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On a decree of the President of the Republic

Case No. 40/03

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF THE DECREE OF THE PRESIDENT OF THE REPUBLIC OF LITHUANIA (NO. 40) “ON GRANTING CITIZENSHIP OF THE REPUBLIC LITHUANIA BY WAY OF EXCEPTION” OF 11 APRIL 2003 TO THE EXTENT THAT IT PROVIDES THAT CITIZENSHIP OF THE REPUBLIC LITHUANIA IS GRANTED TO JURIJ BORISOV BY WAY OF EXCEPTION WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND PARAGRAPH 1 OF ARTICLE 16 OF THE REPUBLIC OF LITHUANIA’S LAW ON CITIZENSHIP

 

30 December 2003

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas

The court reporter—Daiva Pitrėnaitė

Raimondas Šukys, a member of the Seimas, and Mindaugas Girdauskas, a senior consultant of the Legal Department of the Office of the Seimas, acting as the representatives of the petitioner, the Seimas of the Republic of Lithuania

President Rolandas Paksas of the Republic of Lithuania, the party concerned

The advocates—Gediminas Baublys, Evaldas Rapolas, and Kęstutis Švirinas—acting as the representatives of the President of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 4, 10, and 16 December 2003, in its public hearing, considered case No. 40/03 subsequent to the 6 November 2003 petition of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003, to the extent that it provided that citizenship of the Republic Lithuania is granted to Jurij Borisov by way of exception, was not in conflict with the principle of a state under the rule of law entrenched in the Constitution of the Republic of Lithuania, Paragraph 1 of Article 29, Item 21 of Article 84 and Paragraph 1 of Article 82 of the Constitution as well as with Paragraph 1 of Article 16 of the Republic of Lithuania’s Law on Citizenship.

The Constitutional Court

has established:

I

1. On 11 April 2003, the President of the Republic issued the Decree (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” (Official Gazette Valstybės žinios, No. 36-1562, No. 43 (correction)). By the said decree, citizenship of the Republic Lithuania was granted, inter alia, to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception.

2. The Seimas, the petitioner, by its Resolution “On the Application to the Constitutional Court of the Republic of Lithuania with the Petition Requesting an Investigation into whether Part of President of the Republic Decree ‘On Granting Citizenship of the Republic Lithuania by Way of Exception’ is not in Conflict with the Constitution of the Republic of Lithuania and the Republic of Lithuania’s Law on Citizenship” of 6 November 2003 requests an investigation into whether the part of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” whereby citizenship of the Republic Lithuania is granted to Jurij Borisov by way of exception is not in conflict with the principle of a state under the rule of law entrenched in the Constitution of the Republic of Lithuania, Paragraph 1 of Article 29, Item 21 of Article 84 and Paragraph 1 of Article 82 of the Constitution as well as with Paragraph 1 of Article 16 of the Republic of Lithuania’s Law on Citizenship.

3. On 10 November 2003, the Constitutional Court adopted the Decision “On the Petition Set Forth in the Resolution of the Seimas of the Republic of Lithuania ‘On the Application to the Constitutional Court of the Republic of Lithuania with the Petition Requesting an Investigation into whether Part of President of the Republic Decree “On Granting Citizenship of the Republic Lithuania by Way of Exception” is not in Conflict with the Constitution of the Republic of Lithuania and the Republic of Lithuania’s Law on Citizenship’ of 6 November 2003 whether the Decree of the President of the Republic of Lithuania (No. 40) ‘On Granting Citizenship of the Republic Lithuania by Way of Exception’ of 11 April 2003 to the Extent That it Provides That Citizenship of the Republic Lithuania Is Granted to Jurij Borisov, Born on 17 May 1956 in Russia, Residing in Lithuania, by Way of Exception, Is not in Conflict with the Constitution of the Republic of Lithuania and the Republic of Lithuania’s Law on Citizenship” whereby the petition set forth in the Seimas resolution of 6 November 2003 was accepted for consideration. On 12 November 2003, on the grounds of the said decision of the Constitutional Court, the President of the Constitutional Court officially announced in the official gazette Valstybės žinios (Official Gazette Valstybės žinios, 2003, No. 106-4756, No. 107 (correction)) that, under Article 106 of the Constitution, as of the day of the official publication of this announcement, the validity of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to Jurij Borisov born on 17 May 1956 in Russia, residing in Lithuania, by way of exception, shall be suspended.

II

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representative of the petitioner, the Seimas, who was R. Šukys.

1. In the opinion of R. Šukys, the part of the 11 April 2003 decree (No. 40) of the President of the Republic whereby citizenship of the Republic Lithuania is granted to Jurij Borisov (born on 17 May 1956 in Russia, residing in Lithuania) by way of exception, is in conflict with the principle of a state under the rule of law entrenched in the Constitution, the provision of Paragraph 1 of Article 29 of the Constitution that all persons shall be equal before the law, the court, and other state institutions and officials, the provision of Item 21 of Article 84 of the Constitution that the President of the Republic shall grant citizenship of the Republic of Lithuania in accordance with the procedure established by law, the provision of Paragraph 1 of Article 82 of the Constitution that the President of the Republic will take an oath to the Nation to be faithful to the Republic of Lithuania and the Constitution, to conscientiously fulfil the duties of his office, and to be equally just to all, and the provision of Paragraph 1 of Article 16 of the Law on Citizenship that the President of the Republic, in pursuance of this law, may grant citizenship of the Republic of Lithuania to citizens of foreign states or stateless persons with merits to the Republic of Lithuania by way of exception without applying with respect to them conditions for the granting of citizenship provided for in Article 12 of this law.

2. According to R. Šukys, citizenship is a permanent legal link between the person and the state. On the basis of this link, the person acquires civil and political rights and makes use of the protection of this state. One of rare ways of acquisition of citizenship is acquisition of citizenship by way of exception. By way of exception citizenship is granted for special merits to the state.

Paragraph 1 of Article 16 of the Law on Citizenship contains a provision that that the President of the Republic, in pursuance of this law, may grant citizenship of the Republic of Lithuania to citizens of foreign states or stateless persons with merits to the Republic of Lithuania without applying with respect to them conditions for the granting of citizenship provided for in Article 12 of this law. According to R. Šukys, Article 16 of the Law on Citizenship should be treated by one’s taking account into the entire law and its purposes. The purpose of the way of exception is creation of an opportunity for granting citizenship to citizens of other countries who are with special merits to the Republic of Lithuania.

The representative of the petitioner noted that in the impugned case there should have been legal grounds, merits of J. Borisov to the Republic of Lithuania, to grant citizenship of the Republic of Lithuania by way of exception. However, it is not clear as to which merits of J. Borisov to the Republic of Lithuania during the short time period when he was not a citizen of the Republic of Lithuania determined granting of citizenship to him by way of exception. The decree of the President of the Republic does not contain such information, nor was it presented to the public in any other way. It is not clear whether such information had been presented to and considered at the Citizenship Commission. R. Šukys believes that there were no legal grounds to grant citizenship of the Republic of Lithuania to J. Borisov by way of exception.

3. In the opinion of R. Šukys, the impugned part of the decree of the President of the Republic whereby citizenship of the Republic of Lithuania was granted to J. Borisov by way of exception is legally deficient and is in conflict with the principle of a state under the rule of law entrenched in the Constitution, Paragraph 1 of Article 29, Item 21 of Article 84 and Paragraph 1 of Article 82 of the Constitution as well as with Paragraph 1 of Article 16 of the Law on Citizenship also due to the fact that Paragraph 1 of Article 16 of the Law on Citizenship provides for an opportunity for the President of the Republic to grant citizenship of the Republic of Lithuania only to citizens of foreign states or stateless persons with merits to the Republic of Lithuania without applying with respect to them conditions for the granting of citizenship provided for in Article 12 of this law; the law does not establish the right of the President of the Republic to restore citizenship of the Republic of Lithuania to a person who lost citizenship of the Republic of Lithuania by the grounds provided for in Paragraphs 1 and 3 of Article 18 of the same law. In the opinion of the representative of the party concerned, citizenship of the Republic of Lithuania can be restored to the person who lost citizenship of the Republic of Lithuania by the grounds provided for in Paragraphs 1 and 3 of Article 18 of this law only under the special procedure established in Article 20 of the Law on Citizenship. Paragraph 1 of Article 20 of the law points out additional conditions for such a person: at the moment of filing of the application the person is permanently residing in the territory of the Republic of Lithuania and meets the conditions established in Items 2, 3 and 5 of Paragraph 1 of Article 12 of this law. According to R. Šukys, all exceptions permissible in the course of the application of the procedure of the restoration of citizenship are established in Paragraph 2 of Article 20 of the Law on Citizenship.

In the opinion of the representative of the party concerned, with respect to J. Borisov one ought to have applied the procedure of the restoration of citizenship, but not that of the granting of citizenship by way of exception, i.e. one ought to have fulfilled all the conditions established in Article 20 of the Law on Citizenship.

4. R. Šukys also noted that J. Borisov lost citizenship of the Republic of Lithuania because he had sought to acquire citizenship of the Russian Federation. The legal situation that a person might acquire citizenship of the Republic of Lithuania again and retain citizenship of another state (it was precisely this that happened in this case, since one did not apply the procedure of the restoration of citizenship) would be clearly deficient. R. Šukys believes that the said actions of J. Borisov show his attitude towards citizenship of the Republic of Lithuania and prevent him from making use of the opportunity provided for in Article 16 of the Law on Citizenship.

5. Under Article 13 of the Law on Citizenship, citizenship of the Republic of Lithuania shall not be granted to persons who have committed international crimes provided for by the international treaties to which the Republic of Lithuania is a party or by international customary law, such as: aggression, acts of genocide, crimes against humanity, war crimes; have taken part in criminal activities against the State of Lithuania; before coming to Lithuania, have been imposed a custodial sentence for a premeditated crime for which laws of the Republic of Lithuania also prescribe criminal liability, or have been convicted in Lithuania for a premeditated crime punishable by a custodial sentence. Therefore, according to R. Šukys, in the course of verifying the candidacy of the person seeking to acquire citizenship of the Republic of Lithuania by way of exception, one must acquire information from corresponding institutions of law and order, ascertaining whether the circumstances which do not permit granting citizenship of the Republic of Lithuania to such a person are absent.

According to R. Šukys, one applied to the State Security Department concerning all the rest of the persons to whom citizenship of the Republic of Lithuania was granted by way of exception by the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003. One did not apply to the State Security Department concerning J. Borisov. The representative of the party concerned is of the opinion that thereby one violated the constitutional principle of the equality of all persons.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations from M. Girdauskas, a representative of the party concerned, the Seimas, were received.

1. The representative of the petitioner pointed out that the Constitution is an integral act (Paragraph 1 of Article 6 of the Constitution), therefore, in the course of the investigation whether the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 (to the extent pointed out by the petitioner) is in compliance with the constitutional provisions indicated in the Seimas Resolution “On the Application to the Constitutional Court of the Republic of Lithuania with the Petition Requesting an Investigation into whether Part of President of the Republic Decree ‘On Granting Citizenship of the Republic Lithuania by Way of Exception’ is not in Conflict with the Constitution of the Republic of Lithuania and the Republic of Lithuania’s Law on Citizenship” of 6 November 2003, one has also to assess whether the decree is in compliance with other principles and norms of the Constitution related with the said provisions.

2. According to M. Girdauskas, Paragraph 2 of Article 12 of the Constitution provides that with the exception of individual cases provided for by law, no one may be both a citizen of the Republic of Lithuania and another state at the same time. The Constitution establishes a principle of single citizenship and, although not absolutely, prohibits dual citizenship. The discretion of the legislature to change the number of cases when a citizen of the Republic of Lithuania may also be a citizen of another state is limited. In other words, the Constitution establishes the principle of the exceptionality of dual citizenship. M. Girdauskas noted that dual citizenship is not a constitutional value, since in Paragraph 2 of Article 12 of the Constitution it is assessed in a negative manner. Therefore, according to M. Girdauskas, citizenship of the Republic of Lithuania can be granted to a citizen of another state only without violating the principle of the exceptionality of dual citizenship entrenched in the Constitution, i.e. in objectively justified exceptional cases. Otherwise, the constitutional principle of a state under the rule of law would be violated.

3. Under Paragraph 1 of Article 16 of the Law on Citizenship, the President of the Republic, in pursuance of this law, may grant citizenship of the Republic of Lithuania to citizens of foreign states or stateless persons with merits to the Republic of Lithuania without applying with respect to them conditions for the granting of citizenship provided for in Article 12 of this law. According to M. Girdauskas, Item 21 of Article 84 of the Constitution grants the right to the President of the Republic to grant citizenship of the Republic of Lithuania only without violating the procedure established in the law. Therefore, in the course of the investigation whether the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 is in compliance with Paragraph 1 of Article 16 of the Law on Citizenship, one is also to assess whether this decree is in compliance with other provisions of this law which are related to Paragraph 1 of Article 16 the Law on Citizenship, including those established in Article 13 of the Law on Citizenship.

In the opinion of the representative of the petitioner, at the time of the issuance of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003, Item 2 of Article 13 of the Law on Citizenship clearly prohibited (and does so at present) to grant citizenship of the Republic of Lithuania to a person who has taken part in criminal activities against the State of Lithuania. Item 2 of Article 13 of the Law on Citizenship, together with the constitutional principle of the exceptionality of dual citizenship, reasonably requires that citizenship of the Republic of Lithuania be not granted to a person in connection of whose participation in criminal activities against the State of Lithuania criminal proceedings or operational activities are being conducted, since the data acquired by such investigation can, under the laws, be used by charging the person with commission of criminal deeds. In case of entry into effect of a court judgment in respect with such a person after he has been granted citizenship of the Republic of Lithuania, it might become evident that this person, prior to granting citizenship of the Republic of Lithuania, had participated in criminal activities against the State of Lithuania. Due to this, Item 2 of Article 13 of the Law on Citizenship and the constitutional principle of the exceptionality of dual citizenship would not be implemented, requiring that before issuing the decree of the President of the Republic on granting of citizenship, one should apply to competent state institutions and verify whether operational investigation or criminal proceedings are not being conducted with respect to participation of the citizen of another state, who seeks to acquire citizenship of the Republic of Lithuania, in criminal activities against the State of Lithuania. M. Girdauskas thinks that one of such institutions is the State Security Department.

In the opinion of M. Girdauskas, there are grounds to believe that before issuing the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003, one did not apply to the state Security Department so that one could verify whether operational investigation or criminal proceedings were not conducted concerning possible participation of J. Borisov in criminal activities against the State of Lithuania; this leads one to doubt whether the aforesaid decree of the President of the Republic of Lithuania is in compliance with the constitutional principle of the exceptionality of dual citizenship and Item 21 of Article 84 of the Constitution.

4. The representative of the petitioner pointed out that the principle of the equality of all persons before the law, court and other state institutions entrenched in Article 29 of the Constitution obligates one to legally assess homogeneous facts in the same manner and prohibits any arbitrary assessment of essentially the same facts in a varied manner; the principle of the equality of all persons also includes a prohibition on both discrimination and privileges. The constitutional principle of the equality of all persons before the law would be violated if a certain group of persons to whom a legal norm is designed, if compared to the other addressees of the same norm, would be treated in a different manner, although there are not any differences in the character and extent between these groups so that such different treatment might be objectively justified.

The representative of the petitioner believes that the provision of Paragraph 1 of Article 82 of the Constitution that the President of the Republic will take an oath to the Nation to be faithful to the Republic of Lithuania and the Constitution, to conscientiously fulfil the duties of his office, and to be equally just to all reflects a duty of the President of the Republic, in the course of granting citizenship or refusing to grant it, to adhere to the principle of the equality of all persons, the principle of justice (together with the principle of a state under the rule of law), and not to violate other norms and principles of the Constitution.

M. Girdauskas is of the opinion that there are grounds to believe that as far as the other persons are concerned, to whom citizenship of the Republic of Lithuania was granted by way of exception by the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003, differently from the case of J. Borisov, one applied to the State Security Department; in addition, there are grounds to believe that certain persons seeking to acquire citizenship of the Republic of Lithuania by way of exception, were not granted citizenship on the grounds of information submitted by the State Security Department about possible participation of the said persons in preparation or commission of criminal deeds, or operational investigation or criminal proceedings were being conducted against them. Therefore, according to M. Girdauskas, there are grounds to doubt as to whether the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 (to the extent indicated by the petitioner) is in compliance with the constitutional principle of the equality of persons, the constitutional principle of a state under the rule of law, and Paragraph 1 of Article 82 of the Constitution.

5. According to M. Girdauskas, one should consider whether the constitutional principle of the exceptionality of dual citizenship does not mean a requirement that a person, when he has committed a criminal deed for which a custodial sentence can be imposed, be not granted citizenship of the Republic of Lithuania in all cases. Before issuing the decree of the President of the Republic, one must apply to competent state institution and verify whether operational investigation or criminal proceedings are not being conducted in connection with the participation of the citizen of another state who seeks to acquire citizenship of the Republic of Lithuania in criminal deeds for which the penal law provides for a custodial punishment.

In the opinion of M. Girdauskas, there are grounds to believe that, as far as J. Borisov is concerned, this requirement has not been fulfilled at least in part.

6. According to the representative of the petitioner, the entirety of the provisions of the Constitution, related to acquisition, granting, and loss of citizenship of the Republic of Lithuania, as well as to the rights guaranteed by it, means that citizenship of the Republic of Lithuania is a constitutional value and conditions a requirement to respect it. In the opinion of M. Girdauskas, in case a person does not adhere to this requirement, the situation, no matter what other circumstances there may be, is not the exceptional case when the person may be granted citizenship of the Republic of Lithuania objectively and reasonably. Otherwise, the constitutional principle of the exceptionality of dual citizenship would be violated.

According to M. Girdauskas, there are grounds to suspect that J. Borisov may have carried out actions that could be assessed as manipulation with citizenship of the Republic of Lithuania, which is violation of the requirement to respect this constitutional value. This also gives grounds to doubt as to whether the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 (to the extent indicated by the petitioner) is in line with the constitutional principle of the exceptionality of dual citizenship.

7. Under Paragraph 1 of Article 16 of the Law on Citizenship, the President of the Republic, in pursuance of this law, may grant citizenship of the Republic of Lithuania to citizens of foreign states with merits to the Republic of Lithuania by way of exception. According to M. Girdauskas, laws do not provide for any criteria under which it is possible to decide that the person in question really has merits to the state: it is the President of the Republic who decides whether the person has such merits. However, it is important that the person really have merits to the State of Lithuania. The representative of the petitioner believes that the constitutional principle of exceptionality of citizenship of the Republic of Lithuania includes a requirement to grant citizenship only for special merits to the State of Lithuania. Therefore, Paragraph 1 of Article 16 of the Law on Citizenship should be construed as providing for an opportunity to grant citizenship by way of exception not for any merits but only for special merits to the State of Lithuania.

In the opinion of M. Girdauskas, there are grounds to doubt as to whether J. Borisov met this requirement: granting of citizenship of the Republic of Lithuania is based on the fact that he gave charity of especially big value. Alongside, there are grounds to doubt as to whether the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 (to the extent indicated by the petitioner) is in compliance with the constitutional principle of the exceptionality of dual citizenship, Item 21 of Article 84 of the Constitution, and Paragraph 1 of Article 16 of the Law on Citizenship.

8. M. Girdauskas drew one’s attention to the fact that in the legal doctrine there is also an opinion that decrees of the President of the Republic on granting citizenship are cognisable by the Constitutional Court in part only, since it is possible to investigate their constitutionality only from the aspect whether in the course of issuing the decree one adhered to the established procedure. However, according to M. Girdauskas, one should consider whether opportunities to ensure the implementation of the constitutional principle of a state under the rule of law would not be unreasonably restricted in case one based himself on such an attitude. For example, if one adhered to the said assessment, it would be impossible to call to question whether a decision of the Head of State is not in conflict with the Constitution, whereby, without violating the procedure established in laws, citizenship is granted to a number of citizens of another state, who clearly do not have any merits to the State of Lithuania, although it would be doubtful, whether such a decision is in line the constitutional principle of the exceptionality of dual citizenship. Thus, decrees of the Head of State on granting citizenship for merits to the State of Lithuania ought to be subject to constitutional review and, on the grounds of the criterion of evident unreasonableness of such legal acts, the discretion of the Head of State to grant citizenship for merits to the State of Lithuania could be regarded as legally not restricted only in cases when there is no evidence that there have not been such merits.

IV

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from President R. Paksas of the Republic of Lithuania, the party concerned, which were his answers to the questions of the Constitutional Court, formulated in the Constitutional Court’s decision of 26 November 2003.

1. The President of the Republic, the party concerned, replied to the question as to what activities of J. Borisov were judged to be merits to the Republic of Lithuania in the course of issuing the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003, whereby citizenship of the Republic of Lithuania was granted to J. Borisov by way of exception, as follows:

While discharging the powers established in the Constitution concerning citizenship issues, the President of the Republic grants citizenship of the Republic of Lithuania under procedure established in the Law on Citizenship. The President of the Republic established the Citizenship Commission for preliminary consideration of citizenship issues, which recommended that the President of the Republic grant citizenship of the Republic of Lithuania to J. Borisov. Data had been presented to the commission that J. Borisov had had merits for the development of sport of the Republic of Lithuania, had given significant sums to charity and developed business in Lithuania. Since 1991, J. Borisov has been conducting business, creating jobs, and investing in the Lithuanian economy. An award granted by Valdas Adamkus, President of the Republic of Lithuania whose office has expired, testifies positive evaluation of J. Borisov’s activities and his merits to the Republic of Lithuania. The charity given by J. Borisov and other positive actions in regard of the economy of the Republic of Lithuania, upon the assessment of the information held at that time, in the opinion of the President of the Republic, proved sufficient grounds to consider it his merits to the Republic of Lithuania.

2. The President of the Republic, the party concerned, replied to the question as to what activities of J. Borisov were judged to be merits to the Republic of Lithuania at the time when, as the representatives of the petitioner, the Seimas, contend, he was not a citizen of the Republic of Lithuania, in the course of the issuance of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003, whereby citizenship of the Republic of Lithuania was granted to J. Borisov by way of exception, as follows:

The Law on Citizenship does not disclose the content of the evaluation criterion—merits to the Republic of Lithuania. Taking account of this and the established practice of the granting of citizenship of the Republic of Lithuania, the President of the Republic evaluated the merits of J. Borisov to the Republic of Lithuania, but not his status as a citizen of a foreign state. At the time when he was not a citizen of the Republic of Lithuania, J. Borisov did not discontinue his factual links with the Republic of Lithuania, he did not go to Russia for permanent residence, he continued his economic activities in Lithuania, and invested into the Lithuanian economy. The main factor was the facts testifying that the activities of J. Borisov had not changed; the activities of this person were based on the motives regardless of his citizenship of a certain state.

3. The President of the Republic, the party concerned, replied to the question as to how the President of the Republic assesses the statements “Jurij Borisov lost citizenship of the Republic of Lithuania by seeking to acquire citizenship of the Russian Federation” and “the said actions of J. Borisov show his attitude towards citizenship of the Republic of Lithuania and prevent him from making use of the opportunity provided for in Article 16 of the Law on Citizenship” made by the representatives of the party concerned, the Seimas, as follows:

Under the Law on Citizenship, the President of the Republic receives applications from persons, who request citizenship of the Republic of Lithuania granted by way of exception, subsequent to which he adopts decisions. Such an application by J. Borisov was formal grounds to start the procedures provided for in the Law on Citizenship. Under the Law on Citizenship, the President of the Republic must consider not the attitude of the person towards citizenship, but his application. Upon cognising the circumstances under which J. Borisov had lost citizenship of the Republic of Lithuania, the President of the Republic comprehended that J. Borisov had lost citizenship of the Republic of Lithuania not due to an alleged improper attitude towards it or other evaluation thereof, but due to the fact that he had acquired citizenship of the country, in which he was born, raised, in which his close relatives reside, and with which he is related by business ties. J. Borisov is a Russian by nationality, and Russia is his place of birth. Therefore, the striving of J. Borisov to acquire citizenship of the state of his nationality, but not that of another state, did not arouse a suspicion of the President of the Republic about an improper attitude of J. Borisov towards citizenship of the Republic of Lithuania.

4. The President of the Republic, the party concerned, replied to the question of the Constitutional Court whether one ascertained, and how it was done, whether there had been any circumstances provided for in Article 13 of the Law on Citizenship due to which citizenship of the Republic of Lithuania is not granted, as follows:

As a rule, for preliminary consideration of citizenship issues, the Citizenship Commission is formed. In this case the President of the Republic included into this commission the Vice-minister of Justice of the Republic of Lithuania, the Deputy Prosecutor General of the Republic of Lithuania, an official from the Migration Department at the Ministry of the Interior of the Republic of Lithuania, and the Director of the Consular Department at the Ministry of Foreign Affairs of the Republic of Lithuania. In the opinion of the President of the Republic, such principle of formation of the commission permits it to decide the question by working procedure (in its sittings) whether the available data are sufficient in order to adopt a decision, or whether it is necessary to additionally apply as to submission of corresponding additional data. Giving of charity and its financial amounts, also the award granted to J. Borisov by Valdas Adamkus, President of the Republic of Lithuania whose office has expired, testified positive evaluation of J. Borisov’s activities and his merits to the Republic of Lithuania. Legal acts did not contain a requirement to receive a reference from the State Security Department when citizenship is granted by way of exception, while the fact the Vice-minister of Justice, the Deputy Prosecutor General, an official from the Ministry of the Interior participated in the commission, and the fact that the decree had to be counter-signed by the head of the ministry (i.e. Ministry of the Interior) directly responsible for gathering and submission of information about the circumstances indicated in Article 13 of the Law on Citizenship, then the President of the Republic thought it sufficient measures permitting establishing possible hindrances against granting citizenship. This attitude and the concrete measures chosen for establishing any possible hindrances against acquisition of citizenship were also determined by the fact that J. Borisov had not left Lithuania in order to reside elsewhere.

5. The President of the Republic, the party concerned, replied to the question whether any institutions or officials of the State of Lithuania had submitted any information describing J. Borisov prior to issuing the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003, and what was the content of the said information, as follows:

While discharging duties of the President of the Republic until the issuance of the Decree (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003, neither state institutions nor officials had presented him information, which, under Article 13 of the Law on Citizenship, might have been a hindrance to grant citizenship to J. Borisov by way of exception.

V

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representatives of the party concerned, the President of the Republic, who were Paulius Griciūnas and Edvinas Mušinskis, advisors to the President of the Republic on legal issues.

1. P. Griciūnas and E. Mušinskis maintained that neither the Constitution nor laws provide for an application to competent institutions requesting information about a person seeking to acquire citizenship of the Republic of Lithuania by way of exception. Therefore, a formal application of the Citizenship Commission formed by the President of the Republic to competent institutions, including the State Security Department, cannot be treated as a necessary or obligatory condition of acquisition of citizenship of the Republic of Lithuania by way of exception. Paragraph 2 of Article 27 of the Law on Citizenship, which regulates the activities of the Citizenship Commission, provides that the said commission has the right but not a duty, to instruct state institutions to give their opinion and to present all the necessary documents relating to the application or recommendation under consideration in the commission.

The representatives of the party concerned noted that neither the provisions of the now valid Law on Citizenship, nor those of the Law on Citizenship of the previous wording, regulate the procedure of establishment of circumstances indicated in Article 13 of the same law in the course of the granting of citizenship by way of exception. Thus, the application of the Citizenship Commission to the State Security Department is only one of the ways of verification whether there are not any circumstances indicated in Article 13 of the Law on Citizenship (practice of informal application to the State Security Department appeared only in about 2001). However, such an application by the Citizenship Commission ought to be treated not as the execution of an imperative legislative instruction with regard to all persons seeking to acquire citizenship by way of exception, but as making use of the right by the commission, while attempting to verify and ascertain whether there are not any circumstances due to which citizenship of the Republic of Lithuania is not granted (Article 13 of the Law on Citizenship). While taking account of the fact that persons seeking to acquire citizenship of the Republic of Lithuania are different in their status, it is understandable that the application by the Citizenship Commission to the State Security Department is not necessary with respect to all persons.

The formal principle of the equality of all persons before the law is entrenched in Paragraph 1 of Article 29 of the Constitution, which obligates one to legally assess homogeneous facts in the same manner and prohibits any arbitrary assessment of essentially the same facts in a varied manner. However, the constitutional principle of the equality of persons does not deny an opportunity to treat individuals, while taking account of their status or situation, in a different manner. P. Griciūnas and E. Mušinskis noted that 6 persons were granted citizenship of the Republic of Lithuania by way of exception by the impugned Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003, whose statuses and situations were different. In the opinion of the representatives of the party concerned, it is totally understandable that, at the time when the question of granting citizenship to these persons was being considered, one took into consideration not only the formal fact that the person requests citizenship of the Republic of Lithuania granted by way of exception, but also the past of person, his links with the Republic of Lithuania, and his merits to the Republic of Lithuania. In the opinion of the Citizenship Commission, from among other applicants J. Borisov clearly distinguished himself by his links with the Republic of Lithuania and his merits to Lithuania. J. Borisov was the only one from the applicants who had already had citizenship of the Republic of Lithuania, who had resided in Lithuania from his childhood, while since 1991 he had been conducting business. The merits of J. Borisov are also confirmed by the Decree (No. 1373) “On Awarding Orders and Medals of the State of Lithuania on the Occasion of the Day of State (Coronation of King Mindaugas of Lithuania)” of 14 June 2001, which was issued by V. Adamkus, President of the Republic of Lithuania whose office has expired, whereby the said person was awarded the Medal of Darius and Girėnas for merits to Lithuanian aviation sport. These factual data, distinguishing J. Borisov from among the other candidates, served the grounds for the Citizenship Commission not to formally apply to the State Security Department, and, by working procedure in its sitting, to decide the question whether the available data were sufficient. It needs to be noted that the principle of formation of the Citizenship Commission in itself, under which representatives from the Ministry of Justice, the Office of the Prosecutor General, the Ministry of the Interior and the Ministry of Foreign Affairs are included in the commission, permits the commission to decide in its sitting whether there are not any circumstances due to which citizenship of the Republic of Lithuania cannot be granted to a respective person. Lastly, the fact that under the Constitution (Article 85) decrees of the President of the Republic on granting citizenship of the Republic of Lithuania must be counter-signed by the Minister of the Interior is also a measure to verify whether there are not any circumstances due to which granting of citizenship is impermissible and to confirm the absence of such circumstances.

In the opinion of P. Griciūnas and E. Mušinskis, formal non-application by the Citizenship Commission to the State Security Department as for J. Borisov cannot be treated as discrimination with respect to the other applicants in connection of whom one made inquiries. The thorough data about J. Borisov available to the Citizenship Commission, which confirmed his close and uninterrupted links with the Republic of Lithuania, served sufficient grounds for non-application to the State Security Department, and for solving the question concerning the circumstances under which citizenship of the Republic of Lithuania is not granted in the sitting of the commission.

In the opinion of the representatives of the party concerned, the part of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 whereby citizenship of the Republic Lithuania is granted to J. Borisov by way of exception is not in conflict with the provision of Paragraph 1 of Article 29 of the Constitution that all persons shall be equal before the law, the court, and other state institutions and officials.

2. According to P. Griciūnas and E. Mušinskis, Paragraph 1 of Article 82 of the Constitution establishes a necessary condition of the empowering of the President of the Republic, i.e. his oath. It is established therein that, along with faithfulness to the Republic of Lithuania and the Constitution, the President of the Republic will take an oath to conscientiously fulfil the duties of his office, and to be equally just to all.

The representatives of the party concerned noted that there are not any legal grounds to assert that the part of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 whereby citizenship of the Republic Lithuania is granted to J. Borisov by way of exception violates the principle of the equality of persons, which is entrenched in the Constitution. Since the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 (to the extent pointed out by the petitioner) does not violate the constitutional principle of the equality of persons, then the conclusion should be drawn that the said decree did not violate the provision of Paragraph 1 of Article 82 of the Constitution that the President of the Republic will take an oath to be faithful to the Republic of Lithuania and the Constitution, to conscientiously fulfil the duties of his office, and to be equally just to all.

3. In the opinion of P. Griciūnas and E. Mušinskis, in the course of consideration of the statement of the representatives of the petitioner, the Seimas, that the part of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 whereby citizenship of the Republic Lithuania is granted to J. Borisov by way of exception is in conflict with the provision of Item 21 of Article 84 of the Constitution, one has to disclose the principle of the separation of powers entrenched in the Constitution and how it conditions the content of the powers of the President of the Republic.

Paragraph 1 of Article 5 of the Constitution provides: “In Lithuania, the Seimas, the President of the Republic and the Government, and the Judiciary, shall execute State power.” It is this norm the content of which is particularised in other articles of the Constitution that establishes the principle of the separation of powers. This is the main principle of the organisation and activities of a democratic state under the rule of law. Meanwhile, it is established in Paragraph 2 of Article 5 of the Constitution that the scope of power shall be limited by the Constitution. The principle of the separation of powers entrenched in the Constitution imperatively implies that after the direct establishment of powers of a concrete institution of state authority, a certain institution of state authority cannot take over from or transfer such powers to another institution, or waive such powers; such powers cannot be changed or limited by law. Therefore, in the course of the assessment of the compliance of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 (to the extent pointed out by the petitioner) with Item 21 of Article 84 of the Constitution, it is of crucial importance to disclose the legal status of the President of the Republic and the content of the powers granted to him.

Paragraph 2 of Article 77 of the Constitution provides that the President of the Republic the shall represent the State of Lithuania and shall perform everything that he is charged with by the Constitution and laws. According to P. Griciūnas and E. Mušinskis, the status of the President of the Republic in the Lithuanian system of institutions of state authority is virtually related to concrete powers of the President of the Republic established in Article 84 of the Constitution. However, the contents of constitutional powers of the President of the Republic are not the same. There are certain powers that are discharged by the President of the Republic virtually without any limitations, the discharge of other powers is bound by essential conditions or powers of other institutions of state authority, which are established in the Constitution and laws, while still other powers, which are strictly defined, must be discharged by the President of the Republic unconditionally. Thus, when performing “everything that he is charged with by the Constitution and laws”, discharging the powers granted to him, in certain cases the President of the Republic enjoys absolute discretion, in other cases his powers are bound by essential conditions and limitations established in the Constitution, still in other cases he does not have any right of choice. While analysing the relation of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 with Item 21 of Article 84 of the Constitution, one must assess the content of the constitutional powers of the President of the Republic to decide citizenship matters, which are established in this item, in particular the limits of the discretion of the President of the Republic in adoption of decisions on granting citizenship of the Republic of Lithuania.

The representatives of the party concerned believe that the provision of Item 21 of Article 84 of the Constitution that the President of the Republic shall grant citizenship of the Republic of Lithuania in accordance with the procedure established by law does not establish any essential conditions permitting questioning the discretion of the President of the Republic in adoption of decisions on granting citizenship of the Republic of Lithuania, without taking into consideration the will of other institutions of state authority or any other constitutional limitations. P. Griciūnas and E. Mušinskis drew the conclusion that when one assesses in a systemic manner the provision of Item 21 of Article 84 of the Constitution and other norms of the Constitution, which establish powers of institutions of state authority, the link and correlations of such powers with the President of the Republic and the place of the institution of the President of the Republic in the system of branches of state power, then granting of citizenship of the Republic of Lithuania is exclusively within the competence of the Republic of Lithuania, that, when adopting the said decisions, the President of the Republic is not bound by any other powers of other state institutions or any other essential limitations.

P. Griciūnas and E. Mušinskis noted that the norm established in Item 21 of Article 84 of the Constitution is formally composed of two parts. One part provides for absolute constitutional competence of the President of the Republic, as one institution of state authority, to adopt decisions on granting of citizenship of the Republic of Lithuania, which is not bound by powers of other state institutions; the other part of the norm provides that this constitutional power of the President of the Republic is realised under procedure established by law. However, in the opinion of the representatives of the party concerned, this blanket norm by no means could be judged to be an essential restriction, restricting the constitutional competence of the President of the Republic to grant citizenship; from the legal standpoint, the decree of the President of the Republic simply on formal grounds cannot be in conflict with this blanket norm entrenched in the Constitution.

P. Griciūnas and E. Mušinskis believe that the part of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 whereby citizenship of the Republic Lithuania is granted to J. Borisov by way of exception is not in conflict with the provision of Item 21 of Article 84 of the Constitution that the President of the Republic shall grant citizenship of the Republic of Lithuania in accordance with the procedure established by law.

4. In the opinion of P. Griciūnas and E. Mušinskis, in the course of consideration whether the part of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 whereby citizenship of the Republic Lithuania is granted to J. Borisov by way of exception is not in conflict with Paragraph 1 of Article 16 of the Law on Citizenship, one must take into consideration the provisions of the Constitution which regulate the institute of citizenship of the Republic of Lithuania. Paragraph 3 of Article 12 of the Constitution provides that the procedure for the acquisition and loss of citizenship shall be established by law. Item 21 of Article 84 of the Constitution provides that the President of the Republic shall grant citizenship of the Republic of Lithuania in accordance with the procedure established by law.

The representatives of the party concerned noted that it is the Law on Citizenship that discloses the content of blanket norms of Article 12 and Item 21 of Article 84 of the Constitution and particularises the constitutional powers of the President of the Republic. Article 16 of the Law on Citizenship regulates granting of citizenship of the Republic of Lithuania by way of exception. The norms regulating granting of citizenship by way of exception provide for two exception in the entire constitutional institute of the granting of citizenship of the Republic of Lithuania. The first exception stems from Paragraph 1 of Article 16 of the Law on Citizenship: it is an opportunity for a person, to whom citizenship of the Republic of Lithuania is granted by way of exception, to possess citizenship of another state. Another exception is the fact that when citizenship is granted by way of exception, the general conditions of the granting of citizenship (naturalisation), which are established in Article 12 of the Law on Citizenship, are not applied.

According to P. Griciūnas and E. Mušinskis, the only condition for granting of citizenship of the Republic of Lithuania by way of exception is merits of citizens of foreign countries or stateless persons to the Republic of Lithuania. The merits to the Republic of Lithuania are the only evaluation criterion that belongs to the discretion of the President of the Republic; the Law on Citizenship does not establish any objective or subjective priorities or criteria on the basis of which it would be possible to assert that a person has or does not have any merits to the state. Therefore, the President of the Republic is bound by neither laws nor any other legal acts other than the constitutional principles of justice, a state under the rule of law and harmonious civil society, while without overstepping the limits of these principles the President of the Republic enjoys complete discretion to assess the merits of the person to the Republic of Lithuania. Such legal indetermination might be explained by the fact that it is impossible for the legislature to establish any criteria of a universal character, upon which one could base himself in all cases.

According to the representatives of the party concerned, it is impossible to assert that the argument that, purportedly, citizenship of the Republic of Lithuania may only be granted for special merits and to the persons who have special merits, is a grounded one. The Law on Citizenship employs the notion “with merits”. In other laws, for instance, in the Republic of Lithuania’s Law on State Awards, the Republic of Lithuania’s Law on State Pensions the notions “special merits” and “with special merits” are employed. In the opinion of P. Griciūnas and E. Mušinskis, it is impossible to regard the notions “special merits” and “with special merits” as identical and having equal value as the notion “with merits”. Besides, the notion “with merits” is defined by an exclusively evaluative criterion.

5. According to P. Griciūnas and E. Mušinskis, the President of the Republic, while discharging his constitutional powers, establishes commissions under procedure established by law. On of such commissions is the Citizenship Commission, which performs preliminary actions necessary so that the President of the Republic might discharge the powers established to him in Item 21 of Article 84 of the Constitution to grant citizenship of the Republic of Lithuania. The Citizenship Commission also carries out preliminary assessment and gives advice to the President of the Republic. Taking account of the fact that representatives from the Ministry of Justice, the Office of the Prosecutor General, the Ministry of the Interior and the Ministry of Foreign Affairs ex officio participate in the Citizenship Commission, its advice, as that of a collegial advisory institution, might be regarded as one of the priorities or criteria, by which the President of the Republic would guide himself.

According to P. Griciūnas and E. Mušinskis, neither the law, nor any other legal act establishes any objective criteria as to what, from the point of view of the Law on Citizenship, could be regarded as merits to the Republic of Lithuania. The Citizenship Commission, basing itself on the constitutional principles of justice, a state under the rule of law and harmonious civil society, as well as on the criteria of reasonableness and benefit to the state, in each particular case assesses facts and circumstances, which, from the point of view of the Law on Citizenship, may be regarded as merits to the Republic of Lithuania. The notions “merits”, “with merits” are an exclusively evaluative feature, while the Citizenship Commission helps the President of the Republic to establish the content of the said feature in every particular case. Every act of granting citizenship by way of exception is individual not only in its form, but also by its content, it is different in every case and is not disclosed in the decree of the President of the Republic. The Citizenship Commission keeps within laws and other legal acts, while in the context of these legal acts it must assess all circumstances on the basis of the criteria of justice and reasonableness, which obligate one to assess the same facts in the same manner and prohibits the assessment of virtually the same facts in a varied manner. Therefore, in an attempt to give an answer to the question whether a person seeking to acquire citizenship of the Republic of Lithuania by way of exception is with merits to the Republic of Lithuania, the Citizenship Commission ought to assess other, analogous cases of the granting of citizenship of the Republic of Lithuania by way of exception. In the opinion of the representatives of the party concerned, the practice of the granting of citizenship by way of exception could also be treated as one of criteria of the granting of citizenship by way of exception.

In the opinion of the representatives of the party concerned, the compliance of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 (to the extent pointed out by the petitioner) with Paragraph 1 of Article 16 of the Law on Citizenship should be assessed not so much with respect to compliance with legal norms but rather having in mind the standpoint of the compliance of objective facts and circumstances with the criterion of reasonableness and justice. Therefore, in the opinion of P. Griciūnas and E. Mušinskis, while establishing concrete circumstances of the granting of citizenship to J. Borisov by way of exception, one must also analyse and assess other decrees of the President of the Republic, whereby, under similar circumstances, citizenship was granted by way of exception, since only in this way it would be possible to form one’s opinion about the practice of evaluation of identical or similar circumstances; it is impossible to consider this act on granting citizenship by way of exception apart from other analogous acts, for one has to take account of the entire context of the granting of citizenship by way of exception as well as of the established practice in this area.

6. According to P. Griciūnas and E. Mušinskis, while attempting to investigate the compliance of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 (to the extent pointed out by the petitioner) with Paragraph 1 of Article 16 of the Law on Citizenship, one should assess concrete factual circumstances of the granting of citizenship to this person: J. Borisov has resided in Lithuania with short intervals since 1962; since 1991 he has been conducting business; he has created more than 200 jobs in Lithuania; he has given about LTL 6 million to charity; by a decree of President V. Adamkus of the Republic of Lithuania, he was awarded the Medal of Darius and Girėnas for merits to Lithuanian aviation sport.

According to the representatives of the party concerned, in June 2002 J. Borisov lost citizenship of the Republic of Lithuania according to Item 2 of Paragraph 1 of Article 18 of the Law on Citizenship (upon acquisition of citizenship of another state). The essence of citizenship is constituted by a factual and permanent link of the person and the state, which is not limited by time and space. After J. Borisov had lost citizenship of the Republic of Lithuania under Item 2 of Paragraph 1 of Article 18 of the Law on Citizenship, the legal link of this person with the Republic of Lithuania altered, however, attention should be paid to the fact that his factual link with the state, in essence, was not discontinued.

Replying to the statement made by the representatives of the petitioner, that J. Borisov had no merits to the Republic of Lithuania during the period when he was not a citizen of the Republic of Lithuania because he had lost it, the representatives of the party concerned replied that Article 16 of the Law on Citizenship does not provide that the merits of persons who used to be citizens of the Republic of Lithuania and had merits to the state are evaluated, upon their loss of citizenship, according to the tabula rasa principle. Such a standpoint would be illogical and would hardly be in line with the discussed criteria of justice and reasonableness, since upon the person’s loss of citizenship of the Republic of Lithuania, his economic, social, cultural, political or any other merits and benefits made to the state undoubtedly persist. P. Griciūnas and E. Mušinskis also noted that the Law on Citizenship does not provide for any minimal time period of not being a citizen of the Republic of Lithuania as a condition, restricting the granting of citizenship of the Republic of Lithuania by way of exception.

Taking account of the fact that the Law on Citizenship does not provide for any principles or criteria of evaluation of persons seeking to acquire citizenship of the Republic of Lithuania by way of exception or any time period of not being a citizen of the Republic of Lithuania, also of the merits of J. Borisov to the Republic of Lithuania, the party concerned is of the opinion that the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to J. Borisov is in compliance with Paragraph 1 of Article 16 of the Law on Citizenship.

7. According to P. Griciūnas and E. Mušinskis, the statement made by the representatives of the petitioner that the part of the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to J. Borisov by way of exception is legally deficient and is in conflict with the provision of Paragraph 1 of Article 16 of the Law on Citizenship, is legally groundless as well. In the opinion of the representatives of the party concerned, this statement of the representatives of the petitioner is based on the arguments that, allegedly, the Law on Citizenship does not establish the right of the President of the Republic to restore citizenship of the Republic of Lithuania to a person who lost citizenship of the Republic of Lithuania by the grounds provided for in Paragraphs 1 and 3 of Article 18 of the Law on Citizenship. P. Griciūnas and E. Mušinskis pointed out that in the course of the granting of citizenship of the Republic of Lithuania to J. Borisov, one adhered to Paragraph 1 of Article 16 of the Law on Citizenship, providing for the right of the President of the Republic to grant citizenship of the Republic of Lithuania to citizens of foreign states with merits to the Republic of Lithuania by way of exception, but not to Article 20 of the Law on Citizenship, regulating cases of the restoration of citizenship of the Republic of Lithuania. In addition, it was impossible to follow Article 20 of the Law on Citizenship which regulates cases of the restoration of citizenship of the Republic of Lithuania also due to the unfulfilled subjective conditions. The representatives of the party concerned noted that a person, who wishes to be restored citizenship of the Republic of Lithuania on the grounds of Article 20 of the Law on Citizenship, must himself submit a corresponding application on restoration of citizenship of the Republic of Lithuania. Besides, the person submitting an application on restoration of citizenship of the Republic of Lithuania alongside expresses his consent to renounce his citizenship of another state. Thus, three main conditions ought to be considered the grounds of the restoration of citizenship of the Republic of Lithuania: the fact that the person who wishes to be restored citizenship of the Republic of Lithuania used to be a citizen of the Republic of Lithuania, but later he lost this citizenship; an application of the interested person on restoration of citizenship of the Republic of Lithuania; the consent of the person who wishes to be restored citizenship of the Republic of Lithuania that after he is restored citizenship of the Republic of Lithuania he will renounce his citizenship of another state.

Meanwhile, J. Borisov submitted an application on granting him citizenship of the Republic of Lithuania by way of exception. It is by no means possible to assess this application as an attempt of J. Borisov to seek to be restored citizenship of the Republic of Lithuania, by renouncing, alongside, his citizenship of a foreign state. This application of J. Borisov had to be regarded as that of a citizen of a foreign state with merits to the Republic of Lithuania to grant him citizenship of the Republic of Lithuania by way of exception, but not as that of a former citizen of the Republic of Lithuania requesting the restoration of former citizenship. Therefore, in the course of the granting of citizenship of the Republic of Lithuania to J. Borisov by way of exception, one was assessing not the fact of former citizenship of the Republic of Lithuania possessed by J. Borisov, but his merits to the Republic of Lithuania. Therefore, in the opinion of the representatives of the party concerned, the statement of the representatives of the petitioner that J. Borisov ought to have been applied the procedure of the restoration of citizenship, but not that of the granting of citizenship, is legally groundless.

VI

In the course of the preparation of the case for the Constitutional Court hearing, written explanations and other papers in which information is presented linked with the case at issue were received from V. Bulovas, Minister of the Interior of the Republic of Lithuania, G. Švedas, Vice-minister of Justice of the Republic of Lithuania, D. Jurgelevičius, Secretary of the Ministry of Foreign Affairs of the Republic of Lithuania, V. Barkauskas, Deputy Prosecutor General of the Republic of Lithuania, A. Meškauskas, Head of the Office of the President of the Republic, A. Pocius, Deputy Director General of the State Security Department, Acting Director General, A. Zuokas, Mayor of the Vilnius City Municipality, O. Buišienė, Advisor to the President of the Republic on legal issues, Chairperson of the Citizenship Commission, A. Gavėnas, Director of the Migration Department at the Ministry of the Interior of the Republic of Lithuania, Ž. Terebeiza, Chairperson of the Citizenship Commission of the Vilnius City Municipality, S. Balčiūnienė, a senior inspector of the Passport Subdivision of the 1st Police Commissioner’s Office at the Chief Police Commissioner’s Office for the City of Vilnius, Prof. Dr. S. Katuoka, Director of the International and EU Law Institute at the Faculty of Law of the Law University of Lithuania, and Assoc. Prof. Dr. E. Šileikis, who works at the Department of Constitutional and Administrative Law of the Faculty of Law, Vilnius University.

Also, papers with attachments were received from A. Sakalas, Chairperson of the Provisional Commission of the Seimas of the Republic of Lithuania for Investigation into Possible Threats to Lithuanian National Security, V. Grigaravičius, Lithuanian Police General Commissioner, V. Latvienė, Head of the State Tax Inspectorate at the Ministry of the Republic of Lithuania, and A. Kliunka, Chief Prosecutor of the Department for Investigation of Organised Crime and Corruption at the Office of the Prosecutor General of the Republic of Lithuania.

VII

1. On 4 December 2003, at the Constitutional Court hearing the representatives of the Seimas, the petitioner, who were R. Šukys and M. Girdauskas, virtually reiterated the arguments set forth in their written explanations.

1.1. In addition, R. Šukys additionally explained that Paragraph 1 of Article 16 of the Law on Citizenship does not contain a requirement that the person to whom citizenship may be granted by way of exception, must have special merits to the Republic of Lithuania. However, in his opinion, under the Constitution the discretion of evaluation of merits is limited by equal application of evaluation criteria. R. Šukys believes that Paragraph 1 of Article 16 of the Law on Citizenship mentions personal merits of the foreign citizen or stateless person to the Republic of Lithuania. According to the representative of the petitioner, it is not clear as to what merits during that short period of time, when J. Borisov was not a citizen of the Republic of Lithuania, determined granting of citizenship to him by way of exception. R. Šukys emphasised that it is clear from the case material that such merits are merits of an enterprise (legal person of the Republic of Lithuania), but not of J. Borisov, who is a citizen of the Russian Federation. Alongside, the representative of the petitioner noted that the amount of the sponsorship, charity given by the enterprise, which was confirmed by the State Tax Inspectorate at the Ministry of Finance of the Republic of Lithuania, clearly contravenes the sums indicated in the application of J. Borisov requesting citizenship of the Republic of Lithuania granted by way of exception and in the documents of the Citizenship Commission. According to R. Šukys, it is doubtful whether the charity or sponsorship criterion, even if this is done from personal taxable dividends or salary, could be a criterion in assessing the merits of a person and granting him citizenship by way of exception. R. Šukys is convinced that only the activity, which is done by the foreign citizen in spreading the name of the state, when he devotes his talent, creative work, time and energy for a certain area, when he is free to choose whether or not to do so, without expecting any recognition, may be regarded as merits to the State of Lithuania.

R. Šukys is certain that when one assesses the Law on Citizenship in a systemic manner, as an integral act, and also when one assesses the Constitution as an integral and directly applicable act, one should also assess the compliance of Paragraph 1 of Article 16 of the Law on Citizenship with Paragraph 2 of Article 12 of the Constitution and Item 21 of Article 84 of the Constitution. In the opinion of the representative of the petitioner, the provision of Paragraph 2 of Article 12 of the Constitution, establishing the exceptionality of dual citizenship, obligates the legislature to provide for clear grounds under which persons might possess dual citizenship, while Item 21 of Article 84 of the Constitution obligates to establish the procedure under which citizenship is granted by way of exception.

R. Šukys also emphasised the fact that it is clear from the case material that the Minister of the Interior had signed the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 before it was signed by the President of the Republic. The representative of the party concerned pointed out that that under Article 85 of the Constitution the President of the Republic, implementing the powers vested in him, shall issue acts-decrees. To be valid, the decrees of the President of the Republic, specified in Items 3, 15, 17, and 21 of Article 84 of the Constitution, must be signed by the Prime Minister or an appropriate minister. In the opinion of R. Šukys, the counter-signing of a decree of the President of the Republic is confirmation of his powers and also assumption of responsibility; the counter-signing may take place only after the act-decree has been issued. The counter-signing is neither a permission nor approval. The pre-term counter-signing restricts the right of the President of the Republic to issue decrees, since in such a case the minister confirms in advance that the President of the Republic is permitted to sign only this act; if the President of the Republic legitimately wished to supplement and amend such an act, he would be unable to do so, since he ought to apply to the minister repeatedly. When counter-signing the decree of the President of the Republic, after it has been signed by the President of the Republic, the Prime Minister or an appropriate minister has a duty to verify the lawfulness of the decree, for their constitutional duty is granting of legal power to this act. According to the representative of the petitioner, the fact that the Minister of the Interior had signed the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 before it was signed by the President of the Republic is in conflict with the Law on the Government of the Republic of Lithuania, under which the Prime Minister or an appropriate minister shall within 3 days sign a decree of the President of the Republic after it has been signed by the President of the Republic. R. Šukys noted that the fact that the Minister of the Interior had signed the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 before it was signed by the President of the Republic is totally independent grounds for impugning the said decree of the President of the Republic (at the time of the adoption of its resolution on the application to the Constitutional Court, the Seimas was not aware of this fact).

1.2. M. Girdauskas additionally explained that under Item 21 of Article 84 of the Constitution the President has the right to grant citizenship only in keeping with the procedure established by law. Article 27 of the Law on Citizenship provides that the President of the Republic shall form the Citizenship Commission for the preliminary consideration of issues of citizenship, which, inter alia, considers also applications of citizens of foreign states requesting citizenship of the Republic of Lithuania for merits to the State of Lithuania and submits proposals to the President of the Republic to grant the applications. This means that the President of the Republic does not have the right to grant citizenship by way of exception in the absence of one or another decision of the Citizenship Commission. M. Girdauskas believes that from the case material it is possible to draw the conclusion that as regards J. Borisov, there was not any such lawful decision; this leads one to believe that the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 is consistent with neither Item 21 of Article 84 of the Constitution nor Article 27 of the Citizenship Law.

2. The President of the Republic R. Paksas, the party concerned, who spoke at the 4 December 2003 Constitutional Court hearing, virtually reiterated the arguments set forth in his written explanations.

Alongside, the President of the Republic R. Paksas, the party concerned, noted that his the Decree (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 had been counter-signed by the Minister of the Interior before it was signed by the President of the Republic.

3. On 4 December 2003, at the Constitutional Court hearing the representatives of the President of the Republic, the party concerned, who were the advocates G. Baublys, E. Rapolas, and K. Švirinas stated that they agreed with the arguments set forth in the written explanations of P. Griciūnas and E. Mušinskis, representatives of the President of the Republic, the party concerned.

3.1. The advocate E. Rapolas, a representative of the party concerned, also additionally explained that J. Borisov, as a person, had merits to the Republic of Lithuania. In the opinion of E. Rapolas, it is of no importance as to whether J. Borisov was a citizen of the Republic of Lithuania or not, when he acquired them. Upon the loss of citizenship of the Republic of Lithuania by J. Borisov, his merits, as those of a person, persisted and could be assessed when the issue of granting him citizenship of the Republic of Lithuania by way of exception was being decided. Since the said merits of J. Borisov have not disappeared, then one should not emphasise the time period from 18 March 2003 till 11 April 2003, during which J. Borisov allegedly did not acquire any special merits to the Republic of Lithuania. Besides, having lost citizenship of the Republic of Lithuania, J. Borisov retained all his links with Lithuania: he remained to live here, he has his job here, here his family resides, and his enterprises have been founded here.

E. Rapolas also maintained that no law indicates a duty of the President of the Republic to indicate in a decree on granting citizenship by way of exception the merits of the person and the arguments, for which the person is granted citizenship. The question of merits is a question of the fact, the right to decide this belongs to the President of the Republic. When a person has merits to the Republic of Lithuania, the right to decide whether the merits are sufficient for granting citizenship by way of exception belongs to the President of the Republic. The merits of J. Borisov to the Republic of Lithuania are confirmed by the state award awarded to him, as well as the charity given by J. Borisov.

The advocate E. Rapolas, a representative of the party concerned, also noted that the President of the Republic has not been granted the right to refuse to consider an application on granting citizenship by way of exception. Nor does the President of the Republic have the right to choose a different procedure for granting citizenship, e.g., the procedure of the restoration of citizenship in cases when the person requests citizenship of the Republic of Lithuania granted by way of exception. J. Borisov submitted an application requesting citizenship of the Republic of Lithuania granted by way of exception, therefore, the President of the Republic was bound by this application and had to adopt a decision concerning this particular application.

In the opinion of E. Rapolas, the application of the constitutional principle of equality is bound by objective evaluation criteria: persons who are different by objective features may be assessed in a differentiated manner. J. Borisov was distinguished from other persons by objective features: he had been awarded a state award of the Republic of Lithuania, he had been residing in Lithuania for almost 40 years. This led one to draw the conclusion that J. Borisov had not had previous convictions. In addition, all the data concerning previous convictions of persons are accumulated at the Ministry of the Interior, a representative from the said ministry took part in the sitting of the Citizenship Commission, and the head of the said ministry counter-signed the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003. The representatives of the state institution, which possesses all the data about previous convictions of persons residing in the Republic of Lithuania, had an opportunity, before the President of the Republic signed the said decree, to present such data and evaluate them. The Citizenship Commission recommended that citizenship of the Republic of Lithuania be granted to J. Borisov, while the Minister of the Interior counter-signed the decree of the President of the Republic.

E. Rapolas also noted that the law does not provide for a duty of the Citizenship Commission to apply to the State Security Department. The fact whether it is necessary to receive information as regards one or another person from the State Security Department is decided by the Citizenship Commission itself. According to E. Rapolas, the objective features (sate award, his residence in Lithuania) permitted the Citizenship Commission to decide that it was not expedient to apply to the State Security Department concerning information about J. Borisov. Meanwhile, the other persons in whose regard one was deciding, at that time, whether to grant them citizenship by way of exception, were persons residing in foreign states. The competence of the Ministry of the Interior to present information about previous convictions of such persons is limited—it can present information only about previous convictions of persons residing in the Republic of Lithuania. E. Rapolas is convinced that it was due to this that one applied to the State Security Department in order to receive information about the other persons. J. Borisov was different from these persons, therefore, in order that the Citizenship Commission would adopt a decision recommending to grant him citizenship of the Republic of Lithuania, the data about J. Borisov collected by the Ministry of the Interior and the Office of the Prosecutor General were sufficient. Since there existed objective features due to which all these persons could be evaluated differently, E. Rapolas believes that the principle of equality before the law was not violated.

3.2. The advocate G. Baublys, a representative of the party concerned, additionally explained that in the entire world (as well as in Lithuania) laws establish tax preferences for legal persons that give charity or sponsorship, therefore, charity or sponsorship is most often rendered through various legal persons (foundations, enterprises, etc.). Only in rare cases natural persons give charity by themselves. G. Baublys noted that the legal person is only a form of certain activity: in the absence of the natural persons that act through the said legal person, the legal person would not be able to act at all. G. Baublys is convinced that it would not be possible to reproach famous sponsors or philanthropists for giving charity not directly in person but through their foundations, i.e. individual legal persons. J. Borisov gave charity through the enterprise “Avia Baltika” (he is its founder and head of administration). The biggest part of sponsorship is two planes and one hot air balloon, also the financing of certain sport events. The note of the State Tax Inspectorate at the Ministry of Finance of the Republic of Lithuania does not reflect what was bought or donated, while this is the biggest part of the charity and sponsorship (about LTL 4 million).

G. Baublys also noted that the circumstance that the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 had been counter-signed by the Minister of the Interior before it was signed by the President of the Republic was determined by the established practice based upon the principle of respect of one institution towards another. G. Baublys believes that this practice does not eliminate the duty of the Minister of the Interior to verify corresponding circumstances and assume responsibility for the decree of the President of the Republic. However, due to the interrelation of the institutions and because of respect to the Head of State, a practice came into being that the Minister of the Interior, after he has verified and has ascertained that everything has been performed properly, signs a decree of the President of the Republic first, i.e. counter-signs it, thus, the Head of State is completely assured this way that everything has been verified and is lawful. G. Baublys is of the opinion that the moment of counter-signing, the time interval, the succession of signing in this institute are not the main thing. The main thing is the expression of will, i.e. the fact that the minister has expressed his will and counter-signed the decree of the President of the Republic, thus assuming responsibility for it.

According to G. Baublys, the counter-signature of the decree does not abolish moral and political responsibility for the issued decree, however, the minister who has signed the decree of the President of the Republic, is legally liable. This is a normal interaction between branches of power. It goes without saying, the liability cannot be absolute, since the Minister of the Interior does not have an opportunity to verify every document of the Citizenship Commission.

4. On 4 December 2003, the Constitutional Court questioned the witnesses summoned to the hearing: V. Grigaravičius, Lithuanian Police General Commissioner, G. Bagdonas, Director of the Second Department for Operative Services at the Ministry of Defence of the Republic of Lithuania, L. Linkevičius, Minister of Defence of the Republic of Lithuania, M. Laurinkus, Director General of the State Security Department, O. Buišienė, Advisor to the President of the Republic on legal issues, Chairperson of the Citizenship Commission, A. Gavėnas, Director of the Migration Department at the Ministry of the Interior of the Republic of Lithuania, J. Vidickas, Deputy Director of the Migration Department at the Ministry of the Interior of the Republic of Lithuania, D. Jankauskienė, chief specialist of the Citizenship Group of the Office of the President of the Republic, A. Meškauskas, Head of the Office of the President of the Republic, J. Bernatonis, a member of the Seimas of the Republic of Lithuania, Ž. Terebeiza, Chairperson of the Citizenship Commission of the Vilnius City Municipality, S. Balčiūnienė, a senior inspector of the Passport Subdivision of the 1st Police Commissioner’s Office at the Chief Police Commissioner’s Office for the City of Vilnius, A. Drakšas, Head of the enterprise “Restakas” UAB, and J. Borisov, President of the aviation company “Avia Baltika” UAB. When the witness J. Borisov was being questioned, the interpreter R. Dalidėnas performed interpretation.

VIII

On 10 December 2003, the Constitutional Court questioned the witnesses summoned to the hearing: E. Šimanauskas, a member of the Citizenship Commission of the Administration of Vilnius City Municipality, chief specialist of the Analysis and Strategic Planning Division of the Administration of Vilnius City Municipality, D. Gintautienė, Secretary of the Citizenship Commission of the Administration of Vilnius City Municipality, specialist of the Citizenship Subdivision, V. V. Rinkevičienė, Deputy Chairperson of the Citizenship Commission of the Administration of Vilnius City Municipality, Head of the Citizenship Subdivision, V. Barkauskas, Deputy Prosecutor General of the Republic of Lithuania.

IX

1. When the investigation of the case began at the Constitutional Court hearing, additional information was received, which was presented by representatives of the President of the Republic, the party concerned, who were the advocates K. Švirinas, and E. Rapolas; at the request of representatives of the President of the Republic, the party concerned, it was attached to the case.

2. When the investigation of the case began at the Constitutional Court hearing, additional explanations were also received from V. Bulovas, Minister of the Interior of the Republic of Lithuania, O. Buišienė, Advisor to the President of the Republic on legal issues, Chairperson of the Citizenship Commission, and A. Gavėnas, Director of the Migration Department at the Ministry of the Interior of the Republic of Lithuania. They were attached to the case.

X

On 16 December 2003, at the Constitutional Court hearing court pleadings took place, in which the representatives of the Seimas, the petitioner, who were R. Šukys and M. Girdauskas, and the representatives of the President of the Republic, the party concerned, who were the advocates G. Baublys, E. Rapolas, and K. Švirinas, presented legal evaluation of the arguments presented by the representatives of the opposing party.

The Constitutional Court

holds that:

I

1. The petitioner, the Seimas, requests an investigation into whether the part of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 whereby citizenship of the Republic Lithuania is granted to J. Borisov by way of exception is not in conflict with the principle of a state under the rule of law entrenched in the Constitution, Paragraph 1 of Article 29, Item 21 of Article 84 and Paragraph 1 of Article 82 of the Constitution as well as with Paragraph 1 of Article 16 of the Law on Citizenship.

2. In this case the investigation will be conducted only within the extent pointed out by the petitioner.

II

1. Paragraph 1 of Article 102 of the Constitution provides that the Constitutional Court shall decide whether the laws and other acts of the Seimas are not in conflict with the Constitution and whether acts of the President of the Republic and the Government are not in conflict with the Constitution or laws.

Paragraph 2 of Article 105 of the Constitution stipulates that the Constitutional Court shall also consider if acts of the President of the Republic and acts of the Government of the Republic are not in conflict with the Constitution.

Paragraph 2 of Article 106 of the Constitution provides that not less than 1/5 of all the members of the Seimas and the courts shall have the right to apply to the Constitutional Court concerning the conformity of acts of the President of the Republic with the Constitution and the laws.

Paragraph 1 of Article 107 of the Constitution provides that a law (or part thereof) of the Republic of Lithuania or other act (or part thereof) of the Seimas, act of the President of the Republic, act (or part thereof) of the Government may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution of the Republic of Lithuania.

2. Article 85 of the Constitution provides that the President of the Republic, implementing the powers vested in him, shall issue acts-decrees. The formulation “acts of the President of the Republic” employed in Paragraph 1 of Article 102, Paragraph 2 of Article 105, Paragraph 2 of Article 106 of the Constitution and Paragraph 1 of Article 107 of the Constitution is broader than the formulation “acts-decrees”, therefore, under the Constitution, the Constitutional Court has powers to investigate the compliance of all acts of the President of the Republic with the Constitution and laws, which are issued by the President of the Republic, when he, as the Head of State, implements the powers established for him in the Constitution and laws, irrespective of how these acts are referred to in the laws establishing the powers of the President of the Republic.

3. It also needs to be noted that, under the Constitution, there may not be any such laws adopted by the Seimas the compliance of which with the Constitution and constitutional laws would not be subject to investigation by the Constitutional Court; under the Constitution, there may not be any such other legal acts adopted by the Seimas the compliance of which with the Constitution, constitutional laws and laws would not be subject to investigation by the Constitutional Court; under the Constitution, there may not be any such acts of the President of the Republic the compliance of which with the Constitution, constitutional laws and laws would not be subject to investigation by the Constitutional Court; under the Constitution, there may not be any such acts of the Government the compliance of which with the Constitution, constitutional laws, laws and Seimas resolutions on implementation of laws would not be subject to investigation by the Constitutional Court.

In its ruling of 5 April 2000, the Constitutional Court held that under Article 105 of the Constitution, in case there is a petition grounded by legal arguments by the subjects pointed out in Article 106 of the Constitution, the Constitutional Court enjoys the powers and has to consider and adopt decisions concerning the conformity of any laws and legal acts adopted by the Seimas with the Constitution, and regarding the conformity of any legal acts of the President of the Republic and any legal acts of the Government with the Constitution and the laws irrespective of the fact whether the legal act is (should be) marked “top secret”, “secret”, “confidential” or marked in any other way.

4. Under the Constitution, the Constitutional Court enjoys the powers to investigate the compliance of acts of the President of the Republic with the Constitution and laws irrespective of whether these acts are of an individual or normative character, whether they are of one-off (ad hoc) application or of permanent validity.

In case the Constitution or laws provide for respective requirements that must be followed (that must be fulfilled) in the course of issuance of an act of the President of the Republic, the Constitutional Court, when deciding whether the act of the President of the Republic is not in conflict with the Constitution and laws, must also investigate whether one has followed (fulfilled) these requirements, since in case these factual circumstances were not established, it would also not be possible to investigate the compliance of the act of the President of the Republic with the Constitution.

It needs to be noted that under the Constitution there may not be any such acts of the President of the Republic, which have been issued by him while implementing the powers established to him, as the Head of State, in the Constitution and laws, that the Constitutional Court could not investigate.

III

1. Without its citizens, the state cannot exist. Citizenship is an attribute of the state. Citizenship is not a mere formal legal category, it is inseparably linked with the issues of sovereignty of the nation and the state, of national identity and rights and freedoms of the person. As a rule, citizenship is perceived as a permanent legal link between the person and the state.

In its ruling of 13 April 1994, the Constitutional Court defined citizenship as follows: citizenship is a person’s permanent political legal relation to a certain state, grounded on mutual rights and obligations as well mutual trust, loyalty and protection therefrom.

It needs to be noted that the conception of citizenship as a legal link between the person and the state is also consolidated in the 1997 European Convention on Nationality (Article 2).

2. Citizenship is a permanent, uninterrupted legal link between the person and the state. Citizenship appears when the person becomes a citizen, and continues until the death of the person or until his loss of citizenship. The legal link of the citizen with the state persists no matter where the citizen might be: whether in the state a citizen of which he is, or outside its borders, i.e. in another state; after the citizen has left for another state, his legal link with the state, a citizen of which he is, persists.

It is the permanent (uninterrupted) legal link between the citizen and the state that permits distinguishing this special legal link from the legal link which appears between the state and a foreigner or a stateless person, who resides in it either permanently or temporarily: when the foreigner or the stateless person leaves the state, his legal link with the state discontinues. When the citizen leaves for another state, his legal link with the state whose citizen he is persists.

Citizenship expresses legal membership of the person in the state, reflects legal belongingness of the person to the nation as a community organised into a state (state community).

3. Every state formally defines which persons are its citizens. The link between citizens and the state is mutual. State authority can only function when there is permanent jurisdiction over residents of this state, the absolute majority of whom are, as a rule, citizens of that state. The legal link with the state is necessary to citizens so that all their rights and freedoms might be guaranteed, which are enjoyed by citizens, in order that the person could enjoy the protection of his state within his country as well as abroad.

It needs to be noted that citizenship is not influenced by the fact whether or not the citizen makes use of the rights and duties of the citizen in reality, and whether or not he fulfils the duties of the citizen. The person is also a citizen when he refuses to make use of the rights of the citizen or fulfil the duties of the citizen. In regard of citizenship, such refusal is null.

4. Citizenship is not any permanent link between the person and the state, but it is a legal link. Citizenship relations are always legal ones, and their presence is always stated in a legal form. Only state institutions can decide citizenship issues, and, when doing so, they can perform only such actions that are provided for in the Constitution, laws and other legal acts. The state of citizenship could be changed only in case there exist grounds established in legal acts and only after the parties, the citizen and the state, have performed certain legal actions and upon adoption of a corresponding legal decision by the state institution. In connection with citizenship issues, no agreements are possible between a person or persons and the state institution (its official), while in case of conclusion of such agreements, they would not be able to create citizenship relations; in case of conclusion of such agreements, there would always appear the issue of constitutionality of the legal act whereby citizenship is granted, which is issued under such circumstances.

5. Citizenship determines the legal status of the person, enjoyment of citizenship is a precondition for enjoyment of all rights and freedoms entrenched in the Constitution and laws, and that for performing established duties.

In this context, it should be noted that, under the Constitution, certain rights are enjoyed only by citizens: the right to participate in the government of the state both directly and through their democratically elected representatives (Paragraph 1 of Article 33), the right to present to the Seimas a proposal to alter or supplement the Constitution of the Republic of Lithuania (Paragraph 1 of Article 147); the right to vote in elections to the Seimas and the right to stand for election to the Seimas (Paragraph 1 of Article 34, Article 56); the right to vote in presidential elections and the right to stand for election as President of the Republic (Paragraph 1 of Article 34, Article 56, Paragraphs 1 and 2 of Article 78); the right to be judges (Paragraph 1 of Article 112); the right to enter into the state service (Paragraph 1 of Article 33); the right to request that referendum be announced (Paragraph 3 of Article 9); the right of legislative initiative (Paragraph 2 of Article 68). The Constitution and laws also establish certain other rights enjoyed only by citizens of the Republic of Lithuania. Under the Constitution, only citizens of the Republic of Lithuania also have certain duties: the duty to defend the State of Lithuania against a foreign armed attack (Paragraph 1 of Article 139 of the Constitution); the duty to perform military or alternative national defence service (Paragraph 2 of Article 139 of the Constitution).

It also needs to be noted that Paragraph 1 of Article 3 of the Republic of Lithuania’s Law on Citizenship, which was adopted by the Seimas on 17 September 2002, provides that “citizens of the Republic of Lithuania shall have all social and economic, political and personal rights and freedoms that are enshrined in and guaranteed by the Constitution and laws of the Republic of Lithuania, and international treaties to which the Republic of Lithuania is a party”. Paragraph 2 of the same article provides that “a citizen of the Republic of Lithuania must observe the Constitution and laws of the Republic of Lithuania, perform the duties prescribed thereunder, safeguard the interests of the Republic of Lithuania, help strengthen its might and authority, be loyal to it.”

6. The permanent legal link between the person and the state which is expressed by citizenship implies the duty of the state to protect its citizen within the country as well as outside its borders: under Paragraph 1 of Article 13 of the Constitution, “the State of Lithuania shall protect its citizens abroad”. The state must take care of its citizens abroad in all cases, without taking account of whether or not the citizen of the Republic of Lithuania violated laws of the host state. A prohibition has also been established in the Constitution against extraditing a citizen of the Republic of Lithuania to another state—a citizen of the Republic of Lithuania can only be extradited to another state only in case an international treaty of the Republic of Lithuania provides so (Paragraph 2 of Article 13 of the Constitution). Such an international treaty may not be in conflict with the Constitution.

The conclusion should be drawn from Paragraph 1 of Article 32 of the Constitution, under which a citizen may move and choose his place of residence in Lithuania freely, and may leave Lithuania freely, also from Paragraph 3 of Article 32 of the Constitution, under which a citizen may not be prohibited from returning to Lithuania, the conclusion should be drawn that under the Constitution a citizen of the Republic of Lithuania cannot be sent from Lithuania.

7. Article 2 of the Constitution provides: “The State of Lithuania shall be created by the Nation. Sovereignty shall belong to the Nation.” Under Article 4 of the Constitution, “the Nation shall execute its supreme sovereign power either directly or through its democratically elected representatives”. Paragraph 1 of Article 33 of the Constitution provides that “citizens shall have the right to participate in the government of the State both directly and through their democratically elected representatives”; under Paragraph 2 of Article 3 of the Constitution, “the Nation and each citizen shall have the right to resist anyone who encroaches on the independence, territorial integrity, and constitutional order of the State of Lithuania by force”.

It follows from these and other provisions of the Constitution that only citizens of the Republic of Lithuania, i.e. the state community—the civil Nation—has the right to create the State of Lithuania, i.e. only citizens have the right to decide as to what State of Lithuania there must be, to establish the constitutional order of the State of Lithuania, the organisation of institutions implementing state authority, the basics of relations between the person and the state, the system of the country’s economy, etc. While implementing the rights and freedoms of citizens, citizens participate in executing the sovereignty of the Nation.

8. It has been mentioned that citizenship expresses a permanent legal link between the person and the state. It should be noted that an absolute majority of persons are citizens not because they have expressed their wish to be citizens of the state but because they are linked with the state by means of a certain objective relation: their parents (one of parents) were citizens of that state. Acquisition of citizenship by birth (filiation) is the main way of acquisition of citizenship; by acquisition of citizenship by birth, continuance of citizenship is ensured and continuance of the state community, the legal Nation, is ensured as well.

It is possible to acquire citizenship by way of naturalisation, i.e. citizenship is granted to a person who meets the conditions established in the law. As a rule, such conditions are requirements of permanent residence in the state for a certain time period established in the law, and of knowledge of the state language. These requirements are based on the provision that the person wishing to acquire citizenship and the state must be connected by a permanent factual link before citizenship is granted, that permanent residence in the state during a certain time period established in the law and knowledge of the state language are necessary pre-conditions for a foreigner or a stateless person to integrate himself into the society, to perceive the mentality of the Nation and its strivings, the constitutional order of the state, to get acquainted with the history, culture, customs and traditions of the Nation and the state, to be prepared to take responsibility for the present and the future of the state. It is due to this that it is not sufficient for a citizen of a foreign state or a stateless person who wishes to acquire citizenship merely to settle in this country—for this reason one has to reside permanently in the state for a longer time period, which is established in the law, and to know the state language.

Thus, acquisition of citizenship is always to be related with a certain objective link between the person with the state: this link is most often determined by the fact that that children of citizens become citizens by birth (jus sanguini), in certain states a person who was born within its territory is considered its citizen (jus soli), or when the permanent factual link of a foreigner or a stateless person with the state, if this foreigner or stateless person meets the conditions established in the law and he is granted citizenship (naturalisation), becomes a permanent legal link with the state.

9. While regulating citizenship relations, the state enjoys discretion which is also recognised in international law. However, international law also underlines that citizenship legal regulation established by law and concluded international treaties must ensure the implementation of the human right to citizenship, must be in line with international covenants, international customary law and generally recognised legal principles related with citizenship.

For instance, a principle has been established in international law that every state can establish by itself as to who are its citizens, and to establish the grounds of acquisition and loss of citizenship. Article 1 of the 1930 Convention on Certain Questions Relating to the Conflict of Nationality Laws provides: “It is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.” Article 3 of the 1997 European Convention on Nationality provides: “Each State shall determine under its own law who are its nationals. This law shall be accepted by other States in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognised with regard to nationality.”

IV

1. The constitutional grounds of citizenship of the Republic of Lithuania are entrenched in Article 12 of the Constitution; Item 21 of Article 84 of the Constitution provides that the President of the Republic shall grant citizenship; under Article 85 of the Constitution, the President of the Republic decides questions of the granting of citizenship by issuing decrees and, to be valid, the decrees of the President of the Republic on granting citizenship must be signed by the Prime Minister or an appropriate minister.

2. Article 12 of the Constitution provides:

Citizenship of the Republic of Lithuania shall be acquired by birth and other grounds established by law.

With the exception of individual cases provided for by law, no one may be both a citizen of the Republic of Lithuania and another state at the same time.

The procedure for the acquisition and loss of citizenship shall be established by law.”

Paragraph 1 of Article 12 of the Constitution indicates the main way of acquisition of citizenship of the Republic of Lithuania: citizenship of the Republic of Lithuania is acquired by birth; the same article also contains a provision that other grounds for the acquisition of citizenship can also be established by law.

A provision has been consolidated in Paragraph 2 of Article 12 of the Constitution that a citizen of the Republic of Lithuania may not be a citizen of another state at the same time. Thus, a prohibition on dual citizenship is established in the Constitution, however, this prohibition is not absolute: under Paragraph 2 of Article 12 of the Constitution, in individual cases provided for by law, a citizen of the Republic of Lithuania may be a citizen of another state at the same time.

3. The provision of Paragraph 1 of Article 12 of the Constitution that other grounds for the acquisition of citizenship can also be established by law, and the provision of Paragraph 3 of the same article that the procedure for the acquisition and loss of citizenship shall be established by law mean that the legislature has a duty to pass a law establishing the grounds of acquisition of citizenship and regulating the procedure for the acquisition and loss of citizenship.

The grounds of acquisition and loss of citizenship of the Republic of Lithuania and the procedure for settlement of citizenship issues are regulated by the Republic of Lithuania’s Law on Citizenship adopted by the Seimas on 17 September 2002 (hereinafter also referred to as the Law on Citizenship), which went into effect on 1 January 2003 (Paragraph 1 of Article 34 of the Law on Citizenship).

4. In the course of establishment of the grounds of acquisition of citizenship of the Republic of Lithuania and regulation of the procedure of acquisition and loss of citizenship, the legislature enjoys discretion. However, while doing this, the legislature cannot deny the nature and meaning of the institute of citizenship, he must pay heed to the constitutional requirement that a citizen of the Republic of Lithuania may also be a citizen of another state only in individual cases established by law. It should be underlined that the provision of Article 12 of the Constitution that a person may be a citizen of the Republic of Lithuania and, at the same time, a citizen of another state only in individual cases established by law, means that such cases established by law can be very rare (individual), that cases of dual citizenship must be extraordinarily rare, exceptional, that under the Constitution it is not permitted to establish any such legal regulation under which cases of dual citizenship would be not extraordinarily rare exceptions, but a widespread phenomenon. Under the Constitution, expansive construction of the provisions of the Law on Citizenship consolidating an opportunity to be a citizen of the Republic of Lithuania and a citizen of another state at the same time is impermissible, under which dual citizenship would be not individual, extraordinarily rare exceptions, but a widespread phenomenon.

5. Under Item 21 of Article 84 of the Constitution, the President of the Republic shall grant citizenship of the Republic of Lithuania in accordance with the procedure established by law. This provision means that no other subject may grant citizenship of the Republic of Lithuania, that the President of the Republic, when he decides an issue of the granting of citizenship of the Republic of Lithuania, must follow the requirements established by law, that the President of the Republic is prohibited from granting citizenship of the Republic of Lithuania if he does not follow the requirements established in the law and the established procedure.

It needs to be noted that, while one takes account of the fact that citizenship of the Republic of Lithuania expresses legal membership of the person in the State of Lithuania and reflects his legal belongingness to the state community, the civil Nation, the President of the Republic, when he decides whether to grant citizenship of the Republic of Lithuania to a person, must be guided by interests of the Nation and the State of Lithuania.

6. The provision of Item 21 of Article 84 of the Constitution that citizenship of the Republic of Lithuania is granted in accordance with the procedure established by law, means that the President of the Republic, while deciding a question of the granting of citizenship of the Republic of Lithuania, must follow the procedure established by law.

Paragraph 1 of Article 27 of the Law on Citizenship provides that the President of the Republic shall form the Citizenship Commission for preliminary consideration of issues of citizenship of the Republic of Lithuania and approve the rules for the consideration of issues of citizenship in the commission. Under Paragraph 4 of Article 27 of the Law on Citizenship, the Citizenship Commission shall submit to the President of the Republic proposals to grant applications for citizenship of the Republic of Lithuania and, in case the commission refuses to recommend granting citizenship, it shall notify the applicant thereof in writing, setting forth the reasons for refusal; Paragraph 5 of Article 27 provides that the commission shall consider applications for citizenship of the Republic of Lithuania under Article 16 of the Law on Citizenship and shall submit to the President of the Republic proposals to grant the applications.

Thus, under Article 27 of the Law on Citizenship, the President of the Republic may adopt decisions to grant citizenship of the Republic of Lithuania only in case this question has been preliminary considered in the Citizenship Commission formed by the President of the Republic and there is a proposal of this commission to the President of the Republic concerning the submitted application.

It needs to be noted that the proposal of the Citizenship Commission is not binding on the President of the Republic: under the Constitution, only the President of the Republic has the powers to decide whether to grant citizenship of the Republic of Lithuania to a person by way of exception, therefore, the President of the Republic can disregard the proposal of the Citizenship Commission.

It should be emphasised that disregarding the requirements established in the Law on Citizenship and the procedure for granting of citizenship, established in the same law, in the course of the granting of citizenship is not only violation of the Law on Citizenship, but also of Item 21 of Article 84 of the Constitution.

7. Article 85 of the Constitution provides: “The President of the Republic, implementing the powers vested in him, shall issue acts-decrees. To be valid, the decrees of the President of the Republic, specified in Items 3, 15, 17, and 21 of Article 84 of the Constitution, must be signed by the Prime Minister or an appropriate Minister. Responsibility for such a decree shall lie with the Prime Minister or the Minister who signed it.”

8. The decrees of the President of the Republic pointed out in Items 3, 15, 17, and 21 of Article 84 of the Constitution are issued concerning these issues:

1) the President of the Republic appoints and recalls, upon the presentation by the Government, diplomatic representatives of the Republic of Lithuania to foreign states and to international organisations; confers high diplomatic ranks and special titles (Item 3 of Article 84 of the Constitution);

2) the President of the Republic confers high military ranks (Item 15 of Article 84 of the Constitution);

3) the President of the Republic declares a state of emergency in accordance with the procedure and in cases established by law (Item 17 of Article 84 of the Constitution);

4) the President of the Republic grants citizenship of the Republic of Lithuania in accordance with the procedure established by law (Item 21 of Article 84 of the Constitution).

9. The formula “decrees of the President of the Republic” of the provision “to be valid, the decrees of the President of the Republic” of Article 85 of the Constitution means that a decree, as a legal act, of the President of the Republic appears only after it has been signed by the President of the Republic. Until the President of the Republic has done so, there are no legal grounds to state that the President of the Republic has issued a decree. Until a document, having the name of a decree of the President of the Republic, has not been signed, this document is only a draft decree of the President of the Republic, but not a decree itself. It needs to be noted that the Constitution does not provide that draft decrees of the President of the Republic could and should be signed by the Prime Minister or a certain minister. If laws or other legal acts established legal regulation under which draft decrees of the President of the Republic ought to be signed by the Prime Minister or a minister before they are signed by the President of the Republic, the legal acts establishing such legal regulation would be in conflict with the Constitution.

Thus, under Article 85 of the Constitution, the Prime Minister or an appropriate minister signs decrees of the President of the Republic, i.e. a legal act issued by the President of the Republic bearing the name of a decree, which has already been signed by the President of the Republic.

10. The provision “to be valid, the decrees of the President of the Republic <…> must be signed by the Prime Minister or an appropriate Minister” of Article 85 of the Constitution means that until the decree of the President of the Republic of Lithuania has not been signed by the Prime Minister or an appropriate minister, such a decree cannot come into force, thus, it cannot give rise to any legal effects.

Thus, the said provision of Article 85 of the Constitution establishes an additional condition under which decrees of the President of the Republic specified in Items 3, 15, 17, and 21 of Article 84 of the Constitution can give rise to legal effects: such decrees must be signed by the Prime Minister or an appropriate minister. In the legal theory, such signing is called counter-signing.

Paragraph 1 of Article 5 of the Constitution, which provides which state institutions execute state power, also indicates that “the President of the Republic and the Government” execute state power. Under the Constitution, the President of the Republic is part of the executive (the Constitutional Court’s ruling of 10 January 1998). In Article 84 of the Constitution as well as other articles of the Constitution various powers of the President of the Republic are established, in the course of implementation whereof the President of the Republic issues decrees. Most of the decrees issued by the President of the Republic, under the Constitution, are not signed by the Prime Minister or a minister: under the Constitution the Prime Minister or an appropriate minister signs only the decrees specified in Items 3, 15, 17, and 21 of Article 84 of the Constitution. Such constitutional regulation means that the powers of the President of the Republic specified in Items 3, 15, 17, and 21 of Article 84 of the Constitution are considered to be an area of the executive of special importance, and, under the Constitution, the President of the Republic cannot solely, without approval of an appropriate member of the Government, implement the said powers. Such constitutional regulation reflects the consolidation of the system of “checks and balances” in the implementation of the executive power.

11. While disclosing the content of the provision “to be valid, the decrees of the President of the Republic, specified in Items 3, 15, 17, and 21 of Article 84 of the Constitution, must be signed by the Prime Minister or an appropriate Minister”, it should be noted that it is impossible to construe the said provision in isolation from another provision established in the same article—“responsibility for such a decree shall lie with the Prime Minister or the Minister who signed it”.

Taking account of the fact that responsibility for the decrees of the President of the Republic, specified in Items 3, 15, 17, and 21 of Article 84 of the Constitution, lies with the Prime Minister or the minister who signed it, it should be concluded that under Article 85 of the Constitution the Prime Minister or a respective minister has the right to decide whether or not to sign the decree of the President of the Republic. The Prime Minister or a respective minister is not obliged to sign a decree, which is issued while disregarding the Constitution or failing to follow the procedure established in corresponding laws or other established requirements, since, otherwise, the Prime Minister or a respective minister would be responsible for the actions that he would have to perform without having any choice, i.e. irrespective of his will. There may not by any such legal regulation in a democratic state under the rule of law, for this would not be in line with the principles of a state under the rule of law and justice, upon which the Lithuanian Constitution and the entire Lithuanian legal system are based.

12. From the right and duty of the Prime Minister or an appropriate minister to decide whether or not to sign the decrees of the President of the Republic, specified in Items 3, 15, 17, and 21 of Article 84 of the Constitution, follows a duty of the Prime Minister or an appropriate minister, before they sign a corresponding decree of the President of the Republic, to ascertain whether this decree of the Republic of Lithuania has been issued according to the Constitution and in line with the procedure established in respective laws and other established requirements. It is due to the fact that the Prime Minister or the appropriate minister have the said duty that responsibility for such a decree of the President of the Republic lies, under Article 85 of the Constitution, with the Prime Minister or an appropriate minister.

13. Thus, the legal regulation established in Article 85 of the Constitution, under which, to be valid, the decrees of the President of the Republic, specified in Items 3, 15, 17, and 21 of Article 84 of the Constitution, must be signed by the Prime Minister or an appropriate minister, consolidates the right and duty of the Prime Minister and the appropriate minister to participate in the implementation of the powers of the President of the Republic, specified in Items 3, 15, 17, and 21 of Article 84 of the Constitution, also the right and duty of the Prime Minister and the appropriate minister not to permit that a decree of the President of the Republic come into force, which has been issued with disregard to the Constitution or the requirements established in laws and the established procedure. This is a counter-balance to decisions of the President of the Republic in case they disregard the requirements set in the Constitution and laws, if one abused the powers of the President of the Republic that have been established for him in the Constitution and laws. On the other hand, the fact that responsibility for the decree of the President of the Republic lies not with the President of the Republic himself, but with the Prime Minister or an appropriate minister is grounded on the provision that the President of the Republic, while in office, is not responsible for his decisions, save the cases directly established in the Constitution, i.e. for the decisions by which the President of the Republic grossly violates the Constitution, breaches his oath, commits a crime. In such cases the issue of constitutional responsibility of the President of the Republic is decided (Article 74 of the Constitution).

14. The provision “to be valid, the decrees of the President of the Republic <…> must be signed by the Prime Minister or an appropriate Minister” of Article 85 of the Constitution also implies that the law ought to establish which decrees of the President of the Republic must be signed by the Prime Minister, and which must be signed by an appropriate minister.

As mentioned before, under Item 21 of Article 84 and Article 85 of the Constitution, the President of the Republic grants citizenship by issuing a decree. Item 5 of Article 16 of the Law on the President of the Republic provides that decrees of the President of the Republic concerning granting of citizenship of the Republic of Lithuania are also signed by the Minister of the Interior. Under Article 19 of the Law on the Government, a minister signs decrees of the President of the Republic within three days.

It needs to be noted that a duty for the Minister of the Interior arises out of the legal regulation established in Article 85 of the Constitution to ascertain, before signing a decree of the President of the Republic on granting of citizenship, as well as a decree of the President of the Republic on granting of citizenship by way of exception, whether the decree of the President of the Republic has been issued by paying heed to the Constitution and following the grounds of citizenship acquisition established in the Law on Citizenship, also following the procedure for granting of citizenship established in the Law on Citizenship. Under Article 85 of the Constitution, responsibility for such a decree of the President of the Republic lies with the Minister of the Interior who has signed it.

15. Disclosing the content of the provision “responsibility for such a decree shall lie with the Prime Minister or the Minister who signed it” of Article 85 of the Constitution, it should be noted that this provisions cannot be construed in isolation from Articles 86 and 74 of the Constitution.

Article 86 of the Constitution provides:

The person of the President of the Republic shall be inviolable: while in office, he may neither be arrested nor be held criminally or administratively liable.

The President of the Republic may be removed from office ahead of time only for a gross violation of the Constitution or a breach of the oath or upon disclosure of the commission of a crime. The Seimas shall decide the issue concerning the removal of the President of the Republic from office in accordance with the procedure for impeachment proceedings.”

Under Article 74 of the Constitution, for a gross violation of the Constitution, a breach of the oath, or upon disclosure of the commission of a crime the President of the Republic may be removed from office according to the procedure for impeachment proceedings.

Taking account of the fact that, under Articles 86 and 74 of the Constitution, for a gross violation of the Constitution, a breach of the oath, or upon disclosure of the commission of a crime the President of the Republic may be brought to constitutional responsibility—removed from office according to the procedure for impeachment proceedings—the conclusion should be drawn that the provision “responsibility for such a decree shall lie with the Prime Minister or the Minister who signed it” of Article 85 of the Constitution cannot be construed as establishing that the President of the Republic in all cases is not responsible for the decrees issued by him, specified in Items 3, 15, 17, and 21 of Article 84 of the Constitution, which were signed by the Prime Minister or a respective minister.

While construing Articles 85, 86 and 74 of the Constitution in a systemic manner, the conclusion should be drawn that responsibility for a decree, specified in Items 3, 15, 17, and 21 of Article 84 of the Constitution, by which Constitution is grossly violated or the oath is breached, or a crime is committed, lies not only with the Prime Minister or the respective minister that counter-signed such a decree, but also with the President of the Republic, who has issued such a decree.

Alongside, it should be noted that a mere fact that a decree of the President of the Republic is recognised as being in conflict with the Constitution or a law, in itself does not mean that the President of the Republic grossly violated the Constitution, or breached the oath, or committed a crime. Deciding whether the President of the Republic, having issued a decree that is in conflict with the Constitution or a law, has grossly violated the Constitution or breached the oath, or committed a crime, one has to assess not only the content of the decree of the President of the Republic, but also the fact whether, in the course of the issuance of the decree of the President of the Republic, the requirements established in the Constitution and corresponding laws were fulfilled, whether the established procedure was being followed, and also it is necessary to assess other factual circumstances of the issuance of such a decree.

16. It needs to be noted that all decrees of the President of the Republic, including those on granting of citizenship, are substatutory legal acts. According to the Constitution, a decree of the President of the Republic on granting of citizenship, as well as any other substatutory legal act, should not be in conflict with the Constitution, constitutional laws and laws.

V

1. Persons that are citizens of the Republic of Lithuania are indicated in Article 1 of the Law on Citizenship, which provides:

The following persons shall be citizens of the Republic of Lithuania:

1) persons who held citizenship of the Republic of Lithuania prior to 15 June 1940, their children, grandchildren and great-grandchildren (provided that the persons, their children, grandchildren or great-grandchildren did not repatriate);

2) persons who permanently resided in the present-day territory of the Republic of Lithuania in the period from 9 January 1919 to 15 June 1940, as well as their children, grandchildren and great-grandchildren, provided that on the day of coming into force of the Law on Citizenship they were and at the present time permanently reside in the territory of the Republic of Lithuania and are not citizens of any other state;

3) persons of Lithuanian descent if they are not citizens of any other state. A person whose parents or grandparents or one of the parents or grandparents is or was Lithuanian and the person considers himself Lithuanian shall be considered as being a person of Lithuanian descent;

4) persons who acquired citizenship of the Republic of Lithuania prior to 4 November 1991 under the Law on Citizenship adopted on 3 November 1989;

5) other persons who have acquired citizenship of the Republic of Lithuania under the Law on Citizenship adopted on 5 December 1991.”

2. As mentioned before, under Article 12 of the Constitution, citizenship of the Republic of Lithuania shall be acquired by birth and other grounds established by law.

Article 7 of the Law on Citizenship provides that Citizenship of the Republic of Lithuania shall be acquired: (1) by birth; (2) by exercising the right to citizenship of the Republic of Lithuania; (3) by being granted citizenship of the Republic of Lithuania (naturalisation); (4) by voicing one's option or on other grounds, as provided for by international treaties of the Republic of Lithuania; (5) on other grounds provided for by this law.

3. One of the grounds for the acquisition of citizenship of the Republic of Lithuania is provided for in Article 16 of the Law on Citizenship:

1. The President of the Republic, in pursuance of this Law, may grant citizenship of the Republic of Lithuania to citizens of foreign states or stateless persons with merits to the Republic of Lithuania without applying with respect to them conditions for the granting of citizenship provided for in Article 12 of this Law.

2. The granting of citizenship of the Republic of Lithuania by way of exception shall by itself have no legal consequences for the family members of the person who acquired citizenship.”

The following provisions have been consolidated in Paragraph 1 of Article 16 of the Law on Citizenship: (1) the President of the Republic has the right to grant citizenship of the Republic of Lithuania by way of exception, i.e. without applying with respect to the person general conditions (of naturalisation) for granting of citizenship provided for in Article 12 of the Law on Citizenship; (2) citizenship of the Republic of Lithuania may be granted to a citizen of a foreign state or a stateless person by way of exception; (3) citizenship of the Republic of Lithuania may only be granted to such a citizen of a foreign state or a stateless person by way of exception, who has merits to the Republic of Lithuania; (4) the President of the Republic has the right to decide whether or not to grant citizenship of the Republic of Lithuania to a citizen of a foreign state or a stateless person; even if a citizen of a foreign state or a stateless person has merits to the Republic of Lithuania, the President of the Republic does not have a duty to grant citizenship of the Republic of Lithuania to the citizen of a foreign state or the stateless person; (5) the President of the Republic, in the course of granting citizenship of the Republic of Lithuania to a citizen of a foreign state or a stateless person, who has merits to the Republic of Lithuania, must follow the Law on Citizenship.

4. It needs to be noted that neither the Constitution, nor the Law on Citizenship provides as to what ought to be considered merits to the State of Lithuania. Under the valid legal regulation, only the President of the Republic decides whether the citizen of a foreign state or the stateless person is with merits to the State of Lithuania.

5. Under Paragraph 2 of Article 77 of the Constitution, the President of the Republic shall perform everything that he is charged with by the Constitution and laws. Thus, when he decides whether to grant citizenship by way of exception, the President of the Republic is bound by the Constitution and the Law on Citizenship: citizenship of the Republic of Lithuania may be granted only the citizen of a foreign state or the stateless person who has merits to the Republic of Lithuania (Article 16 of the Law on Citizenship), and only in keeping with the procedure for granting of citizenship as established in the law (Item 21 of Article 84 of the Constitution).

6. It needs to be noted that the formula “to citizens of foreign states or stateless persons with merits to the Republic of Lithuania” of Paragraph 1 of Article 16 of the Law on Citizenship means that a citizen of a foreign state or a stateless person, who requests citizenship of the Republic of Lithuania granted by way of exception, must have merits not to any subject, but to the State of Lithuania itself.

It is universally recognised in constitutional law that the state is a political organisation of the entire society, whose power covers all the territory of the state, and which is designated for ensuring of human rights and freedoms and guaranteeing of the public interest. While deciding whether a citizen of a foreign state or a stateless person is with merits to the State of Lithuania, one should take account of the fact that under Paragraph 1 of Article 16 of the Law on Citizenship merits to the state are a necessary condition so that not any but a special link between the person and the state would appear, i.e. a permanent link between the person and the state, membership of the person in the Nation and the state, which are expressed by citizenship, therefore, in the sense of the Law on Citizenship, the person must be with merits not to any subject but the State of Lithuania itself; thus, virtually, the person must be with merits to the state community of Lithuania—the civil Nation—which, under the Constitution, enjoys sovereign powers and is the creator of the State of Lithuania and a member of which the said citizen of a foreign state or stateless person aspires to become.

7. In the context of the case at issue, it should be noted that financial, material or any other support by the citizen of a foreign state or stateless person, rendered to a certain citizen or a group of citizens of the Republic of Lithuania, a state official, a certain enterprise, establishment or organisation may be considered only support of the citizen of a foreign state or stateless person to the said citizen or the group of citizens of the Republic of Lithuania, the state official, the respective enterprise, establishment or organisation, but this support should not be considered merits to the subject indicated in Article 16 of the Law on Citizenship, i.e. it should not be considered to be merits to the Republic of Lithuania.

It also needs to be noted that in the sense of the Law on Citizenship, in general merits of a citizen of a foreign state or a stateless person to the State of Lithuania cannot be evaluated by the mere amount of sum of money or the amount of material and other support rendered by the citizen of a foreign state or stateless person to a certain citizen or a group of citizens of the Republic of Lithuania, a state official, a certain enterprise, establishment or organisation or even to the State of Lithuania itself. It follows neither from the Constitution, nor the Law on Citizenship, nor other laws that citizenship of the Republic of Lithuania can be acquired for financial, material or any other support, i.e. bought. In the context of appearance of citizenship relations, merits to the state cannot be evaluated only by the money transferred (donated) to a certain subject or by other support. In the sense of the Law on Citizenship, only the activity of the person should be considered merits to the Republic of Lithuania, when the person very significantly contributes to strengthening of Lithuanian statehood, to the increase of power of Lithuania and its authority in the international community, when it is evident that the person has already been integrated into the Lithuanian society. Only in such cases there may appear pre-conditions for the consideration and decision on whether the citizen of a foreign state or stateless person is with merits to the Republic of Lithuania, as required by the Law on Citizenship.

8. The Constitutional Court notes that by means of laws or other legal acts one cannot establish a final list of merits, for which a citizen of a foreign state or a stateless person can be granted citizenship of the Republic of Lithuania by way of exception: as mentioned before, only the President of the Republic decides whether the citizen of a foreign state or the stateless person is with merits to the State of Lithuania. However, when deciding this, the President of the Republic cannot disregard the requirement established in the Law on Citizenship that the citizen of a foreign state or stateless person must have merits not to any subject, but to the State of Lithuania itself. The merits of the person who requests citizenship of the Republic of Lithuania granted by way of exception must be such and grounded in such a way so that it would not cause any doubts as to their presence.

9. The formula “to citizens of foreign states or stateless persons with merits” employed in Paragraph 1 of Article 16 of the Law on Citizenship also means that not any person, but a citizen of a foreign state or a stateless person must have merits to the State of Lithuania. Thus, deciding whether the citizen of a foreign state or the stateless person has merits to the Republic of Lithuania, one should, under Paragraph 1 of Article 16 of the Law on Citizenship, assess only the very significant activity to the State of Lithuania itself that it was performed when the person was a citizen of a foreign state or a stateless person.

In the context of the case at issue, it should be noted that it is also impossible to construe Paragraph 1 of Article 16 of the Law on Citizenship as permitting one to regard the merits of citizens of a foreign state or stateless persons to the Republic of Lithuania as merits that the said persons had to the State of Lithuania at the time when they were not citizens of a foreign state or stateless persons, but when they used to be citizens of the Republic of Lithuania. For merits to the State of Lithuania, citizens of the Republic of Lithuania may be awarded awards of the State of Lithuania (orders, medals and other decorations), however, the former merits of citizens of the Republic of Lithuania to the State of Lithuania, upon their renunciation or loss of citizenship otherwise, may not become merits of the citizen of a foreign state or the stateless person to the Republic of Lithuania, on the grounds of which citizenship of the Republic of Lithuania could be granted by way of exception. A different construction of Paragraph 1 of Article 16 of the Law on Citizenship would mean that the same activity, which is merits of a citizen of the Republic of Lithuania to the State of Lithuania and for which the citizen of the Republic of Lithuania can be awarded state awards, is, alongside, merits of the citizen of a foreign state or the stateless person to the State of Lithuania for which, in case the citizen of the Republic lost citizenship of the Republic of Lithuania and became a citizen of a foreign state or a stateless person, he could be granted citizenship of the Republic of Lithuania by way of exception. It is clear that such construction of Paragraph 1 of Article 16 of the Law on Citizenship would be absolutely groundless from the legal standpoint only because of the fact that granting of citizenship of the Republic of Lithuania to a foreign citizen or a stateless person is not and may not be a state award.

10. It has been mentioned that citizenship is a permanent legal link between the person and the state, that citizenship may be granted to the person who meet the conditions established in the law.

The general conditions for the granting of citizenship of the Republic of Lithuania are established in Paragraph 1 of Article 12 of the Law on Citizenship, under which, upon submitting an application, a person may be granted citizenship of the Republic of Lithuania, provided that he agrees to take an oath to the Republic of Lithuania and meets the following conditions: (1) has passed the examination in the Lithuanian language; (2) for the last ten years has been permanently residing in the territory of the Republic of Lithuania; (3) has a legal source of support in the territory of the Republic of Lithuania; (4) has passed the examination in the basic provisions of the Constitution of the Republic of Lithuania; (5) is a stateless person or is a citizen of a state under the laws of which he loses citizenship of the said state upon acquiring citizenship of the Republic of Lithuania and notifies in writing of his decision to renounce citizenship of another state held by him after he is granted citizenship of the Republic of Lithuania.

11. One of the conditions for granting citizenship of the Republic of Lithuania is requirement for permanent residence in Lithuania for the last ten years. Although Paragraph 1 of Article 16 of the Law on Citizenship provides that in the course of the granting of citizenship of the Republic of Lithuania by way of exception the conditions provided for in Article 12 of the Law on Citizenship are not applied (one of such conditions, as mentioned before, is requirement that one reside in Lithuania for the last ten years), however, it is impossible to construe Paragraph 1 of Article 16 of the Law on Citizenship as permitting one to grant citizenship of the Republic of Lithuania to the citizen of a foreign state or stateless person by way of exception, who has merits to the Republic of Lithuania, who, however, is not linked with the State of Lithuania by permanent factual links, who is not integrated into the Lithuanian society. A different construction of Paragraph 1 of Article 16 of the Law on Citizenship would deny the nature and essence of citizenship of the Republic of Lithuania itself: the legal link between a citizen of a foreign state or a stateless person and the State of Lithuania can appear only on the basis of a prior and the continuing legislatively established factual permanent link between the citizen of a foreign state or stateless person and the State of Lithuania. Citizens of foreign states or stateless persons, who are with merits to the Republic of Lithuania, but who are not linked with the State of Lithuania by permanent factual links, who are not integrated into the Lithuanian society, may be awarded awards of the State of Lithuania (orders, medals, and other decorations). As mentioned before, citizenship of the Republic of Lithuania is not and may not be a state award. Therefore, if a citizen of a foreign state or a stateless person, who is with merits to the Republic of Lithuania, is not linked with the State of Lithuania by permanent factual links, who is not integrated into the Lithuanian society, there cannot appear a special—permanent and legal—link between such a person and the State of Lithuania, which is expressed by citizenship.

12. It has been mentioned that the procedure for granting of citizenship of the Republic of Lithuania is established by the Law on Citizenship. This law also provides that there are persons to whom citizenship of the Republic of Lithuania may not be granted.

Under Article 13 of the Law on Citizenship, citizenship of the Republic of Lithuania shall not be granted to persons who (1) have committed international crimes provided for by the international treaties to which the Republic of Lithuania is a party or by international customary law, such as: aggression, acts of genocide, crimes against humanity, war crimes; (2) have taken part in criminal activities against the State of Lithuania; (3) before coming to Lithuania, have been imposed a custodial sentence for a premeditated crime for which laws of the Republic of Lithuania also prescribe criminal liability, or have been convicted in Lithuania for a premeditated crime punishable by a custodial sentence.

13. The legal regulation established in Article 13 of the Law on Citizenship means that before the President of the Republic issues a decree on granting citizenship, one must verify and ascertain in all cases, including those when citizenship of the Republic of Lithuania is granted to citizens of a foreign state or stateless persons, who have merits to the Republic of Lithuania, by way of exception, that there are not any circumstances present, indicated in Article 13 of the Law on Citizenship, due to which citizenship of the Republic of Lithuania is not granted. To state the fact that there are not any such circumstances is a duty arising out of Article 13 of the Law on Citizenship, which falls upon the institutions preparing documents for granting of citizenship. However, as mentioned before, although the said duty falls upon the institutions preparing documents for granting of citizenship, it does not mean that the President of the Republic does not have a duty to demand confirmation from the institutions (their officials) preparing documents for granting of citizenship that there are not any such circumstances due to which citizenship of the Republic of Lithuania may not be granted: the President of the Republic must ascertain this prior to the issuing of the decree on granting citizenship of the Republic of Lithuania, including that on granting citizenship to a citizen of a foreign state or a stateless person who has merits to the Republic of Lithuania.

14. It also needs to be noted that in the course of granting citizenship of the Republic of Lithuania by way of exception, it is not enough to assess only whether the person has merits to the Republic of Lithuania and whether there are not any circumstances indicated in Article 13 of the Law on Citizenship due to which citizenship of the Republic of Lithuania is not granted to the person. Granting of citizenship means that one holds that there has appeared a permanent legal link between the person and the state, that such a person has become a member of the state community—the legal Nation. The state, as the organisation of the entire society, cannot be indifferent as to what persons become its citizens. Therefore, even in cases when a citizen of a foreign state or a stateless person has merits to the Republic of Lithuania and is linked with the State of Lithuania by permanent factual links, is integrated into the Lithuanian society, when one decides whether to grant citizenship of the Republic of Lithuania to such a person by way of exception, one must assess all the circumstances characterising such a person, one must follow the interests of the Nation and the State of Lithuania.

15. While disclosing the legal regulation established in Paragraph 1 of Article 16 of the Law on Citizenship, under which citizenship of the Republic of Lithuania may be granted by way of exception, one must take account of other articles of the Law on Citizenship, inter alia, of those that regulate loss and restoration of citizenship of the Republic of Lithuania.

16. The bases of loss of citizenship of the Republic of Lithuania are established in Article 18 of the Law on Citizenship, which provides:

1. Citizenship of the Republic of Lithuania shall be lost:

1) upon renunciation of citizenship of the Republic of Lithuania ;

2) upon acquisition of citizenship of another state;

3) on the grounds provided for by international agreements to which the Republic of Lithuania is a party.

2. Item 2 of Paragraph 1 of this Article shall not be applicable to:

1) persons who held citizenship of the Republic of Lithuania prior to 15 June 1940, their children, grandchildren and great-grandchildren (provided that the said persons, their children, grandchildren or great-grandchildren did not repatriate);

2) persons of Lithuanian descent whose parents or grandparents are or were or one of parents or grandparents is or was Lithuanian and the person considers himself Lithuanian.

3. A person may be recognised as having lost citizenship of the Republic of Lithuania if he is in the military service of another state or is employed in the public service of another state without having been granted authorisation by relevant institutions of the Republic of Lithuania.”

17. One of the grounds for loss of citizenship of the Republic of Lithuania is acquisition of citizenship of another state (Item 2 of Paragraph 1 of Article 18 of the Law on Citizenship).

It needs to be noted that, as a rule, a citizen of the Republic of Lithuania can acquire citizenship of another state in case he himself requests citizenship of that state, or himself performs actions, under which citizenship of that state is granted to him, i.e. when the citizen of the Republic of Lithuania himself expresses his willingness to acquire citizenship of another state, thus, also to lose citizenship of the Republic of Lithuania.

Paragraph 2 of Article 28 of the Law on Citizenship provides: “If it transpires that the person has acquired citizenship of another state, the Minister of the Interior or the institution authorised by him shall state the fact of the loss of citizenship of the Republic of Lithuania under Item 1 of Paragraph 2 of Article 18 of this Law. Such a person shall be considered to have lost citizenship of the Republic of Lithuania as of the day of acquisition of citizenship of another state.”

18. Under the Law on Citizenship, a person, who lost citizenship of the Republic of Lithuania, may be restored citizenship of the Republic of Lithuania.

The bases of the restoration of citizenship of the Republic of Lithuania are established in Article 20 of the Law on Citizenship, which provides:

1. A person who has lost citizenship of the Republic of Lithuania under Paragraphs 1 or 3 of Article 18 of this Law may have citizenship of the Republic of Lithuania restored to him upon his application, provided that at the moment of filing of the application the person is permanently residing in the territory of the Republic of Lithuania and meets the conditions established in Items 2, 3 and 5 of Paragraph 1 of Article 12 of this Law.

2. A person who has lost citizenship of the Republic of Lithuania under Paragraphs 1 or 3 of Article 18 of this Law and who meets the conditions established in Items 1, 2 or 3 of Paragraph 1 of Article 1 of this Law, may be restored citizenship of the Republic of Lithuania upon such person’s application without applying to the person conditions established in Article 12 of this Law.”

19. It is clear from the legal regulation established in Article 20 of the Law on Citizenship that conditions of the restoration of citizenship of the Republic of Lithuania depend on whether the person had possessed citizenship of the Republic of Lithuania, which he subsequently lost.

The persons who meet the conditions established in Items 1, 2 or 3 of Paragraph 1 of Article 1 of the Law on Citizenship may be restored citizenship of the Republic of Lithuania upon their application, without applying to them conditions established in Article 12 of the Law on Citizenship. By this way, the following persons may be restored citizenship of the Republic of Lithuania: (1) persons who held citizenship of the Republic of Lithuania prior to 15 June 1940, their children, grandchildren and great-grandchildren (provided that the persons, their children, grandchildren or great-grandchildren did not repatriate); (2) persons who permanently resided in the present-day territory of the Republic of Lithuania in the period from 9 January 1919 to 15 June 1940, as well as their children, grandchildren and great-grandchildren, provided that on the day of coming into force of the Law on Citizenship they were and at the present time permanently reside in the territory of the Republic of Lithuania and are not citizens of any other state; (3) persons of Lithuanian descent if they are not citizens of any other state.

Thus, without applying the conditions of naturalisation indicated in Article 12 of the Law on Citizenship, citizenship of the Republic of Lithuania may be restored to citizens of the Republic of Lithuania that lost it, who either used to be citizens of the Republic of Lithuania by descent, or used to be linked with Lithuania by permanent factual links prior to 15 June 1940 (are children, grandchildren and great-grandchildren of such persons), or are of Lithuanian descent.

To other persons who lost citizenship subsequent to the grounds indicated in Paragraph 1 or 3 of Article 18 of the Law on Citizenship, citizenship of the Republic of Lithuania may be restored upon their request, provided at the time of filing of the application this person permanently resides in the Republic of Lithuania and meets the following conditions of Paragraph 1 of Article 12 of the Law on Citizenship: (1) for the last ten years has been permanently residing in the territory of the Republic of Lithuania (Item 2 of Paragraph 1 of Article 12); (2) has a legal source of support in the territory of the Republic of Lithuania (Item 3 of Paragraph 1 of Article 12); (3) is a stateless person or is a citizen of a state under the laws of which he loses citizenship of the said state upon acquiring citizenship of the Republic of Lithuania and notifies in writing of his decision to renounce citizenship of another state held by him after he is granted citizenship of the Republic of Lithuania (Item 5 of Paragraph 1 of Article 12).

20. By construing the provisions of Articles 18 and 20 of the Law on Citizenship in a systemic manner, it should be held that in the Law on Citizenship the legal regulation is established, under which the persons who lost citizenship of the Republic of Lithuania subsequent to the grounds set in Article 18 of the Law on Citizenship can repeatedly acquire citizenship of the Republic of Lithuania only if citizenship of the Republic of Lithuania is restored to them, i.e. in the course of the application of the institute of the restoration of citizenship.

It needs to be noted that the legislature, while taking account of how the person had acquired citizenship of the Republic of Lithuania, which he subsequently lost, enjoys the discretion to establish varied conditions of the restoration of citizenship of the Republic of Lithuania. While establishing such conditions, one must pay heed to the norms and principles of the Constitution, inter alia, not to violate the constitutional principle of the equality of persons before the law, state institutions and officials, which also means that a certain group of persons distinguished by the same characteristics can be treated differently in legal norms, if compared to the other addressees of the said legal norm, only in the case when if there exist differences of such nature and extent so that such unequal treatment might be objectively justified (the Constitutional Court’s ruling of 20 November 1996).

21. While construing in a systemic manner the provisions of Article 20 of the Law on Citizenship which establishes restoration of citizenship of the Republic of Lithuania and of Article 16 of the same law which establishes granting of citizenship of the Republic of Lithuania by way of exception, it should be concluded that each of these articles establishes a different legal institute, linked with different legal situations and different categories of persons, and giving rise to different legal effects.

In Article 20 of the Law on Citizenship the institute of the restoration of citizenship of the Republic of Lithuania is consolidated. This institute is applied to all persons that used to be citizens of the Republic of Lithuania and lost citizenship of the Republic of Lithuania subsequent to the grounds established in Article 18 of the Law on Citizenship, and who seek to acquire citizenship of the Republic of Lithuania once again.

The institute of the granting of citizenship of the Republic of Lithuania consolidated in Article 16 of the Law on Citizenship is linked with a different legal situation and is applicable to other persons. The legal norms which constitute this institute establish more favourable conditions for the acquisition of citizenship of the Republic of Lithuania to citizens of foreign states and stateless persons who are with merits to the Republic of Lithuania, who have never been citizens of the Republic of Lithuania.

22. It needs to be noted that the institute of the restoration of citizenship of the Republic of Lithuania and the institute of the granting of citizenship of the Republic of Lithuania by way of exception are linked with different legal effects. In itself, granting of citizenship of the Republic of Lithuania by way of exception does not give rise to legal effects as regards family members of the person who has acquired citizenship (Paragraph 2 of Article 16 of the Law on Citizenship), meanwhile, in itself, restoration of citizenship of the Republic of Lithuania gives rise to legal effects to children under 14 years of age of these persons: if both parents are restored citizenship of the Republic of Lithuania, then their children under 14 years of age also become citizens of the Republic of Lithuania (Paragraph 1 of Article 22 of the Law on Citizenship); if one of the parents is restored citizenship of the Republic of Lithuania, then, in case there is a corresponding request of both or one of the parents, citizenship of the child is changed (Article 23 of the Law on Citizenship).

Article 16 of the Law on Citizenship cannot be construed so that the citizens of foreign states or stateless persons, who used to be citizens of the Republic of Lithuania and who have lost citizenship of the Republic of Lithuania subsequent to the grounds established in Article 18 of the Law on Citizenship could also be categorised as subjects—the citizens of foreign states or stateless persons pointed out in Article 16 of the Law on Citizenship—who can be granted citizenship of the Republic of Lithuania by way of exception.

Thus, under Paragraph 1 of Article 16 of the Law on Citizenship, citizenship of the Republic of Lithuania may be granted by way of exception only to those citizens of foreign states or stateless persons, who have never been citizens of the Republic of Lithuania.

23. Under Paragraph 1 of Article 28 of the Law on Citizenship, the issues of the restoration of citizenship of the Republic of Lithuania are resolved by the President of the Republic. The formula “may be restored citizenship of the Republic of Lithuania” employed in Article 20 of the Law on Citizenship means that the President of the Republic has the right to decide whether or not to restore citizenship of the Republic of Lithuania. While deciding whether the person may be restored citizenship of the Republic of Lithuania, one must assess not only the grounds subsequent to which the person lost citizenship of the Republic of Lithuania, but also all the circumstances characterising the person who requests the restoration of citizenship. While deciding whether the person can be restored citizenship, one must follow only the interests of the Nation and the State of Lithuania.

VI

1. Under the Constitution, the issues of the granting of citizenship are resolved by the President of the Republic (Item 21 of Article 84, Article 85 of the Constitution).

2. Paragraph 1 of Article 77 of the Constitution provides that the President of the Republic shall be Head of State. While construing Article 77 of the Constitution, in its ruling of 8 May 2000 the Constitutional Court held that “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”. Under the Constitution, the legal status of the President of the Republic as Head of State is different from that of the rest of state officials (the Constitutional Court’s ruling of 19 June 2002).

It was also held in the Constitutional Court’s ruling of 19 June 2002 that the exceptional legal status of the President of the Republic as Head of State is disclosed in various provisions of the Constitution which establish: the inviolability of the person of the President of the Republic; impossibility for the President of the Republic to be a Seimas member or to hold another office, or receive any remuneration other than the salary established for the President of the Republic as well as compensation for creative activities; a duty for the person elected President of the Republic to suspend his or her activities in political parties and political organisations; requirements for the candidates seeking the post of the President of the Republic and the bases and procedure of an election of the President of the Republic; the oath of the President of the Republic; the powers of the President of the Republic, their commencement and termination, etc.

3. Under Paragraph 2 of Article 77 of the Constitution, the President of the Republic shall represent the State of Lithuania.

It needs to be noted that the State of Lithuania shall be created by the Nation, sovereignty shall belong to the Nation (Article 2 of the Constitution). Article 4 of the Constitution provides that “the Nation shall execute its supreme sovereign power either directly or through its democratically elected representatives”. Under Paragraph 1 of Article 55 of the Constitution, members of the Seimas are representatives of the Nation. Thus, only the Seimas is representation of the Nation.

As mentioned before, the President of the Republic is Head of State and represents the State of Lithuania. Although representation of the Nation and representation of the state cannot be opposed, however, representation of the Nation and representation of the state are not identical legal categories, each of them has the content characteristic of it only.

4. It has been mentioned that the Seimas, the petitioner, requests an investigation into whether the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to J. Borisov by way of exception is not in conflict with the provisions entrenched in Paragraph 1 of Article 82 of the Constitution. Although the petitioner requests an investigation into the compliance of the impugned part of the decree with all provisions of Paragraph 1 of Article 82 of the Constitution, however, it is clear from the explanations of the representatives of the Seimas, the petitioner, that one requests an investigation into whether the impugned part of the said decree of the President of the Republic is not in conflict with the provision “the elected President of the Republic <…> will take an oath <…> to be equally just to all” of Paragraph 1 of Article 82 of the Constitution.

5. Article 82 of the Constitution provides:

The elected President of the Republic shall take office on the day following the expiration of the term of office of the President of the Republic; on that day, in Vilnius and in the presence of the representatives of the Nation, the members of the Seimas, he will take an oath to the Nation to be faithful to the Republic of Lithuania and the Constitution, to conscientiously fulfil the duties of his office, and to be equally just to all.

The President of the Republic, upon being re-elected, shall retake the oath.

The act of oath of the President of the Republic shall be signed by him and by the President of the Constitutional Court, or in the absence of the latter, by a justice of the Constitutional Court.”

6. A provision is consolidated in Paragraph 1 of Article 82 of the Constitution that the elected President of the Republic takes office only after he takes an oath to the Nation.

When one takes account of the fact that representatives of the Nation, members of the Seimas, sit in the House of the Seimas, this implies that the formula “in Vilnius and in the presence of the representatives of the Nation, the members of the Seimas” of Paragraph 1 of Article 82 of the Constitution means that the elected Present of the Republic must take an oath not anywhere, but in the House of the Seimas, which, under the Constitution, must be only in Vilnius, the capital of the Republic of Lithuania.

7. Paragraph 1 of Article 82 of the Constitution establishes the content of the oath of the elected President of the Republic to the Nation: the elected President of the Republic must swear to be faithful to the Republic of Lithuania and the Constitution, to conscientiously fulfil the duties of his office, and to be equally just to all.

It needs to be noted that the oath of the elected President of the Republic reflects the main values enshrined in the Constitution, which are linked by the Nation with the office of the President of the Republic.

8. The Constitution provides that before taking office, members of the Seimas must take an oath (Paragraph 2 of Article 59 of the Constitution, Article 5 of the Law on the Procedure of Entry Into Effect of the Constitution of the Republic of Lithuania), also the Prime Minister and ministers (Article 93 of the Constitution), justices of the Constitutional Court (Paragraph 2 of Article 104 of the Constitution), judges of other courts (Paragraph 6 of Article 112 of the Constitution).

It needs to be noted that the oath of the elected President of the Republic is different from the oath taken by a member of the Seimas, the Prime Minister and ministers, a justice of the Constitutional Court, or of a judge of another court. The elected President of the Republic is the only person pointed out in the Constitution that takes an oath to a special entity to whom sovereignty belongs: the elected President of the Republic takes an oath to the Nation. The peculiarity of the oath of the elected President of the Republic is that in the oath to the Nation the most important and universal constitutional values are reflected, from which, when in office, the President of the Republic cannot deviate; these constitutional values are inseparable from one another, the content of these values is very voluminous, including a great many of other constitutional commitments, which are of no less importance.

9. The oath of the elected President of the Republic is not a mere formal or symbolic act. Taking account of the fact that the institute of the oath of the President of the Republic and the content of the oath are established in the Constitution, the oath of the President of the Republic has a constitutional significance and gives rise to constitutional legal effects.

The provisions of Paragraph 1 of Article 82 of the Constitution that the elected President of the Republic shall take office on the day following the expiration of the term of office of the President of the Republic after he takes an oath to the Nation, mean that until the elected President of the Republic has not taken oath to the Nation, he cannot take office. The elected President of the Republic begins his office at the moment after he takes an oath to the Nation.

The act of the oath of the elected President of the Republic is legally significant also due to the fact that from the moment that the elected President of the Republic takes the oath, the powers of the former President of the Republic expire.

It needs to be noted that refusal of the elected President of the Republic to take an oath to the Nation in the Seimas at the time prescribed by the Constitution, taking the oath with reservations or changing the text of the oath, as well as refusal of the elected President of the Republic to sign the text of the oath, mean, under the Constitution, that the elected President of the Republic may not take office and that a new election of the President of the Republic must be announced.

The act of the oath of the President of the Republic is legally significant also due to the fact that from the moment of taking the oath a duty arises to the President of the Republic to act only so as the oath taken to the Nation obligates. A breach of the oath is one of the grounds under which the President of the Republic may be removed from office according to the procedure for impeachment proceedings (Article 74 of the Constitution). It needs to be noted that a breach of the oath is, alongside, a gross violation of the Constitution, while a gross violation of the Constitution is, alongside, a breach of the oath.

10. It has been mentioned that the elected President of the Republic, under Article 82 of the Constitution, takes an oath to the Nation to be faithful to the Republic of Lithuania and the Constitution, to conscientiously fulfil the duties of his office, and to be equally just to all.

The requirement consolidated in Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all should be construed by taking into consideration the provision of Paragraph 1 pf Article 29 of the Constitution that all persons shall be equal before the law, the court, and other state institutions and officials.

11. Article 29 of the Constitution consolidates the principle of the equality of all persons before the law, the court, and other state institutions and officials. The Constitutional Court has held in its rulings more than once that this is the principle of the formal equality of persons. While construing the content of Article 29 of the Constitution, the Constitutional Court has held many a time that this principle must be followed in the course of passing of laws and in their application. This principle obligates one to legally assess homogenous facts in the same manner and prohibits any arbitrary assessment of virtually the same facts in a varied manner.

The principle of the equality of all persons also means that the same law or other legal act, the same measure, common and equal to all subjects of this category, must be applied to subjects of corresponding type of relations, to all persons (groups thereof) characteristic of the same features. The legal norms of substantive as well as of procedural law must be applied in equal manner.

The constitutional principle of the equality of all persons before the law would be violated if a certain group of people for which the legal norm is established, if compared to other addressees of the same legal norm, was treated differently, even though there are not any differences in the character and extent between these groups so that such uneven treatment would be objectively justified (the Constitutional Court’s ruling of 20 November 1996).

12. The requirement established in Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all, when one takes account of the provision of Paragraph 2 of Article 77 of the Constitution that the President of the Republic performs everything that he is charged with by the Constitution and laws, means that the President of the Republic, while implementing the powers established for him in the Constitution and laws, must follow only the Constitution and laws, cannot violate them, that the President of the Republic must act only in the interests of the Nation and the State of Lithuania, that the President of the Republic, while implementing the powers established for him in the Constitution and laws, cannot act with aims and interests, which are inconsistent with the Constitution and laws, as well as with public interests. The constitutional requirement to be equally just to all obligates the President of the Republic to act so that there would not be a conflict between the interests of the President of the Republic, as a private person, and his constitutional duty, as of the Head of State, to represent the State of Lithuania, and to follow only the interests of the Nation and the State of Lithuania.

13. The provision of Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all, together with the provision of Article 29 of the Constitution that all persons are equal before state institutions and officials, mean not only that the President of the Republic has a duty to treat all persons, for whom this provision is established, equally, but also that the President of the Republic has a duty to apply this legal norm equally justly to all persons. The provision of Paragraph 1 of Article 29 of the Constitution that all persons shall be equal before state institutions and officials, the provision of Paragraph 1 of Article 82 that the President of the Republic must be equally just to all cannot be construed as meaning that, purportedly, according to these provisions, the President of the Republic would be equally just to all even in a situation when a legal norm is applied to all persons equally unjustly. Such construction of the said provisions of Paragraph 1 of Article 29 and Paragraph 1 of Article 82 of the Constitution would not be in line with the constitutional principles of a state under the rule of law and justice, upon which the Constitution itself and the entire legal system of Lithuania are based.

It has been held in this ruling of the Constitutional Court that a mere fact that a decree of the President of the Republic is recognised as being in conflict with the Constitution or a law, in itself does not mean that the President of the Republic grossly violated the Constitution, or breached the oath, or committed a crime, and that in deciding whether the President of the Republic, having issued a decree that is in conflict with the Constitution or a law, has grossly violated the Constitution or breached the oath, or committed a crime, one has to assess not only the content of the decree of the President of the Republic, but also the fact whether, in the course of the issuance of the decree of the President of the Republic, the requirements established in the Constitution and corresponding laws were fulfilled, whether the established procedure was being followed, and also to assess other factual circumstances of the issuance of such a decree.

It needs to be noted that violation of Paragraph 1 of Article 29 of the Constitution is in all cases violation of the principle of the formal equality of persons. Meanwhile, the provision of Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all consolidates not only the duty of the President of the Republic not to violate the principle of the formal equality of persons, but also his duty not to act, in the course of implementation of the powers established to him in the Constitution and laws, so that the persons (their groups), in whose regard the President of the Republic adopts decisions, would knowingly be treated not equally justly. Thus, the provision of Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all would be violated not in all cases when Paragraph 1 of Article 29 of the Constitution (the principle of the formal equality of persons) is violated, but only when the President of the Republic, while implementing the powers established for him in the Constitution and laws, knowingly acts so that that the persons (their groups), in whose regard the President of the Republic adopts decisions, would be treated not equally justly.

Thus, the mere fact that a decree of the President of the Republic is recognised to be in conflict with Paragraph 1 of Article 29 of the Constitution, in itself, does not mean that, while issuing such a decree, the President of the Republic violated the provision of Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all. While deciding, whether, when issuing a decree, which is in conflict with Paragraph 1 of Article 29 of the Constitution, the President of the Republic, alongside, did not violate the provision of Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all, one must assess not only the content of the decree of the President of the Republic, but also the factual circumstances of issuance of such a decree.

14. The formula “all persons shall be equal” of Paragraph 1 of Article 29 of the Constitution means that the principle of equality before the law, the court, and other state institutions and officials must be followed not only in regard of citizens of the Republic of Lithuania, but also of citizens of foreign states and stateless persons.

In the context of the case at issue, it should be noted that the provision of Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all means that the President of the Republic must be equally just not only to citizens of the Republic of Lithuania that constitute the state community—the civil Nation—but also to all other persons, i.e. to citizens of foreign states and stateless persons in whose regard the President of the Republic adopts decisions.

15. In the context of the case at issue, it should be noted that if the law provides that citizenship of the Republic of Lithuania may be granted to a citizen of a foreign state or a stateless person who has merits to the Republic of Lithuania, this means that this requirement must be applied to all citizens of foreign states or stateless persons, who request citizenship of the Republic of Lithuania granted by way of exception. In case citizenship of the Republic of Lithuania is granted to a citizen of a foreign state or a stateless person, who has no merits to the Republic of Lithuania, one would disregard the principle of the equality of persons entrenched in Paragraph 1 of Article 29 of the Constitution that includes the equality of persons before state institutions or officials, also, one would disregard the provision of Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all.

In case the law established the grounds under which citizenship of the Republic of Lithuania cannot be granted, the principle of the equality of all persons as well as the constitutional imperative that the President of the Republic must be equally just to all would require that one should verify in all cases, before the issuance of the decree of the President of the Republic on granting of citizenship of the Republic of Lithuania (as well as on granting of citizenship to citizens of foreign states or stateless persons who have merits to the Republic of Lithuania by way of exception) whether there are not any grounds established by law under which citizenship of the Republic of Lithuania cannot be granted. Otherwise, one would disregard the principle of the equality of persons entrenched in Article 29 of the Constitution, as well as the provision of Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all.

The requirements established in Article 29 and Paragraph 1 of Article 82 of the Constitution would be disregarded also in case the President of the Republic, when implementing the powers established to him in the Constitution and laws to grant citizenship of the Republic of Lithuania, would apply the legal norm to all persons (or their individual groups and individual persons) addressed to these persons equally unjustly.

16. It needs to be noted that the duty of the President of the Republic to be equally just to all arising out of the Constitution when he implements the powers established to him in the Constitution and laws to decide citizenship issues has certain peculiarities. These peculiarities are determined by the fact that under Article 16 of the Law on Citizenship the President of the Republic has the right but not the duty to grant citizenship to citizens of foreign states or stateless persons who have merits to the Republic of Lithuania by way of exception: even if a citizen of a foreign state or a stateless person has merits to the Republic of Lithuania, citizenship of the Republic of Lithuania may not necessarily be granted by way of exception. This is decided at the discretion of the President of the Republic. However, the circumstance that only the President of the Republic has the right to decide whether a citizen of a foreign state or a stateless person can be granted citizenship of the Republic of Lithuania by way of exception, cannot be interpreted as meaning that the President of the Republic, when deciding whether to grant citizenship of the Republic of Lithuania to the citizen of a foreign state or stateless person who has merits to the Republic of Lithuania, may disregard the requirements established in the Constitution and the Law on Citizenship, and that he may be clearly partial and non-objective. Nor can the circumstance that, under the Law on Citizenship, the issues of the granting of citizenship of the Republic of Lithuania are decided by the President of the Republic at his discretion, be interpreted as meaning that, prior to issuing the decree of the President of the Republic on granting of citizenship of the Republic of Lithuania by way of exception the equal legal procedures established in the law to all persons may be applied unequally, that, prior to issuing the decree on granting of citizenship of the Republic of Lithuania, the President of the Republic does not have a duty to receive confirmation from the institutions (their officials) preparing citizenship documents so that all the requirements established in the Law on Citizenship have been accomplished (all procedures established in the Law on Citizenship have been accomplished), and that there are not any legal obstacles to issue a corresponding decree of the President of the Republic.

The unequal application of the equal legal procedures established in the law to all persons not only places citizens of foreign states or stateless persons that seek to be granted citizenship of the Republic of Lithuania by way of exception in an unequal situation, but this also means that all persons are not equal before the state institutions or their officials that unequally apply the equal legal procedures established in the law to all persons, and if the President of the Republic does so, he deviates from the constitutional requirement to be equally just to all.

VII

1. The Seimas, the petitioner, requests an investigation into whether the part of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 whereby citizenship of the Republic Lithuania is granted to J. Borisov by way of exception is not in conflict with, inter alia, the constitutional principle of a state under the rule of law.

2. The Constitutional Court has held more than once that the constitutional principle of a state under the rule of law is a universal principle upon which the entire legal system of Lithuania and the Constitution itself are based. The Constitution is an integral act, thus, the content of the principle of a state under the rule of law can be detected in various provisions of the Constitution and should be construed inseparably from the striving for an open, just and harmonious civil society that is proclaimed in the Constitution. The constitutional principle of a state under the rule of law implies, along with other requirements, that human rights and freedoms must be ensured, that one pay heed to natural justice, that all institutions implementing state authority must act on the basis of law and in compliance with law, that the Constitution has the supreme legal power and that all legal acts must be in compliance with the Constitution.

It needs to be noted that the constitutional principle of a state under the rule of law implies also a hierarchy of legal acts, inter alia, the fact that substatutory legal acts cannot be in conflict with laws, constitutional laws, and the Constitution, that substatutory legal acts must be adopted on the basis of laws, that a substatutory legal act is an act of application of legislative norms irrespective of whether this act is of one-off (ad hoc) application, or of permanent validity.

3. The legal acts passed by the President of the Republic are substatutory legal acts, therefore, they, as all other substatutory legal acts, may not be in conflict with the Constitution, constitutional laws and laws.

VIII

The following factual circumstances have been established in this case:

1. Jurij Aleksandrovič Borisov was born on 17 May 1956 in the Primorski Region, Russia. In 1962, after his father, a serviceman of the Soviet Union, had been moved to his new place of service in the territory of Lithuania which had been occupied by the Soviet Union, the family moved to Lithuania for residence.

In 1990, upon restoration of the independent State of Lithuania, J. Borisov was a regular officer of the occupation army of the Soviet Union that was in the territory of Lithuania on unlawful basis. By the 27 May 1991 order (No. 0889) of the Minister of Defence of the Soviet Union, J. Borisov was dismissed from the actual military service to the reserve (the 28 March 2003 reference (No. (15/2-2)-6K-147) of the Migration Department under the Ministry of the Interior). J. Borisov finished his service in the army of the Soviet Union in the rank of a major.

2. Under the 3 November 1989 Law on Citizenship, there was a necessary condition of acquisition of Lithuanian citizenship for the persons who resided in Lithuania on the day of the entry of this law into effect, i.e. on 3 November 1989, but who had not been born in Lithuania (save cases when at least one of their parents or grandparents had been born in the territory of Lithuania or if they had been citizens of Lithuania), which was their permanent residence in the territory of Lithuania and their permanent place of work or permanent legal source of support in Lithuania (Item 3 of Article 1). Only such persons, under Item 3 of Article 1 of the Law on Citizenship, were granted the right to freely decide, within two years, i.e. till 4 November 1991, on citizenship.

As mentioned before, J. Borisov, on the day of the entry of this law into effect, was a regular officer of the occupation army of the Soviet Union that was in the territory of Lithuania on unlawful basis.

3. On 1 November 1991, J. Borisov wrote a pledge to the Republic of Lithuania and he was issued the certificate of a citizen of the Republic of Lithuania (Migration Department under the Ministry of the Interior Note 15-1-10K-44356 of 28 November 2003, a copy of the pledge of J. Borisov to the Republic of Lithuania). On 20 October 1992, J. Borisov was issued the passport of a citizen of the Republic of Lithuania (the 28 March 2003 reference (No. (15/2-2)-6K-147) of the Migration Department under the Ministry of the Interior).

4. In its ruling of 13 April 1994, the Constitutional Court held that soldiers of the Soviet Union, who used to serve in the former occupational military forces of the Soviet Union that were in the territory of Lithuania on unlawful basis could not be regarded as ones permanently residing and working in Lithuania.

At the time when the 3 November 1989 Law on Citizenship was adopted, J. Borisov was an officer of the Soviet Union military, therefore, Item 3 of Article 1 of the 3 November 1989 Law on Citizenship was not applicable in his regard, i.e. J. Borisov could not be regarded as one permanently residing and working in Lithuania. Thus, it was not permissible that J. Borisov be issued the certificate of a citizen of the Republic of Lithuania and the passport of a citizen of the Republic of Lithuania. They were issued to J. Borisov on unlawful grounds.

5. By the Decree of the President of the Republic (No. 41) “On the Establishment of Citizenship Commission and Procedure of Its Work” of 15 April 1998, the Citizenship Commission was established, which, on 4 November 1999, on the basis of Article 4 of the Law “On the Procedure for Implementation of the Republic of Lithuania’s Law on Citizenship”, which was adopted by the Seimas on 19 October 1995, considered the question of lawfulness of the granting of citizenship of the Republic of Lithuania to J. Borisov and issuance of the passport of a citizen of the Republic of Lithuania to him. The commission recognised that the passport of a citizen of the Republic of Lithuania had been issued to J. Borisov on unlawful grounds, however, it adopted the conclusion of a recommendatory character that J. Borisov be considered a citizen of the Republic of Lithuania and that he be permitted to keep the passport of a citizen of the Republic of Lithuania issued to him (Protocol No. 16 of the 4 November 1999 Citizenship Commission sitting; Decision of the Deputy Director of the Migration Department under the Ministry of the Interior (No. 113) “On the Legitimacy of the Issuance of the Passport of a Citizen of the Republic of Lithuania to Jurij Borisov” of 11 November 1999).

On 11 November 1999, the Migration Department under the Ministry of the Interior, on the grounds of Article 4 of the 19 October 1995 Law “On the Procedure for Implementation of the Republic of Lithuania’s Law on Citizenship” and upon the assessment of the conclusion of a recommendatory character adopted by the Citizenship Commission on 4 November 1999, decided that the passport of a citizen of the Republic of Lithuania had been issued to J. Borisov on unlawful grounds, however, it decided to consider J. Borisov a citizen of the Republic of Lithuania and to permit him to keep the passport of a citizen of the Republic of Lithuania (Protocol No. 16 of the 4 November 1999 Citizenship Commission sitting; the Decision of the Deputy Director of the Migration Department under the Ministry of the Interior (No. 113) “On the Legitimacy of the Issuance of the Passport of a Citizen of the Republic of Lithuania to Jurij Borisov” of 11 November 1999; the 28 March 2003 reference (No. (15/2-2)-6K-147) of the Migration Department under the Ministry of the Interior).

6. According to J. Borisov, at the end of the year 2000 he applied to the President of the Russian Federation, requesting citizenship of the Russian Federation. J. Borisov pointed out that his request was determined by the fact that he had business both in the Republic of Lithuania and the Russian Federation. J. Borisov maintained that he comprehended that upon acquisition of citizenship of the Russian Federation he would, according to laws of the Republic of Lithuania, lose citizenship of the Republic of Lithuania (testimony of the witness J. Borisov).

7. By the Decree of the President of the Republic (No. 1373) “On Awarding Orders and Medals of the State of Lithuania on the Occasion of the Day of State (Coronation of King Mindaugas of Lithuania)” of 14 June 2001, for merits to the State of Lithuania and for efforts to spread the name of Lithuania in the world and for help to integrate it into the community of states of the world, J. Borisov was awarded the Medal of Darius and Girėnas. J. Borisov was recommended for the award by Rimas Kurtinaitis, Director General of the Department of Physical Education and Sports under the Government of the Republic of Lithuania (the 4 June 2001 Paper by Director General of the Department of Physical Education and Sports under the Government of the Republic of Lithuania to the President of the Republic Valdas Adamkus).

8. By the Ordinance of the President of the Russian Federation (No. 616) “On Granting of Citizenship of the Russian Federation” of 18 June 2002, Borisov Jurij Aleksandrovič, born in 1956 in the Primorski Region, Russia, residing in the Republic of Lithuania, was granted citizenship of the Russian Federation. The aforementioned Ordinance (No. 616) “On Granting of Citizenship of the Russian Federation” of 18 June 2002 issued by the President of the Russian Federation was officially published in the collection of legal acts of the Russian Federation Sobranie zakonodatel’stva Rossijskoj Federacii, No. 25 (24 June 2002).

According to legal acts of the Russian Federation, the ordinances of the President of the Russian Federation whereby persons are granted citizenship of the Russian Federation come into force as of the day that they are signed.

The Ordinance of the President of the Russian Federation (No. 616) “On Granting of Citizenship of the Russian Federation” of 18 June 2002 whereby J. Borisov was granted citizenship of the Russian Federation went into effect on 18 June 2002. Thus, under legal acts of the Russian Federation, as of 18 June 2002 J. Borisov is a citizen of the Russian Federation.

9. As of June 2002, J. Borisov, already being a citizen of the Russian Federation, participated in the 2002 President of the Republic of Lithuania election campaign by way of financial and other notably solid support for the candidate for the President of the Republic R. Paksas (testimony of the witness J. Borisov). The candidate for the President of the Republic R. Paksas officially declared to the Central Electoral Commission that the enterprise “Avia Baltika” UAB donated LTL 1,205,000 to his election campaign (The Election of the President of the Republic of 22 December 2002, 5 January 2003. Results. Biographies of Candidates for the President of the Republic. Election Programmes. Financial Accounts. – Vilnius, The Central Electoral Commission, 2003, pp. 514–516).

In the summer of 2002, the candidate for the President of the Republic R. Paksas promised J. Borisov that in case he was elected President of the Republic, he would appoint J. Borisov his advisor (testimony of the witness J. Borisov).

10. By its Resolution “On the Establishment of the Seimas Provisional Commission for Investigation into the Problems of Export of Controlled Goods and the Related Activity of the Enterprise ‘Avia Baltika’” of 10 December 2002, the Seimas formed the Provisional Commission for Investigation into the Problems of Export of Controlled Goods and the Related Activity of the Enterprise “Avia Baltika”.

11. On 5 January 2003, R. Paksas was elected President of the Republic of Lithuania.

12. Prior to 11 April 2003, when the decree of the President of the Republic was issued the provision whereof is impugned in the case at issue, M. Laurinkus, Director General of the State Security Department, had informed the President of the Republic R. Paksas for several times that an operational investigation was being conducted in regard of J. Borisov and the aviation company “Avia Baltika” UAB that was headed by him. On 17 March 2003, M. Laurinkus, Director General of the State Security Department, informed the President of the Republic R. Paksas that J. Borisov had pledged that in case of failure by R. Paksas to fulfil his promises to J. Borisov, he would disseminate information which would be unfavourable in regard to R. Paksas and discrediting him (testimony of the witness M. Laurinkus).

13. On 18 March 2003, the Embassy of the Russian Federation in Lithuania issued the passport of a citizen of the Russian Federation to J. Borisov at his request (a copy of the passport of the citizen of the Russian Federation J. Borisov).

14. The Provisional Commission for Investigation into the Problems of Export of Controlled Goods and the Related Activity of the Enterprise “Avia Baltika”, after it has investigated the activities of the aviation company “Avia Baltika” UAB, established that, in 2001, the aviation company “Avia Baltika” UAB (headed by J. Borisov) without a licence exported to Sudan a helicopter Mi-8T. The commission stated that “the actions when, in 2001, the helicopter Mi-8T was exported to Sudan, did not violate the laws of the Republic of Lithuania that were valid at that time, however, they were not in line with the European Union embargo provisions and sanctions applied by the UNO” (Data and conclusions of the investigation of the Provisional Commission for Investigation into the Problems of Export of Controlled Goods and the Related Activity of the Enterprise “Avia Baltika”).

By its Resolution “On the Seimas Provisional Commission for Investigation into the Problems of Export of Controlled Goods and the Related Activity of the Enterprise ‘Avia Baltika’” of 20 March 2003, the Seimas approved of the conclusions of the Provisional Commission for Investigation into the Problems of Export of Controlled Goods and the Related Activity of the Enterprise “Avia Baltika” and discontinued the activity of this commission.

15. On 24 March 2003, J. Borisov informed the Minister of the Interior of the Republic of Lithuania in writing that on 18 March 2003 he had acquired citizenship of the Republic of Lithuania and received the passport of a citizen of the Russian Federation and presented copies of the passport of a citizen of the Russian Federation 51 No. 1696062 and the passport of a citizen of the Republic of Lithuania LJ 598788 (the 24 March 2003 paper of J. Borisov to the Minister of the Interior).

16. On the same day, i.e. on 24 March 2003, J. Borisov applied to the President of the Republic, requesting citizenship of the Republic of Lithuania granted by way of exception.

In J. Borisov’s application of 24 March 2003 on granting him citizenship of the Republic of Lithuania by way of exception it is pointed out that on 18 March 2003 he acquired citizenship of the Russian Federation and received the passport of a citizen of the Russian Federation, that since 1991 he has been conducting business, that he has created more than 200 jobs, that, in addition, there are 600 people who work in enterprises providing services or otherwise related to the enterprise headed by him, that since 1991, the enterprises headed by him have paid more than LTL 17 million in taxes to the budget of the Republic of Lithuania, and that, in addition to that, he donated about LTL 6 million to charity. To this application of J. Borisov only copies of J. Borisov’s passports of a citizen of the Republic of Lithuania and a citizen of the Russian Federation and copies of the passports of citizens of the Republic of Lithuania of J. Borisov’s family members were attached. J. Borisov did not present any documents confirming his merits to the Republic of Lithuania, his state awards, or any recommendations from politicians of the Republic of Lithuania or famous citizens of the Republic of Lithuania (J. Borisov’s application of 24 March 2003 to the President of the Republic on granting him citizenship of the Republic of Lithuania by way of exception).

17. After the Office of the President of the Republic had received J. Borisov’s application of 24 March 2003 on granting him citizenship of the Republic of Lithuania by way of exception, the Citizenship Group, on the grounds of solely the 24 March 2003 application of J. Borisov, began to prepare material concerning granting of citizenship to J. Borisov by way of exception (testimony of the witnesses D. Jankauskienė and A. Meškauskas).

18. According to the established practice, in the course of the preparation of the material concerning granting of citizenship by way of exception, the Office of the President of the Republic used to apply to the State Security Department, requesting information about persons seeking to acquire citizenship of the Republic of Lithuania. Such an application, as a rule, used to be filed with the official of the State Security Department who was responsible for cooperation with the Office of the President of the Republic on citizenship issues, by sending him a draft decree of the President of the Republic on granting citizenship to a corresponding person (persons) by way of exception. The information of the State Security Department concerning persons who seek to acquire citizenship of the Republic of Lithuania is of a recommendatory character for the Office of the President of the Republic and the Citizenship Commission. When operational investigation is conducted in regard of the person who seeks to acquire citizenship of the Republic of Lithuania, the State Security Department does not recommend that such a person be granted citizenship of the Republic of Lithuania. When a question of the granting of citizenship by way of exception used to be decided, one used always to take account of such recommendation, i.e., in case the State Security Department would not recommend that a person be granted citizenship of the Republic of Lithuania, one used to drop the deliberation of the question of granting citizenship of the Republic of Lithuania to such a person, and one used not to grant citizenship of the Republic of Lithuania to such a person (testimony of the witness M. Laurinkus).

19. On 28 March 2003, D. Jankauskienė, chief specialist of the Citizenship Group of the Office of the President of the Republic, by means of e-mail, sent a draft decree of the President of the Republic on granting citizenship to three persons by way of exception, among whom J. Borisov, born on 17 May 1956 in Russia, was also indicated. Several hours later, following an instruction by A. Meškauskas, Head of the Office of the President of the Republic, D. Jankauskienė made a telephone call to the same official of the State Security Department and recalled the request of the Office of the President of the Republic for available information about J. Borisov. After the official of the State Security Department had asked to confirm the changed position of the Office of the President of the Republic in writing, one the same day, i.e. on 28 March 2003, a paper was received from A. Meškauskas, Head of the Office of the President of the Republic, requesting information about the persons who were wishing to acquire citizenship of the Republic of Lithuania by way of exception, in which the name of J. Borisov was absent (testimony of the witnesses M. Laurinkus, D. Jankauskienė, A. Meškauskas).

20. At the Constitutional Court hearing, A. Meškauskas, Head of the Office of the President of the Republic, explained that he had withdrawn the request that the Department of State Security present available information about J. Borisov on the basis of a statement made by a certain advisor to the President of the Republic that one, purportedly, would not consider the issue of the granting of citizenship of the Republic of Lithuanian to J. Borisov by way of exception, thus, it was not necessary to check him.

21. At the Constitutional Court hearing, M. Laurinkus, Director General of the State Security Department, pointed out that according to the established practice such requests for information about persons seeking to acquire citizenship of the Republic of Lithuania used not to be withdrawn. Such a case, when the Office of the President of the Republic applied to the State Security Department for information about a person to whom one intended to grant citizenship of the Republic of Lithuania by way of exception, and later withdrew this request, although the issue of granting citizenship to this person continued to be considered and he was granted citizenship of the Republic of Lithuania by way of exception, was the first and the only one.

22. In the course of the preparation of the material for the Citizenship Commission sitting, concerning granting of citizenship to J. Borisov by way of exception, one did not verify or otherwise elucidate the circumstances which are provided for in Article 13 of the Law on Citizenship, due to which citizenship of the Republic of Lithuania was not to be granted to him.

23. By his decree No. 36 “On the Establishment of the Citizenship Commission and the Procedure of Its Work” of 2 April 2003, the President of the Republic formed the Citizenship Commission: the Advisor to the President of the Republic on legal issues—Head of the Law Department (Chairperson of the Commission), the Head of the Office of the President, the Vice-minister of Justice, a Deputy Prosecutor General of the Republic of Lithuania, the Director of the Migration Department at the Ministry of the Interior of the Republic of Lithuania, the Director of the Consular Department at the Ministry of Foreign Affairs of the Republic of Lithuania, the chief specialist of the Citizenship Group of the Office of the President of the Republic (secretary of the commission). The said decree of the President of the Republic also approved the Rules for Consideration of Issues at the Citizenship Commission.

Under Paragraph 1 of Article 8 of the Republic of Lithuania’s Law “On the Procedure of Publishing and Entry into Effect of Laws and Other Legal Acts of the Republic of Lithuania” (wording of 10 December 2002), decrees of the President of the Republic shall come into force on the next day after they are published in the official gazette “Valstybės žinios” provided a different day of their entry into force is not indicated in the decrees themselves. President of the Republic Decree No. 36 “On the Establishment of the Citizenship Commission and the Procedure of Its Work” of 2 April 2003 does not indicate a day of its entry into effect. This decree of the President of the Republic was published in the official gazette “Valstybės žinios” on 9 April 2003. Thus, according to Paragraph 1 of Article 8 of the Republic of Lithuania’s Law “On the Procedure of Publishing and Entry into Effect of Laws and Other Legal Acts of the Republic of Lithuania” (wording of 10 December 2002) went into effect on 10 April 2003. At the same time, President of the Republic Decree No. 41 “On the Establishment of Citizenship Commission and Procedure of Its Work” of 15 April 1998 became no longer valid.

Thus, the Citizenship Commission established by President of the Republic of Lithuania Decree No. 36 “On the Establishment of the Citizenship Commission and the Procedure of Its Work” of 2 April 2003 acquired powers to act on 10 April 2003.

24. By his paper of 3 April 2003, J. Borisov informed the Migration Department at the Ministry of the Interior of the Republic of Lithuania that on 18 March 2003 he had received the passport of a citizen of the Russian Federation and returned the passport of a citizen of the Republic of Lithuania held by him (J. Borisov’s paper of 3 April 2003 to the Migration Department at the Ministry of the Interior of the Republic of Lithuania).

25. At the Constitutional Court hearing, the President of the Republic, the party concerned, explained that he had established a new Citizenship Commission and that it was that commission that recommended that he grant citizenship of the Republic of Lithuania to J. Borisov by way of exception.

26. The Citizenship Commission established by the Decree of the President of the Republic of Lithuania (No. 36) “On the Establishment of the Citizenship Commission and the Procedure of Its Work” of 2 April 2003 in its sittings of 9 April 2003 considered the issue of the granting of citizenship of the Republic of Lithuania to J. Borisov by way of exception. On that day two sittings of the Citizenship Commission took place: the first—around 13 o’clock, the second one—around 15 o’clock; the second from the said sittings was held with the President of the Republic.

At the first sitting, O. Buišienė, Advisor to the President of the Republic on legal issues—Head of the Law Department (Chairperson of the Citizenship Commission) participated in the sitting and presided over it. Taking account of the fact that in the first sitting of the Citizenship Commission that took place on 9 April 2003 O. Buišienė, Advisor to the President of the Republic on legal issues—Head of the Law Department participated, presided over it and signed the protocol of this sitting as the Chairperson of the Citizenship Commission, who had not been a member of the previous commission established by the Decree of the President of the Republic (No. 41) “On the Establishment of Citizenship Commission and Procedure of Its Work” of 15 April 1998, also of the fact that the protocol of the 9 April 2003 Citizenship Commission sitting bears number 1, the conclusion should be drawn that on 9 April 2003 the Citizenship Commission held its sitting, which had been established by the Decree of the President of the Republic of Lithuania (No. 36) “On the Establishment of the Citizenship Commission and the Procedure of Its Work” of 2 April 2003 and which, as mentioned before, acquired its powers to act on 10 April 2003, thus, on 9 April 2003 it had no powers to act yet.

The protocol number of the 9 April 2003 Citizenship Commission sitting that was held with the President of the Republic is also 1. Thus, the Citizenship Commission that held its sitting on 9 April 2003 with the President of the Republic was that established by the Decree of the President of the Republic of Lithuania (No. 36) “On the Establishment of the Citizenship Commission and the Procedure of Its Work” of 2 April 2003 and which, as mentioned before, on that day had no powers to act yet.

27. Until the 9 April 2003 Citizenship Commission sittings took place, there had been no ordinance issued by the Migration Department at the Ministry of the Interior of the Republic of Lithuania whereby it would have been stated that J. Borisov lost citizenship of the Republic of Lithuania.

28. It has been mentioned that no documents were attached to Borisov’s application of 24 March 2003 to the President of the Republic of Lithuania requesting citizenship of the Republic of Lithuania granted by way of exception, confirming his merits to the Republic of Lithuania.

A. Meškauskas, Head of the Office of the President of the Republic, applied to the aviation company “Avia Baltika” UAB, asking for information about the charity donated by J. Borisov.

Just before the 9 April 2003 Citizenship Commission sitting (i.e. approximately one hour before the sitting), the Office of the President of the Republic received a reference from the aviation company “Avia Baltika” UAB, in which, inter alia, it was pointed out that since 1991 the aviation company “Avia Baltika” UAB, headed by J. Borisov, the President of the enterprise, had been donating funds to charity and sponsorship, and had helped to stage various events. The same reference also indicated the recipients of the charity donated and sponsorship rendered by the aviation company “Avia Baltika” UAB during the last five years (reference No. 30/2003 of 9 April 2003 provided by the aviation company “Avia Baltika” UAB).

The aforesaid reference by the aviation company “Avia Baltika” UAB does not particularise as to when and how much funds the aviation company “Avia Baltika” UAB allocated to the events, organisations and establishments indicated in the reference.

29. The members of the Citizenship Commission were notified about the sitting to be taken place on 9 April 2003 several hours before the beginning of the sitting. The members of the commission had not been informed in advance about the issues intended to be considered at the sitting, they had not been supplied with any material about the issues that were intended to be considered in the sitting. This material was supplied to the members of the commission only after they came to the sitting (testimony of the witnesses V. Barkauskas, J. Vidickas).

30. Protocol No. 1 of the 9 April 2003 Citizenship Commission sitting which took place around 13.00 o’clock indicates that the following issues were considered in this sitting: (1) concerning applications received at the Migration Department (207 applications); (2) concerning granting of citizenship of the Republic of Lithuania by way of exception (8 applications); (3) concerning granting of citizenship of the Republic of Lithuania (117 applications); (4) concerning additionally supplied applications requesting citizenship of the Republic of Lithuania (25 applications); (5) concerning restoration of citizenship of the Republic of Lithuania (21 applications); (6) concerning retaining citizenship of the Republic of Lithuania (21 applications). Thus, during this sitting, which continued for no longer than 2 hours, approximately 400 issues were considered and decided.

31. At the said (first) 9 April 2003 Citizenship Commission sitting, inter alia, the issue of the granting of citizenship of the Republic of Lithuania to J. Borisov by way of exception was considered.

In the course of the consideration of this issue, the members of the Citizenship Commission were supplied only with the information presented by J. Borisov himself in his 24 March 2003 application to the President of the Republic on granting citizenship of the Republic of Lithuania to him by way of exception and a reference prepared by the Citizenship Group of the Office of the President of the Republic on the basis of this information, in which it was stated: “Jurij BORISOV, born on 17 May 1956 in Russia. Citizen of Russia. Russian by nationality. He has been residing in Lithuania, with short intervals, since 1962. Since 1999 has been conducting business, has created more than 200 jobs, in addition, there are 600 people who work in enterprises providing services or otherwise related to the enterprise headed by him. Enterprises headed by him have paid more than LTL 17 million in taxes to the budget of Lithuania, donated about LTL 6 million to charity. Awarded the Medal of Darius and Girėnas for merits to Lithuanian aviation sport (by the 14 June 2001 decree (No. 1373) of the President of the Republic).”

The material of the first 9 April 2003 Citizenship Commission sitting also contained the reference, received just before the sitting began, from the aviation company “Avia Baltika” UAB about the charity donated and sponsorship rendered by the aviation company “Avia Baltika” UAB, which is headed by J. Borisov.

At the first 9 April 2003 Citizenship Commission sitting the members of the commission were not supplied with any documents confirming the information indicated in the reference prepared by the Citizenship Group of the Office of the President and the paper of the aviation company “Avia Baltika” UAB.

At the first 9 April 2003 Citizenship Commission sitting, when the issue of the granting of citizenship of the Republic of Lithuania to J. Borisov by way of exception was being deliberated, one did not consider the circumstance that, on 11 November 1999, the Migration Department under the Ministry of the Interior decided that the passport of a citizen of the Republic of Lithuania had been issued to J. Borisov on unlawful grounds, however, it decided to consider J. Borisov a citizen of the Republic of Lithuania and to permit him to keep the passport of a citizen of the Republic of Lithuania; one did not elucidate as to when J. Borisov acquired citizenship of the Russian Federation; one did not take account of the fact that it had not been stated, under procedure established by law, that J. Borisov had lost citizenship of the Republic of Lithuania; one did not verify whether there were not any circumstances specified in Article 13 of the Law on Citizenship due to which citizenship of the Republic of Lithuania may not be granted (testimony of the witnesses J. Vidickas, D. Jankauskienė, A. Meškauskas, V. Barkauskas).

32. By general consent, at the first 9 April 2003 Citizenship Commission sitting, it was decided (not a single member of the commission expressed a different opinion) to recommend that the President of the Republic grant citizenship of the Republic of Lithuania to J. Borisov.

33. As mentioned before, on the same day, i.e. on 9 April 2003, around 15 o’clock, one more sitting of the Citizenship Commission established by the Decree of the President of the Republic of Lithuania (No. 36) “On the Establishment of the Citizenship Commission and the Procedure of Its Work” of 2 April 2003 took place; it was held with the President of the Republic. It has also been mentioned that on 9 April 2003 this commission had no powers to act yet.

In this sitting only issues related to granting of citizenship of the Republic of Lithuania by way of exception were considered.

34. At the 9 April 2003 Citizenship Commission sitting with the President of the Republic one considered, inter alia, the issue of the granting of citizenship of the Republic of Lithuania to J. Borisov by way of exception.

As well as at the first 9 April 2003 Citizenship Commission sitting, at the sitting of the same commission with the President of the Republic, which took place on the same day, when one considered the issue of the granting of citizenship of the Republic of Lithuania to J. Borisov by way of exception, one did not consider the circumstance that, on 11 November 1999, the Migration Department under the Ministry of the Interior decided that the passport of a citizen of the Republic of Lithuania had been issued to J. Borisov on unlawful grounds, however, it decided to consider J. Borisov a citizen of the Republic of Lithuania and to permit him to keep the passport of a citizen of the Republic of Lithuania; one did not elucidate as to when J. Borisov acquired citizenship of the Russian Federation; one did not take account of the fact that it had not been stated, under procedure established by law, that J. Borisov had lost citizenship of the Republic of Lithuania; one did not verify whether there were not any circumstances specified in Article 13 of the Law on Citizenship due to which citizenship of the Republic of Lithuania may not be granted. Except for the information presented by J. Borisov himself in his 24 March 2003 application to the President of the Republic on granting citizenship of the Republic of Lithuania to him by way of exception and the reference prepared by the Citizenship Group of the Office of the President of the Republic on the basis of this information, and the reference from the aviation company “Avia Baltika” UAB about the charity donated and sponsorship rendered by the aviation company “Avia Baltika” UAB, which is headed by J. Borisov, no other material was presented as regards the issue in question (testimony of the witnesses J. Vidickas, D. Jankauskienė, A. Meškauskas, V. Barkauskas).

35. At the 9 April 2003 Citizenship Commission sitting which took place with the President of the Republic, without any discussions (without expressing any objections or doubts by any member of the commission), it was decided “by way of exception, to grant citizenship of the Republic of Lithuania to <…> Jurij BORISOV”.

36. At the Constitutional Court hearing the President of the Republic maintained that he had long known J. Borisov “from the times when he practiced piloting planes”. The President of the Republic asserted that his decision to grant citizenship of the Republic of Lithuania to J. Borisov by way of exception had not been determined by the fact that J. Borisov rendered him support during the campaign of election of the President of the Republic. The President of the Republic stated that “no matter whether the support had been rendered or not, the decision would have been the same”, while all other issues related to the granting of citizenship of the Republic of Lithuania to J. Borisov by way of exception had to be elucidated by the Citizenship Commission.

At the Constitutional Court hearing, the President of the Republic also maintained that before the signing of the Decree (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 he had not received any official material that might hinder granting of citizenship of the Republic of Lithuania to J. Borisov by way of exception, while the material that had been presented to the President of the Republic was not of the kind so that a different decision could have been taken.

37. On 10 April 2003, at the request of the Office of the President of the Republic, J. Vidickas, Acting Director of the Migration Department at the Ministry of the Interior of the Republic of Lithuania, issued the Order (No. MD-3K-32) “On the Loss of Citizenship of the Republic of Lithuania” whereby, inter alia, it was held that J. Borisov lost citizenship of the Republic of Lithuania under Item 2 of Paragraph 1 of Article 18 and Paragraph 3 of Article 21 of the Law on Citizenship. On the same day, by means of fax the Office of the President of the Republic and the Citizenship Commission were informed about the fact that J. Borisov lost citizenship of the Republic of Lithuania which had been stated in the order of 10 April 2003 issued by the Acting Director of the Migration Department at the Ministry of the Interior of the Republic of Lithuania (testimony of the witness J. Vidickas).

38. On 10 April 2003, i.e. at the time when the President of the Republic had not yet issued the decree whereby citizenship of the Republic of Lithuania was granted to J. Borisov by way of exception, a representative of J. Borisov was making arrangements by telephone with V. V. Rinkevičienė, Deputy Chairperson of the Citizenship Commission of the Administration of Vilnius City Municipality, Head of the Citizenship Subdivision, so that on the next day, i.e. on 11 April 2003, J. Borisov could take an oath to the Republic of Lithuania. V. V. Rinkevičienė informed about this members of the Citizenship Commission of the Administration of Vilnius City Municipality and asked them to be at the places of their work in the morning of 11 April 2003. The members of the Citizenship Commission of the Administration of Vilnius City Municipality, having gathered in the morning of 11 April 2003, considered the issue of the oath of J. Borisov, waited for his arrival so that he might take an oath to the Republic of Lithuania (testimony of the witnesses of Ž. Terebeiza, E. Šimanauskas, D. Gintautienė, V. V. Rinkevičienė).

39. For several times, right up to 11 April 2003, J. Borisov, via A. Drakšas (his and the President of the Republic R. Paksas mutual acquaintance), attempted to speed up the granting of citizenship of the Republic of Lithuania to him by way of exception: he asked A. Drakšas to pass his request to the President of the Republic R. Paksas to be granted citizenship of the Republic of Lithuania as soon as possible. A. Drakšas passed the request of J. Borisov to the President of the Republic R. Paksas to grant citizenship of the Republic of Lithuania to J. Borisov as soon as possible, so that he might go abroad with the passport of a citizen of the Republic of Lithuania (testimony of the witnesses of J. Borisov and A. Drakšas).

40. On 11 April 2003, after the decree had been signed by the Minister of the Interior, the President of the Republic signed the Decree (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” whereby citizenship of the Republic Lithuania was granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception (testimony of the witnesses J. Bernatonis, D. Jankauskienė).

41. On the same day, i.e. on 11 April 2003, before noon, A. Meškauskas, Head of the Office of the Office of the President, signed an extract of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003, in which it was indicated that by this decree, by way of exception citizenship of the Republic of Lithuania is granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, and this extract was given over to J. Borisov via the third party (copy of the extract of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003; testimony of the witness A. Meškauskas).

42. On the same day, i.e. on 11 April 2003, before noon, J. Borisov, having presented the aforesaid extract of the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the members of the Citizenship Commission of the Administration of Vilnius City Municipality who were waiting for him, took an oath to the Republic of Lithuania (testimony of the witnesses J. Borisov, Ž. Terebeiza, E. Šimanauskas, D. Gintautienė, V. V. Rinkevičienė).

43. On the same day, i.e. on 11 April 2003, before noon, J. Borisov applied to the Passport Subdivision of the 1st Police Commissioner’s Office at the Chief Police Commissioner’s Office for the City of Vilnius, requesting the passport of a citizen of the Republic of Lithuania issued for him and, on the same day, he received the passport of a citizen of the Republic of Lithuania (testimony of the witnesses J. Borisov, S. Balčiūnienė).

44. The Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 whereby citizenship of the Republic Lithuania was granted to J. Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception, was published in the official gazette “Valstybės žinios” on 16 April 2003.

IX

On the compliance of the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception with Paragraph 1 of Article 16 of the Law on Citizenship.

1. Paragraph 1 of Article 16 of the Law on Citizenship provides: “The President of the Republic, in pursuance of this Law, may grant citizenship of the Republic of Lithuania to citizens of foreign states or stateless persons with merits to the Republic of Lithuania without applying with respect to them conditions for the granting of citizenship provided for in Article 12 of this Law.”

2. It has been held in this ruling of the Constitutional Court that in the Law on Citizenship the legal regulation is established, under which the persons who lost citizenship of the Republic of Lithuania subsequent to the grounds set in Article 18 of the Law on Citizenship can acquire citizenship of the Republic of Lithuania only if citizenship of the Republic of Lithuania is restored to them, i.e. in the course of the application of the institute of the restoration of citizenship (Article 20 of the Law on Citizenship). It has also been held that, under Paragraph 1 of Article 16 of the Law on Citizenship, citizenship of the Republic of Lithuania may be granted by way of exception only to those citizens of foreign states or stateless persons (with merits to the Republic of Lithuania), who have never been citizens of the Republic of Lithuania.

3. It has been established in this case that the certificate of a citizen of the Republic of Lithuania was issued on unlawful grounds to J. Borisov on 1 November 1991, while on 20 October 1992, he was issued the passport of a citizen of the Republic of Lithuania on unlawful grounds. Thus, J. Borisov acquired citizenship of the Republic of Lithuania on unlawful grounds. However, on 11 November 1999 the Migration Department under the Ministry of the Interior decided to consider J. Borisov a citizen of the Republic of Lithuania and to permit him to keep the passport of a citizen of the Republic of Lithuania.

It has also been established in this case that, by the 18 June 2002 ordinance of the President of the Russian Federation, J. Borisov was granted citizenship of the Russian Federation; that on 18 March 2003 he was issued the passport of a citizen of the Russian Federation; that on 10 April 2003 the Acting Director of the Migration Department at the Ministry of the Interior of the Republic of Lithuania, issued an order in which, inter alia, stated that J. Borisov lost citizenship of the Republic of Lithuania under Item 2 of Paragraph 1 of Article 18 and Paragraph 3 of Article 21 of the Law on Citizenship.

It has also been established that by the Decree (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” citizenship of the Republic Lithuania was granted to J. Borisov by way of exception subsequent to Article 16 of the Law on Citizenship.

4. While granting citizenship of the Republic of Lithuania to J. Borisov by way of exception, who used to enjoy citizenship of the Republic of Lithuania and had lost it due to that fact that had acquired citizenship of another state (on the basis established in Item 2 of Paragraph 1 of Article 18 of the Law on Citizenship) one disregarded Paragraph 1 of Article 16 of the Law on Citizenship, under which citizenship of the Republic of Lithuania may be granted by way of exception only to those citizens of foreign states or stateless persons (with merits to the Republic of Lithuania), who have never been citizens of the Republic of Lithuania.

5. Taking account of the arguments set forth, it should be concluded that the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception is in conflict with Paragraph 1 of Article 16 of the Law on Citizenship.

X

On the compliance of the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception with Item 21 of Article 84 of the Constitution and the constitutional principle of a state under the rule of law.

1. Under Item 21 of Article 84 of the Constitution, the President of the Republic shall grant citizenship of the Republic of Lithuania in accordance with the procedure established by law.

2. It has been held in this ruling of the Constitutional Court that Item 21 of Article 84 of the Constitution means that the President of the Republic, when he decides an issue of the granting of citizenship of the Republic of Lithuania, must follow the requirements established by law, also that the President of the Republic is prohibited from granting citizenship of the Republic of Lithuania if he does not follow the requirements established in the law and the established procedure.

3. It has been held in this ruling of the Constitutional Court that the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception is in conflict with Paragraph 1 of Article 16 of the Law on Citizenship.

4. Having held this, one is also to hold that the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception is in conflict with Item 21 of Article 84 of the Constitution.

5. It has been mentioned that the constitutional principle of a state under the rule of law means, along with other requirements, that all institutions implementing state authority must act on the basis of law and in compliance with law, that the Constitution has the supreme legal power and that all legal acts must be in compliance with the Constitution, that substatutory legal acts cannot be in conflict with laws, constitutional laws, and the Constitution, and that substatutory legal acts must be adopted on the basis of laws.

Decrees of the President of the Republic are substatutory legal acts.

6. Having held that the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception is in conflict with Item 21 of Article 84 of the Constitution and Paragraph 1 of Article 16 of the Law on Citizenship, one is also to hold that the same decree to the said extent is in conflict with the constitutional principle of a state under the rule of law.

XI

On the compliance of the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception with Paragraph 1 of Article 29 and the provision “the elected President of the Republic <…> shall take an oath <…> to be equally just to all” of Paragraph 1 of Article 82 of the Constitution.

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

It has been mentioned that in Article 29 of the Constitution the principle of the equality of all persons before the law, the court, and other state institutions and officials is consolidated, that this principle must be followed in the course of passing of laws and in their application.

It has also been mentioned that the principle of the equality of all persons also means that the same law or other legal act must be applied to all persons (groups thereof) characteristic of the same features, that legal norms of substantive as well as of procedural law must be applied in equal manner.

In this ruling of the Constitutional Court it has also been held that the formula “all persons shall be equal” of Paragraph 1 of Article 29 of the Constitution means that the principle of equality before the law, the court, and other state institutions and officials must be followed not only in regard of citizens of the Republic of Lithuania, but also of citizens of foreign states and stateless persons.

2. Paragraph 1 of Article 82 of the Constitution provides: “The elected President of the Republic shall take office on the day following the expiration of the term of office of the President of the Republic; on that day, in Vilnius and in the presence of the representatives of the Nation, the members of the Seimas, he will take an oath to the Nation to be faithful to the Republic of Lithuania and the Constitution, to conscientiously fulfil the duties of his office, and to be equally just to all.”

It has been held in this ruling of the Constitutional Court that the requirement established in Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all, when one takes account of the provision of Paragraph 2 of Article 77 of the Constitution that the President of the Republic performs everything that he is charged with by the Constitution and laws, means that the President of the Republic, while implementing the powers established for him in the Constitution and laws, must follow the Constitution and laws, cannot violate them; that the President of the Republic must act only in the interests of the Nation and the State of Lithuania; that the President of the Republic, while implementing the powers established for him in the Constitution and laws, cannot act with aims and interests, which are inconsistent with the Constitution and laws, as well as with public interests. The constitutional requirement to be equally just to all obligates the President of the Republic to act so that there would not be a conflict between the interests of the President of the Republic, as a private person, and his constitutional duty, as of the Head of State, to represent the State of Lithuania, and to follow only the interests of the Nation and the State of Lithuania.

It has also been held in this ruling of the Constitutional Court that the requirement established in Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all should be construed together with the provision of Paragraph 1 of Article 29 of the Constitution that all persons shall be equal before the law, the court, and other state institutions and officials.

It has also been held that the provision of Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all, together with the provision of Article 29 of the Constitution that all persons are equal before state institutions and officials, means not only that the President of the Republic has a duty to treat all persons, for whom this provision is established, equally, but also that the President of the Republic has a duty to apply this legal norm equally justly to all persons; the provision of Paragraph 1 of Article 29 of the Constitution that all persons shall be equal before state institutions and officials, the provision of Paragraph 1 of Article 82 that the President of the Republic must be equally just to all cannot be construed as meaning that, purportedly, according to these provisions, the President of the Republic would be equally just to all even in a situation when a legal norm would be applied to all persons equally unjustly.

It has also been held in this ruling of the Constitutional Court that if the law provides that citizenship of the Republic of Lithuania may be granted to a citizen of a foreign state or a stateless person who has merits to the Republic of Lithuania, this means that this requirement must be applied to all citizens of foreign states or stateless persons, who request citizenship of the Republic of Lithuania granted by way of exception; in case citizenship of the Republic of Lithuania is granted to a citizen of a foreign state or a stateless person, who has no merits to the Republic of Lithuania, one would disregard the principle of the equality of all persons entrenched in Paragraph 1 of Article 29 of the Constitution that includes the equality of persons before state institutions or officials, also, one would disregard the provision of Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all.

As mentioned before, the circumstance that, under the Law on Citizenship, the issues of the granting of citizenship of the Republic of Lithuania are decided by the President of the Republic at his discretion, cannot be interpreted as meaning that, prior to issuing the decree of the President of the Republic on granting of citizenship of the Republic of Lithuania by way of exception the equal legal procedures established in the law to all persons may be applied unequally, that, prior to issuing the decree on granting of citizenship of the Republic of Lithuania, the President of the Republic does not have a duty to receive confirmation from the institutions (their officials) preparing citizenship documents that all the requirements established in the Law on Citizenship have been accomplished (all procedures established in the Law on Citizenship have been accomplished), and that there are not any legal obstacles to issue a corresponding decree of the President of the Republic. This means that due to unequal application of the equal legal procedures which are established in the law to all persons, it happens that not only the situation of citizens of foreign states or stateless persons who seek to acquire citizenship of the Republic of Lithuania by way of exception becomes unequal, but also that the state institutions or their officials, when they unequally apply the equal legal procedures established to all persons, are not equally just to all.

It has also been held in this ruling of the Constitutional Court that the provision of Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all would be violated not in all cases when Paragraph 1 of Article 29 of the Constitution (the principle of the formal equality of persons) is violated, but only when the President of the Republic, while implementing the powers established for him in the Constitution and laws, knowingly acts so that that the persons (their groups), in whose regard the President of the Republic adopts decisions, would be treated not equally justly.

3. While deciding whether the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception is not in conflict with Paragraph 1 of Article 29 and the provision “the elected President of the Republic <…> shall take an oath <…> to be equally just to all” of Paragraph 1 of Article 82 of the Constitution, one must establish not only the factual circumstances related to the granting of citizenship of the Republic of Lithuania to J. Borisov by way of exception, but also how the President of the Republic took into consideration these circumstances when he adopted the decision to grant citizenship of the Republic of Lithuania to J. Borisov by way of exception.

4. It has been established in this case that

in 1991, J. Borisov acquired citizenship of the Republic of Lithuania on unlawful grounds: on 1 November 1991 he was issued the certificate of a citizen of the Republic of Lithuania on unlawful grounds, while on 20 October 1992 he was issued the passport of a citizen of the Republic of Lithuania on unlawful grounds;

even though J. Borisov acquired citizenship of the Republic of Lithuania on unlawful grounds and he was issued the passport of a citizen of the Republic of Lithuania on unlawful grounds, on 11 November 1999, the Migration Department under the Ministry of the Interior decided to consider J. Borisov a citizen of the Republic of Lithuania and to permit him to keep the passport of a citizen of the Republic of Lithuania;

in adopting the decision to consider J. Borisov a citizen of the Republic of Lithuania and to permit him to keep the passport of a citizen of the Republic of Lithuania, even though J. Borisov had acquired citizenship of the Republic of Lithuania on unlawful grounds and he had been issued the passport of a citizen of the Republic of Lithuania on unlawful grounds, the institutions of the State of Lithuania made an exception in regard of J. Borisov and in this way showed special benevolence to him;

already at the end of 2000, i.e. only after one year had passed when the institutions of the State of Lithuania made the said exception in regard of J. Borisov, J. Borisov applied to the President of the Russian Federation, requesting citizenship of the Russian Federation; applying to the President of the Russian Federation, requesting citizenship of the Russian Federation, J. Borisov was aware of the fact that in case he had been granted citizenship of the Russian Federation, he, according to the laws of the Republic of Lithuania, would have lost citizenship of the Republic of Lithuania; thus, only after one year had passed when the institutions of the State of Lithuania, adopting a decision to consider J. Borisov a citizen of the Republic of Lithuania and to permit him to keep the passport of a citizen of the Republic of Lithuania, made an exception in regard of J. Borisov and in this way showed special benevolence to him, J. Borisov, while permanently residing in Lithuania, knowingly began to seek to acquire citizenship of another state—the Russian Federation—and knowingly performed actions due to which citizenship of the Republic of Lithuania is lost; by such actions J. Borisov clearly showed that citizenship of the Republic of Lithuania was of less value to him than citizenship of the Russian Federation, that it was citizenship of the Russian Federation to which he showed preference, but not citizenship of the Republic of Lithuania;

by the 18 June 2002 ordinance of the President of the Russian Federation, J. Borisov was granted citizenship of the Russian Federation; according to legal acts of the Russian Federation, J. Borisov became a citizen of the Russian Federation on 18 June 2002, i.e. on the day of issuance (signing) of the corresponding ordinance of the President of the Russian Federation; upon J. Borisov’s request, on 18 March 2003, the Embassy of the Russian Federation in the Republic of Lithuania issued him the passport of a citizen of the Russian Federation.

under the Republic of Lithuania’s Law on Citizenship, J. Borisov had to lose citizenship of the Republic of Lithuania as of 18 June 2002, i.e. as of the day when he acquired citizenship of another state;

from June 2002, i.e. when he already was a citizen of the Russian Federation, J. Borisov participated in the election campaign of the candidate to the President of the Republic R. Paksas and notably supported this candidate financially and in other ways: according to the data of the Central Electoral Commission, the candidate for the President of the Republic R. Paksas officially declared that the enterprise “Avia Baltika” UAB (headed by J. Borisov) donated LTL 1,205,000 to his election campaign;

in the summer of 2002, the candidate for the President of the Republic R. Paksas promised J. Borisov, in case of election of the former President of the Republic, to appoint him an advisor to the President of the Republic;

on 5 January 2003, R. Paksas was elected President of the Republic of Lithuania;

on 24 March 2003, J. Borisov filed an application with the President of the Republic, requesting citizenship of the Republic of Lithuania granted by way of exception; in his application of 24 March 2003, J. Borisov points out that he gave charity and rendered sponsorship to various enterprises, establishments and organisations in Lithuania in value of about LTL 6 million; no documents were attached to Borisov’s application of 24 March 2003 requesting citizenship of the Republic of Lithuania granted by way of exception, testifying his merits to the Republic of Lithuania, nor were there any recommendations from persons that J. Borisov be granted citizenship of the Republic of Lithuania by way of exception;

prior to 11 April 2003, when the decree of the President of the Republic was issued the provision whereof is impugned in the case at issue, M. Laurinkus, Director General of the State Security Department, had informed the President of the Republic R. Paksas for several times that an operational investigation was being conducted in regard of J. Borisov and the aviation company “Avia Baltika” UAB that was headed by him; on 17 March 2003, M. Laurinkus, Director General of the State Security Department, informed the President of the Republic R. Paksas that J. Borisov had pledged that in case of failure by R. Paksas to fulfil his promises to J. Borisov, he would disseminate information which would be unfavourable in regard to R. Paksas and discrediting him;

on 9 April 2003, the Citizenship Commission held its sitting with the President of the Republic, although this commission had no powers to act yet, since the Decree of the President of the Republic (No. 36) “On the Establishment of the Citizenship Commission and the Procedure of Its Work” of 2 April 2003, whereby this commission had been established, had not gone in effect yet (the said decree of the President of the Republic went into effect on 10 April 2003); in this Citizenship Commission sitting one, inter alia, considered the issue of the granting of citizenship of the Republic of Lithuania to J. Borisov by way of exception;

at the 9 April 2003 Citizenship Commission sitting with the President of the Republic one did not consider the circumstance that, on 11 November 1999, the Migration Department under the Ministry of the Interior decided that the passport of a citizen of the Republic of Lithuania had been issued to J. Borisov on unlawful grounds, however, it decided to consider J. Borisov a citizen of the Republic of Lithuania and to permit him to keep the passport of a citizen of the Republic of Lithuania; one did not elucidate as to when J. Borisov acquired citizenship of the Russian Federation; one did not take account of the fact that it had not been stated, under procedure established by law, that J. Borisov had lost citizenship of the Republic of Lithuania; one did not verify whether there were not any circumstances specified in Article 13 of the Law on Citizenship due to which citizenship of the Republic of Lithuania may not be granted; except for the information presented by J. Borisov himself in his 24 March 2003 application to the President of the Republic on granting citizenship of the Republic of Lithuania to him by way of exception and the reference prepared by the Citizenship Group of the Office of the President of the Republic on the basis of this information, and the reference from the aviation company “Avia Baltika” UAB about the charity donated and sponsorship rendered by the aviation company “Avia Baltika” UAB, which is headed by J. Borisov, no other material was presented as regards the issue in question;

for several times, right up to 11 April 2003, J. Borisov, via A. Drakšas (his and the President of the Republic R. Paksas mutual acquaintance), attempted to speed up the granting of citizenship of the Republic of Lithuania to him by way of exception: he asked A. Drakšas to pass his request to the President of the Republic R. Paksas to be granted citizenship of the Republic of Lithuania as soon as possible. A. Drakšas passed the request of J. Borisov to the President of the Republic R. Paksas to grant citizenship of the Republic of Lithuania to J. Borisov as soon as possible, so that he might go abroad with the passport of a citizen of the Republic of Lithuania;

on 11 April 2003, the President of the Republic issued the Decree (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” whereby, by way of exception, citizenship of the Republic Lithuania was granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania.

5. The entirety of the factual circumstances of the issuance of President of the Republic issued the Decree (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 ” whereby, by way of exception, citizenship of the Republic Lithuania was granted to J. Borisov, clearly shows that the President of the Republic R. Paksas, when adopting a decision to grant citizenship of the Republic Lithuania to J. Borisov, ignored the following:

by the decisions adopted in 1999, the institutions of the State of Lithuania had already made an exception in regard of J. Borisov and in this way showed special benevolence to him: it was decided to consider J. Borisov a citizen of the Republic of Lithuania and permit him to keep the passport of a citizen of the Republic of Lithuania issued to him, even though in 1991 J. Borisov acquired citizenship of the Republic on unlawful grounds;

after only one year had passed when the institutions of the State of Lithuania adopted the decision to consider J. Borisov a citizen of the Republic of Lithuania and to permit him to keep the passport of a citizen of the Republic of Lithuania, even though in 1991 J. Borisov acquired citizenship of the Republic on unlawful grounds, J. Borisov, while permanently residing in Lithuania, knowingly began to seek to acquire citizenship of another state—the Russian Federation—and knowingly performed actions due to which citizenship of the Republic of Lithuania is lost;

by such actions J. Borisov clearly showed that citizenship of the Republic of Lithuania was of less value to him than citizenship of the Russian Federation, that it was citizenship of the Russian Federation to which he showed preference, but not citizenship of the Republic of Lithuania;

M. Laurinkus, Director General of the State Security Department, had informed the President of the Republic R. Paksas for several times that an operational investigation was being conducted in regard of J. Borisov and the aviation company “Avia Baltika” UAB that was headed by him; on 17 March 2003, M. Laurinkus, Director General of the State Security Department, informed the President of the Republic R. Paksas that J. Borisov had pledged that in case of failure by R. Paksas to fulfil his promises to J. Borisov, he would disseminate information which would be unfavourable in regard to R. Paksas and discrediting him.

The fact that, while issuing the Decree (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 whereby citizenship of the Republic Lithuania was granted to J. Borisov by way of exception, the President of the Republic knowingly disregarded the aforementioned circumstances that are of essential importance in deciding whether to grant citizenship of the Republic of Lithuania to J. Borisov by way of exception, especially when one takes account of the fact that J. Borisov notably supported R. Paksas financially and in other ways when the latter participated in the 2002 election of the President of the Republic of Lithuania, testifies that the decision of the President of the Republic R. Paksas to grant citizenship of the Republic of Lithuania to J. Borisov by way of exception was determined not by certain merits of J. Borisov to the State of Lithuania, but his notable financial and other support rendered to R. Paksas in the 2002 election of the President of the Republic. Thus, the granting of citizenship to J. Borisov by way of exception was but a reward by the President of the Republic R. Paksas to J. Borisov for the aforesaid support.

Therefore, it should be held that the President of the Republic R. Paksas, when issuing the Decree (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 whereby citizenship of the Republic Lithuania was granted to J. Borisov by way of exception, was following neither the Constitution of the Republic of Lithuania, nor the laws, nor the interests of the Nation and the State of Lithuania, but his personal interests.

Thus, in granting citizenship of the Republic Lithuania to J. Borisov by way of exception by the Decree (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003, the President of the Republic R. Paksas treated this person, as a person who sought to acquire citizenship of the Republic of Lithuania, in an exceptional manner and knowingly disregarded the requirement consolidated in Paragraph 1 of Article 29 of the Constitution that all persons shall be equal before state institutions and officials, and the requirement consolidated in Paragraph 1 of Article 82 of the Constitution that the President of the Republic must be equally just to all.

6. Taking account of the arguments set forth, it should be concluded that the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception is in conflict with Paragraph 1 of Article 29 and the provision “the elected President of the Republic <…> shall take an oath <…> to be equally just to all” of Paragraph 1 of Article 82 of the Constitution.

XII

The Constitutional Court notes that it is clear from the case material that when one used to grant citizenship of the Republic of Lithuania by way of exception (without applying general conditions of naturalisation) to citizens of foreign states or stateless persons, one often used to interpret and apply the norms of the Law on Citizenship which establish the powers of the President of the Republic to grant citizenship of the Republic of Lithuania by way of exception in a legally deficient manner, without taking account of the essence and nature of citizenship of the Republic of Lithuania enshrined in the Constitution.

As mentioned before, under Paragraph 1 of Article 16 of the Law on Citizenship (also, according to the legal regulation that used to be prior the entry into effect of the Law on Citizenship adopted by the Seimas on 17 September 2002), citizenship of the Republic of Lithuania may (might) be granted only to a citizen of a foreign state or stateless person who was with merits not to any subject, but to the State of Lithuania itself, i.e. the state community—the civil Nation, that only the activity of the person should be considered merits to the Republic of Lithuania, when the person very significantly contributes to strengthening of Lithuanian statehood, to the increase of power of Lithuania and its authority in the international community. Merits of a citizen of a foreign state or a stateless person to the State of Lithuania cannot be evaluated on the mere amount of sum of money or the amount of material and other support rendered by the citizen of a foreign state or stateless person to a certain citizen or a group of citizens of the Republic of Lithuania, a state official, a certain enterprise, establishment or organisation or even to the State of Lithuania itself. Citizenship of the Republic of Lithuania cannot be acquired for financial, material or any other support, i.e. bought. It has also been mentioned that in case a citizen of a foreign state or stateless person is with merits to the Republic of Lithuania, it is permitted to consider and decide whether to grant citizenship of the Republic of Lithuania to such a person by way of exception only when this person has already been integrated into the Lithuanian society.

It is clear from the decrees of the President of the Republic issued in 1995–2003 (until the issuance of the decree of the President of the Republic the provision of which is impugned in the case at issue) attached to the case that sometimes one used to consider persons under age as those with merits to the Republic of Lithuania, who actually were unable to have merits to the Republic of Lithuania, that one sometimes used to regard individual persons to be with merits to the Republic of Lithuania only due to the fact that they had made investments in Lithuania into enterprises that belonged to them, or rendered financial or other support to individual organisations etc.

It is also clear from the case material that one used to grant citizenship of the Republic of Lithuania by way of exception also to the citizens of foreign states who had possessed citizenship of the Republic of Lithuania and had lost it because they had acquired citizenship of another state.

Such conception of the legal regulation consolidated in the Law on Citizenship virtually means that granting of citizenship of the Republic of Lithuania by way of exception (without application of general conditions of naturalisation) often used to be understood not as a statement of the factual, permanent link that had been established between the person seeking to acquire citizenship of the Republic of Lithuania and the State of Lithuania and transformation of such a link into the permanent legal link between the person and the State of Lithuania, but as a way to create legal grounds for a citizen of a foreign state or stateless person to acquire the passport of a citizen of the Republic of Lithuania so that the said person could easier arrive in Lithuania and stay in Lithuania, to arrange his property, business and other dealings in Lithuania, also, to go to many European and other states without a visa.

The Constitutional Court emphasises that such conception of Article 16 of the Law on Citizenship, which had been in practice until now, distorts the institute of citizenship of the Republic of Lithuania established in the Constitution and virtually devalues citizenship of the Republic of Lithuania, denies its nature and meaning.

XIII

1. Paragraph 1 of Article 107 of the Constitution provides: “A law (or part thereof) of the Republic of Lithuania or other act (or part thereof) of the Seimas, act of the President of the Republic, act (or part thereof) of the Government may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution of the Republic of Lithuania.”

The provision of Paragraph 1 of Article 107 of the Constitution that a legal act (or part thereof) may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution, means that until the Constitutional Court has not adopted a decision that the act in question (or part thereof) is in conflict with the Constitution, it is presumed that such legal act (part thereof) is in compliance with the Constitution and that the legal effects that appeared on the basis of the act in question (part thereof) are legitimate.

Thus, a general rule has been established in Paragraph 1 of Article 107 of the Constitution that the power of decisions of the Constitutional Court is prospective. However, this rule is not an absolute one.

2. The Constitution shall be an integral act (Paragraph 1 of Article 6 of the Constitution), therefore, when construing the content of Paragraph 1 of Article 107 of the Constitution, one should take account of the other provisions of the Constitution, inter alia, of Paragraph 1 of Article 7 of the Constitution, Article 110 of the Constitution, as well as of the constitutional principle of a state under the rule of law.

Article 110 of the Constitution provides:

A judge may not apply a law, which is in conflict with the Constitution.

In cases when there are grounds to believe that the law or other legal act applicable in a concrete case is in conflict with the Constitution, the judge shall suspend the consideration of the case and shall apply to the Constitutional Court requesting it to decide whether the law or other legal act in question is in compliance with the Constitution.”

Thus, Article 110 of the Constitution has established a prohibition on the application of a law that is in conflict with the Constitution and a duty of a judge considering a case, in case there are doubts whether the law or other legal act applicable in the case is not in conflict with the Constitution, to suspend the consideration of the case and to apply to the Constitutional Court requesting it to decide whether the law or other legal act in question is in compliance with the Constitution. By such constitutional regulation, one seeks to attain that a corresponding legal act (part thereof) which is in conflict with the Constitution be not applied, that there would not appear anti-constitutional legal effects due to the application of such legal act (part thereof), that the rights of the person be not violated, that a person in whose regard a legal act inconsistent with the Constitution or the law was applied would not unreasonably acquire, due to this, any rights or corresponding legal status that does not belong to him.

Under Paragraph 1 of Article 7 of the Constitution, any law or other act, which is inconsistent with the Constitution, shall be invalid.

The constitutional principle of a state under the rule of law, which is a universal principle and upon which the Constitution of Republic of Lithuania itself and the entire legal system of Lithuania are based, means that all institutions implementing state authority must act on the basis of law and in compliance with law. The Constitutional Court has held in its rulings many a time that no law (right) can appear not on the basis of law.

3. In the context of the case at issue, it should be noted that in all cases granting of citizenship of the Republic of Lithuania is an individual act—an act of application of law. The person to whom citizenship of the Republic of Lithuania is granted can acquire citizenship of the Republic of Lithuania only in case a corresponding decree of the President of the Republic on granting citizenship of the Republic of Lithuania (thus, also one on granting citizenship of the Republic of Lithuania by way of exception) has been issued without violating the Constitution and the laws. If a decree of the President of the Republic on granting citizenship of the Republic of Lithuania has been issued in violation of the Constitution and the laws, the person cannot acquire citizenship of the Republic of Lithuania on the grounds of such a decree of the President of the Republic which violates the Constitution and the laws. A different construction of Paragraph 1 of Article 107 of the Constitution would be inconsistent with the principle of the supremacy of the Constitution, the constitutional principle of a state under the rule of law, and with the guaranteeing of constitutional justice.

4. It has been held in this ruling of the Constitutional Court that the Decree of the President of the Republic (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception is in conflict with Paragraph 1 of Article 29, the provision “the elected President of the Republic <…> shall take an oath <…> to be equally just to all” of Paragraph 1 of Article 82, Item 21 of Article 84 of the Constitution, the constitutional principle of a state under the rule of law, and Paragraph 1 of Article 16 the Law on Citizenship.

Taking account of the fact that that the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception is recognised to be in conflict with the Constitution and the Law on Citizenship, on the basis of such a decree of the President of the Republic J. Borisov cannot acquire citizenship of the Republic of Lithuania.

Thus, as of the day of the entry into effect of this ruling of the Constitutional Court, Jurij Borisov, possessing citizenship of the Russian Federation, shall not be a citizen of the Republic of Lithuania, since citizenship of the Republic of Lithuania was granted to him by way of exception by the said decree of the President of the Republic in violation of the Constitution and the Law on Citizenship.

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

ruling:

To recognise that the Decree of the President of the Republic of Lithuania (No. 40) “On Granting Citizenship of the Republic Lithuania by Way of Exception” of 11 April 2003 to the extent that it provides that citizenship of the Republic Lithuania is granted to Jurij Borisov, born on 17 May 1956 in Russia, residing in Lithuania, by way of exception is in conflict with Paragraph 1 of Article 29, the provision “the elected President of the Republic <…> shall take an oath <…> to be equally just to all” of Paragraph 1 of Article 82, Item 21 of Article 84 of the Constitution of the Republic of Lithuania, the constitutional principle of a state under the rule of law, and Paragraph 1 of Article 16 the Republic of Lithuania’s Law on Citizenship.

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:                                                  Armanas Abramavičius

Egidijus Jarašiūnas

Egidijus Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Augustinas Normantas

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas