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On the powers of Seimas provisional investigation commissions

Case No. 43/03-46/03

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF ITEMS 1, 2 AND 3 OF PARAGRAPH 1 OF ARTICLE 4 (WORDING OF 3 APRIL 2003) OF THE REPUBLIC OF LITHUANIA’S LAW ON SEIMAS PROVISIONAL INVESTIGATION COMMISSIONS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, AS WELL AS ON THE PETITION OF A GROUP OF MEMBERS OF THE SEIMAS, THE PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER THE RESOLUTION OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA (NO. IX-1868) “ON THE CONCLUSION OF THE PROVISIONAL COMMISSION OF THE SEIMAS FOR AN INVESTIGATION INTO POSSIBLE THREATS TO LITHUANIAN NATIONAL SECURITY” OF 2 DECEMBER 2003 IS NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND ARTICLES 3 AND 8 (WORDING OF 3 APRIL 2003) OF THE REPUBLIC OF LITHUANIA’S LAW ON SEIMAS PROVISIONAL INVESTIGATION COMMISSIONS

 

13 May 2004

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

Seimas member Henrikas Žukauskas, acting as the representative of groups of members of the Seimas of the Republic of Lithuania, the petitioners

Seimas member Juozas Bernatonis, and Antanas Jatkevičius, a senior consultant to the Legal Department of the Office of the Seimas, acting as the representatives of the Seimas 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 28 April 2003, in its public hearing, considered case No. 43/03-46/03 subsequent to the following petitions:

1) the 24 November 2003 petition of a group of member of the Seimas, a petitioner, requesting an investigation into whether the following is not in conflict with Articles 5, 55, 61, 67, 109, and 118 of the Constitution of the Republic of Lithuania:

Item 1 of Paragraph 1 of Article 4 of the Republic of Lithuania’s Law on Seimas Provisional Investigation Commissions to the extent that it provides that the commission has the right to receive documents, data or information from all state and governance institutions, state and municipal enterprises (including those controlled by them), establishments and organisations, even if they comprise the commercial, bank or official secret, also to receive primary and other documents, in which such data or information is recorded,

Item 2 of Paragraph 1 of Article 4 of the Law on Seimas Provisional Investigation Commissions to the extent that it provides that the commission has the right to receive verbal and written explanations or notes from heads and other employees of all state and governance institutions, state and municipal enterprises (including those controlled by them), establishments and organisations, concerning the issues considered by the commission, as well as notes about the material and documents available at state institutions, enterprises, establishments or organisations,

Item 3 of Paragraph 1 of Article 4 of the Law on Seimas Provisional Investigation Commissions to the extent that it provides that that the commission has the right to summon to its sittings state and municipal politicians, officials, servants as well as other persons working at state and municipal institutions, to hear their explanations, to demand that they present information or data concerning the issue considered by the commission and to receive them either in writing or orally,

Item 5 of Paragraph 1 of Article 4 of the Law on Seimas Provisional Investigation Commissions to the extent that it provides that the commission has the right, upon the coordination with the Office of the Prosecutor General or an institution of pre-trial investigation, to familiarise itself, according to the procedure established by law, with a criminal case or other material and documents that are at their disposal;

2) the 16 December 2003 petition of a group of member of the Seimas, a petitioner, requesting an investigation into whether the Resolution of the Seimas of the Republic of Lithuania (No. IX-1868) “On the Conclusion of the Seimas Provisional Commission for an Investigation into Possible Threats to Lithuanian National Security”, which was adopted on 2 December 2003, to the extent that it provides that “via the President or his advisors, classified information used to reach the persons who did not have the right to be familiarised with it, or those in whose regard operational investigation was being conducted”, “the President and some of his advisors exerted impermissible influence on the privatisation of enterprises and individual subjects of private business”, “the President being tolerant, his advisors exceeded their competence, interfered with the activities of other state institutions, abused their status, thus causing confusion in state governance”, is not in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 31, Paragraph 1 of Article 67, Paragraph 1 of Article 109, Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law, as well as Articles 3 and 8 of the Republic of Lithuania’s Law on Seimas Provisional Investigation Commissions.

The Constitutional Court

has established:

I

1. On 23 March 1999, the Seimas adopted the Republic of Lithuania’s Law on Seimas Provisional Investigation Commissions (hereinafter also referred to as the Law; Official Gazette Valstybės žinios, 1999, No. 33-943). The said law was amended by the 3 April 2003 Republic of Lithuania’s Law on the Amendment of Articles 3, 4, and 8 of the Law on Seimas Provisional Investigation Commissions (Official Gazette Valstybės žinios, 2003, No. 38-1716) and the 6 November 2003 Republic of Lithuania’s Law on the Amendment of Article 7 of the Law on Seimas Provisional Investigation Commissions (Official Gazette Valstybės žinios, 2003, No. 107-4785).

2. On 2 December 2003, the Seimas adopted the Resolution “On the Conclusion of the Provisional Commission of the Seimas for an Investigation into Possible Threats to Lithuanian National Security” (hereinafter also referred to as the Resolution; Official Gazette Valstybės žinios, 2003, No. 114-5122), by Article 1 whereof it approved of the conclusion of the Provisional Commission of the Seimas for an Investigation into Possible Threats to Lithuanian National Security (hereinafter also referred to as the Commission) and recognised that the Commission finished its work.

3. On 24 November 2003, a group of members of the Seimas, a petitioner, applied to the Constitutional Court with a petition (hereinafter referred as the 24 November 2003 petition) requesting an investigation into whether the following was not in conflict with Articles 5, 55, 61, 67, 109, and 118 of the Constitution:

Item 1 of Paragraph 1 of Article 4 of the Republic of Lithuania’s Law on Seimas Provisional Investigation Commissions to the extent that it provides that the commission has the right to receive documents, data or information from all state and governance institutions, state and municipal enterprises (including those controlled by them), establishments and organisations, even if they comprise the commercial, bank or official secret, also to receive primary and other documents, in which such data or information is recorded;

Item 2 of Paragraph 1 of Article 4 of the Law on Seimas Provisional Investigation Commissions to the extent that it provides that the commission has the right to receive verbal and written explanations or notes from heads and other employees of all state and governance institutions, state and municipal enterprises (including those controlled by them), establishments and organisations, concerning the issues considered by the commission, as well as notes about the material and documents available at state institutions, enterprises, establishments or organisations;

Item 3 of Paragraph 1 of Article 4 of the Law on Seimas Provisional Investigation Commissions to the extent that it provides that that the commission has the right to summon state and municipal politicians, officials, servants as well as other persons working at state and municipal institutions, to hear their explanations, to demand that they present information or data concerning the issue considered by the commission and to receive them either in writing or orally;

Item 5 of Paragraph 1 of Article 4 of the Law on Seimas Provisional Investigation Commissions to the extent that it provides that the commission has the right, upon the coordination with the Office of the Prosecutor General or an institution of pre-trial investigation, to familiarise itself, according to the procedure established by law, with a criminal case or other material and documents that are at their disposal.

4. On 16 December 2003, a group of members of the Seimas, a petitioner, applied to the Constitutional Court with a petition (hereinafter referred as the 16 December 2003 petition) requesting an investigation into whether the Seimas Resolution (No. IX-1868) “On the Conclusion of the Seimas Provisional Commission for an Investigation into Possible Threats to Lithuanian National Security” of 2 December 2003, to the extent that it provides that “via the President or his advisors, classified information used to reach the persons who did not have the right to be familiarised with it, or those in whose regard operational investigation was being conducted”, “the President and some of his advisors exerted impermissible influence on the privatisation of enterprises and individual subjects of private business”, “the President being tolerant, his advisors exceeded their competence, interfered with the activities of other state institutions, abused their status, thus causing confusion in state governance”, was not in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 31, Paragraph 1 of Article 67, Paragraph 1 of Article 109, Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law, as well as Articles 3 and 8 of the Law on Seimas Provisional Investigation Commissions.

II

1. The 24 November 2003 petition of a group of members of the Seimas, a petitioner, is based on the following arguments.

1.1. The rights and powers of provisional investigation commissions formed by the Seimas ought to be determined by the principle of the separation of powers entrenched in Paragraph 1 of Article 5 of the Constitution and the provision of Paragraph 2 of the same article that the scope of powers shall be limited by the Constitution. According to the petitioner, this principle imperatively implies that after the Constitution has established the powers of a particular state institution, then a state institution may not take over such powers from another state institution, nor transfer, nor waive them; such powers may not be changed or limited by law.

The petitioner maintains that a provisional investigation commission formed by the Seimas may not enjoy more powers than the institution that has formed it, i.e. the Seimas or an individual member of the Seimas (member of the Commission). Thus, in case it is established that one has granted more powers, by means of the law, to the provisional investigation commission formed by the Seimas than the Constitution grants to the Seimas itself or an individual member of the Seimas, one might state that the principle of the separation of powers entrenched in Article 5 of the Constitution was grossly violated by the Law on Seimas Provisional Investigation Commissions.

1.2. The petitioner believes that a systemic analysis of the provisions of Articles 5, 67, 92, 96, and 101 of the Constitution permits asserting that the Seimas may carry out parliamentary control in regard of the Government, as well as state institutions established by the Seimas and heads of these institutions appointed by it (save courts and the prosecutor’s office). Meanwhile, in the opinion of the petitioner, the content of the powers granted to the Seimas commissions by law distorts the constitutional structure of Lithuania, since the commissions have been granted the function of the control and supervision over the judiciary, i.e. the function that does not belong to the constitutional competence of the Seimas.

Paragraph 1 of Article 55 of the Constitution provides that the Seimas shall consist of representatives of the Nation—141 members of the Seimas who shall be elected for a four-year term on the basis of universal, equal, and direct electoral right by secret ballot. Every representative of the Nation, who is elected to the Seimas, enjoys the rights directly linked with his participation in the work of the Seimas and Seimas committees: voting on all questions considered at the Seimas at all the sittings of the Seimas, the committee, the commission whose member he is, participation in discussions on all debated issues, the proposing of issues to the Seimas for deliberation, the making of statements, drafting laws and other legal acts and their submission to the Seimas for deliberation, etc. Article 61 of the Constitution consolidates the rights of members of the Seimas connected with the function of the parliamentary control carried out by them. Paragraph 1 of this article provides that a member of the Seimas shall have the right to present an inquiry to the Prime Minister, the ministers, and the heads of other state institutions formed or elected by the Seimas, while the said persons must respond orally or in writing at the session of the Seimas in accordance with the procedure established by the Seimas. In addition, Paragraph 2 of Article 61 of the Constitution provides that at a session of the Seimas, a group of not less than 1/5 of the members of the Seimas may interpellate the Prime Minister or a minister. Thus, according to the petitioner, the Constitution clearly provides that members of the Seimas have the right present inquiries only to members of the Government and heads of the institutions which are formed or elected by the Seimas, and hear them at the session of the Seimas. In the opinion of the petitioner, in case these constitutional provisions are construed expansively, it is possible to draw the conclusion that members of the Seimas have the right to apply to the institutions which are formed by the Seimas, and get familiarised with the documents, data and other information available at these institutions, as well as to summon heads of these institutions to sittings of Seimas committees or commissions. However, it is not permitted to construe the provisions of Article 61 of the Constitution in separation from Articles 5, 109, and 118 of the Constitution. The petitioner asserts that the Seimas, having consolidated the rights of the commission in the impugned provisions of the Law, established the regulation whereby it violated the place and competence of state institutions established in the Constitution, created pre-conditions for interfering with the activities of courts and the prosecutor’s office and to violate the principle of their independence consolidated in the Constitution.

In the opinion of the petitioner, a systemic construction of the provisions entrenched in Items 5, 9, and 11 of Article 67 and the norms of Article 61 of the Constitution permits drawing the conclusion that the commissions formed by the Seimas may summon to their sittings members of the Government, the President of the Board of the Bank of Lithuania, the Auditor General, members of the Central Electoral Commission, the heads and other employees of other institutions established or formed by the Seimas, to demand that they present documents and other information. However, according to the petitioner, the Seimas commissions are not permitted to demand documents and information from institutions and establishments that are not accountable to the Seimas, nor explanations from employees of such institutions. The commissions formed by the Seimas also do not have the right to summon to their sittings state and municipal politicians, officials, servants, other persons working at state and municipal institutions and demand that they present either information or data concerning the issues considered by the commission.

1.3. In the opinion of the petitioner, the principle of the separation of powers entrenched in Article 5 of the Constitution is also violated by the right of the Seimas commissions to get familiarised, upon coordination with the Office of the Prosecutor General and an institution of pre-trial investigation (under the Code of Criminal Procedure of the Republic of Lithuania, these are local courts), with the criminal case or other material and documents which are at their disposal, which is established by Item 5 of Paragraph 1 of Article 4 of the Law. Article 109 of the Constitution provides that in the Republic of Lithuania, justice shall be administered solely by courts; while administering justice, the judge and courts shall be independent. The petitioner notes that the actions carried out in the course of the preparation of the material for the judicial investigation should be treated as part of the judicial process. Therefore, in the opinion of the petitioner, the familiarisation with the material that is at the command of pre-trial institutions, which is collected in the course of the actions of pre-trial investigation and which is designated for courts to commence a case, violates not only the principle of the separation of powers entrenched in Article 5 of the Constitution, but also the principle of independence of the court, judges and prosecutors, which is entrenched in Articles 109 and 118 of the Constitution.

2. The 16 December 2003 petition of a group of members of the Seimas, the petitioner, is based on these arguments.

2.1. Every branch of state power occupies a certain place in the system of branches of state power and discharges the functions characteristic of it only. The Seimas, which is composed of representatives of the Nation, members of the Seimas, passes laws, supervises the activity of the Government, confirms the state budget and supervises how it is executed, decides other issues prescribed by the Constitution. The Constitution, establishing the competence of each branch of state power, alongside draws its limits. This is confirmed by Paragraph 2 of Article 5 of the Constitution which provides that the scope of power shall be limited by the Constitution. Administration of justice is the activity of courts in the course of consideration of civil, criminal and administrative cases. Thus, only the court can state whether there was a certain violation of laws, and apply criminal, civil or administrative liability.

The Provisional Commission of the Seimas for an Investigation into Possible Threats to Lithuanian National Security, the conclusion of which was confirmed by the Seimas, established that “via the President or his advisors, classified information used to reach the persons who did not have the right to be familiarised with it, or those in whose regard operational investigation was being conducted”. This established fact, in the opinion of the petitioner, means recognition of the person as guilty of the commission of the criminal deeds provided for in Articles 125 and 126 of the Criminal Code of the Republic of Lithuania. The other statements “the President and some of his advisors exerted impermissible influence on the privatisation of enterprises and individual subjects of private business”, “the President being tolerant, his advisors exceeded their competence, interfered with the activities of other state institutions, abused their status, thus causing confusion in state governance”, which were established and confirmed by the Seimas, also stated violations of law in no uncertain terms, due to which one is criminally liable under Articles 228, 288 and other articles of the Criminal Code, or is administratively liable.

The petitioner noted that neither the Constitution, nor the Statute of the Seimas provides that the Seimas may state the presence of violations of laws and other legal acts. According to the petitioner, Article 67 of the Constitution provides for the final list of powers of the Seimas, however, it does not provide that the Seimas has the right to establish the facts having legal significance, and which may lead to either criminal or administrative liability, or to state the presence of violations of laws or other legal acts. The approving of the conclusion of the Seimas Provisional Investigation Commission, in which the facts confirming the guilt of a person (the President and his advisors) are established, the Seimas assessed the actions of the persons as illegal ones, although it did not have any legal bases nor any right to do so. In the opinion of the petitioner, thus, the Seimas exceeded its competence and violated Article 114 of the Constitution, which provides that interference by institutions of state power and administration, members of the Seimas and other officials, political parties, political and public organisations, or citizens with the activities of a judge or the court shall be prohibited and incur liability as provided for by law.

Due to these motives, the petitioner believes that the Resolution, as to its extent, is in conflict with the principles of a state under the rule of law and separation of powers, as well as with Articles 5, 67, 109, and 114 of the Constitution.

2.2. In the opinion of the petitioner, the Seimas provisional investigation commission ought to restrain from the assessment of the factual circumstances which may give grounds for the beginning of pre-trial investigation, since Paragraph 2 of Article 3 of the Law provides that the commission, while investigating the issue assigned to it and implementing its rights, does not interfere with the activities of the court, the judge, the prosecutor, the official of pre-trial investigation when they conduct the pre-trial investigation and consider the case in court. According to the petitioner, such a conclusion is also to be drawn on the grounds of Item 1 of Paragraph 2 of Article 8 of the Law, providing that the commission may transfer the collected material to institutions of pre-trial investigation or the prosecutor’s office. A systemic analysis of the aforesaid legal norms permits drawing the conclusion that the Seimas provisional investigation commission, having established certain facts which could lead to either criminal or administrative liability, ought to restrain from their assessment and transfer the issue of the establishment and assessment of these facts to respective institutions of law and order. In the opinion of the petitioner, the Seimas resolution in question confirmed the assessment of factual circumstances by the Seimas provisional investigation commission; due to this, in the opinion of the petitioner, this resolution is in conflict with Article 31 of the Constitution, which proclaims that a person shall be presumed innocent until proven guilty and must be declared guilty by an effective court judgment in accordance with the procedure established by law. The petition of the petitioner indicates that the principle of presumption of innocence is a universal principle of law, the area of application of which is not limited to the criminal procedure, and which must be followed not only by the court but also other state institutions. According to the petitioner, the European Court of Human Rights, by applying Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, pointed out that also state institutions, by taking account of concrete circumstances, must follow the principle of presumption of innocence.

The petitioner believes that the Seimas resolution whereby one confirmed the conclusions of the Seimas Provisional Investigation Commission that the state secret was revealed via the President and his advisors, that the President and his advisors exerted impermissible influence on the privatisation of enterprises and individual subjects of private business, that, the President being tolerant, his advisors exceeded their competence, interfered with the activities of other state institutions and abused their status, violate the principle of presumption of innocence entrenched in Article 31 of the Constitution, as virtually the Seimas resolution confirmed the commission of the criminal deeds punishable under Articles 125, 228, 288 and other articles of the Criminal Code.

It is emphasised in the petition that under Article 109 of the Constitution justice shall be administered solely by the court. Thus, it is only the court that may investigate and state that certain actions were performed for which a person is criminally liable, and only the court may recognise a person guilty of commission of the crime. In the opinion of the petitioner, the facts set forth in the conclusions of the Seimas Provisional Investigation Commission create grounds for application of liability to persons for commission of corresponding crimes (for example, under Articles 125, 228, 288 and other articles of the Criminal Code).

The petitioner is of the opinion that a state under the rule of law does not permit a situation when institutions of law and order whose aim is to detect and investigate violations of laws and other legal acts virtually cannot reach different conclusions as for the facts set forth in the conclusions of the Seimas Provisional Investigation Commission and confirmed by the Seimas resolution, since then their actions would be in conflict with the legal act, i.e. the Seimas resolution, whereby the conclusions of the Seimas Provisional Investigation Commission were confirmed. According to the petitioner, thus, the constitutional principles of the separation of powers and a state under the rule of law may be violated.

The petitioner noted that it is only the court that may establish the guilt of a person, while it is only the court or institutions of quasi-judicial character that may state the facts having legal significance, however, in the latter case the person, if he disagrees with the stated fact, has an opportunity to apply to an independent and impartial court. In this respect, the acts adopted by the Seimas are not subject to appeal, they are obligatory to everyone, therefore, the person, whose activities that are contrary to law were established by means of a legal act, cannot defend his rights. Thus, the right of the person to demand that his case be investigated by an independent and impartial court is violated. These arguments confirm that such a situation is impermissible in a state under the rule of law and that a legal act creating preconditions for such a situation is not in line with the provisions of the Constitution.

Due to these motives, the petitioner thinks that the resolution, as to its content, is in conflict with the principle of presumption of innocence entrenched in Article 31 of the Constitution, Articles 109 and 114 of the Constitution and Articles 3 and 8 of the Law.

2.3. The petitioner asserted that Articles 5 and 67 of the Constitution do not provide that the Seimas could establish either facts of circumstances. The main functions of the Seimas are passage of laws, supervision of the activities of the Government, confirmation of the State Budget, i.e., it means that it establishes not individual facts, but regulates the existing public and private legal relations. The establishment of concrete facts and application of legal acts is within the competence of courts (and institutions of quasi-judicial character). Therefore, in the opinion of the petitioner, the Seimas overstepped the limits of its competence not only in that it established the guilt of a person, but also in that it established facts having legal significance, even though the said facts do not create grounds for appearance of liability of the person. Therefore, the petitioner believes that the resolution is in conflict with the principle of the separation of powers.

III

1. In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from the representative of the Seimas, the party concerned, who was the member of the Seimas J. Bernatonis, concerning the 24 November 2003 petition of a group of members of the Seimas.

1.1. J. Bernatonis noted that Article 76 of the Constitution provides that the structure and procedure of activities of the Seimas shall be established by the Statute of the Seimas. The common issues of the structure of the Seimas are regulated in Chapter V of Part II of the Statute of the Seimas. Under Paragraph 3 of Article 25 of the Statute of the Seimas, for resolving short-term issues or issues of narrower scope, and for carrying out concrete assignments, the Seimas may, from among its members, form investigation, control, auditing, preparatory, drafting and other provisional commissions. The procedure of formation and work activities, the rights, tasks and decisions adopted by Seimas provisional investigation commissions are regulated in a more detailed manner by the norms of Chapter XII of the Statute of the Seimas and the Law on Seimas Provisional Investigation Commissions.

Paragraph 1 of Article 72 of the Statute of the Seimas provides that provisional control or investigation commissions shall be formed for the purpose of control over how the decisions of Seimas are being implemented, collection and presentation of collected information and conclusions, required to analyse the problem at hand and to adopt a decision, as well as in other instances stipulated in this Statute.

Paragraph 1 of Article 2 of the Law provides that the Seimas, having recognised a necessity to investigate an issue of state importance, may form a Seimas provisional investigation commission. Paragraph 1 of Article 3 indicates the tasks of the commission, namely, to elucidate and establish whether the actions were performed, decisions were adopted related with the issues which are assigned to it to be investigated, also to elucidate other circumstances related with the investigated issue. Article 4 of the Law indicates the rights of the commission.

1.2. Paragraph 1 of Article 5 of the Constitution provides that in Lithuania, the Seimas, the President of the Republic and the Government, and the Judiciary, shall execute state power. This provision, the content whereof is disclosed in other articles of the Constitution in a more detailed manner, consolidates a fundamental principle of the organisation and activity of a state under the rule of law—the principle of separation of powers. The representative of the party concerned emphasised that each branch of state power, while occupying a certain place in the system of branches of state power and implementing the functions characteristic of it only, cooperates with other branches of power. Paragraph 2 of Article 5 of the Constitution provides that the scope of power shall be limited by the Constitution. It means that the Constitution directly establishes the powers of a concrete institution of state power, no other institution may take these powers from it, while the institution whose powers are established in the Constitution may not transfer nor waive them. Such powers may not be changed or limited by law.

1.3. In the opinion of the representative of the party concerned, the provisions of Items 1, 2 and 3 of Paragraph 1 of Article 4 of the Law, which virtually limit themselves with the right of the commission to receive information, for this purpose to summon to its sittings state and municipal politicians, officials, servants and other persons (also from the institutions with are not accountable to the Seimas) and to familiarise itself with the information does not violate the principle of the separation of powers entrenched in Article 5 of the Constitution, nor the principle consolidated in Paragraph 1 of Article 109 of the Constitution that administration of justice is exclusive competence of the court. J. Bernatonis believes that this should be regarded as exchange of information between institutions, but not as the function of control and supervision by the Seimas over the judiciary, as it is maintained in the petition of the petitioner. According to the representative of the Seimas, the rights of the commission established in Article 4 of the Law do not create any opportunities for the commission to control or otherwise interfere with the activity of the judiciary. On the contrary, the Law contains the prohibition on interfering with the activities of courts, prosecutors and officials of pre-trial investigation. Under Paragraph 2 of Article 3 of the Law, the commission, while investigating an issue assigned to it and implementing its rights, shall not interfere with the activities of the court, the judge, the prosecutor, and the official of pre-trial investigation, when they conduct pre-trial investigation or investigate a case in court.

1.4. J. Bernatonis noted that the Seimas may form a Seimas provisional investigation commission concerning not any issues, but only upon recognising a necessity to investigate an issue of state importance (Paragraph 1 of Article 2 of the Law). Only in case it had the right to receive exhaustive information from all state and governance institutions, the Bank of Lithuania, state and municipal enterprises (including those that are controlled by them) and to familiarise itself with it, also to summon to its sittings state and municipal politicians, officials, servants and other persons working at state and municipal institutions, the Seimas provisional investigation commission would be able to properly conduct the investigation concerning the issue of state importance and, when implementing Paragraph 1 of Article 72 of the Statute of the Seimas, to collect and present exhaustive information and conclusions to the Seimas, which are necessary in order to consider the existing problem and to adopt a decision. The information received only from the Government and other state institutions, which are formed and elected by the Seimas, would not permit the conduct of a thorough and objective investigation.

1.5. In the opinion of the representative of the party concerned, the impugned provisions of the Law are not in conflict with Paragraph 1 of Article 61 of the Constitution, either, in which the right of inquiry of the Seimas member is consolidated. The Prime Minister, a minister, heads of other state institutions that are formed or elected by the Seimas, must give answers either orally or in writing in the Seimas session under the procedure established by the Seimas. An inquiry of the member of the Seimas, as a constitutional institute, implies that the Statute of the Seimas must establish a duty of corresponding officials to answer to the member of the Seimas, and that one must answer in the Seimas session according to the procedure established by the Seimas. The submission of inquiries and the procedure of their consideration are regulated by Chapter XXXIV of the Statute of the Seimas. Under Paragraph 2 of Article 213 of the Statute of the Seimas, only the question, due to which a member of the Seimas or their group applied to state institutions which, however, in their opinion, has not been properly considered or has been decided negatively, is regarded as an inquiry. According to J. Bernatonis, it is clear from this provision that members of the Seimas, before they present an inquiry to the Prime Minister, a minister, heads of other state institutions that are formed or elected by the Seimas, have the right to apply to any state institution (including that not accountable to the Seimas).

1.6. In the explanations of the representative of the party concerned it is also noted that Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 of the Law cannot be in conflict with Article 55 of the Constitution, since their provisions regulate completely different matters.

1.7. J. Bernatonis believes that it is a debatable issue whether there is not a conflict with Article 67 of the Constitution, in which the functions of the Seimas are established. According to the representative of the party concerned, this list of the functions of the Seimas is final, therefore, he doubts whether it is permitted to expand it, although, he notes, alongside, that in other articles of the Constitution the competence of the Seimas is expanded. However, in the opinion of J. Bernatonis, the rights of Seimas provisional investigation commissions may be assigned to the area of parliamentary supervision and control, although the Constitution does not directly indicate that.

1.8. In the opinion of the representative of the party concerned, the provisions of Item 5 of Paragraph 1 of Article 4 of the Law are not in conflict with Article 118 of the Constitution, either. J. Bernatonis noted that the provision of Item 5 of Paragraph 1 of Article 4 of the Law does not mean that the Seimas provisional investigation commission may unconditionally get familiarised with any criminal case or other material or documents. While implementing this right, the commission must, first, coordinate this question with the Office of the Prosecutor General, the National Audit Office, the State Security Department or an institution of pre-trial investigation; second, it may become familiarised with them only in accordance with the procedure established in laws. From this it must be concluded that the aforesaid institutions, while following the requirements of the legal acts regulating the procedure of getting familiarised with the material of a criminal case, operational material etc., adopts a decision to permit the Seimas provisional investigation commission to be familiarised with a criminal case, material and documents or, if this is contrary to requirements of legal acts, not to give the permission. J. Bernatonis paid attention to the fact that in case the Office of the Prosecutor General, the National Audit Office, the State Security Department or an institution of pre-trial investigation refuse to present a criminal case, material or documents to the commission, the commission has no right to take them with the help of police officers.

2. In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from the representative of the Seimas, the party concerned, who was R. Šukys, a member of the Seimas, as regards the 16 December 2003 petition of a group of members of the Seimas, a petitioner.

2.1. It is noted in the explanations of R. Šukys that in the system of powers established by the Constitution the Seimas enjoys a special, constitutional status. According to the representative of the Seimas, the Seimas, while implementing the powers of governance, is independent inasmuch as its powers are not limited by the Constitution, however, it must always ensure the discontinued implementation of its powers that are provided for in the Constitution. Taking account of the constitutional status of the Seimas as legislative power, one must create the structure of the Seimas and the work procedure grounded on democratic principles so that the representation of the Nation might constructively, effectively and discontinuously implement the supreme sovereign power of the Nation in case of any situation in this country.

In order that it might discharge legislative activities and adopt other decisions, the Seimas must be guided by exhaustive information. To this purpose, it is necessary that the Seimas might have an opportunity to get familiarised with any issue that is important to the life of the state and society, and to analyse it. Otherwise, the duty of the Seimas, as representation of the Nation, to constructively, effectively and discontinuously implement the supreme sovereign power of the Nation, would be denied.

The Seimas is composed of the representatives of the Nation. According to the representative of the party concerned, the responsibility of state institutions to the society is a principle of a state under the rule of law, which is constitutionally consolidated by providing that state institutions shall serve the people, while the citizens have the right to govern their country either directly or through democratically elected representatives, to criticise the work of state institutions or officials, to appeal against their decisions, also, by guaranteeing an opportunity for citizens to defend their rights in court, the right to criticise, the right of petition, by regulating the procedure of consideration of requests and complaints of citizens, etc. In the opinion of the representative of the party concerned, since the Seimas is representation of the Nation, it has a duty to execute public control over any officials in a constitutional manner.

The representative of the party concerned noted that the blanket norm formulated in Article 76 of the Constitution permits the Seimas to formulate by itself its structure, the procedure of work, procedures of submission, consideration and adoption of laws and other legal acts, the competence of structural subunits of the Seimas, their interrelations, also to regulate other issues of the functioning of the Seimas. Under Article 76 of the Constitution, this must be established in the Statute of the Seimas, which has the power of the law.

It is noted in the explanations that the structure of the Seimas is a system of its internal subunits established in the Statute of the Seimas, which must ensure the efficiency of the parliament, its effective functioning, i.e. to create the necessary conditions and preconditions for the Seimas to discontinuously implement its functions defined in the Constitution. Having recognised a necessity to investigate an issue of state importance, the Seimas may form a Seimas provisional investigation commission. The Seimas provisional investigation commission is a structural subunit of the Seimas, which helps, under established procedure, to ensure the efficiency of the parliament and its effective functioning. The establishment of work procedure of this commission, the definition of its competence are a matter of the discretion of the Seimas. The results of the investigation of the commission are drawn up in a conclusion, in which one indicates the elucidated circumstances during the investigation, the collected evidence and the legal assessment of the situation. The Seimas approves (or disapproves) of the conclusion of the commission. According to the representative of the party concerned, Seimas provisional investigation commissions have the right to establish facts and to qualify them in a legal manner.

R. Šukys drew one’s attention to the fact that the Seimas approved of the conclusion of the Seimas provisional investigation commission, which had been formed by it, does not mean that it administers justice and violates the constitutional principle of the separation of powers; the decision of the Seimas is not obligating to the court. Therefore, in the opinion of the representative of the party concerned, the argument of the petitioners that by the impugned resolution the Seimas established a fact having legal significance and violated the competence of the Seimas is groundless.

2.2. In the explanations of the representative of the party concerned R. Šukys it is also noted that neither the Seimas nor the Seimas provisional investigation commission decides the issue of guilt of a person. After it has considered the results of the investigation (the circumstances elucidated during the investigation, the collected evidence, the legal assessment of the situation), the commission may: (1) decide to transfer the material to institutions of pre-trial investigation or prosecutor’s office; (2) propose that state and self-government institutions bring the persons who committed the violations to disciplinary liability, or decide whether these persons are fit to the office that they are holding; (3) state that, in the opinion of the commission, there have not been any actions performed or decisions adopted which the commission is assigned to investigate, also that the actions performed or decisions adopted are not in conflict with laws and other legal acts.

Thus, according to the representative of the party concerned, the decision concerning guilt of a person is adopted not by the Seimas, nor the Seimas provisional investigation commission. The representative of the Seimas also emphasised that the constitutional principle of presumption of innocence is applied in, first of all, the procedure of criminal cases and is not characteristic of other legal relations in its pure form. Therefore, R. Šukys believes that the argument of the petitioners that by the impugned resolution the Seimas established the guilt of a person and violated the competence of the Seimas is groundless.

2.3. The representative of the party concerned is of the opinion that the impugned resolution of the Seimas is not in conflict with the Constitution and the Law on Seimas Provisional Investigation Commissions.

3. In the course of the preparation of the case for the Constitutional Court’s hearing written explanations were also received from the representative of the Seimas, the party concerned, who was A. Jatkevičius, a senior advisor to the Legal Department of the Office of the Seimas, concerning the 16 December 2003 petition of a group of members of the Seimas, the petitioner.

3.1. By the Seimas Resolution “On the Formation of the Provisional Commission for an Investigation into Possible Threats to Lithuanian National Security” of 3 November 2003, as well as the Law on Seimas Provisional Investigation Commissions and the Statute of the Seimas, the Commission was obligated to conduct investigation and formulate conclusions. For instance, subsequent to Paragraph 1 of Article 3 of the Law, the Commission had a duty to elucidate and establish whether actions were performed, decisions were adopted concerning the issues that it was assigned to investigate, to elucidate and establish other circumstances connected to the investigated issue; the circumstances established by the Commission had to be confirmed by documents and other evidence. The Commission also could, under Article 4 of the Law, make use of all the rights (to become familiarised with information, receive written and oral explanations from various institutions and persons, documents etc.) granted to it. Under Article 8 of the Law, the Commission had a duty to draw up the results of the investigation in a draft conclusion, to point out the circumstances elucidated in the course of the investigation, the collected evidence and present a legal assessment, a conclusion, as regards the situation, and within one day after the conclusion was adopted to present it to the Seimas. Under Paragraph 1 of Article 72 of the Statute of the Seimas, the Commission was obligated to collect information and present it and its conclusions to the Seimas, which were necessary for consideration of the problem and adoption of the decision. Under Article 76 of the Statute of the Seimas, the Commission was also obligated, upon performing its work, to present the collected and summarised data, its conclusion and a draft resolution to the Seimas. Besides, the Commission had the right to present its conclusions concerning the proposed impeachment proceedings.

In the opinion of A. Jatkevičius, the Seimas has the right to establish its structure, procedure of its work, the procedures of submission of laws and other legal acts, those of their deliberation and adoption, the competence of Seimas structural subunits, their interrelations, also to regulate other issues of the functioning of the Seimas. The Seimas regulated the activities of provisional investigation commissions by adopting the Statute of the Seimas and the Law on Seimas Provisional Investigation Commissions.

The Commission carried out the requirements of the Seimas resolution, the Law on Seimas Provisional Investigation Commissions and the Statute of the Seimas: it elucidated and established what actions had been performed and decisions adopted as regards the issues that the Commission was assigned to investigate, it confirmed the established circumstances by documents and other evidence, it drew up the results of the investigation in a draft conclusion, in it is indicated the circumstances elucidated and the evidence collected in the course of the investigation and presented a legal assessment of the situation, the collected and summarised data, the conclusion and a draft resolution to the Seimas on the next day after its adoption. The conclusion of the Commission (as well as its statements questioned by the petitioner) was based upon the system of evidence. The evidence was presented in annexes to the conclusion, which, as the conclusion itself indicates, are a constituent part of the conclusion.

In the opinion of the representative of the party concerned, the fact that the Seimas established facts (circumstances) is not in conflict with Article 67 of the Constitution, which provides for the functions of the Seimas, since the list of the twenty functions of the Seimas, consolidated in Article 67 of the Constitution, is not a final one (for example, it does not provide for the right of the Seimas to apply by its resolution to the Constitutional Court in order to investigate whether a legal act is in conformity with the Constitution, which is provided for in another article, i.e. Article 106, of the Constitution. Seimas special investigation commissions have the right to establish facts.

According to the representative of the party concerned, the Seimas Resolution “On the Conclusion of the Provisional Commission of the Seimas for an Investigation into Possible Threats to Lithuanian National Security” of 2 December 2003 was adopted subsequent to Paragraph 2 of Article 76 of the Statute of the Seimas, in which it is prescribed that a resolution is passed at the Seimas sitting regarding the issue examined by the provisional control and investigation commission. The Seimas Provisional Investigation Commission not only did not violate the Constitution, the Statute of the Seimas, the Law on Seimas Provisional Investigation Commissions and other laws, but, on the contrary, it carried out all the requirements of these legal acts of the Republic of Lithuania.

3.2. The explanations by A. Jatkevičius also point out that under Paragraph 2 of Article 3 of the Law, the commission, while investigating the question assigned to it and implementing its rights, shall not interfere with the activities of the court, the judge, the prosecutor, and the official of pre-trial investigation when they conduct pre-trial investigation or consider the case in court. In its conclusion the Commission also held that it “has presented its assessments and conclusions which do not compete with the assessments of judicial institutions”. Items 1 and 2 of Paragraph 2 of Article 8 of the Law also provide that, after it has considered a draft conclusion, the commission may decide to transfer the material to institutions of pre-trial investigation or prosecutor’s office, also it may propose that state and self-government institutions bring the persons who committed the violations to disciplinary liability, or decide whether these persons are fit to the office that they are holding.

According to the representative of the Seimas, it is clear from the whole text of the conclusion of the Seimas Provisional Investigation Commission that the commission, while conducting the investigation and formulating its conclusion subsequent to the Law and other legal acts of the Republic of Lithuania, did not claim to the place of a judicial institution, it did not execute judicial power nor did it administer justice, it did not decide the question of guilt of persons, nor did it incriminate any deeds provided for in the Criminal Code. The representative of the party concerned noted that in the course of administration of justice it is not sufficient to draw up statements similar to formulations of the Criminal Code. In order to administer justice and state commission of a criminal deed, the entire procedure provided for in the Code of Criminal Procedure is necessary: pre-trial investigation, judicial consideration, adoption, in the name of the Republic of Lithuania, of a judgment of conviction which incriminates deeds provided for in concrete articles of the Criminal Code, etc. Paragraph 1 of Article 31 of the Constitution also provides that a person shall be presumed innocent until proven guilty and must be declared guilty by an effective court judgment in accordance with the procedure established by law.

The representative of the party concerned also noted that administration of justice is “a sovereign adoption of decisions by special state institutions, courts, under a special, judicial, procedure, in which, by applying the Constitution, the law or other legal act, it is stated what is right in that case. Administration of justice is an exclusive function of courts, determining the place of this branch of power in the system of state institutions and the status of judges.”

3.3. On 11 December 2003, the Seimas, while taking account of the Seimas Provisional Commission for an Investigation into Possible Threats to Lithuanian National Security, adopted the Resolution “On Applying to State and Municipal Institutions”, whereby it applied to the Seimas Commission on Ethics and Procedures so that it would assess whether the activity of members of the Seimas, whose names are mentioned in the investigation material of the Commission, are in line with valid legal acts and ethical requirements; it also applied to the Supreme Commission for Official Ethics and some municipal councils, so that they would assess whether the activities of members of these municipal councils are in line with valid legal acts and ethical requirements; it requested the corresponding state and municipal institutions and heads of establishments to assess the actions of the officials mentioned in the reference of the State Security Department and in the conclusion of the Commission; it proposed that the Board of the Seimas form working groups in order to prepare draft laws on amending the laws on elections, the law on the control over the financing of political campaigns, the law on Seimas provisional investigation commissions and the laws that regulate the procedure for appointment of heads of law and order institutions, and commissioned the working groups to present draft amendments to the said laws to the Seimas; it proposed that the Office of the Prosecutor General and other institutions of law and order investigate possible violations of laws, related to the issues considered by the Commission.

Thus, the representative of the party concerned believes that the Seimas Provisional Investigation Commission did not administer justice nor did it execute judicial power, that it did not violate the principles of a state under the rule of law, the separation of powers, the presumption of innocence, which are enshrined in the Constitution, that it did not discharge any functions that are not assigned to the Seimas and that it did not interfere in the activity of the court.

3.4. A. Jatkevičius also drew one’s attention to the fact that the statements questioned in the 16 December 2003 petition of the petitioner are not in the Seimas resolution itself, but in its annex, the conclusion of the Seimas Provisional Investigation Commission. Under Paragraph 3 of Article 8 of the Law and Paragraph 1 of Article 76 of the Statute of the Seimas, the Commission was obliged to present the conclusion and a draft Seimas resolution to the Seimas, while the latter was obliged, by Paragraph 2 of Article 76 of the Statute of the Seimas, to adopt a resolution concerning the issue considered by the Commission.

On 1 December 2003, the Commission presented its confirmed conclusion to the Seimas which, by its 2 December 2003 resolution, approved of the conclusion. According to the representative of the party concerned, the Seimas resolution concerning approval of the conclusion of the Commission merely means confirmation and recognition that the Commission had performed its work properly and carried out all the requirements of legal acts of the Republic of Lithuania: it established the facts, it grounded them on evidence, it drew up a conclusion and presented it to the Seimas in time. Meanwhile, in this case one impugns not the Seimas resolution itself, but its annex, the conclusion of the Seimas Provisional Investigation Commission.

According to the representative of the party concerned, the investigation of the compliance of a Seimas resolution with laws is not within the jurisdiction of the Constitutional Court, therefore, the petition of the petitioners requesting an investigation into the compliance of the Seimas resolution with the Law on Seimas Provisional Investigation Commissions is not subject to consideration.

A. Jatkevičius is of the opinion that the conclusion of the Seimas Provisional Investigation Commission is not a legal act of the Seimas; it was only approved by means of a legal act of the Seimas, the Seimas resolution. Paragraph 7 of Article 8 of the Republic of Lithuania’s Law on the Procedure of Drafting of Laws and Other Normative Legal Acts mentions that a law may have annexes. However, neither this article, nor Article 9 of the same law, regulating the form and structure of other legal acts, speaks about annexes to a Seimas resolution. In addition, Paragraph 2 of Article 9 of the said law mentions the legal acts that are confirmed by Seimas resolutions, meanwhile, the impugned provisions have not been confirmed—they were approved of. Besides, the conclusions of the Commission that are in the annex to the Seimas resolution are not of a normative character. Therefore, the representative of the party concerned believes that the 11 December 2003 Resolution “On Applying to State and Municipal Institutions”, which is of a normative character, was a logical consequence of the prior Seimas resolution of a non-normative character, whereby one approved of the conclusion of the Seimas Provisional Investigation Commission. A. Jatkevičius noted that prior to that, conclusions of provisional investigation commissions formed by the Seimas did not use to be published in the official gazette “Valstybės žinios”. The constitutionality of conclusions of Seimas provisional investigation commissions, which were not annexes to a Seimas resolution, and which had not been published in the official gazette “Valstybės žinios”, did not use to be questioned. Therefore, the representative of the party concerned thinks that only because of the fact that the conclusions of the Commission were annexed to the Seimas resolution and published in the official gazette “Valstybės žinios”, they do not become an act of the Seimas the investigation of constitutionality of which is within the jurisdiction of the Constitutional Court.

3.5. In the opinion of the representative of the party concerned, who was A. Jatkevičius, the Seimas Resolution “On the Conclusion of the Provisional Commission of the Seimas for an Investigation into Possible Threats to Lithuanian National Security” of 2 December 2003 to the impugned extent is not in conflict with the Constitution. In the opinion of the representative of the Seimas, the consideration of the compliance of this resolution with Articles 3 and 8 of the Law is not within the jurisdiction of the Constitutional Court. Besides, the constitutionality of consideration of the conclusions themselves made by the Seimas Provisional Investigation Commission is not within the jurisdiction of the Constitutional Court. Therefore, A. Jatkevičius believes that in this part the legal proceedings in the case ought to be dismissed.

IV

In the course of the preparation of the case for the judicial investigation, written explanations were received from A. Sakalas, Chairperson of the Seimas Committee on Legal Affairs (who also used to head the Provisional Commission of the Seimas for an Investigation into Possible Threats to Lithuanian National Security) and Prof. T. Birmontienė, Head of the Department of Constitutional Law, the Department of Law of the Law University of Lithuania.

V

1. At the Constitutional Court’s hearing, the representative of both groups of members of the Seimas H. Žukauskas additionally indicated these arguments upon which the representative of the petitioners impugns the compliance of the Seimas Resolution “On the Conclusion of the Provisional Commission of the Seimas for an Investigation into Possible Threats to Lithuanian National Security” of 2 December 2003 with the Constitution according to the content of its norms as well as the procedure of its publishing.

1.1. The Seimas Resolution “On the Conclusion of the Provisional Commission of the Seimas for an Investigation into Possible Threats to Lithuanian National Security” is an integral act; the conclusion of the Commission is its constituent part. In this conclusion one holds: “The list of annexes to the conclusions of the Commission, which are a constituent part of the conclusion, shall be attached.” The annexes to the conclusion of the Commission, upon which the conclusion itself was based, have not been publicly published, therefore, according to H. Žukauskas, the members of the Seimas, who have no right to familiarise themselves with the state secret, did not have any opportunities to familiarise themselves with them and decide as for the approval of the conclusion of the Commission. Since the annexes to the conclusion of the Commission were not published, the opportunities of the persons mentioned in the conclusion of the Commission to defend their rights, as well as to apply to court in order to deny the false information, were unreasonably restricted.

1.2. The Commission grounded its conclusion on the testimony of witnesses, however, no liability was provided for the witnesses for giving false witness. H. Žukauskas emphasised that fair proceedings do not permit invoking unchecked information, while such invocation of unchecked information must be regarded as a gross violation of the principle of a state under the rule of law.

1.3. H. Žukauskas also noted that the right of the commissions that is consolidated in the Law on Seimas Provisional Investigation Commissions to familiarise themselves with pre-trial investigation and operational information exceeds the competence of the Seimas and violates the principle of the separation of powers. Furthermore, the information that was received during pre-trial investigation and presented to the Seimas provisional investigation commission may become available to the public, while this not only makes the investigation of the case more difficult, but it can also violate the constitutional rights of the persons that gave this information as well as those of the persons mentioned in the operational information.

2. At the Constitutional Court’s hearing, the representative of the party concerned, the Seimas, who was A. Jatkevičius, drew one’s attention to the fact that in his petition the petitioner did not impugn the compliance of the Seimas Resolution (No. IX-1868) “On the Conclusion of the Provisional Commission of the Seimas for an Investigation into Possible Threats to Lithuanian National Security”, which was adopted on 2 December 2003, with the Constitution in the aspect that the annexes to the conclusion of the Commission had not been publicly published, therefore, this question is not a matter of the case at issue.

A. Jatkevičius also noted that the activities of the Seimas Provisional investigation commission are not identical to criminal proceedings. The Seimas Provisional Investigation Commission was conducting a political process, a parliamentary procedure. Under Paragraph 1 of Article 72 of the Statute of the Seimas, provisional control or investigation commissions shall be formed for the purpose of control over how the decisions of Seimas are being implemented, collection and presentation of collected information and conclusions, required to analyse the problem at hand and to adopt a decision, as well as in other instances stipulated in this statute. The Provisional Commission of the Seimas for an Investigation into Possible Threats to Lithuanian National Security was formed in order to collect and present the collected information as well as conclusions to the Seimas, required to analyse the problem at hand and to adopt a decision. Meanwhile, the liability—criminal, administrative or other liability—of the witnesses of the Commission, is not a matter of consideration in this case.

3. At the Constitutional Court’s hearing, the representative of the party concerned, the Seimas, who was J. Bernatonis, virtually reiterated the arguments set forth in his written explanations.

The Constitutional Court

holds that:

I

1. Under the Constitution, the Seimas is representation of the Nation (the Constitutional Court’s ruling of 30 December 2003). The Seimas is an institution of state power executing the legislative power. The constitutional nature of the Seimas, as representation of the Nation, determines its special place in the system of institutions of state power, its functions and competence.

2. The constitutional powers of the Seimas are consolidated in Article 67 of the Constitution. This article provides that the Seimas: shall consider and adopt amendments to the Constitution (Item 1); shall pass laws (Item 2); shall adopt resolutions on referendums (Item 3); shall appoint an election for the President of the Republic of Lithuania (Item 4); shall establish state institutions provided for by law, and shall appoint and release their heads (Item 5); shall approve or disapprove of the candidature of the Prime Minister presented by the President of the Republic (Item 6); shall consider the programme of the Government presented by the Prime Minister, and decide whether to approve of it (Item 7); shall, upon the motion of the Government, establish and abolish ministries of the Republic of Lithuania (Item 8); shall supervise the activities of the Government, and may express no-confidence in the Prime Minister or a Minister (Item 9); shall appoint justices to, and Presidents of, the Constitutional Court and the Supreme Court (Item 10); shall appoint and release the Auditor General as well as the President of the Board of the Bank of Lithuania (Item 11); shall call elections of municipal councils (Item 12); shall form the Central Electoral Commission and alter its composition (Item 13); shall confirm the State Budget and supervise the execution thereof (Item 14); shall establish state taxes and other obligatory payments (Item 15); shall ratify and denounce international treaties of the Republic of Lithuania as well as consider other issues of foreign policy (Item 16); shall establish administrative division of the Republic (Item 17); shall establish state awards of the Republic of Lithuania (Item 18); shall issue acts of amnesty (Item 19); shall impose direct administration, martial law, and a state of emergency, declare mobilisation, and adopt a decision to use the armed forces (Item 20).

It needs to be noted that the list of the constitutional powers of the Seimas consolidated in Article 67 of the Constitution is not a final one. On the one hand, various powers of the Seimas are entrenched in other articles (parts thereof) of the Constitution. For instance, Article 74 of the Constitution provides that for a gross violation of the Constitution, a breach of the oath, or upon disclosure of the commission of a crime, the Seimas may, by a 3/5 majority vote of all the members of the Seimas, remove from office the President of the Republic, the President and justices of the Constitutional Court, the President and justices of the Supreme Court, the President and judges of the Court of Appeal, as well as members of the Seimas, or may revoke the mandate of a member of the Seimas; this shall be performed in accordance with the procedure for impeachment proceedings which shall be established by the Statute of the Seimas. Article 75 of the Constitution provides that officials appointed or elected by the Seimas (with the exception of persons specified in Article 74 of the Constitution) shall be released from office when the Seimas, by majority vote of all the members of the Seimas, expresses no-confidence in them. Under Article 106 of the Constitution, the Seimas has the right to apply to the Constitutional Court by its resolution and to request the Constitutional Court to investigate whether the legal acts indicated in Article 102 of the Constitution are not in conflict with the Constitution (while whether substatutory acts are not in conflict with the Constitution and laws) and to request a conclusion from the Constitutional Court on the issues indicated in Paragraph 3 of Article 105 of the Constitution. Under Item 11 of Article 84 and Paragraph 5 of Article 118 of the Constitution, the Seimas either approves or does not approve of the candidacy for the appointment or release of the Prosecutor General of the Republic of Lithuania, while under Item 14 of Article 84 of the Constitution—of the candidacies of the Chief of the Army and the Head of the Security Service. Under Article 100 of the Constitution, the Seimas may give its consent to hold the Prime Minister or a minister criminally liable, to arrest him, or otherwise restrict their freedom. Under Paragraph 1 of Article 128 of the Constitution, the Seimas adopts decisions concerning the state loan and other basic property liabilities of the state. Also, additional powers of the Seimas are established in various articles (parts thereof) of the Constitution.

On the other hand, attention should be paid to the fact that some powers of the Seimas that are established in Article 67 of the Constitution are particularised and detailed in other articles (parts thereof) of the Constitution. For example, the provision of Item 9 of Article 67 of the Constitution that the Seimas, inter alia, “may express no-confidence in the Prime Minister or a Minister” is particularised by the provision “upon considering the response of the Prime Minister or a Minister to the interpellation, the Seimas may decide that the response is not satisfactory, and, by a majority vote of half of all the members of the Seimas, express no-confidence in the Prime Minister or the Minister” of Paragraph 3 of Article 61 of the Constitution. The provision of Item 14 of Article 67 of the Constitution that the Seimas, inter alia, shall supervise the execution of the State Budget is particularised in Item 4 of Article 94 of the Constitution, which provides, inter alia, that the Government shall present an account on the fulfilment of the budget to the Seimas; thus, the Seimas, under the Constitution, enjoys powers to confirm this account. The provision of Item 20 of Article 67 of the Constitution that the Seimas shall impose direct administration, martial law, and a state of emergency, declare mobilisation, and adopt a decision to use the armed forces is particularised in Paragraph 1 of Article 142 of the Constitution, which provides that the Seimas shall impose martial law, shall declare mobilisation or demobilisation, and shall adopt a decision to use the armed forces when it is necessary to defend the Homeland or to fulfil the international obligations of the State of Lithuania, also in Paragraph 1 of Article 144 of the Constitution, which provides that if the constitutional system or social peace in the State is threatened, the Seimas may impose a state of emergency throughout or in a separate part of the territory of the State, also that the period of the state of emergency may not exceed six months. The powers of the Seimas established in Article 67 of the Constitution are particularised and detailed in other articles (parts thereof) of the Constitution.

It also needs to be noted that, under the Constitution, the powers of the Seimas may be and are established not only in the Constitution, but also in laws. In certain cases the fact that certain powers of the Seimas entrenched in the Constitution may be particularised in laws is pointed out directly. For instance, as mentioned before, under Item 16 of Article 67 of the Constitution the Seimas shall ratify and denounce international treaties of the Republic of Lithuania as well as consider other issues of foreign policy, Paragraph 1 of Article 138 of the Constitution stipulates as to which international treaties of the Republic of Lithuania are ratified and denounced by the Seimas, while Paragraph 2 of the same article provides that laws as well as international treaties may also provide for other cases in which the Seimas shall ratify international treaties of the Republic of Lithuania; under Item 3 of Article 67 of the Constitution the Seimas shall adopt resolutions on referendums, while Paragraph 3 of Article 9 of the Constitution provides that a referendum shall be announced if not less than 300,000 of the citizens with the electoral right so request, while under Paragraph 2 of the same article, the Seimas announces a referendum in the cases established by law. While implementing the right, which is directly consolidated in the Constitution, to particularise its certain constitutional powers by means of laws, the Seimas must pay heed to the norms and principles of the Constitution.

The Seimas, as the representation of the Nation, has the right to establish, by law, also such its powers that are not expressis verbis indicated in the Constitution which, however, are designed for the implementation of the constitutional functions of the Seimas. Implementing its right directly established in the Constitution to particularise its certain constitutional powers by means of laws, as well as establishing, by means of laws, its powers that are not expressis verbis indicated in the Constitution, the Seimas is bound by the Constitution. The fact that the Seimas, while passing laws, is bound by the Constitution, as well as by the laws that were passed by it, is an essential element of the constitutional principle of a state under the rule of law (the Constitutional Court’s rulings of 6 December 2000, 14 January 2002, and 24 January 2003).

3. It is clear from the constitutional provisions in which the powers of the Seimas are established that the Seimas, while implementing its constitutional powers, discharges the classical functions of the parliament of a democratic state under the rule of law: the Seimas passes laws (the legislative function), conducts the parliamentary control over executive and other state institutions (save courts) (the control function), establishes state institutions, appoints and releases their heads and other state officials (the establishment function), confirms the State Budget and supervises the execution thereof (the budgetary function) etc.

The said functions of the Seimas as the representation of the Nation of a state under the rule of law are constitutional values. Under the Constitution, the legislature and other subjects of lawmaking may not establish any such legal regulation whereby the said constitutional functions of the Seimas would be denied or opportunities to discharge them would be restricted, since the Seimas, the representation of the Nation, would thus be hindered from effective actions in the interests of the Nation and the State of Lithuania.

4. In order that it might properly discharge its parliamentary functions and implement its constitutional powers, the Seimas, the representation of the Nation, has to possess exhaustive and objective information about the processes taking place in the state and society, about the situation in various sectors of life of the state and society and the arising problems. The possession of such information is a necessary precondition for the fact that the Seimas might be able to effectively act in the interests of the Nation and the State of Lithuania, that it would properly execute its constitutional duty.

The constitutional functions of the Seimas, the powers of the Seimas entrenched in the Constitution presuppose the powers of the Seimas in every case when a necessity occurs to decide a certain question assigned to the constitutional competence of the Seimas, to seek to achieve exhaustive and objective information necessary to adopt corresponding decisions. The necessity to possess such information means that in case of need the Seimas can rely not only on the publicly known information or that presented to it by state institutions and other persons, but also that it can resort to concrete actions so that such exhaustive and objective information could be received. In case of need, the Seimas may conduct investigation by itself so that it could collect exhaustive and objective information about the processes taking place in the state and society, about the situation in various sectors of life of the state and society and the arising problems. This activity of the Seimas logically follows from its purpose as the parliament, and from its constitutional functions and constitutional powers.

5. The Seimas shall consist of representatives of the Nation—141 members of the Seimas (Paragraph 1 of Article 55 of the Constitution). Legal acts must establish the structure of the Seimas and the procedure of its work so that the Seimas, the representation of the Nation, might be able to discharge its constitutional functions.

Article 76 of the Constitution provides that the structure and procedure of activities of the Seimas shall be established by the Statute of the Seimas, and that the Statute of the Seimas shall have the power of law. Under Paragraph 2 of Article 70 of the Constitution, the Statute of the Seimas is signed by the Speaker of the Seimas.

5.1. Thus, under the Constitution, the Seimas, enjoying discretion to establish its own structure, also enjoys discretion to form its structural subunits, it also enjoys discretion to establish names of its structural subunits, their competence, composition, interrelations, term of activity, to formulate certain tasks to them. When it establishes all this, the Seimas is bound by the norms and principles of the Constitution.

In the context of the case at issue, it needs to be noted that the Seimas has the constitutional powers to form the structural subunits, whose term of activities is not defined in advance, i.e. its permanent structural subunits, as well as the structural subunits that are assigned only to solve a certain issue (or certain issues), and which, after they have solved this issue (or issues) terminate their activity, i.e. provisional structural subunits.

In the context of the case at issue, one is also to note that the Seimas, enjoying the powers in every case, whenever there occurs a necessity to decide a certain issue within the constitutional competence of the Seimas, to seek to receive exhaustive and objective information needed to adopt corresponding decisions, also enjoys discretion to form such its structural subunits which would be assigned to conduct investigation so that exhaustive and objective information about the processes taking place in the state and society, about the situation in various sectors of life of the state and society and the arising problems could be collected.

5.2. The fact that under the Constitution the structure of the Seimas and procedure of its activities are established by the Statute of the Seimas, and that the Statute of the Seimas is signed by the Speaker of the Seimas means, inter alia, that the Seimas, while paying heed to the Constitution, has the right to decide by itself the questions of formation of its structural subunits, those of their competence and organisation of their work, also that no other state institution may interfere with these constitutional powers of the Seimas.

Alongside, it needs to be noted that it is impossible to construe the provision “the structure and procedure of activities of the Seimas shall be established by the Statute of the Seimas” of Article 76 of the Constitution only linguistically, i.e. as meaning that the powers of Seimas structural subunits may be established only in the Statute of the Seimas. For instance, in order that it could properly discharge its constitutional functions, the Seimas may require to form also such structural subunits, which would enjoy powers in regard of various state and municipal institutions, their officials, and other persons. In the context of the case at issue, it needs to be noted that such powers may also be related with reception of exhaustive and objective information from state or municipal institutions, their officials and other persons about the processes taking place in the state and society, about the situation in various sectors of life of the state and society and the arising problems. It needs to be emphasised that reception of this information cannot be dependent upon the fact whether or not corresponding institutions and other persons are accountable to the Seimas: in order to receive exhaustive and objective information necessary to adopt corresponding decisions, the Seimas, as the representation of the Nation, has to have an opportunity to receive information not only from institutions, other persons that are accountable to it, but also from persons that are not accountable to it. In case one needs to establish authoritative empowerments of a structural subunit of the Seimas in regard of institutions, their officials and other persons that are not accountable to the Seimas (including the right to demand the information the submission whereof is regulated by law), then such powers of the structural subunit of the Seimas must be established by law. When such powers are being established, one must pay heed to the norms and principles of the Constitution.

One must also note that certain questions linked with the formation of structural subunits of the Seimas, establishment of their competence, formation of their composition, formulation of tasks to them, may be decided by substatutory legal acts of the Seimas. Such substatutory legal acts of the Seimas may not be in conflict with laws, as well as the Statute of the Seimas. If a substatutory act of the Seimas sets the powers of a structural subunit of the Seimas in regard of state or municipal institutions, their officials, and other persons, then such provisions of the substatutory act of the Seimas must be grounded on provisions of laws.

5.3. It needs to be emphasised that the Seimas, having formed a certain structural subunit, having established its powers, having set certain tasks to it, also enjoys the right, under the Constitution, according to the procedure established in legal acts to assess the activities of such its structural subunit and their results, no matter whether this structural subunit is permanent or provisional. The fact as to by what form the activities of the structural subunit of the Seimas and their results must be assessed is decided by the Seimas at its discretion. For instance, the Seimas may decide whether or not to approve of the activities of its structural subunit or their results, or whether to approve of them only in part (with reservations), the Seimas may state whether the structural subunit formed by it has performed the tasks set to it, or whether it failed to perform them, or whether it performed them only in part, etc.

II

1. On 23 March 1999, the Seimas adopted the Republic of Lithuania’s Law on Provisional Investigation Commissions in which the formation of provisional investigation commissions of the Seimas the Republic of Lithuania is established, their tasks, powers and procedure of work.

On 3 April 2003, the Seimas adopted the Republic of Lithuania’s Law on the Amendment of Articles 3, 4, and 8 of the Law on Seimas Provisional Investigation Commissions, while on 6 November 2003 it adopted the Republic of Lithuania’s Law on the Amendment of Article 7 of the Law on Seimas Provisional Investigation Commissions, whereby, correspondingly, Articles 3, 4, 8, and 7 of the Law on Seimas Provisional Investigation Commissions were amended.

2. Paragraph 1 of Article 2 of the Law on Seimas Provisional Investigation Commissions provides that the Seimas, having recognised a necessity to investigate an issue of state importance, may form a Seimas provisional investigation commission. Under the Law, the procedure of the formation of the Seimas provisional investigation commission is regulated by the Statute of the Seimas (Paragraph 2 of Article 2 of the Law). Paragraph 3 of Article 2 of the Law provides that the issue to be considered by the commission and the term of its work shall be established by means of a Seimas resolution.

It needs to be emphasised that the provision “the Seimas, having recognised a necessity to investigate an issue of state importance, may form a Seimas provisional investigation commission” of Paragraph 1 of Article 2 of the Law means that the Seimas, under the Law, enjoys powers to form a Seimas provisional investigation commission in order to investigate not any, but a special issue, i.e. that of state importance. Thus, in every particular case the Seimas, before it decides on the formation of a Seimas provisional investigation commission, must consider and assess whether the issue is really that of state importance.

Under Paragraph 1 of Article 3 (wording of 3 April 2003) of the Law, the Seimas provisional investigation commission must elucidate and establish whether the actions were performed, decisions were adopted related with the issues which are assigned to it to be investigated, also to elucidate other circumstances related with the investigated issue; the circumstances established by the commission must be confirmed by documents and other evidence.

3. In Paragraph 1 of Article 4 (3 April 2003) of the Law the rights of the Seimas provisional investigation commission are established. The Seimas provisional investigation commission has the right: to familiarise itself with the information related with the investigated issue, to receive documents, data or information from all state and governance institutions, the Bank of Lithuania, state and municipal enterprises (including those controlled by them), establishments and organisations, even if they comprise the commercial, bank or official secret, also to receive primary and other documents, in which such data or information is recorded; if the data comprise the state secret, they must be presented to the commission under the procedure established by the Republic of Lithuania’s Law on State Secrets and Their Protection and the Republic of Lithuania’s Law on Operational Activities (Item 1); to receive verbal and written explanations or notes from heads and other employees of all state and governance institutions, the Bank of Lithuania, state and municipal enterprises (including those controlled by them), establishments and organisations, concerning the issues considered by the commission, as well as notes about the material and documents available at state institutions, enterprises, establishments or organisations (Item 2); to summon to its sittings state and municipal politicians, officials, servants as well as other persons working at state and municipal institutions, to hear their explanations, to demand that they present information or data concerning the issue considered by the commission and to receive them either in writing or orally (Item 3); to summon to its sittings other persons and request them to present reports, explanations, information or data concerning the issue investigated by the commission either in writing or orally (Item 4); upon the coordination with the Office of the Prosecutor General, the National Audit Office, the State Security Department or an institution of pre-trial investigation, to familiarise itself, according to the procedure established by law, with a criminal case or other material and documents that are at their disposal (Item 5); upon co-ordination with heads of state institutions, establishments, enterprises or organisations, to invite their employees in order to help to conduct inspections or audits (Item 6); to appeal to residents, via mass media, and request their help on the investigated issue (Item 7); to present proposals to the Seimas, the Government and other state institutions on the issues related with the decision in the assigned investigation (Item 8); to present proposals to the Seimas and the Government concerning amendment, supplement of legal acts, their recognition as no longer valid or concerning drafting and adoption of new legal acts (Item 9); to present proposals to the Seimas concerning removal of a member of the commission for violations of the Law (Item 10).

4. In the context of the case at issue, it needs to be noted that Items 1, 2, 3, 4, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law consolidate the rights of the Seimas provisional investigation commission that are linked with the receiving of the information from the persons indicated in these items, which is necessary for carrying out of the tasks formulated to the commission by the Seimas. The powers of the Seimas provisional investigation commission, linked with the receiving of the said information, are distinguished as to from what persons this information must be received, the character of the information, also as to the way according to which the Seimas provisional investigation commission must receive this information from certain persons.

4.1. In Items 1 and 2 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law the right of the Seimas provisional investigation commission is entrenched to receive documents, data, information, as well as the primary and other documents, in which these data were recorded, verbal and written explanations or references, as well as references about the available material, documents from heads and other employees from all state institutions of power and governance, the Bank of Lithuania, state and municipal enterprises (including those controlled by them), establishments and organisations, their heads and other employees related to the issues investigated by the Seimas provisional investigation commission. This information is necessary so that the Seimas provisional investigation commission would perform the tasks formulated to it by the Seimas.

The legal regulation established in Items 1 and 2 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law means, inter alia, that the persons indicated in these items must present all information to the Seimas provisional investigation commission, which is necessary to perform the tasks of the commission. It needs to be noted that the Law does not provide that a person indicated in Items 1 and 2 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law can refuse to present the aforementioned information, or to present not all information (save the exceptions, established in Paragraph 2 of Article 3 (wording of 3 April 2003) of the Law). On the contrary, under Item 1 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law, one must present documents, data or information to the Seimas provisional investigation commission, even if this is a state, commercial, bank, or official secret; this item also provides that if the data comprise the state secret, they must be presented to the commission under the procedure established by the Law on State Secrets and Their Protection and the Law on Operational Activities, while under Paragraph 2 of Article 4 (wording of 3 April 2003) of the Law, in cases when one refuses to present the documents and material indicated in Item 1 of Paragraph 1 of the same article, which are demanded by the commission, the commission has the right to invite police officers so that they help to seize these documents and material, save the cases when such documents and material are in a criminal case or operative record file or card, in a civil or administrative case, or when they are material of on-going inspection under the procedure established in the Code of Criminal Procedure. In this context, it should also be mentioned that under Paragraph 6 of Article 7 (wording of 6 November 2003) of the Law, in case the issue under investigation is linked with the state secret, then the sittings of the Seimas provisional investigation commission are closed to all persons except the summoned ones, also that under Paragraph 5 of Article 8 (wording of 3 April 2003) of the Law, when the mass media are informed about a conclusion or decision adopted by the Seimas provisional investigation commission, the data or information which comprise a state, commercial, bank, official, private life secret or another secret protected by law shall not be presented.

4.2. Item 3 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law consolidates the right of the Seimas provisional investigation commission to summon to its sittings state and municipal politicians, officials, servants as well as other persons working at state and municipal institutions, to hear their explanations, to demand that they present information or data concerning the issue considered by the commission and to receive them either in writing or orally. This information is also necessary so that the Seimas provisional investigation commission would perform the tasks assigned to it by the Seimas.

The legal regulation established in Item 3 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law means, inter alia, that the persons indicated in this item, who are summoned to a sitting of the Seimas provisional investigation commission, have a duty to appear at the sitting and present explanations to the commission concerning the investigated issue of state importance, to answer the questions given by members of the commission, also that explanations to the commission and answers to questions of members of the commission must be presented in the manner established by the commission, i.e. either orally or in writing. It needs to be noted that the Law does not provide that a certain person indicated in Item 3 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law who is summoned to a sitting of the Seimas provisional investigation commission has the right not to appear or refuse to appear at this sitting without valid reasons; the law does not provide, either, that a certain person indicated in Item 3 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law has the right to refuse to present explanations to the Seimas provisional investigation commission concerning the investigated question of state importance (save the exceptions established in Paragraph 2 of Article 3 (wording of 3 April 2003) of the Law). Thus, under the Law all the persons indicated in Item 3 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law who are summoned must appear at the sitting of the Seimas provisional investigation commission, must present explanations to the commission concerning the investigated issue of state importance, must answer the questions given by members of the commission in the manner established by the commission, i.e. either in writing or orally (save the exceptions established in Paragraph 2 of Article 3 (wording of 3 April 2003) of the Law).

4.3. It needs to be emphasised that should the persons indicated in Items 1, 2, and 3 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law fail to carry out of the aforesaid requirements of the Seimas provisional investigation commission and refuse to present the information indicated in these items to the commission, which is necessary so that the Seimas provisional investigation commission would perform the tasks assigned to it by the Seimas, or should present not all information (save the exceptions established in Paragraph 2 of Article 3 (wording of 3 April 2003) of the Law), then, having taken account of all important circumstances in each particular case, it might be regarded as a hindrance for the Seimas provisional investigation commission to perform the tasks assigned to it by the Seimas. Alongside, this would be a hindrance for the Seimas, the representation of the Nation, to discharge its constitutional functions, and to realise the constitutional powers of the Seimas.

4.4. Under Item 4 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law, the Seimas provisional investigation commission also has the right to summon to its sittings other persons and request them to present, either in writing or orally, reports, explanations, information or data concerning the issue investigated by the commission.

It needs to be noted that the Law does not contain any provisions on the grounds of which the Seimas provisional investigation commission might demand that the persons indicated in Item 4 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law appear at a sitting of the Seimas provisional investigation commission that summoned them, and present reports, explanations, information or data concerning the issue of state importance investigated by the commission.

Thus, the legal regulation established in Item 4 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law means, inter alia, that the persons indicated in this item may, at their own discretion, decide whether to appear at the sitting of the Seimas provisional investigation commission that has summoned them, and that they may, at their discretion, decide whether or not to present reports, explanations, information or data concerning the issue of state importance investigated by the commission, and whether or not to answer the questions given by members of the Seimas provisional investigation commission.

It needs to be emphasised that the legal regulation established in Item 4 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law does not ensure that the Seimas provisional investigation commission will, in all cases, receive all information necessary for the investigation conducted by it; thus, the aforementioned legal regulation creates preconditions for aggravating the work of the Seimas provisional investigation commission and does not ensure that the Seimas provisional investigation commission will, in all cases, perform the tasks assigned to it by the Seimas. Therefore, the said legal regulation does not ensure that the Seimas will, in all cases, receive exhaustive and objective information concerning the investigated issue of state importance, that the Seimas in all cases will be able to effectively act in the interests of the Nation and the State of Lithuania, and to properly execute its constitutional obligation. This legal regulation established in Item 4 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law should be amended.

4.5. Under Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law, the Seimas provisional investigation commission has the right, “upon the coordination with the Office of the Prosecutor General, the National Audit Office, the State Security Department or an institution of pre-trial investigation, to familiarise itself, according to the procedure established by law, with a criminal case or other material and documents that are at their disposal”.

Thus, Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law provides for certain peculiarities of reception of the information necessary for the investigation by the Seimas provisional investigation commission, which is at the disposal of the Office of the Prosecutor General, the National Audit Office, the State Security Department or an institution of pre-trial investigation: it is permitted to familiarise oneself with a criminal case or other material and documents that are at the disposal of these state institutions only upon the coordination with these state institutions.

The notion “upon coordination” of Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law means that the Seimas provisional investigation commission may receive the information necessary for its investigation, which is in criminal cases or other material and documents that are at the disposal of the Office of the Prosecutor General, the National Audit Office, the State Security Department or an institution of pre-trial investigation, only after it receives consent of a respective state institution; in case the said state institutions do not consent that the Seimas provisional investigation commission receive this information, then the commission will not be able to receive this information.

The formula “according to the procedure established by law” of Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law means that the Seimas provisional investigation commission cannot establish the procedure for familiarising with a criminal case or other material and documents that are at the disposal of the Office of the Prosecutor General, the National Audit Office, the State Security Department or an institution of pre-trial investigation by itself—this is done in accordance with the procedure established by law. It is clear that the organisational and technical questions of such familiarisation must be coordinated with the state institutions at whose disposal there is the criminal case or other material and documents.

The independence of the prosecutor in the organisation of pre-trial investigation and being in charge of it, pursuit of charges on behalf of the state in criminal cases are consolidated in the Constitution, therefore, the legal regulation established in Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law should be analysed and assessed in the context of the constitutional regulation.

Paragraph 1 of Article 118 of the Constitution provides that the prosecutor shall organise and be in charge of pre-trial investigation as well as pursue charges on behalf of the state in criminal cases; Paragraph 2 of the same article provides that in the events established by law, the prosecutor defends the rights and legitimate interests of the person, society and the state; Paragraph 3 of Article 118 of the Constitution provides that, while discharging his functions, the prosecutor shall be independent and obey only the law. Thus, it needs to be noted that the independence of the prosecutor in the organisation of pre-trial investigation and being in charge of it, pursuit of charges on behalf of the state in criminal cases are a constitutional value; under the Constitution, it is not permitted to establish any such legal regulation whereby this constitutional value might be denied or otherwise the independence of the prosecutor, in the course of organising pre-trial investigation and being in charge of it, while pursuing charges on behalf of the state in criminal cases, would be denied or restricted otherwise.

The Constitution shall be an integral act (Paragraph 1 of Article 6 of the Constitution). The Constitutional Court has held that the principles and norms of the Constitution compose a harmonious system, that no provision of the Constitution may be construed so that the content of another constitutional provision would be distorted or denied, since the essence of the whole constitutional regulation would thus be distorted and the balance of values consolidated in the Constitution would thus be disturbed (the Constitutional Court’s ruling of 3 December 2003). The Constitutional Court also held that the legislature must coordinate different interests and ensure the balance of constitutional values (the Constitutional Court’s ruling of 24 September 1998).

In the context of the case at issue, it needs to be noted that one constitutional value—the independence of the prosecutor in the organisation of pre-trial investigation and being in charge of it, pursuit of charges on behalf of the state in criminal cases—may not be opposed to any other constitutional values; the legislature must ensure a balance between this constitutional value and other constitutional values so that not a single of constitutional values would be raised above other constitutional values or, on the contrary, would be sacrificed to the benefit of another constitutional value.

It has been mentioned that the functions of the Seimas, as the representation of the Nation of a democratic state under the rule of law, which are entrenched in the Constitution, i.e. the legislative, control, establishment, budgetary functions etc., are constitutional values, that the legislature and other subjects of lawmaking may not establish any such legal regulation whereby the said constitutional functions of the Seimas would be denied or opportunities to discharge them would be restricted. It was also mentioned that in order that it might properly discharge its parliamentary functions and implement its constitutional powers, the Seimas, the representation of the Nation, has to possess exhaustive and objective information about the processes taking place in the state and society, about the situation in various sectors of life of the state and society and the arising problems. It was also mentioned that the Seimas, in case of need, enjoys discretion to form such its structural subunits which would be assigned to conduct investigation so that information about the processes taking place in the state and society, about the situation in various sectors of life of the state and society and the arising problems could be collected.

It was held in this ruling of the Constitutional Court that, under Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law, in case the Office of the Prosecutor General, the National Audit Office, the State Security Department or an institution of pre-trial investigation do not consent that the Seimas provisional investigation commission receive this information, then the Seimas provisional investigation commission will not be able to receive the information which is necessary for its investigation, which is in criminal cases or other material and documents that are at the disposal of the aforementioned state institutions. It needs to be noted that this item (and, in general, the Law) does not provide for any criteria on the basis of which the Office of the Prosecutor General, the National Audit Office, the State Security Department or an institution of pre-trial investigation might refuse to give their consent in order that the Seimas provisional investigation commission would receive the information necessary for it, or on the basis of which certain limitations could be applied to the use of this information in the work of the commission.

Having held this, one is also to hold that, by the legal regulation established in Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law, one has created preconditions for placing one constitutional value—the independence of the prosecutor in the organisation of pre-trial investigation and being in charge of it—in opposition to other constitutional values, for raising it above the latter, in particular, above the functions of the Seimas as the representation of the Nation, and above the logical necessity, which follows from the purpose of the Seimas, from its constitutional functions and constitutional powers, which is to undertake by itself, in case of need, to investigation activity in connection with an issue of state importance so that to receive exhaustive and objective information about certain processes taking place in the state and society, about the situation in various sectors of life of the state and society and the arising problems.

On the other hand, it needs to be noted that although the legal regulation established in Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law has created pre-conditions for aggravating the discharge of certain functions of the Seimas, as the representation of the Nation, the said constitutional values are not denied by this legal regulation, therefore, there is no ground to hold that the legal regulation established in Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law is in conflict with the Constitution in the said aspect. However, it needs to be emphasised that this legal regulation should be amended and particularised in order that the “coordination” indicated in Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law would not create pre-conditions for the institutions pointed out in this item virtually not to permit the Seimas provisional investigation commission to conduct thorough and objective investigation in connection with the issue of state importance that has been assigned to it, in other words, that one would not create pre-conditions for placing pre-trial investigation in opposition to the investigation of the issue of state importance conducted by the Seimas provisional investigation commission.

4.6. The legal regulation established in Items 1, 2, 3, 4, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law is inseparable from the legal regulation established in other articles (parts, items thereof) of the Law.

4.6.1. For example, Paragraph 2 of Article 3 (wording of 3 April 2003) of the Law provides that the Seimas provisional investigation commission, while investigating the issue assigned to it and implementing its rights, does not interfere with the activities of the court, the judge, the prosecutor, the official of pre-trial investigation when they conduct the pre-trial investigation and consider the case in court.

Thus, under the Law, the Seimas provisional investigation commission does not have any right to demand that a judge, a prosecutor, an official of pre-trial investigation should present to the Seimas provisional investigation commission explanations concerning on-going or completed pre-trial investigation, or a case that has been accepted for consideration, or is being considered in court, or whose consideration in court is over, thus, the judge, the prosecutor, the official of pre-trial investigation cannot be summoned to a sitting of the Seimas provisional investigation commission to present their explanations concerning on-going or completed pre-trial investigation, or a case that has been accepted for consideration, or is being considered in court , or whose consideration in court is over. Thus, the legal regulation established in Paragraph 2 of Article 3 (wording of 3 April 2003) of the Law provides for an exception, which is applicable to the duty consolidated in Items 1 and 2 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law, of all state institutions of power and governance, the Bank of Lithuania, state and municipal enterprises (including those controlled by them), establishments and organisations, of their heads and other employees to present to the Seimas provisional investigation commission all information necessary to perform the tasks of the commission (documents, data, information, as well as primary and other documents in which these data or information is recorded, verbal and written explanations or references from the heads or other employees, also references about the available material and documents), as well as an exception which is applicable to the duty consolidated in Item 3 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law, of state and municipal politicians, officials, employees, other persons who work at state or municipal institutions to appear at the sitting of the Seimas provisional investigation commission, to present explanations concerning the issue of state importance that is investigated by the commission, to answer the questions of members of the commission.

It has been mentioned that, under Paragraph 2 of Article 4 (wording of 3 April 2003) of the Law, in cases when one refuses to present to the Seimas provisional investigation commission the documents and material required by the commission, which are indicated in Item 1 of Paragraph 1 of the same article, the commission has the right to invite police officers so that they help to seize these documents and material, save the cases when such documents and material are in a criminal case or operative record file or card, in a civil or administrative case, or when they are material of on-going inspection under the procedure established in the Code of Criminal Procedure.

The legal regulation established in Paragraph 2 of Article 3 (wording of 3 April 2003) and Paragraph 2 of Article 4 (wording of 3 April 2003) of the Law should be regarded as one ensuring that in the activities of the Seimas provisional investigation commission one will follow the provision of Paragraph 1 of Article 109 of the Constitution that in the Republic of Lithuania justice shall be administered solely by courts, the provision of Paragraph 2 of Article 109 of the Constitution that while administering justice, the judge and courts shall be independent, the provision of Paragraph 3 of Article 109 of the Constitution that while considering cases, judges shall obey only the law, the provision of Paragraph 1 of Article 114 of the Constitution that interference by institutions of state power and administration, members of the Seimas and other officials, political parties, political and public organisations, or citizens with the activities of a judge or the court shall be prohibited and incur liability as provided for by law, the provision of Paragraph 1 of Article 118 of the Constitution that the prosecutor shall organise and be in charge of pre-trial investigation as well as pursue charges on behalf of the state in criminal cases, the provision of Paragraph 3 of Article 118 of the Constitution that while discharging his functions, the prosecutor shall be independent and obey only the law, as well as the other provisions of the Constitution that consolidate the independence of the judge and courts in the course of administration of justice and the independence of the prosecutor in the course of organisation of pre-trial investigation and being in charge of it.

Alongside, it needs to be noted that there might occur a situation where the information necessary so that the Seimas provisional investigation commission would perform the tasks formulated to it by the Seimas is possessed by a judge, a prosecutor, or an official of pre-trial investigation, who learned about this information or otherwise received it while they were outside their duties as a judge, a prosecutor, or an official of pre-trial investigation. In such cases, under the Law, the Seimas provisional investigation commission has the right to demand that the judge, the prosecutor, or the official of pre-trial investigation should appear, after they have been summoned, at the sitting of the commission and that the indicated persons present their explanations to the Seimas provisional investigation commission in connection with the questions not related with on-going or completed pre-trial investigation, or a case that has been accepted for consideration, or is being considered in court, or whose consideration in court is over. However, even in these cases the Seimas provisional investigation commission does not have the right to demand that the judge, the prosecutor, or the official of pre-trial investigation should appear, after they have been summoned, at the sitting of the commission and that the indicated persons present their explanations to the Seimas provisional investigation commission, if this could be regarded as interference with the activities of the judge, the prosecutor, or the official of pre-trial investigation when they discharge the functions established to them in the Constitution and laws, and if this could be regarded as a violation of the independence of the judge or the prosecutor.

It also needs to be noted that it is impossible to construe the legal regulation established in Paragraph 2 of Article 3 (wording of 3 April 2003) of the Law as meaning that, purportedly, the Seimas provisional investigation commission in general does not have the right to demand any information from the court or the Prosecutor’s Office of the Republic of Lithuania in connection with the issues of state importance investigated by the Seimas provisional investigation commission. However, under the Constitution, the Seimas provisional investigation commission cannot demand any such information from the court or the Prosecutor’s Office of the Republic of Lithuania, the demand of which could be regarded as interference with the activities of these institutions, when they discharge their functions established in the Constitution and laws, and as a violation of the independence of the judge or the prosecutor.

4.6.2. Under Paragraph 3 of Article 4 (wording of 3 April 2003) of the Law, the persons indicated in Items 2, 3 and 4 of Paragraph 1 of the same article, who present explanations to the Seimas provisional investigation commission, may not be compelled to give explanations against themselves, members of their families or close relatives.

In this ruling of the Constitutional Court it was held that when the Seimas establishes the powers of its structural subunits in regard of various state and municipal institutions, their officials and other persons, one must pay heed to the norms and principles of the Constitution.

It needs to be noted that the legal regulation established in Paragraph 3 of Article 4 (wording of 3 April 2003) of the Law should be regarded as ensuring that in the activities of the Seimas provisional investigation commission one will follow the provision of Paragraph 3 of Article 31 of the Constitution that it shall be prohibited to compel one to give evidence against oneself or against one’s family members or close relatives, as well as the other provisions of the Constitution consolidating human rights and freedoms, and also the family as a constitutional value.

5. Article 8 (wording of 3 April 2003) of the Law provides as to what decisions the Seimas provisional investigation commission may adopt in relation with the considered issue, this article also provides for the procedure of presentation of the conclusion of the Seimas provisional investigation commission to the Seimas, other state institutions, the mass media, etc.

Under Paragraph 1 of Article 8 (wording of 3 April 2003) of the Law, the results of the investigation of the Seimas provisional investigation commission are drawn up in a draft conclusion; in it the circumstances elucidated in the course of the investigation, the collected evidence are indicated and a legal assessment of the situation is presented. Under Paragraph 2 of the same article, the Seimas provisional investigation commission, after it has considered the draft conclusion, may: decide to transfer the material to institutions of pre-trial investigation or prosecutor’s office (Item 1); propose that state and self-government institutions bring the persons who committed the violations to disciplinary liability, or decide whether these persons are fit to the office that they are holding (Item 2); state that, in the opinion of the commission, there have not been any actions performed or decisions adopted which the commission is assigned to investigate, also that the actions performed or decisions adopted are not in conflict with laws and other legal acts (Item 3). Under Paragraph 3 of Article 8 (wording of 3 April 2003) of the Law, the conclusion must, within one day after the decision was adopted, be presented to the Seimas. Paragraph 4 of Article 8 (wording of 3 April 2003) of the Law provides that the conclusion of the commission may also be given to institutions of state administration or municipal institutions; these institutions must consider the conclusion within the time period indicated in the decision of the commission and must inform the commission about the results of the consideration. Under Paragraph 5 of Article 8 (wording of 3 April 2003) of the Law, the Seimas provisional investigation commission, after it has presented its conclusion or adopted decision to the Seimas, informs public mass media about this; the data or information which comprises the state, commercial, bank, official, private life secret or another secret protected by law, may not be published.

The conclusion of the Seimas provisional investigation commission is a legal act adopted by the Seimas provisional investigation commission in which an assessment of certain actions or facts for an investigation of which the commission has been formed is presented, an opinion is expressed regarding the issue that has been assigned to it, corresponding proposals are formulated, etc. The purpose of the conclusion of the Seimas provisional investigation commission is to present information to the Seimas in connection with the issue of state importance, which has been investigated by the commission, so that the Seimas might adopt respective decisions.

6. As mentioned before, under Paragraph 1 of Article 8 (wording of 3 April 2003) of the Law, the draft conclusion of the Seimas provisional investigation commission contains, inter alia, a legal assessment of the situation.

One must pay attention to the fact that the Seimas provisional investigation commission is neither an institution of pre-trial investigation, nor the prosecutor’s office, nor the court. The formula “legal assessment” is a general notion; it does not mean that the Seimas provisional investigation commission must or may present the legal qualification of the actions that it has investigated, of the decisions adopted by it on the issues that it was assigned to investigate, and of other circumstances that were elucidated by it, which are related with the investigated issue, i.e. this formula does not mean that the Seimas provisional investigation commission has to or may state the compliance or non-compliance of the said actions, decisions, circumstances with legal acts, but this means that the said actions and decisions must be investigated, other circumstances related with the investigated question must be elucidated and that the results of the Seimas provisional investigation commission must be drawn up so that on their basis it might be possible to adopt legal decisions—either to adopt respective legal acts or not to adopt them.

It also needs to be noted that, under the Law, Seimas provisional investigation commissions are formed in order to investigate issues of state importance, while these questions may be very much varied ones, also such in whose connection adopted decisions are determined not by legal, but economic, social and other assessments, and expediency reasons. Thus, it is impossible to objectively address the provision of Paragraph 1 of Article 8 (wording of 3 April 2003) of the Law that in the draft conclusion of the Seimas provisional investigation commission a legal assessment of the situation is presented to all Seimas provisional investigation commissions which might be formed in accordance with the Law; by taking account of the character of the investigated situation, of the fact as to what actions, decisions, circumstances the Seimas provisional investigation commission has been considering, what tasks were raised before the commission, then, objectively, the assessment presented in its draft conclusion could not necessarily be a legal, but different one. Therefore, the said provision of Paragraph 1 of Article 8 (wording of 3 April 2003) of the Law cannot be construed as an imperative one, i.e. it is impossible to construe it as meaning that in all cases it is a legal assessment of the situation but not a different one must be presented without having regard to the actions, decisions, and circumstances that were elucidated by the Seimas provisional investigation commission, as well as to its tasks.

7. It needs to be emphasised that the conclusion (its individual statements) of the Seimas provisional investigation commission in itself directly does not give rise to any legal effects to the persons indicated in it. Such effects could be raised to them only by decisions of other institutions and their officers, which may be adopted, while taking into consideration of the conclusion of the Seimas provisional investigation commission.

8. It has been held in this ruling of the Constitutional Court that the Seimas, after it has formed a certain structural subunit, has established its powers, has formulated certain tasks to it, also has the right, under the Constitution, to assess, under procedure established by legal acts, the activity and the results of this structural subunit, also the fact that the Seimas decides at its discretion as to the form that the activities of the structural subunit of the Seimas and their results must be assessed.

Thus, under the Constitution, the Seimas has the right to assess both the activity of the provisional investigation commission formed by it and the conclusion of this commission, which is provided for in the Law. The Seimas may express its opinion and point of view in various forms as regards the conclusion of the Seimas provisional investigation commission. For example, the Seimas may decide whether to approve or not to approve of the conclusion of the Seimas provisional investigation commission, or to approve of it in part (with reservations), the Seimas may hold that the Seimas provisional investigation commission that was formed by it has performed the tasks which have been formulated to it, or that it has not performed them, or that performed them in part, the Seimas may also hold that the Seimas provisional investigation commission has finished its activity, or decide to prolong its activities, etc. It needs to be noted that the conclusion of the Seimas provisional investigation commission is not binding on the Seimas.

9. In the context of the case at issue, it needs to be noted that the Law does not contain any provisions that would indicate in what form the Seimas ought to or could express its opinion and point of view as to the conclusion of the Seimas provisional investigation commission formed by it.

Alongside, it needs to be noted that, under Paragraph 1 of Article 76 of the Statute of the Seimas, having completed the assigned work, the Seimas provisional investigation commission shall submit to Seimas the collected and summarised data, conclusion and prepared draft decision. Under Paragraph 2 of the same article, a resolution is passed at the Seimas sitting regarding the issue examined by the Seimas provisional investigation commission. Thus, according to the Statute of the Seimas, the opinion and point of view of the Seimas regarding the conclusion of the Seimas provisional investigation commission formed by it may be formulated in a corresponding resolution of the Seimas.

It is clear that the Seimas is not an institution of pre-trial investigation, or the prosecutor’s office, or a court. Therefore, it needs to be noted that the formulation of the opinion and point of view of the Seimas regarding the conclusion of the Seimas provisional investigation commission formed by it in a resolution of the Seimas may not be construed, under the Constitution, as legal qualification of the actions that the Seimas provisional commission has investigated, of the decisions adopted by it on the issues that it was assigned to investigate, and of other circumstances that were elucidated by it. The Seimas, after it has decided either to approve or not to approve of the conclusion of the Seimas provisional investigation commission, or to approve of it in part (with reservations), does not adopt a decision on the compliance of the said actions, decisions, and circumstances with legal acts which is mandatory to other state institution (including institutions of pre-trial investigation, the prosecutor’s office, courts), but it merely formulates its point of view as to the conclusion of the Seimas provisional investigation commission that was formed by it. The Seimas resolution in which the opinion and point of view of the Seimas are formulated as to the conclusion of the Seimas provisional investigation commission that was formed by it is not binding on institutions of pre-trial investigation, the prosecutor’s office, and the court.

It also needs to be noted that neither the Law on Seimas Provisional Investigation Commissions, nor the Statute of the Seimas in general, does not contain any provisions obligating the Seimas to present a legal assessment of the actions or facts that were investigated by the Seimas provisional investigation commission formed by it. The Seimas resolution in which the point of view of the Seimas is formulated as regards the conclusion of the Seimas provisional investigation commission formed by it, as well as this conclusion (or its individual statements), in itself directly does not give rise to any legal effects to the persons indicated in the conclusion. Such effects could be raised to them only by decisions of other institutions and their officers, which may be adopted, while taking into consideration of the conclusion of the Seimas provisional investigation commission.

III

On the compliance of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law on Seimas Provisional Investigation Commissions with Articles 5, 55, 61, 67, 109, and 118 of the Constitution.

1. Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law provides, inter alia, that:

The Commission shall have the right:

1) to familiarise itself with the information related with the investigated issue, to receive documents, data or information from all state and governance institutions, the Bank of Lithuania, state and municipal enterprises (including those controlled by them), establishments and organisations, even if they comprise the commercial, bank or official secret, also to receive primary and other documents, in which such data or information is recorded; if the data comprise the state secret, they must be presented to the commission under the procedure established by the Republic of Lithuania’s Law on State Secrets and Their Protection and the Republic of Lithuania’s Law on Operational Activities;

2) to receive verbal and written explanations or notes from heads and other employees of all state and governance institutions, the Bank of Lithuania, state and municipal enterprises (including those controlled by them), establishments and organisations, concerning the issues considered by the commission, as well as notes about the material and documents available at state institutions, enterprises, establishments or organisations;

3) to summon to its sittings state and municipal politicians, officials, servants as well as other persons working at state and municipal institutions, to hear their explanations, to demand that they present information or data concerning the issue considered by the commission and to receive them either in writing or orally; <…>

5) upon the coordination with the Office of the Prosecutor General, the National Audit Office, the State Security Department or an institution of pre-trial investigation, to familiarise itself, according to the procedure established by law, with a criminal case or other material and documents that are at their disposal; <…>”.

2. In their 24 November 2003 petition, a group of members of the Seimas, a petitioner, requests an investigation into whether the following is not in conflict with Articles 5, 55, 61, 67, 109, and 118 of the Constitution:

Item 1 of Paragraph 1 of Article 4 of the Law on Seimas Provisional Investigation Commissions to the extent that it provides that the commission has the right to receive documents, data or information from all state and governance institutions, state and municipal enterprises (including those controlled by them), establishments and organisations, even if they comprise the commercial, bank or official secret, also to receive primary and other documents, in which such data or information is recorded,

Item 2 of Paragraph 1 of Article 4 of the Law on Seimas Provisional Investigation Commissions to the extent that it provides that the commission has the right to receive verbal and written explanations or notes from heads and other employees of all state and governance institutions, state and municipal enterprises (including those controlled by them), establishments and organisations, concerning the issues considered by the commission, as well as notes about the material and documents available at state institutions, enterprises, establishments or organisations,

Item 3 of Paragraph 1 of Article 4 of the Law on Seimas Provisional Investigation Commissions to the extent that it provides that that the commission has the right to summon to its sittings state and municipal politicians, officials, servants as well as other persons working at state and municipal institutions, to hear their explanations, to demand that they present information or data concerning the issue considered by the commission and to receive them either in writing or orally,

Item 5 of Paragraph 1 of Article 4 of the Law on Seimas Provisional Investigation Commissions to the extent that it provides that the commission has the right, upon the coordination with the Office of the Prosecutor General or an institution of pre-trial investigation, to familiarise itself, according to the procedure established by law, with a criminal case or other material and documents that are at their disposal.

3. The doubts of the petitioner concerning the compliance of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law with Articles 55, 61, and 67 of the Constitution are based on the fact that, according to the petitioner, the provisional investigation commission that is formed by the Seimas cannot have more powers than an individual member of the Seimas (member of the commission). The petitioner believes that from Article 55 of the Constitution follow the rights of members of the Seimas, representatives of the Nations, directly linked with participation in the work of the Seimas and Seimas committees (voting on all questions considered at the Seimas at all the sittings of the Seimas, the committee, and the commission whose member he is, participation in discussions on all debated issues, the proposing of issues to the Seimas for deliberation, the making of statements, drafting laws and other legal acts and their submission to the Seimas for deliberation, etc.). The petitioner is of the opinion that a systemic construction of Article 67 of the Constitution which regulates the powers of the Seimas and Article 61 of the Constitution which consolidates the rights of members of the Seimas related with the parliamentary control function, permits draw the conclusion that only members of the Government, the President of the Board of the Bank of Lithuania, the Auditor General, members of the Central Electoral Commission, the heads and other employees of other institutions established or formed by the Seimas, may be summoned to sittings of a commission formed by the Seimas, and that one may demand that only the said persons present documents and other information. Therefore, the petitioner doubts whether the impugned provisions of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law, which grant the right to the Seimas provisional investigation commission to demand information from institutions that are not accountable from the Seimas and to summon to its sittings state and municipal politicians, officials, servants, other persons who are not accountable to the Seimas, are not in conflict with Articles 55, 61, and 67 of the Constitution.

3.1. Article 55 of the Constitution provides:

The Seimas shall consist of representatives of the Nation—141 members of the Seimas who shall be elected for a four-year term on the basis of universal, equal, and direct electoral right by secret ballot.

The Seimas shall be deemed elected when not less than 3/5 of the members of the Seimas have been elected.

The procedure for election of members of the Seimas shall be established by law.”

3.1.1. Thus, Article 55 of the Constitution provides the members of the Seimas are representatives of the Nation, how many representatives of the Nation—members of the Seimas—compose the Seimas, it consolidates the constitutional grounds for election of members of the Seimas.

Meanwhile, Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law provide for the powers of Seimas provisional investigation commissions related with reception of information from the persons indicated in these items, which is necessary in order that the Seimas provisional investigation commission would perform the tasks formulated to it by the Seimas. Thus, Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law regulate relations of a different character than those regulated in Article 55 of the Constitution.

3.1.2. Taking account of the arguments set forth, the conclusion should be drawn that Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law are not in conflict with Article 55 of the Constitution.

3.2. Article 61 of the Constitution provides:

A member of the Seimas shall have the right to submit an inquiry to the Prime Minister, the Ministers, and the heads of other State institutions formed or elected by the Seimas. The said persons must respond orally or in writing at the session of the Seimas in accordance with the procedure established by the Seimas.

At a session of the Seimas, a group of not less than 1/5 of the members of the Seimas may interpellate the Prime Minister or a Minister.

Upon considering the response of the Prime Minister or a Minister to the interpellation, the Seimas may decide that the response is not satisfactory, and, by a majority vote of half of all the members of the Seimas, express no-confidence in the Prime Minister or the Minister.

The voting procedure shall be established by law.”

3.2.1. Thus, Article 61 of the Constitution consolidates the right of inquiry of the Seimas member, the right of a group of members of the Seimas to interpellate the Prime Minister or a minister, as well as the right of the Seimas to express no-confidence in the Prime Minister or the minister.

Meanwhile, as mentioned before, Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law provide for the powers of Seimas provisional investigation commissions related with reception of information from the persons indicated in these items, which is necessary in order that the Seimas provisional investigation commission would perform the tasks formulated to it by the Seimas. Thus, Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law regulate relations of a different character than those regulated in Article 61 of the Constitution.

3.2.2. Taking account of the arguments set forth, the conclusion should be drawn that Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law are not in conflict with Article 61 of the Constitution.

3.3. Article 67 of the Constitution provides:

The Seimas:

1) shall consider and adopt amendments to the Constitution;

2) shall pass laws;

3) shall adopt resolutions on referendums;

4) shall appoint an election for the President of the Republic of Lithuania;

5) shall establish State institutions provided for by law, and shall appoint and release their heads;

6) shall approve or disapprove of the candidature of the Prime Minister presented by the President of the Republic;

7) shall consider the programme of the Government presented by the Prime Minister, and decide whether to approve of it;

8) shall, upon the motion of the Government, establish and abolish ministries of the Republic of Lithuania;

9) shall supervise the activities of the Government, and may express no-confidence in the Prime Minister or a Minister;

10) shall appoint justices to, and Presidents of, the Constitutional Court and the Supreme Court;

11) shall appoint and release the Auditor General as well as the President of the Board of the Bank of Lithuania;

12) shall call elections of municipal councils;

13) shall form the Central Electoral Commission and alter its composition;

14) shall confirm the State Budget and supervise the execution thereof;

15) shall establish State taxes and other obligatory payments;

16) shall ratify and denounce international treaties of the Republic of Lithuania as well as consider other issues of foreign policy;

17) shall establish administrative division of the Republic;

18) shall establish State awards of the Republic of Lithuania;

19) shall issue acts of amnesty;

20) shall impose direct administration, martial law, and a state of emergency, declare mobilisation, and adopt a decision to use the armed forces.”

3.3.1. As mentioned before, the list of constitutional powers of the Seimas consolidated in Article 67 of the Constitution is not a final one: various powers of the Seimas are consolidated in other articles (parts thereof) of the Constitution, besides, certain powers of the Seimas established in Article 67 of the Constitution are particularised and detailed in other articles (parts thereof) of the Constitution. It was also mentioned that, under the Constitution, the powers of the Seimas may be and are established not only in the Constitution, but also in laws, also, that the Seimas, as the representation of the Nation, has the right to establish, by law, also such its powers that are not expressis verbis indicated in the Constitution which, however, are designed for the implementation of the constitutional functions of the Seimas.

It was also mentioned that, under the Constitution, the Seimas enjoys discretion to form such its structural subunits which are commissioned to conduct investigation so that that information would be collected about the processes taking place in the state and society, about the situation in various sectors of life of the state and society and the arising problems, thus, the Seimas also enjoys discretion to establish the competence of these structural subunits; in case one needs to establish authoritative empowerments of a structural subunit of the Seimas in regard of institutions, their officials and other persons that are not accountable to the Seimas (including the right to demand the information the submission whereof is regulated by law), then such powers of the structural subunit of the Seimas must be established by law.

In addition, it was held in this ruling of the Constitutional Court that in order to receive exhaustive and objective information necessary to adopt corresponding decisions, the Seimas, as the representation of the Nation, has to have an opportunity to receive information not only from institutions, other persons that are accountable to it, but also from persons that are not accountable to it; the reception of this information cannot be dependent upon the fact whether or not corresponding institutions and other persons are accountable to the Seimas.

Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law provide for the powers of Seimas provisional investigation commissions related with reception of information from the persons indicated in these items, which is necessary in order that the Seimas provisional investigation commission perform the tasks formulated to it by the Seimas. It needs to be noted that, under the Law, this information has to be received so that not any issue, but a special issue of state importance would be investigated, and that the Seimas might adopt corresponding decisions, that it would effectively act in the interests of the Nation and the State of Lithuania.

3.3.2. Taking account of the arguments set forth, the conclusion should be drawn that Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law are not in conflict with Article 67 of the Constitution.

4. The doubts of the petitioner concerning the compliance of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law with Articles 109 and 118 of the Constitution are based on the fact that, according to the petitioner, the legal regulation established in these items created preconditions for interfering with the activities of courts and the prosecutor’s office, to violate the principles of the independence of the court, the judge, and the prosecutor, which are consolidated in the Constitution.

4.1. Article 109 of the Constitution provides:

In the Republic of Lithuania, justice shall be administered solely by courts.

While administering justice, the judge and courts shall be independent.

While considering cases, judges shall obey only the law.

The court shall adopt decisions in the name of the Republic of Lithuania.”

Administration of justice is a function of courts, which determines the place of this branch of power in the system of state institution as well the status of judges. No other state institution, nor any official may discharge this function (the Constitutional Court’s ruling of 21 December 1999).

4.1.1. The function of administration of justice determines the independence of judges and courts. The judge can administer justice only in case he is independent from the parties to the case, institutions of state power, officials, political and public associations, natural and legal persons (the Constitutional Court’s ruling of 12 July 2001). The independence of judges and courts is one of essential principles of a democratic state under the rule of law (the Constitutional Court’s ruling of 21 December 1999).

4.1.2. Although the petitioner requests an investigation into the compliance of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law with entire Article 109 of the Constitution, it is clear from the arguments of the petition that it has doubts only as regards the compliance of these items with Paragraphs 1, 2, and 3 of Article 109 of the Constitution.

4.1.3. As mentioned before, in Items 1 and 2 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law the right of the Seimas provisional investigation commission is entrenched to receive documents, data, information, as well as the primary and other documents, in which these data were recorded, verbal and written explanations or references, as well as references about the available material, documents from heads and other employees from all state institutions of power and governance, the Bank of Lithuania, state and municipal enterprises (including those controlled by them), establishments and organisations, their heads and other employees related to the issues investigated by the Seimas provisional investigation commission, while in Item 3—the right to summon to its sittings state and municipal politicians, officials, servants as well as other persons working at state and municipal institutions, to hear their explanations, to demand that they present information or data concerning the issue considered by the commission and to receive them either in writing or orally.

While investigating the compliance of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law with Paragraphs 1, 2, and 3 of Article 109 of the Constitution, it needs to be noted that, as it was mentioned in this ruling of the Constitutional Court, the legal regulation established in the said items of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law is inseparable from the legal regulation established in other articles (parts, items thereof) of the Law. It was also mentioned that, under Paragraph 2 of Article 3 (wording of 3 April 2003) of the Law, the commission, while investigating the issue assigned to it and implementing its rights, does not interfere, inter alia, with the activities of the court and the judge when they investigate a case in court; thus, as mentioned before, under the Law, the Seimas provisional investigation commission does not have the right to demand that a judge, when summoned, appear at the sitting of the commission, or that a judge present explanations to the commission in connection with a case accepted for consideration in court, a case that is being considered or the consideration of which is over. It was also mentioned that, under Paragraph 2 of Article 4 (wording of 3 April 2003) of the Law, in cases when one refuses to present the documents and material indicated in Item 1 of Paragraph 1 of the same article, which are demanded by the commission, the commission has the right to invite police officers so that they help to seize these documents and material, save the cases when such documents and material are, inter alia, in a criminal, civil or administrative case.

It has been held in this ruling of the Constitutional Court that the legal regulation established in Paragraph 2 of Article 3 (wording of 3 April 2003) and Paragraph 2 of Article 4 (wording of 3 April 2003) of the Law should be regarded as ensuring that in the activities of the Seimas provisional investigation commission one will follow, inter alia, the provisions of Paragraphs 1, 2, and 3 of Article 109 of the Constitution.

Thus, it should be held that the legal regulation established in Items 1, 2, and 3 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law does not mean that the Seimas provisional investigation commission may take over the constitutional powers of courts or otherwise interfere with the implementation of the constitutional competence of courts, that it may violate the independence of the judge and courts when they administer justice, let alone that it may administer justice by itself.

4.1.4. Taking account of the arguments set forth, the conclusion should be drawn that Items 1, 2, and 3 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law are not in conflict with Paragraphs 1, 2, and 3 of Article 109 of the Constitution.

4.1.5. While investigating the compliance of Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law with Paragraphs 1, 2, and 3 of Article 109 of the Constitution, it should be noted that the right of the Seimas provisional investigation commission, which is consolidated in this item, to familiarise itself, upon the coordination with the Office of the Prosecutor General, the National Audit Office, the State Security Department or an institution of pre-trial investigation, according to the procedure established by law, with a criminal case or other material and documents that are at their disposal, is not linked with the exceptional constitutional function of the court—administration of justice. In its ruling of 8 May 2000, the Constitutional Court held that the constitutional function of the court, i.e. administration of justice, is essentially different from being in charge of pre-trial investigation of the case, supervision of this investigation, prosecution of criminal cases on behalf of the state etc. Thus, by the legal regulation established in Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law it is impossible to violate the provision of Paragraph 2 of Article 109 of the Constitution, too, which states that, while administering justice, the judge and courts shall be independent, and the provision of Paragraph 3 of the same article that, while considering cases, judges shall obey only the law.

4.1.6. Taking account of the arguments set forth, the conclusion should be drawn that Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law is not in conflict with Paragraphs 1, 2, and 3 of Article 109 of the Constitution.

4.2. Article 118 of the Constitution provides:

The prosecutor shall organise and be in charge of pre-trial investigation as well as pursue charges on behalf of the State in criminal cases.

In the events established by law, the prosecutor defends the rights and legitimate interests of the person, society and the State.

While discharging his functions, the prosecutor shall be independent and obey only the law.

The Prosecutor’s Office of the Republic of Lithuania shall be the Office of the Prosecutor General and territorial prosecutor’s offices.

The Prosecutor General shall be appointed and released by the President of the Republic upon approval of the Seimas.

The procedure of the appointment and release of prosecutors as well as their status shall be established by law.”

4.2.1. While construing the legal regulation established in Article 118 of the Constitution, it should be noted that on 20 March 2003 the Seimas adopted the Law on Altering Article 118 of the Constitution of the Republic of Lithuania, whereby Article 118 of the Constitution was altered. The quoted text of Article 118 of the Constitution is the 20 March 2003 wording of Article 118 of the Constitution.

Under Paragraph 3 of Article 149 of the Constitution, the law on an alteration of the Constitution shall come into effect not earlier than one month after the adoption thereof. In its ruling of 24 December 2002, the Constitutional Court held that “under Paragraph 3 of Article 149 of the Constitution, the Seimas may establish the date of the entry into effect of the law on the alteration of the Constitution in the law on the alteration of the Constitution, however, it is not permitted that the said date be established earlier than one month as of the day of the adoption of the law on the alteration of the Constitution. While adopting the law on the alteration of the Constitution, the Seimas may establish the date of the entry into effect of the said law, which begins only after one month expires after such a law on the alteration of the Constitution is adopted. If the law on the alteration of the Constitution does not establish the date of the entry into effect of the law on the alteration of the Constitution, then, under the Constitution, such a law on the alteration of the Constitution goes into effect after one month expires after the said law is adopted”.

The Law on Altering Article 118 of the Constitution does not establish the date of its entry into effect. Thus, this law went into effect after one month that it was adopted, i.e. on 21 April 2003.

Upon the entry of Law on Altering Article 118 of the Constitution, the Constitutional Court formulates the official constitutional doctrine on the basis of the new wording set forth in Article 118 of the Constitution.

It needs to be noted that after the Law on Altering Article 118 of the Constitution has gone into effect, in Article 118 of the Constitution an essentially different constitutional institute of the prosecutor is established than the previous one: one has consolidated a different constitutional status of prosecutors than it used to be; one has consolidated an institution, the Prosecutor’s Office of the Republic of Lithuania, which did not use to be named in the Constitution previously; one has established the system of the Prosecutor’s Office of the Republic of Lithuania—it is composed of the Office of the Prosecutor General and territorial prosecutor’s offices; one has consolidated the post of the Prosecutor General of the Republic of Lithuania and established the procedure of the appointment and release of this official, etc. Therefore, upon the establishment of a virtually different constitutional institute of the prosecutor than it used to be and upon the consolidation of the status and system of the Prosecutor’s Office of the Republic of Lithuania in the Constitution, it is impossible, when construing the provisions of Article 118 of the Constitution, to invoke the constitutional doctrine statement, which is grounded on Article 118 of the Constitution in its previous wording, that prosecutors are a constituent part of the judicial power (the Constitutional Court’s rulings of 14 February 1994, 6 December 1995, 1 October 1997, and 21 April 1998).

Under the Constitution, only the Constitutional Court has powers to officially construe the Constitution (the Constitutional Court’s rulings of 30 May 2003 and 29 October 2003), therefore, under the Constitution, only the Constitutional Court has powers, in each case, after an amendment to the Constitution has gone into effect, to hold that it is impossible, while construing the Constitution, to invoke (and to which extent) the doctrine formulated by the Constitutional Court on the grounds of the former provisions of the Constitution.

4.2.2. Under the Constitution, the Prosecutor’s Office of the Republic of Lithuania is a centralised state institution with specific authoritative powers, it is not assigned to the institutions exercising state power, which are indicated in Paragraph 1 of Article 5 of the Constitution. It is not a constituent part of the judicial power.

In Article 118 of the Constitution the functions of prosecutors are established: the prosecutor organises and is in charge of pre-trial investigation as well as pursues charges on behalf of the state in criminal cases (Paragraph 1); in the events established by law, the prosecutor defends the rights and legitimate interests of the person, society and the state (Paragraph 2). Paragraph 3 of Article 118 of the Constitution provides that, while discharging his functions, the prosecutor shall be independent and obey only the law.

Thus, the prosecutor is a state official enjoying specific authoritative powers. Under the Constitution, no one else but the prosecutor may organise pre-trial investigation and be in charge of it, also, under the Constitution, no one else but the prosecutor may pursue charges on behalf of the state in criminal cases. Alongside, it needs to be noted that, under the Constitution, the functions of the prosecutor are different from administration of justice.

4.2.3. Although the petitioner requests an investigation into the compliance of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law with entire Article 118 of the Constitution, it is clear from the arguments of the petition that it has doubts only as regards the compliance of these items with Paragraphs 1 and 3 of Article 118 of the Constitution.

4.2.4. As mentioned before, in Items 1 and 2 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law the right of the Seimas provisional investigation commission is entrenched to receive documents, data, information, as well as the primary and other documents, in which these data were recorded, verbal and written explanations or references, as well as references about the available material, documents from heads and other employees from all state institutions of power and governance, the Bank of Lithuania, state and municipal enterprises (including those controlled by them), establishments and organisations, their heads and other employees related to the issues investigated by the Seimas provisional investigation commission, while in Item 3—the right to summon to its sittings state and municipal politicians, officials, servants as well as other persons working at state and municipal institutions, to hear their explanations, to demand that they present information or data concerning the issue considered by the commission and to receive them either in writing or orally.

While investigating the compliance of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law with Paragraphs 1 and 3 of Article 118 of the Constitution, it needs to be noted that, as it was mentioned in this ruling of the Constitutional Court, the legal regulation established in the items of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law is inseparable from the legal regulation established in other articles (parts, items thereof) of the Law. It was also mentioned that, under Paragraph 2 of Article 3 (wording of 3 April 2003) of the Law, the commission, while investigating the issue assigned to it and implementing its rights, does not interfere, inter alia, with the activities of the prosecutor and an official of pre-trial investigation when they conduct pre-trial investigation; thus, under the Law, the Seimas provisional investigation commission does not have the right to demand that a prosecutor and an official of pre-trial investigation, when summoned, appear at the sitting of the commission, or that the said persons present explanations to the commission in connection with on-going or accomplished pre-trial investigation. It was also mentioned that, under Paragraph 2 of Article 4 (wording of 3 April 2003) of the Law, in cases when one refuses to present the documents and material indicated in Item 1 of Paragraph 1 of the same article, which are demanded by the commission, the commission has the right to invite police officers so that they help to seize these documents and material, save the cases when such documents and material are, inter alia, in a criminal case or operative record file or card, in a civil or administrative case, or when they are material of on-going inspection under the procedure established in the Code of Criminal Procedure.

It was mentioned that, under Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law, the Seimas provisional investigation commission has the right “upon the coordination with the Office of the Prosecutor General, the National Audit Office, the State Security Department or an institution of pre-trial investigation, to familiarise itself, according to the procedure established by law, with a criminal case or other material and documents that are at their disposal”.

While investigating the compliance of Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law with Paragraphs 1 and 3 of Article 118 of the Constitution, it should be noted that, as stated in this ruling of the Constitutional Court, under Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law, the Seimas provisional investigation commission may receive the information necessary for its investigation, which is in criminal cases or other material and documents that are at the disposal of, inter alia, the Office of the Prosecutor General and an institution of pre-trial investigation only after it receives consent of a respective state institution; in case the said state institutions do not consent that the Seimas provisional investigation commission receive this information, then the commission will not be able to receive this information. Besides, as stated in this ruling of the Constitutional Court, under the said item, the organisational and technical questions of such familiarisation must be coordinated with the state institutions at whose disposal there is the criminal case or other material and documents, while the Seimas provisional investigation commission by itself cannot establish any procedure for the familiarising with a criminal case or other material and documents which are at the disposal of, inter alia, the Office of the Prosecutor General and an institution of pre-trial investigation—this is done under procedure established by law.

It has also been held in this ruling of the Constitutional Court that the legal regulation established in Paragraph 2 of Article 3 (wording of 3 April 2003) and Paragraph 2 of Article 4 (wording of 3 April 2003) of the Law should be regarded as ensuring that in the activities of the Seimas provisional investigation commission one will follow, inter alia, the provisions of Paragraphs 1 and 3 of Article 118 of the Constitution.

Thus, it should be held that the legal regulation established in Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law does not mean that the Seimas provisional investigation commission may take over the constitutional powers of prosecutors or otherwise interfere with the implementation of the constitutional competence of prosecutors, to violate the independence of the prosecutor when he organises pre-trial investigation and pursues charges on behalf of the state in criminal cases.

4.2.5. Taking account of the arguments set forth, it should be concluded that Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law are not in conflict with Paragraphs 1 and 3 of Article 118 of the Constitution.

4.2.6. It has been held in this ruling of the Constitutional Court that the legal regulation established in Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law one has created preconditions for placing one constitutional value—the independence of the prosecutor in the organisation of pre-trial investigation and being in charge of it—in opposition to other constitutional values, for raising it above the latter, in particular, above the functions of the Seimas as the representation of the Nation, and above the logical necessity, which follows from the purpose of the Seimas, from its constitutional functions and constitutional powers, which is to undertake by itself, in case of need, to investigation activity in connection with an issue of state importance so that to receive exhaustive and objective information about certain processes taking place in the state and society, about the situation in various sectors of life of the state and society and the arising problems. It has also been emphasised in this ruling of the Constitutional Court that the legal regulation established in Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law should be amended, specified so that the “coordination” indicated in Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law would not create pre-conditions for the institutions pointed out in this item virtually not to permit the Seimas provisional investigation commission to conduct thorough and objective investigation in connection with the issue of state importance that has been assigned to it, in other words, that one would not create pre-conditions for placing pre-trial investigation in opposition to the investigation of the issue of state importance conducted by the Seimas provisional investigation commission. Alongside, it was held in this ruling of the Constitutional Court that although the legal regulation established in Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law has created pre-conditions for aggravating the discharge of certain functions of the Seimas, as the representation of the Nation, the said constitutional values are not denied by this legal regulation, therefore, there is no ground to hold that the legal regulation established in Item 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law is in conflict with the Constitution in the said aspect.

5. The doubts of the petitioner concerning the compliance of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law with Article 5 of the Constitution are virtually based on the fact that, in the opinion of the petitioner, the said items are in conflict with Articles 67, 109, and 118 of the Constitution, and, thus, the principle of the separation of powers is denied, which is entrenched in Article 5 of the Constitution.

5.1. 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.

The scope of power shall be limited by the Constitution.

State institutions shall serve the people.”

5.2. In its rulings, the Constitutional Court has held more than once that Article 5 of the Constitution consolidates, inter alia, the principle of the separation of powers.

The constitutional principle of the separation of powers is the main principle of the organisation and activity of a democratic state under the rule of law; it is established not only in Article 5 of the Constitution, but also in other articles of the Constitution (the Constitutional Court’s rulings of 10 January 1998, 5 February 1999, 3 June 1999, 9 July 1999, 26 April 2001, and 12 July 2001). While construing the legal regulation established in Article 5 of the Constitution, one has to note that the constitutional principle of the separation of powers is consolidated in Paragraphs 1 and 2 of this article (the Constitutional Court’s ruling of 23 April 2002); this principle is particularised in other articles of the Constitution in various aspects. On the other hand, Paragraph 2 of Article 5 of the Constitution reflects not only the constitutional principle of the separation of powers, but also the principle of supremacy of the Constitution and the constitutional principle of a state under the rule of law (the Constitutional Court’s rulings of 12 July 2001, 24 December 2002, and 24 January 2003); if the legal regulation is established so that not only the powers of the institution of state power pointed out in Paragraph 1 of Article 5 of the Constitution are unreasonably expanded from the constitutional standpoint, but also the powers of some other state institution, one is also to hold that the provision of Paragraph 2 of Article 5 of the Constitution that the scope of power shall be limited by the Constitution is violated as well (the Constitutional Court’s ruling of 24 December 2002).

5.3. Although the petitioner requests an investigation into whether Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law are not in conflict with Article 5 of the Constitution, however, it is clear from the arguments of the petition that it doubts whether the legal regulation established in these items is not in conflict with not the entire legal regulation established in Article 5 of the Constitution, but with the constitutional principle of the separation of powers, established, inter alia, in Paragraphs 1 and 2 of Article 5 of the Constitution.

Subsequent to the petition of the petitioner, the Constitutional Court will investigate whether Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law are not in conflict with the constitutional principle of the separation of powers.

5.4. While construing the constitutional principle of the separation of powers, the Constitutional Court noted in its acts more than once that the principle of the separation of powers means that the legislative, executive and judicial powers must be separated, sufficiently independent, but there must be a balance among them; that to every state institution certain competence is established, which corresponds to its purpose; that the concrete content of the competence of the institution depends on the place of that branch of power in the overall system of branches of power and its relation with other branches of power, on the place of that institution among other state institutions and the relation of its powers with the powers of other institutions; that, after the Constitution has directly established the powers of a particular state institution, one state institution may not take over such powers of another institution, nor transfer or waive them, and that such powers may not be changed or limited by law.

5.5. It has been mentioned that the doubts of the petitioner concerning the compliance of Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law with the constitutional principle of the separation of powers are based on the fact that, in his opinion, the said items are in conflict with Articles 67, 109, and 118 of the Constitution. It has also been mentioned that the petitioner had doubts as for the compliance of the said items with not entire Article 109 of the Constitution and not with entire Article 118 of the Constitution, but only with Paragraphs 1, 2, and 3 of Article 109 and Paragraphs 1 and 3 of Article 118 of the Constitution.

5.5.1. It has been held in this ruling of the Constitutional Court that Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law are not in conflict with Article 67 of the Constitution.

It also needs to be noted that the Seimas provisional investigation commission whose powers established in Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law are impugned in this case, is a structural subunit of the Seimas, i.e. a constituent part of the state institution executing the legislative power, the Seimas, but not an institution assigned to another branch of state power, either the executive or the judiciary.

Therefore, after the powers of the Seimas provisional investigation commission have been established in Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law, the constitutional principle of the separation of powers, in general, cannot be violated in the aspect that the Seimas provisional investigation commission, purportedly, might take over the powers of the Seimas, as an institution exercising state power, which are established in Article 67 of the Constitution, since, as it was mentioned, the Seimas provisional investigation commission is a structural subunit of the Seimas, i.e. a constituent part of the state institution executing the legislative power, the Seimas, but not an institution assigned to another branch of state power. According to Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law, the Seimas provisional investigation commission does not take over the said powers of the Seimas, an institution exercising state power.

5.5.2. In this ruling of the Constitutional Court it was held that Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law are not in conflict with Paragraphs 1, 2, and 3 of Article 109 of the Constitution.

Alongside, it needs to be noted that, as it was held in this ruling of the Constitutional Court, it needs to be noted that the formulation of the opinion and point of view of the Seimas regarding the conclusion of the Seimas provisional investigation commission formed by it in a resolution of the Seimas may not be construed, under the Constitution, as legal qualification of the actions that the Seimas provisional commission has investigated, of the decisions adopted by it on the issues that it was assigned to investigate, and of other circumstances that were elucidated by it, since the Seimas is neither an institution of pre-trial investigation, nor the prosecutor’s office, nor the court, also that the Seimas resolution in which the opinion and point of view of the Seimas are formulated as to the conclusion of the Seimas provisional investigation commission that was formed by it is not, inter alia, binding on the court.

Therefore, upon the establishment of the powers of the Seimas provisional investigation commission in Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law, the constitutional principle of the separation of powers is not violated in the aspect that the Seimas provisional investigation commission, which is a constituent part of the Seimas, a state institution executing the legislative power, purportedly, may take over the powers of the Judiciary, as an institution executing the judicial power, to administer justice, which are established in Article 109 of the Constitution, since, as mentioned before, the Seimas resolution in which the opinion and point of view of the Seimas are formulated as to the conclusion of the Seimas provisional investigation commission that was formed by it is not binding on the court. According to Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law, the Seimas provisional investigation commission does not take over the said powers of the Judiciary, an institution exercising state power.

5.5.3. It has been mentioned in this ruling of the Constitutional Court that Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law are not in conflict with Paragraphs 1 and 3 of Article 118 of the Constitution.

It also needs to be noted that, as it was held in this ruling of the Constitutional Court, under the Constitution, the Prosecutor’s Office of the Republic of Lithuania is a state institution with specific authoritative powers, and that it is not assigned to the institutions exercising state power, which are indicated in Paragraph 1 of Article 5 of the Constitution.

Therefore, after the powers of the Seimas provisional investigation commission have been established in Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law, the constitutional principle of the separation of powers, in general, cannot be violated in the aspect that the Seimas provisional investigation commission, purportedly, might take over the powers of the Prosecutor’s Office of the Republic of Lithuania as an institution entrenched in Article 118 of the Constitution, as an institution purportedly implementing state power, since, as it was mentioned before, the Prosecutor’s Office of the Republic of Lithuania is not an institution exercising state power, which is indicated in Paragraph 1 of Article 5 of the Constitution. The Prosecutor’s Office of the Republic of Lithuania does not enjoy powers of an institution exercising state power, thus, it is evident that under Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law the Seimas provisional investigation commission cannot take over such powers.

5.5.4. Therefore, it should be held that after the powers of the Seimas provisional investigation commission have been established in Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law, the constitutional principle of the separation of powers is not violated in a single aspect pointed out by the petitioner.

5.5.5. Taking account of the arguments set forth, it should be held that Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Law are not in conflict with the constitutional principle of the separation of powers.

IV

On the compliance of the Seimas Resolution (No. IX-1868) “On the Conclusion of the Seimas Provisional Commission for an Investigation into Possible Threats to Lithuanian National Security” of 2 December 2003 with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 31, Article 67, Paragraph 1 of Article 109, Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law, as well as Articles 3 and 8 (wording of 3 April 2003) of the Law on Seimas Provisional Investigation Commissions.

1. By its Resolution (No. IX-1802) “On the Formation of the Provisional Commission for an Investigation into Possible Threats to Lithuanian National Security” of 3 November 2003, the Seimas formed the Provisional Commission for an Investigation into Possible Threats to Lithuanian National Security and obligated it to present its primary conclusions to the Seimas till 1 December 2003.

On 1 December 2003, the Commission adopted a conclusion and presented it to the Seimas.

On 2 December 2003, the Seimas adopted the Resolution (No. IX-1868) “On the Conclusion of the Seimas Provisional Commission for an Investigation into Possible Threats to Lithuanian National Security” in Article 1 whereof it resolved:

To approve of the conclusion (annexed) made by the Seimas Provisional Commission for an Investigation into Possible Threats to Lithuanian National Security and recognise that the Commission has finished its work.”

Article 2 of the same Seimas resolution provides that the resolution shall come into force from the moment of its adoption.

2. The petitioner, a group of members of the Seimas, in its 16 December 2003 petition requests an investigation into whether the Seimas Resolution (No. IX-1868) “On the Conclusion of the Seimas Provisional Commission for an Investigation into Possible Threats to Lithuanian National Security” of 2 December 2003, to the extent that it provides that “via the President or his advisors, classified information used to reach the persons who did not have the right to be familiarised with it, or those in whose regard operational investigation was being conducted”, “the President and some of his advisors exerted impermissible influence on the privatisation of enterprises and individual subjects of private business”, “the President being tolerant, his advisors exceeded their competence, interfered with the activities of other state institutions, abused their status, thus causing confusion in state governance”, is not in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 31, Paragraph 1 of Article 67, Paragraph 1 of Article 109, Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law, as well as Articles 3 and 8 of the Law on Seimas Provisional Investigation Commissions.

3. The doubts of the petitioner regarding the compliance of the Seimas Resolution (No. IX-1868) “On the Conclusion of the Seimas Provisional Commission for an Investigation into Possible Threats to Lithuanian National Security” of 2 December 2003 to the aforementioned extent with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 31, Paragraph 1 of Article 67, Paragraph 1 of Article 109, Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law, as well as Articles 3 and 8 of the Law on Seimas Provisional Investigation Commissions are based on the fact that, in the opinion of the petitioner, the Seimas does not enjoy any powers to establish the facts having legal significance, and which may lead to either criminal or administrative liability, therefore, according to the petitioner, while approving of the conclusion of the Commission, in which the facts confirming the guilt of a person are established, the Seimas exceeded its competence and violated the principle of presumption of innocence.

Thus, it needs to be noted that although the petitioner requests an investigation into whether the Seimas Resolution (No. IX-1868) “On the Conclusion of the Seimas Provisional Commission for an Investigation into Possible Threats to Lithuanian National Security”, which was adopted on 2 December 2003, to the extent that it provides that “via the President or his advisors, classified information used to reach the persons who did not have the right to be familiarised with it, or those in whose regard operational investigation was being conducted”, “the President and some of his advisors exerted impermissible influence on the privatisation of enterprises and individual subjects of private business”, “the President being tolerant, his advisors exceeded their competence, interfered with the activities of other state institutions, abused their status, thus causing confusion in state governance”, is not in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 31, Paragraph 1 of Article 67, Paragraph 1 of Article 109, Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law, as well as Articles 3 and 8 of the Law, it is clear from the arguments of the petitioner that it does not impugn the truthfulness or reasonableness of the above statements of the conclusion of the Commission, which was approved of by the Resolution, nor does it request an investigation into such statements in the aspect of their truthfulness and/or reasonableness. The petitioner doubts only whether the Seimas, by approving of the conclusion of the Commission (in particular, of the quoted statements), did not exceed its constitutional powers, also, whether the Seimas, by approving of the conclusion of the Commission (in particular, of the quoted statements), did not violate the requirements of Articles 3 and 8 of the Law.

4. The petitioner requests an investigation into whether the aforesaid statements of the conclusion of the Commission, which was approved of by the Resolution, are not in conflict (in the aspect that the Seimas approved of them) with Paragraph 1 of Article 67 of the Constitution.

It needs to be noted that Article 67 of the Constitution is not divided into paragraphs at all: it is composed of 20 items. Thus, the petitioner doubts the compliance of the said provisions of the Resolution with entire Article 67 of the Constitution.

5. The petitioner requests an investigation into whether the aforesaid statements of the conclusion of the Commission, which was approved of by the Resolution, are not in conflict (in the aspect that the Seimas approved of them) with Articles 3 and 8 of the Law.

As mentioned before, on 3 April 2003, the Seimas adopted the Law on the Amendment of Articles 3, 4, and 8 of the Law on Seimas Provisional Investigation Commissions, whereby, inter alia, Articles 3 and 8 of the Law on Seimas Provisional Investigation Commissions were amended.

Thus, the petitioner doubts as to the compliance of the aforesaid statements of the conclusion of the Commission, which was approved of by the Resolution (in the aspect that the Seimas approved of them) with Article 3 (wording of 3 April 2003) and Article 8 (wording of 3 April 2003) of the Law.

6. It has been held in this ruling of the Constitutional Court that, under the Constitution, the Seimas has the right to assess both the activity of the provisional investigation commission formed by it and the conclusion of this commission, which is provided for in the Law; that the Seimas may express its opinion and point of view in various forms as regards the conclusion of the Seimas provisional investigation commission (including approval of a conclusion of the Seimas provisional investigation commission); that the Law does not contain any provisions that would indicate in what form the Seimas ought to or could express its opinion and point of view as to the conclusion of the Seimas provisional investigation commission formed by it; that according to the Statute of the Seimas, the opinion and point of view of the Seimas regarding the conclusion of the Seimas provisional investigation commission formed by it may be formulated in a corresponding resolution of the Seimas; that the Seimas, after it has decided to approve of the conclusion of the Seimas provisional investigation commission, does not adopt a decision on the compliance of the said actions, decisions, and circumstances with legal acts which is mandatory to other state institutions (including institutions of pre-trial investigation, the prosecutor’s office, courts), but it merely formulates its point of view as to the conclusion of the Seimas provisional investigation commission that was formed by it and that the Seimas resolution in which the opinion and point of view of the Seimas are formulated as to the conclusion of the Seimas provisional investigation commission that was formed by it is not binding on institutions of pre-trial investigation, the prosecutor’s office, and the court; that the Seimas resolution in which the point of view of the Seimas is formulated as regards the conclusion of the Seimas provisional investigation commission formed by it, by itself directly does not give rise to any legal effects to the persons indicated in the conclusion: such effects could be raised to them only by decisions of other institutions and their officers, which may be adopted, while taking into consideration of the conclusion of the Seimas provisional investigation commission.

7. Having held this, one is also to hold that, under the Constitution and the Statute of the Seimas, the Seimas had the right to adopt the impugned Resolution whereby the conclusion of the Commission formed by the Seimas was approved of.

8. As mentioned before, although the petitioner requests an investigation into whether the Seimas Resolution (No. IX-1868) “On the Conclusion of the Seimas Provisional Commission for an Investigation into Possible Threats to Lithuanian National Security” of 2 December 2003, to the extent that it provides that “via the President or his advisors, classified information used to reach the persons who did not have the right to be familiarised with it, or those in whose regard operational investigation was being conducted”, “the President and some of his advisors exerted impermissible influence on the privatisation of enterprises and individual subjects of private business”, “the President being tolerant, his advisors exceeded their competence, interfered with the activities of other state institutions, abused their status, thus causing confusion in state governance”, is not in conflict with the Constitution and the Law, the petitioner does not impugn the truthfulness or reasonableness of the above statements of the conclusion of the Commission, which was approved of by the Resolution, nor does it request an investigation into such statements in the aspect of their truthfulness and/or reasonableness.

Taking account of the fact that the petitioner does not impugn the truthfulness or reasonableness of the aforesaid statements of the conclusion of the Commission, which was approved of by the Resolution, and does not request an investigation into such statements in the aspect of their truthfulness and/or reasonableness, it should be held that in the petition of the petitioner the matter of the investigation is absent.

The fact that in the petition of the petitioner the matter of the investigation is absent means that the petition is not within the jurisdiction of the Constitutional Court (the Constitutional Court’s decisions of 6 May 2003 and 13 May 2003).

Under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

Paragraph 3 of Article 69 of the Law on the Constitutional Court provides that in the event that the grounds for refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

Taking account of the arguments set forth and conforming to Article 69 of the Law on the Constitutional Court, the case concerning the petition to investigate whether the Seimas Resolution (No. IX-1868) “On the Conclusion of the Seimas Provisional Commission for an Investigation into Possible Threats to Lithuanian National Security” of 2 December 2003, to the extent that it provides that “via the President or his advisors, classified information used to reach the persons who did not have the right to be familiarised with it, or those in whose regard operational investigation was being conducted”, “the President and some of his advisors exerted impermissible influence on the privatisation of enterprises and individual subjects of private business”, “the President being tolerant, his advisors exceeded their competence, interfered with the activities of other state institutions, abused their status, thus causing confusion in state governance”, is not in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 31, Article 67, Paragraph 1 of Article 109, Paragraph 1 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law, as well as Articles 3 and 8 of the Law on Seimas Provisional Investigation Commissions, must be dismissed.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, 56 and 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that Items 1, 2, 3, and 5 of Paragraph 1 of Article 4 (wording of 3 April 2003) of the Republic of Lithuania’s Law on Seimas Provisional Investigation Commissions are not in conflict with the Constitution of the Republic of Lithuania.

2. To dismiss the case concerning the petition requesting an investigation into whether the Resolution of the Seimas of the Republic of Lithuania (No. IX-1868) “On the Conclusion of the Seimas Provisional Commission for an Investigation into Possible Threats to Lithuanian National Security” of 2 December 2003, to the extent that it provides that “via the President or his advisors, classified information used to reach the persons who did not have the right to be familiarised with it, or those in whose regard operational investigation was being conducted”, “the President and some of his advisors exerted impermissible influence on the privatisation of enterprises and individual subjects of private business”, “the President being tolerant, his advisors exceeded their competence, interfered with the activities of other state institutions, abused their status, thus causing confusion in state governance”, is not in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 1 of Article 31, Article 67, Paragraph 1 of Article 109, Paragraph 1 of Article 114 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law, as well as Articles 3 and 8 of the Republic of Lithuania’s Law on Seimas Provisional Investigation Commissions.

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