by an independent and impartial court.”

The Constitutional Court notes that the provisions of Paragraph 2 of Article 31 of the Constitution directly indicate to the judicial investigation of a case. However, these provisions imply the right to impartial judicial protection not only during the investigation of the case in court but also during the whole procedure of investigation of the criminal case. Only in the presence of impartial procedure for investigation of crimes guarantees are created for objective, comprehensive and public investigation and fair judgment of the case in court. The requirements of impartial procedure are also applicable when actions of operative investigations are performed as the information obtained by means of operational actions may be used as evidence in a criminal case in accordance with the instances and procedure established by the Code of Criminal Procedure (Paragraph 2 of Article 13 of the Law).

It is provided for in the Code of Criminal Procedure that not only the court but also the public prosecutor, investigator and interrogator must resort to all measures provided by law so that all circumstances pertaining to the case might be investigated comprehensively, thoroughly, objectively and within a reasonable time, as well as prohibitions are established therein to collect evidence by unlawful means (Article 18 of the CCP).

It needs to be noted that Article 10 of the Universal Declaration of Human Rights provides that “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” Paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms establishes the same provisions as to their essence and meaning. In the aforesaid case of Teixeira de Castro vs. Portugal, the European Court of Human Rights noted that the proceedings as a whole, including a way of collection of evidence, must be independent and impartial.

2. The Constitutional Court notes that application of the mode in the course of the investigation of crime does not restrict the independence and impartiality of the court in the procedure of a criminal case. It is established in the Constitution that in the Republic of Lithuania, the courts shall have the exclusive right to administer justice. While administering justice, judges and courts shall be independent. While investigating cases, judges shall obey only the law (Paragraphs 1, 2, 3 of Article 109 of the Constitution). It is provided for in the Code of Criminal Procedure that the court must resort to all measures provided by law so that all circumstances pertaining to the case might be investigated comprehensively, thoroughly and objectively and it must ascertain circumstances indicting and those vindicating the suspect (Paragraph 1 of Article 18 of the CCP). The criminal procedure must help to strengthen lawfulness and law and order, prevent crime, protect the rights and freedoms of citizens and interests of society and the state (Article 2 of the CCP). These as well as other provisions of the CCP imply the duty of courts to check and assess the lawfulness, reliability, certainty and admissibility of all the evidence, including that collected in the course of application of the mode, which is presented to them. These duties of courts are not denied by the application of the mode in a particular case.

Taking account of the reasoning set forth, it should be concluded that Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7, Paragraph 1 of Article 11 of the Law to the extent that the conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him are in compliance with Paragraph 2 of Article 31 of the Constitution.

VIII

On the compliance of Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7, Paragraph 1 of Article 11 of the Law on Operational Activities to the extent that the conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him with Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution.

1. In the opinion of the Vilnius Regional Court, a petitioner, the prosecutor, by authorising the mode, pardons the person who will apply the mode from criminal liability and punishment. This is a function of administration of justice provided for in Paragraph 1 of Article 109 of the Constitution. The petitioner also maintains that authorisation of the mode is not criminal prosecution. Such prosecution begins at the time of institution of a criminal case and is regulated by the rules of criminal procedure. Therefore, the petitioner doubts whether the fact that the mode is authorised by the prosecutor is in compliance with Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution.

2. Paragraph 1 of Article 109 of the Constitution provides: “In the Republic of Lithuania, the courts shall have the exclusive right to administer justice.”

The Constitutional Court notes that this provision in criminal procedure law means that a person may not be held guilty of the commission of a crime nor be given criminal punishment otherwise than by court judgment and under the law. Discharging this function, during the trial the court must investigate the circumstances of the case comprehensively, thoroughly and objectively and decide the case in essence. It is only the court that may recognise a person guilty and administer punishment to him (Paragraph 1 of Article 31 of the Constitution).

The impugned provisions of the Law define the mode, establish the bases of its application and the procedure for its authorisation. Under the Law, the mode of conduct simulating a criminal act is authorised acts exhibiting criminal characteristics aimed at protecting the key interests of the state, the public, or an individual. The Law does not deem these actions to be crime. Therefore, the person carrying out the mode may not be brought to liability if he does not violate the Law. What has been stated does not give the grounds to assert that the officials authorising the mode and the entities carrying it out administer justice.

3. Paragraph 1 of Article 118 of the Constitution provides: “Public prosecutors shall prosecute criminal cases on behalf of the State, shall carry out criminal prosecutions, and shall supervise the activities of the interrogative bodies.”

By this constitutional provision the functions of public prosecutors are established in the procedure of criminal cases.

Article 1 of the Law on the Prosecutor’s Office establishes the following guidelines for activities of public prosecutors: initiation and conduct of criminal prosecution, control over the activities of the agencies of preliminary inquiry, conduct of preliminary investigation, coordination of the actions of the agencies of preliminary inquiry and preliminary investigation directed against crime, prosecution of criminal cases on behalf of the state etc. Thus, the prosecutor is an official who is in charge of pre-trial investigation, who supervises it, is responsible for that a person suspected of the commission of a crime would reasonably be brought to criminally liability. It needs to be noted that pre-trial investigation covers operational activities as well. The information obtained by means of operational actions may be used as evidence in a criminal case in accordance with the instances and procedure established by the Code of Criminal Procedure (Paragraph 2 of Article 74 of the CCP, Paragraph 2 of Article 13 of the Law). Thus, Paragraph 1 of Article 118 of the Constitution does not prohibit the prosecutor from authorising the mode as one form of operational activities in the course of application of which the information is collected which has the power of evidence in the case.

4. The constitutional function of the court, i.e. administration of justice, is essentially different from being in charge of pre-trial investigation of the case, supervision of this investigation, prosecution of criminal cases on behalf of the state etc. In the course of administration of justice the court investigates already prepared criminal cases, decides the question of guilt of the suspect, either administers punishment to him or acquits him. On the other hand, the court and the judge, in the course of administration of justice, are not bound by the evidence obtained during pre-trial investigation of the case, including that obtained by applying the mode. The constitutional obligation of the court is comprehensive, thorough and objective investigation of all the matter of the case and adoption of a fair judgment.

Taking account of the reasoning set forth above, it should be concluded that Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7, Paragraph 1 of Article 11 of the Law to the extent that the conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him are in compliance with Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution.

IX

On the compliance of Article 11 of the Law on Operational Activities with Paragraph 1 of Article 86 and Paragraph 1 of Article 62 of the Constitution.

1. A group of Seimas members, the petitioner, has applied to the Constitutional Court with a petition requesting an investigation into whether certain provisions of Article 11 of the Law are in conformity with Paragraph 1 of Article 86 and Paragraph 1 of Article 62 of the Constitution.

In the opinion of the group of Seimas members, the provisions of Article 11 of the Law by which the mode of conduct simulating a criminal act may be applied to every person groundlessly restrict the guarantees of personal security of the President of the Republic and Seimas members which are established in the Constitution. Besides, the petitioner maintains that the said provisions of the Law are also vicious due to the fact that the mode of conduct simulating a criminal act is authorised by the Prosecutor General or the Deputy Prosecutor General designated by him but not by the court as the prosecutor’s office is not an impartial institution administering justice.

2. In this ruling the Constitutional Court has already analysed the questions of authorisation of the mode linked with the powers of the prosecutors, therefore, they will not be analysed in this part. The Court will investigate whether Article 11 of the Law to the extent that it does not prohibit the application of the mode to the President of the Republic and Seimas members is in compliance with Paragraph 1 of Article 86 and Paragraph 1 of Article 62 of the Constitution.

3. Paragraph 1 of Article 86 of the Constitution provides:

The person of the President of the Republic shall be inviolable: while in office, the President of the Republic may neither be arrested nor charged with criminal or administrative proceedings.”

Paragraph 1 of Article 62 of the Constitution provides:

The person of a Seimas member shall be inviolable.”

By these constitutional norms the immunity of the President of the Republic and that of a Seimas member are established. Immunity is additional guarantees of protection of the person which are necessary and indispensable for proper performance of the duties of the said person. The immunity of the President of the Republic as the Head of State and that of Seimas members as representatives of the Nation who discharge their duties commissioned to them by the Constitution and laws must ensure that the President of the Republic and the Seimas might discharge the functions established in the Constitution without any hindrance, and that a possible exertion of negative influence on the President of the Republic or Seimas members by officials of the executive might be prevented. For these purposes the establishment of additional immunity guarantees for the President of the Republic and Seimas members is permissible and does not deny the principle of the equality of all persons entrenched in the Constitution (Article 29).

Under Article 77 of the Constitution, the President of the Republic is the Head of State, he shall represent the State of Lithuania and shall perform all the duties which he or she is charged with by the Constitution and laws. Only one person acquires the status of the Head of State for the period determined in the Constitution, i.e. the President of the Republic who is elected by citizens of the Republic of Lithuania. The legal status of the President of the Republic as the Head of State is an individual one, different from that of the rest of the citizens.

Seimas members have their own status also: under Article 55 of the Constitution, they are representatives of the Nation. The status of a representative of the Nation is also different from that of the rest of the citizens, including that of the President of the Republic.

The peculiarities of the status of the President of the Republic and a Seimas member determine different guarantees to immunity as well as the extent of the immunity of these persons.

The Constitutional Court notes that in the case at issue it is necessary to establish as to what immunity of the President of the Republic and that of a Seimas member is determined by the Constitution, as well as the extent of this immunity, and the relation of the immunity of the President of the Republic and that of the immunity of a Seimas member with the human rights guaranteed by the Constitution.

4. The human right to the inviolability of the person is enshrined in Paragraph 1 of Article 21 of the Constitution. The content of the inviolability of the person as a value protected by law is composed of physical and psychological inviolability. This means that laws must guarantee that an individual will be protected from any unreasonable, outward encroachment upon his life, health, freedom of physical activity and against any attempt on his psychological or mental state, his intellectual or creative expression which might be carried out by the state, municipal institutions, their officials or employees, as well as any other persons.

The human right to physical freedom which is established in Paragraph 1 of Article 20 of the Constitution is tightly connected with the human right to the inviolability of the person. The inviolability of freedom of an individual is a pre-requisite of freedom of decision making; it creates pre-conditions for performing any lawful actions and implementing legal opportunities in various spheres of life. It is possible to maintain that the inviolability of the person establishes the limits of freedom of other persons, i.e. the behaviour of the latter is permissible as long as it is not harmful to the inviolability of the person of other individuals. It needs to be noted that Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, too, provides that the aforementioned values should be protected as a whole: “Everyone has the right to liberty and security of person.”

It needs to be emphasised that the human right to freedom and the inviolability of the person may be subject to limitation when it is necessary. This may be done only on the grounds and under the procedure established in laws. Paragraph 2 of Article 20 of the Constitution provides: “No person may be arbitrarily arrested or detained. No person may be deprived of freedom except on the bases, and according to the procedures, which have been established in laws.”

5. Paragraph 1 of Article 86 of the Constitution provides that while in office, the President of the Republic may neither be arrested nor charged with criminal or administrative proceedings. Thus, while the President of the Republic is in office, his immunity is very broad, i.e. his right of immunity may be subject to limitation only after he leaves office. On the other hand, this immunity is temporary: it is applicable from the moment when the President of the Republic enters office until the moment he leaves office. It needs to be noted that the Constitution provides for the constitutional liability of the President of the Republic: for gross violation of the Constitution, a breach of the oath of office, or the commission of an offence he may be prematurely removed from office by the Seimas under impeachment proceedings (Paragraph 2 of Article 86 of the Constitution), and then his right of inviolability of the person may be limited on the same grounds and procedure as for the other persons.

6. While investigating whether the impugned norms of the Law are in compliance with Paragraph 1 of Article 62 of the Constitution, one should note that the said Paragraph 1 of Article 62 of the Constitution is linked with Paragraph 2 of the same article by which Seimas members may not be brought to criminal liability, may not be arrested, and may not be subjected to any other restriction of personal freedom without the consent of the Seimas. Thus, although, if compared with the inviolability of the person of individuals, the Constitution provides for additional guarantees of the inviolability of a Seimas member, the extent of the immunity of a Seimas member is narrower than that of the President of the Republic, i.e. the right to freedom and the inviolability of the person of a Seimas member may be limited during his office. As mentioned before, under Paragraph 2 of Article 62 of the Constitution, this may be done only with the consent of the Seimas.

7. When it is investigated whether the immunity guarantees for the President of the Republic and those of a Seimas member are not violated in the course of application of the mode, the fact that by means of the mode one attempts to detect crimes, to collect evidence so that criminal prosecution may be instituted against the respective person, and also the fact that the Constitution establishes different immunity for the President of the Republic and a Seimas member, are of essential importance.

As mentioned before, the immunity of the President of the Republic is very broad while he is in office. Its content is composed of the following: while in office, the President of the Republic may not be subjected to criminal prosecution as he may not be brought to criminal liability, nor may one resort to any measures (save the impeachment proceedings) which might create the conditions for the institution of criminal prosecution. Thus, it should be concluded that no forms of operational activities, including the mode of conduct simulating a criminal act, may be applied to the President of the Republic. Meanwhile, the impugned provisions of the Law do not prohibit (i.e. they permit) applying the mode to the President of the Republic. Such legal regulation violates the immunity of the President of the Republic established in Paragraph 1 of Article 86 of the Constitution.

The immunity of a Seimas member is narrower than that of the President of the Republic: in case there is a consent of the Seimas, a Seimas member may be brought to criminal liability. Therefore, the provisions of the Constitution do not prohibit such legal regulation by which the application of the mode and other forms of operational activities to a Seimas member as well as other persons are permissible. It needs to be noted that on 16 March 2000 Article 4 of the Law was amended under the provisions whereof operational entities are granted the right to use special technical facilities against Seimas and Government members, covertly to monitor their residential premises, correspondence, telegraph and other messages.

8. Taking account of the reasoning set forth above, it should be concluded that Article 11 of the Law to the extent that it is permitted to apply the mode to the President of the Republic conflicts with Paragraph 1 of Article 86 of the Constitution.

Article 11 of the Law to the extent that it is permitted to apply the mode to Seimas members is in compliance with 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:

1. To recognise that Paragraph 12 of Article 2, Item 3 of Paragraph 2 of Article 7, Paragraph 1 of Article 11 of the Republic of Lithuania’s Law on Operational Activities to the extent that the conduct simulating a criminal act shall be authorised by the Prosecutor General or the Deputy Prosecutor General designated by him are in compliance with the Constitution of the Republic of Lithuania.

2. To recognise that Paragraphs 1 and 2 of Article 1981 of the Code of Criminal Procedure of the Republic of Lithuania are in compliance with the Constitution of the Republic of Lithuania.

3. To recognise that Article 11 of the Republic of Lithuania’s Law on Operational Activities to the extent that it is permitted to apply the mode to Seimas members is in compliance with the Constitution of the Republic of Lithuania.

4. To recognise that Article 11 of the Republic of Lithuania’s Law on Operational Activities to the extent that it is permitted to apply the mode to the President of the Republic conflicts with Paragraph 1 of Article 86 of the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court:

 

Egidijus Kūris      Zigmas Levickis      Augustinas Normantas

 

Vladas Pavilonis      Jonas Prapiestis       Vytautas Sinkevičius

 

Stasys Stačiokas       Teodora Staugaitienė