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On the prevention of organised crime

Case No. 8/02-16/02-25/02-9/03-10/03-11/03-36/03-37/03-06/04-09/04-20/04-26/04-30/04-31/04-32/04-34/04-41/04

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF ARTICLE 3 (WORDING OF 26 JUNE 2001), ARTICLE 4 (WORDINGS OF 26 JUNE 2001 AND 3 APRIL 2003), PARAGRAPH 3 OF ARTICLE 6 (WORDING OF 26 JUNE 2001) AND PARAGRAPH 1 OF ARTICLE 8 (WORDING OF 26 JUNE 2001) OF THE REPUBLIC OF LITHUANIA’S LAW ON THE RESTRAINT OF ORGANISED CRIME WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

29 December 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, Jonas Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas

The court reporter—Daiva Pitrėnaitė

Mindaugas Girdauskas, a senior consultant to the Legal Department of the Office of the Seimas, and Girius Ivoška, the chief specialist of the same department, 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 16 December 2004, in its public hearing, considered case No. 8/02-16/02-25/02-9/03-10/03-11/03-36/03-37/03-06/04-09/04-20/04-26/04-30/04-31/04-32/04-34/04-41/04 subsequent to these petitions:

1) the 1 March 2002 petition of the Šiauliai City Local Court, a petitioner, requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Republic of Lithuania’s Law on the Restraint of Organised Crime are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution of the Republic of Lithuania;

2) the 23 July 2002 petition of the Klaipėda City Local Court, a petitioner, requesting an investigation into whether Paragraph 3 of Article 6 (wording of 26 June 2001) of the Republic of Lithuania’s Law on the Restraint of Organised Crime is not in conflict with Paragraph 1 of Article 30, Paragraph 2 of Article 21 and Paragraph 4 of Article 22 of the Constitution of the Republic of Lithuania;

3) the 26 November 2002 petition of the Šiauliai City Local Court, a petitioner, requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Republic of Lithuania’s Law on the Restraint of Organised Crime are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution of the Republic of Lithuania;

4) the 6 January 2003 petition of the Šiauliai City Local Court, a petitioner, requesting an investigation into whether Paragraph 3 of Article 6 of the Republic of Lithuania’s Law on the Restraint of Organised Crime, to the extent that it does not provide for the right to appeal in court against the decision on application of an official warning to a person, is not in conflict with Paragraph 2 of Article 21 and Paragraph 4 of Article 22 of the Constitution of the Republic of Lithuania;

5) the 7 January 2003 petition of the Šiauliai City Local Court, a petitioner, requesting an investigation into whether Paragraph 3 of Article 6 of the Republic of Lithuania’s Law on the Restraint of Organised Crime, to the extent that it does not provide for the right to appeal in court against the decision on application of an official warning to a person, is not in conflict with Paragraph 2 of Article 21, Paragraph 4 of Article 22 and Paragraph 1 of Article 30 of the Constitution of the Republic of Lithuania;

6) the 23 January 2003 petition of the Šiauliai City Local Court, a petitioner, requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Republic of Lithuania’s Law on the Restraint of Organised Crime are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution of the Republic of Lithuania;

7) the 11 September 2003 petition of the Panevėžys Regional Court, a petitioner, requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Republic of Lithuania’s Law on the Restraint of Organised Crime are not in conflict with Article 31 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

8) the 24 September 2003 petition of the Šiauliai City Local Court, a petitioner, requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Republic of Lithuania’s Law on the Restraint of Organised Crime are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution of the Republic of Lithuania;

9) the 28 November 2003 petition of the Šiauliai City Local Court, a petitioner, requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Republic of Lithuania’s Law on the Restraint of Organised Crime are not in conflict with Article 31 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

10) the 18 December 2003 petition of the Marijampolė District Local Court, a petitioner, requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Republic of Lithuania’s Law on the Restraint of Organised Crime are not in conflict with the principle of a state under the rule of law, which is entrenched in the Preamble to the Constitution of the Republic of Lithuania, and Articles 18, 22, 24, 31, 32 and 48 of the Constitution;

11) the 23 January 2004 petition of the Šiauliai City Local Court, a petitioner, requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Republic of Lithuania’s Law on the Restraint of Organised Crime are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution of the Republic of Lithuania;

12) the 30 March 2004 petition of the Marijampolė District Local Court, a petitioner, requesting an investigation into whether Articles 3 and 4 (wording of 26 June 2001) of the Republic of Lithuania’s Law on the Restraint of Organised Crime are not in conflict with the principle of a state under the rule of law, which is entrenched in the Preamble to the Constitution of the Republic of Lithuania, and Articles 18, 22, 24, 31, 32 and 48 of the Constitution;

13) the 28 April 2004 petition of the Panevėžys City Local Court, a petitioner, requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Republic of Lithuania’s Law on the Restraint of Organised Crime are not in conflict with Articles 18, 22, 24, 31, 32 and 48 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

14) the 25 May 2004 petition of the Alytus District Local Court, a petitioner, requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Republic of Lithuania’s Law on the Restraint of Organised Crime are not in conflict with Articles 18, 22, 24, 31, 32 and 48 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

15) the 19 July 2004 petition of the Panevėžys Regional Court, a petitioner, requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001 with the subsequent amendment made by law No. IX-1486 of 3 April 2003) of the Republic of Lithuania’s Law on the Restraint of Organised Crime are not in conflict with Articles 18 and 31 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

16) the 25 August 2004 petition of the Šiauliai City Local Court, a petitioner, requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Republic of Lithuania’s Law on the Restraint of Organised Crime are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution of the Republic of Lithuania;

17) the 6 October 2004 petition of the Marijampolė District Local Court, a petitioner, requesting an investigation into whether Articles 3 and 8 (wording of 26 June 2001) and Article 4 (wording of 3 April 2003) of the Republic of Lithuania’s Law on the Restraint of Organised Crime are not in conflict with Articles 18, 22, 24, 31, 32 and 48 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law entrenched in the preamble to the Constitution.

By the Constitutional Court’s decision of 23 October 2002, the 1 March 2002 petition of the Šiauliai City Local Court and the 23 July 2002 petition of the Klaipėda City Local Court were joined into one case and reference No. 8/02-16/02 was given to it.

By the Constitutional Court’s decision of 17 August 2004, the petitions previously joined into case No. 8/02-16/02 were joined also with the 25 May 2004 petition of the Alytus District Local Court, the 18 December 2003 and 30 March 2004 petitions of the Marijampolė District Local Court, the 19 July 2004 and 11 September 2003 petitions of the Panevėžys Regional Court, the 28 April 2004 petition of the Panevėžys City Local Court, the 26 November 2002, 6 January 2003, 7 January 2003, 23 January 2003, 24 September 2003, 28 November 2003, and 23 January 2004 petitions of the Šiauliai City Local Court, and reference No. 8/02-16/02-25/02-9/03-10/03-11/03-36/03-37/03-06/04-09/04-20/04-26/04-30/04-31/04-32/04 was given to the case.

By the Constitutional Court’s decision of 5 October 2004, the petitions previously joined into case No. 8/02-16/02-25/02-9/03-10/03-11/03-36/03-37/03-06/04-09/04-20/04-26/04-30/04-31/04-32/04 were joined also with the 25 August 2004 petition of the Šiauliai City Local Court and reference No. 8/02-16/02-25/02-9/03-10/03-11/03-36/03-37/03-06/04-09/04-20/04-26/04-30/04-31/04-32/04-34/04 was given to the case.

By the Constitutional Court’s decision of 10 November 2004, the petitions previously joined in case No. /02-16/02-25/02-9/03-10/03-11/03-36/03-37/03-06/04-09/04-20/04-26/04-30/04-31/04-32/04-34/04 were joined also with the 6 October 2004 petition of the Marijampolė District Local Court and reference No. 8/02-16/02-25/02-9/03-10/03-11/03-36/03-37/03-06/04-09/04-20/04-26/04-30/04-31/04-32/04-34/04-41/04 was given to the case.

The Constitutional Court

has established:

I

1. The Šiauliai City Local Court, a petitioner, considered a criminal case. By its ruling of 1 March 2002, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Republic of Lithuania’s Law on the Restraint of Organised Crime (Official Gazette Valstybės žinios, 2001, No. 60-2138; hereinafter also referred to as the Law) are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution.

2. The Klaipėda City Local Court, a petitioner, considered a case. By its ruling of 23 July 2002, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law is not in conflict with Paragraph 1 of Article 30, Paragraph 2 of Article 21 and Paragraph 4 of Article 22 of the Constitution.

3. The Šiauliai City Local Court, a petitioner, considered a criminal case. By its ruling of 26 November 2002, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3,4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution.

4. The Šiauliai City Local Court, a petitioner, considered a case. By its ruling of 6 January 2003, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 3 of Article 6 of the Law, to the extent that it does not provide for the right to appeal in court against the decision on application of an official warning to a person, is not in conflict with Paragraph 2 of Article 21 and Paragraph 4 of Article 22 of the Constitution.

5. The Šiauliai City Local Court, a petitioner, considered a criminal case. By its ruling of 23 January 2003, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution.

6. The Šiauliai City Local Court, a petitioner, considered a case. By its ruling of 7 January 2003, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 3 of Article 6 of the Law, to the extent that it does not provide for the right to appeal in court against the decision on application of an official warning to a person, is not in conflict with Paragraph 2 of Article 21, Paragraph 4 of Article 22 and Paragraph 1 of Article 30 of the Constitution.

7. The Panevėžys Regional Court, a petitioner, considered a case. By its ruling of 11 September 2003, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Article 31 of the Constitution and the principle of a state under the rule of law entrenched in the Preamble to the Constitution.

8. The Šiauliai City Local Court, a petitioner, considered a criminal case. By its ruling of 24 September 2003, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution.

9. The Šiauliai District Local Court, a petitioner, considered a case. By its ruling of 28 November 2003, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of the Law of 26 June 2001) of the Law are not in conflict with Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

10. The Marijampolė District Local Court, a petitioner, considered a criminal case. By its ruling of 18 December 2003, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with the principle of a state under the rule of law entrenched in the Preamble to the Constitution, and Articles 18, 22, 24, 31, 32 and 48 of the Constitution.

11. The Šiauliai City Local Court, a petitioner, considered a criminal case. By its ruling of 23 January 2004, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31, 32 and 48 of the Constitution.

12. The Marijampolė District Local Court, a petitioner, considered a criminal case. By its ruling of 30 March 2004, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3 and 4 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31, 32 and 48 of the Constitution.

13. The Panevėžys City Local Court, a petitioner, considered a criminal case. By its ruling of 28 April 2004, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31, 32 and 48 of the Constitution and the constitutional principle of a state under the rule of law.

14. The Alytus District Local Court, a petitioner, considered a criminal case. By its ruling of 25 May 2004 the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31, 32 and 48 of the Constitution and the constitutional principle of a state under the rule of law.

15. The Panevėžys Regional Court, a petitioner, considered a case. By its ruling of 19 July 2004, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001 with the subsequent amendment made by law No. IX-1486 of 3 April 2003 (Official Gazette Valstybės žinios, 2003, No. 38-1701)) of the Law are not in conflict with Articles 18 and 31 of the Constitution and the constitutional principle of a state under the rule of law.

16. The Šiauliai City Local Court, a petitioner, considered a case. By its ruling of 25 August 2004, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (the 26 June 2001 wording of the law) of the Law are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution.

17. The Marijampolė District Local Court, a petitioner, considered a criminal case. By its ruling of 6 October 2004, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3 and 8 (wording of 26 June 2001) and Article 4 (wording of 3 April 2003) of the Law are not in conflict with Articles 18, 22, 24, 31, 32 and 48 of the Constitution and the principle of a state under the rule of law entrenched in the Preamble to the Constitution.

II

1. The 1 March 2002, 26 November 2002, 23 January 2003, 24 September 2003, 23 January 2004, 25 August 2004 petitions of the Šiauliai City Local Court, a petitioner, wherein one requests an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution, are based on the following arguments.

It is established in Article 3 (wording of 26 June 2001) of the Law that if the bases provided for in Article 4 of the Law exist, one may apply preventive measures: official warning, court injunctions. It is established in the impugned Article 4 of the Law that preventive measures may be applied in regard to the persons, if the data, received upon the procedure established by law, about the relations of these persons with organised groups, criminal syndicates or their members, constitute a sufficient basis for considering that these persons may commit grave crimes, and preventive measures should be applied in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons.

According to the petitioner, the said provisions of the Law may be applied to the persons who have not been recognised guilty upon the procedure established by law and who are only suspected of having relations with organised groups, criminal syndicates or their members. The petitioner has doubts as to whether such legal regulation is not in conflict with Article 31 of the Constitution, wherein it is prescribed that the person is presumed innocent until proven guilty and declared guilty by an effective court judgment.

In the opinion of the petitioner, the court injunctions, consolidated in Article 8 of the Law, not to maintain relations with the persons specifically named, not to change the place of residence and to be present at the place of residence at the appointed time, not to frequent the places indicated, restrict the rights and freedoms of citizens, which are entrenched in Articles 18, 22, 24, 31 and 32 of the Constitution.

2. The 23 July 2002 petition of the Klaipėda City Local Court, a petitioner, and the 6 January 2003 petition of the Šiauliai City Local Court, a petitioner, wherein one requests an investigation into whether Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law, to the extent that it does not provide for the right to appeal in court against the decision on application of an official warning to a person, is not in conflict with Paragraph 2 of Article 21, Paragraph 4 of Article 22 and Paragraph 1 of Article 30 of the Constitution, as well as the 7 January 2003 petition of the Šiauliai City Local Court, a petitioner, wherein one requests an investigation into whether Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law, to the extent that it does not provide for the right to appeal in court against the decision on application of an official warning to a person, is not in conflict with Paragraph 2 of Article 21 and Paragraph 4 of Article 22 of the Constitution, are based on the following arguments.

It is established in Paragraph 1 of Article 30 of the Constitution that a person whose constitutional rights or freedoms are violated has the right to apply to court. However, Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law does not provide for an opportunity for a person to appeal against the decision of a police officer on application of the official warning.

According to Article 5 of the Law, the official warning is a written demand by an authorised officer that a person should necessarily abide by the Constitution and laws, should not restrict the rights and freedoms of other people, should not commit violations of law, also setting forth the possible legal consequences. According to the petitioners, such a demand of the officers, by the same, states and evaluates the actions and behaviour of the person who is subject to the official warning; as a rule, the police officer in the official warning states that actions of the person restrict other people’s rights and freedoms which are necessary in a democratic society, that they create favourable conditions for creation and development of social and economic pre-requisites of organised crime, and evaluate them as the ones that constitute a threat to the safety of society.

The petitioners state that the officer, while holding official powers and while acting in the name of the law, by a written demand indicates that the actions of the person to whom the official warning is issued are contrary to law and dangerous to society. The actions such as restriction of human rights and freedoms, violation of laws, commission of violations of law, maintaining relations with organised groups and criminal syndicates, causing threat to the safety of society and the person are evaluated as being negative and are condemned in a democratic society. By the official warning one strives to make the person self-critically evaluate his own actions and cancel them, and to make him start following the Constitution and laws.

The honour and dignity of the person are constitutional human rights. Under Articles 21 and 22 of the Constitution, the law and courts protect the honour and dignity of the person. According to the petitioners, when considering that such an action of the police officer was taken unlawfully and unreasonably and in this way his honour and dignity was encroached upon, the person to whom an official warning is issued has no opportunity to make use of judicial defence, as no such right is provided for in Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law. The petitioners doubt as to whether Paragraph 3 of Article 6 of the Law, to the extent that it does not provide for the right to appeal in court against the decision on application of an official warning to a person, is not in conflict with Paragraph 2 of Article 21 and Paragraph 4 of Article 22 of the Constitution.

3. The 11 September 2003 petition of the Panevėžys Regional Court, a petitioner, and the 28 November 2003 petition of the Šiauliai City Local Court, a petitioner, wherein one requests an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with the constitutional principle of a state under the rule of law and Article 31 of the Constitution, are based on the following arguments.

The court injunctions which are provided for in Article 8 of the Law in the type of imposed limitations are similar to the measures of suppression, house arrest and written commitment not to leave, which are provided for in Articles 132 and 136 of the Code of Criminal Procedure of the Republic of Lithuania (hereinafter also referred to as CCP) and limitation of freedom, the punishment provided for in Article 48 of the Criminal Code of the Republic of Lithuania (hereinafter also referred to as CC), imposed on the persons who committed criminal deeds. Under Paragraph 2 of Article 121 of the CCP, measures of suppression may be imposed only in cases where one has enough evidence providing for a reason to believe that the suspect committed a criminal deed, meanwhile, the punishment—limitation of freedom—provided for in the CC is imposed only upon the person who has committed the criminal deed. Article 249 of the CC consolidates criminal liability for participation in or organisation of the activity of a criminal syndicate or leading a criminal syndicate.

However, under Article 4 of the Law, court injunctions are issued against a person, who has not committed a criminal deed, but there exists a reason to believe that he may commit grave criminal deeds, i.e. restrictions of rights, which correspond to a criminal punishment, are imposed upon the person whose guilt in committing the criminal deed has not been established (proven). Therefore, the petitioners doubt as to whether Articles 3, 4 and 8 of the Law are not in conflict with the principle of a state under the rule of law which is entrenched in the Preamble to the Constitution and Article 31 of the Constitution.

4. The 18 December 2003 petition of the Marijampolė District Local Court, a petitioner, wherein one requests an investigation into whether Articles 3, 4 and 8 of (wording of 26 June 2001) of the Law are not in conflict with the principle of a state under the rule of law entrenched in the Preamble to the Constitution and Articles 18, 22, 24, 31, 32 and 48 of the Constitution, is based on the following arguments.

Article 4 of the Law on the Restraint of Organised Crime provides a reason to conclude that court injunctions are issued against a person, who has not committed a criminal deed, but there only exists a reason to believe that the person may commit grave or especially grave criminal deeds. This means that the restrictions of rights, which correspond to a criminal punishment, are imposed upon a person whose guilt in committing the criminal deed has not been established (proven). Further to the principle of a state under the rule of law entrenched in the Preamble to the Constitution and Articles 18, 22, 24, 31, 32 and 48 of the Constitution, human rights and freedoms may be restricted only by law and only when it is necessary for the security of the state, protection of human health, as well as in the course of administration of justice. The preventive measures provided for in Article 3 of the Law may be applied when the bases established in Article 4 of the Law exist; the court injunctions upon the person provided for in Article 8 of the Law are similar to the measures of suppression established in both the CC and the CCP and imposed upon persons, who have committed criminal deeds. In the opinion of the petitioner, Articles 3, 4 and 8 of the Law on the Restraint of Organised Crime are in conflict with the principle of a state under the rule of law which is entrenched in the Preamble to the Constitution and Articles 18, 22, 24, 31, 32 and 48 of the Constitution.

5. The 30 March 2004 petition of the Marijampolė District Local Court, a petitioner, wherein one requests an investigation into whether Articles 3 and 4 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31, 32 and 48 of the Constitution and the principle of a state under the rule of law which is entrenched in the Preamble to the Constitution is based on the following arguments.

The human rights and freedoms consolidated in Articles 18, 22, 24, 31, 32 and 48 of the Constitution may be restricted only by law and when it is necessary in order to protect the security of the state and human health, as well as in the course of administration of justice. The preventive measures provided for in Article 3 of the Law on the Restraint of Organised Crime may be applied when the bases established in Article 4 of this law exist. In the opinion of the petitioner, the conclusion should be drawn from Article 4 of the Law that court injunctions are issued against a person, who has not committed a criminal deed, but there only exists a reason to believe that the person may commit grave or especially grave criminal deeds, i.e. the restrictions of rights which correspond to a criminal punishment are imposed upon a person whose guilt in committing the criminal deed has not been established. The petitioner doubts as to whether Articles 3 and 4 of the Law are in compliance with Articles 18, 22, 24, 31, 32 and 48 of the Constitution and the principle of a state under the rule of law which is entrenched in the Preamble to the Constitution.

6. The 28 April 2004 petition of the Panevėžys City Local Court, a petitioner, wherein one requests an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31, 32 and 48 of the Constitution and the principle of a state under the rule of law which is entrenched in the Preamble to the Constitution, is based on the following arguments

The human rights and freedoms consolidated in Articles 18, 22, 24, 31, 32 and 48 of the Constitution may be restricted only by law and when it is necessary in order to protect the security of the state and human health, as well as in the course of administration of justice. The preventive measures provided for in Article 3 of the Law on the Restraint of Organised Crime may be applied when the bases established in Article 4 of this law exist. In the opinion of the petitioner, the conclusion should be drawn from Article 4 of the Law that court injunctions are issued against a person, who has not committed a criminal deed, but there only exists a reason to believe that the person may commit grave or especially grave criminal deeds, i.e. the restrictions of rights, which correspond to a criminal punishment, are imposed upon a person whose guilt in committing the criminal deed has not been established (proven). The injunctions upon a person, provided for in Article 8 of the Law on the Restraint of Organised Crime, are similar to the measures of suppression provided for in the CC and the CCP and imposed upon persons who have committed criminal deeds. The petitioner doubts as to whether Articles 3, 4 and 8 of the Law are in compliance with the constitutional principle of a state under the rule of law and Articles 18, 22, 24, 31, 32 and 48 of the Constitution.

7. The 19 July 2004 petition of the Panevėžys Regional Court, a petitioner, the 6 October 2004 petition of the Marijampolė District Local Court, a petitioner, and the 25 May 2004 petition of the Alytus District Local Court, a petitioner, wherein one requests an investigation into whether Articles 3 and 8 (wording of 26 June 2001) and Article 4 (wordings of 26 June 2001 and 3 April 2003) of the Law are not in conflict with Articles 18, 22, 24, 31, 32 and 48 of the Constitution and the principle of a state under the rule of law which is entrenched in the Preamble to the Constitution, are based on the following arguments.

The human rights and freedoms consolidated in Articles 18, 22, 24, 31, 32 and 48 of the Constitution may be restricted only by law and only in cases when it is necessary in order to protect the security of the state and human health, as well as in the course of administration of justice. The preventive measures provided for in Article 3 of the Law may be applied when the bases, established in Article 4 of the Law, exist. In the opinion of the petitioner, the conclusion should be drawn from Article 4 of the Law that court injunctions are issued against a person, who has not committed a criminal deed, but there only exists a reason to believe that the person may commit grave or especially grave criminal deeds, i.e. the restrictions of rights, which correspond to a criminal punishment, are imposed upon a person whose guilt in committing the criminal deed has not been established. The injunctions upon a person provided for in Article 8 of the Law are similar to the measures of suppression provided for in the CC and the CCP. The petitioners doubt as to whether Articles 3, 4 and 8 of the Law are in compliance with Articles 18, 22, 24, 31, 32 and 48 of the Constitution and the constitutional principle of a state under the rule of law.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations from the representatives of the Seimas, the party concerned, namely written explanations of M. Girdauskas of 20 May 2002, 17 October 2002, 4 April 2003 and 8 April 2004, as well as written explanations of G. Ivoška of 20 May 2003 and 8 April 2004, were received.

1. In his explanations concerning the compliance of Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law with the Constitution, the representative of the Seimas, the party concerned, who was M. Girdauskas, submitted the following arguments.

Article 6 of the Law does not prohibit appealing in court against the decision on application of an official warning upon a person. The representative of the party concerned maintains that in such cases one must follow general provisions of laws, which permit the appeal against such a decision in court; the contrary construction would not correspond to the constitutional concept of the right to apply to court.

M. Girdauskas stated that on the basis of the Republic of Lithuania’s Law on the Legal Proceedings of Administrative Cases a decision on application of an official warning upon a person may be appealed against in court. It is established in Item 1 of Paragraph 1 of Article 15 of this law that administrative courts hear the cases on legitimacy of legal acts and actions of the subjects of national administration. The official warning is issued by police officers, who enjoy the public administration powers in regard to non-subordinate persons. Therefore, a police establishment (officer) acts as a subject of state administration, a decision of which to issue an official warning is considered to be an individual legal act. Paragraph 4 of Article 22 of the Law on the Legal Proceedings of Administrative Cases should be applied in regard to such a decision. Therefore, a person has the right submit an appeal against the application of the official warning upon the person directly to the administrative court. Such an appeal could also be submitted to the regional or the Chief Administrative Disputes Commission (Articles 2, 5 and 9 of the Republic of Lithuania’s Law on Administrative Disputes Commission, and Paragraphs 7 and 8 of Article 2, as well as Paragraph 4 of Article 22 of the Law on the Legal Proceedings of Administrative Cases), and their decisions may also be appealed against in the administrative court. According to the representative of the party concerned, actions of the police officer may also be appealed against to the Commissioner General, and his decision may be appealed against to the Chief Administrative Disputes Commission and, later on, to the administrative court, or to the administrative court directly (Paragraph 7 of Article 2, Articles 15, 18, 19 and Paragraph 4 of Article 22 of the Law on the Legal Proceedings of Administrative Cases, Paragraph 3 of Article 2 and Article 9 of the Law on Administrative Disputes Commission, Paragraph 3 of Article 12 of the Republic of Lithuania’s Law on Police Activity).

On the basis of these arguments, M. Girdauskas maintains that Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law, to the extent that it does not provide for the right to appeal against a decision in court on application of an official warning to a person, is not in conflict with Paragraph 2 of Article 21, Paragraph 4 of Article 22 and Paragraph 1 of Article 30 of the Constitution.

2. The representatives of the party concerned, who were M. Girdauskas and G. Ivoška, in their explanations concerning the compliance of Articles 3, 4 and 8 (wording of 26 June 2001) with the Constitution, submitted the following arguments.

The provision of Article 18 of the Constitution that human rights and freedoms are innate does not deny the possibility of imposing limitations upon them by law. The provisions of this article of the Constitution mean that the person since his birth has rights and freedoms, which are inseparable from his person, still other articles of the Constitution (for example, Paragraph 2 of Article 20, Paragraph 3 of Article 22, Paragraph 3 of Article 23, Paragraph 2 of Article 24 and Paragraph 2 of Article 32) provide for an opportunity to limit the human rights and freedoms. The constitutional principle of a state under the rule of law implies also that it is one of the duties of the state and one of its priority tasks to ensure the safety of the human being and society. When fulfilling this task, state institutions have the right to apply preventive measures aimed at limiting the rights of persons. By the official warning provided for in Item 1 of Article 3 of the Law, the person is only informed that court injunctions may be issued against him upon the procedure established by the Law, therefore, this warning in itself does not restrict human rights. In the opinion of the representatives of the party concerned, Articles 3, 4 and 8 of the Law are not in conflict with Article 18 of the Constitution.

In the opinion of the representatives of the party concerned, the statement of the petitioners that Articles 3, 4 and 8 are in conflict with the presumption of innocence, which is consolidated in the Constitution, is unreasoned as the evidence of guilt of the person as well as its recognition by an effective court decision constitutes the basis for imposing a punishment rather than preventive measures. The presumption of innocence also does not deny an opportunity to limit, on the basis of the constitutional provisions, certain rights of individuals that are entrenched in the Constitution. According to the statements of M. Girdauskas and G. Ivoška, when applying the preventive measures established in the impugned articles of the Law, one does not decide as to whether a crime has been committed. The representatives of the party concerned state that laws of foreign states provide also for an opportunity to apply preventive measures to persons in order to prevent them from committing crimes.

According to M. Girdauskas and G. Ivoška, when considering the application of preventive measures, the European Court of Human Rights construed that preventive measures are not to be equated with criminal sanctions, as their purpose is to prevent crimes. When imposing preventive measures one does not decide the issue of initiated charges brought against the person in regard to the norms of the Convention for the Protection of Human Rights and Fundamental Freedoms, i.e. justice is not implemented. In the opinion of the representatives of the party concerned, the application of the preventive measures provided for in Articles 3, 4 and 8 of the Law does not mean that the person is recognised guilty and in itself does not violate the presumption of innocence.

In their explanations the representatives of the party concerned indicated that the impugned articles of the Law are not in conflict with the provisions of the Constitution regarding the inviolability of private life and collection of information about the private life of a person only on the basis of a reasoned court decision and only on the basis of the law, as they do not provide for collection of information about the private life of a person. The collection of information about fulfilment of injunctions, performed by the police, is legitimised in regard to these constitutional norms by the fact that the injunctions are imposed, according to the law, by court by a reasoned decision. This right may be subject to limitation where such a possibility is provided for by law and where it is necessary in a democratic society in order to ensure the national safety, to protect the society or economic welfare of the state, as well as in order to prevent violations of public order or crimes, to guarantee people’s health or morals or the rights and freedoms of other persons.

On the basis of these arguments, M. Girdauskas and G. Ivoška maintain that Articles 3, 4, 6 and 8 (wording of 26 June 2001) of the Law are not in conflict with the Constitution.

IV

In the course of the preparation of the case for the Constitutional Court’s hearing written explanations were received from A. Klimavičius, the Prosecutor General of the Republic of Lithuania, G. Dalinkevičius, the then Chairperson of the Human Rights Committee of the Seimas, J. Bernatonis, the then Minister of the Interior of the Republic of Lithuania, V. Bulovas, the then Minister of the Interior of the Republic of Lithuania, G. Švedas, the Vice-Minister of the Interior, V. Vadapalas, the then Director General of the European Law Department under the Government of the Republic of Lithuania, J. Misiūnas, the then Acting Director of the Law Institute, T. Birmontienė, the former Director of the Lithuanian Centre for Human Rights, as well as A. Andriulienė, the then acting Director of the Lithuanian Centre for Human Rights.

V

At the Constitutional Court’s hearing, the representatives of the Seimas—the party concerned—who were M. Girdauskas and G. Ivoška, virtually reiterated the arguments set forth in the written explanations.

The Constitutional Court

holds that:

I

1. On 1 July 1997, the Seimas adopted the Law on the Restraint of Organised Crime. This law became effective on 23 July 1997.

2. On 26 June 2001, the Seimas adopted the Law on Amending the Law on the Restraint of Organised Crime, by Article 1 of which it amended the Law on the Restraint of Organised Crime and set it forth in a new wording. The Law on Amending the Law on the Restraint of Organised Crime became effective on 11 July 2001.

3. It is established in Article 3 (wording of 26 June 2001) of the Law:

If the bases provided for in Article 4 of this Law exist, one may apply the following preventive measures:

1) official warning;

2) court injunctions.”

Article 4 (wording of 26 June 2001) of the Law used to provide: “The preventive measures provided for in Article 3 of this Law may be applied in regard to the persons, if the data, received upon the procedure established by law, about the relations of these persons with organised groups, criminal syndicates or their members, constitute a sufficient basis for considering that these persons may commit grave crimes, and the preventive measures should be applied in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons.”

Article 6 (wording of 26 June 2001) of the Law provides:

1. The head of the police establishment or police officer acting as his deputy, while taking account of the data specified in Article 4 of this Law, authorises a police officer to issue an official warning to the person.

2. When fulfilling the decision on application of the official warning the authorised police officer has the right to summon the person to the police establishment.

3. The decision on the application of the official warning to the person shall be formalised by a written resolution. The resolution shall be confirmed by the head of the police establishment.

4. The official warning is presented to the person so that he can familiarise himself with it and sign it.

5. The person must be handed in an official copy of the warning.

6. If the person to whom the official warning is applied does not follow the requirements of this warning, the head of the police establishment or the police officer acting as his deputy may authorise a police officer to decide whether to request that the court impose court injunctions against this person.”

It is established in Article 8 (wording of 26 June 2001) of the Law:

1. The court may impose one or several injunctions upon the person:

1) not to maintain any contact with the persons specifically named, directly, through other persons, by technical or other means;

2) not to change the permanent place of residence without a consent by the authorised supervising police officer and to remain at the place of residence at the appointed time;

3) not to frequent the places indicated.

2. In issuing court injunctions, the court shall establish their length.”

4. On 3 April 2003, the Seimas adopted the Republic of Lithuania’s Law on Amending Article 4 of the Law on the Restraint of Organised Crime. By Article 1 of this law Article 4 (wording of 26 June 2001) of the Law on the Restraint of Organised Crime was amended, after the word “grave” the words “or very grave” were entered, and Article 4 of the Law on the Restraint of Organised Crime was set forth as follows: “The preventive measures provided for in Article 3 of this Law may be applied in regard to the persons, if the data, received upon the procedure established by law, about the relations of these persons with organised groups, criminal syndicates or their members, constitute a sufficient basis for considering that these persons may commit grave or very grave crimes, and the preventive measures should be applied in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons.”

It is established in Article 2 of the Law on Amending Article 4 of the Law on the Restraint of Organised Crime that this law becomes effective together with the Criminal Code of the Republic of Lithuania and Code of Criminal Procedure of the Republic of Lithuania.

It is, inter alia, established in Article 1 of the Law on the Procedure of Coming into Force and Implementation of the Criminal Code of the Republic of Lithuania which was confirmed by law No. VIII-1968 of 26 September 2000, the Code of Criminal Procedure which was confirmed by law No. IX-785 of 14 March 2002 and the Penitentiary Code which was confirmed by law No. IX-994 of 27 June 2002, adopted by the Seimas on 29 October 2002, that the Criminal Code which was confirmed by law No. VIII-1968 of 26 September 2000 and the Code of Criminal Procedure which was confirmed by law No. IX-785 of 14 March 2002 become effective as from 1 May 2003. Thus, the Law on Amending Article 4 of the Law on the Restraint of Organised Crime became effective on 1 May 2003.

5. The Šiauliai City Local Court, a petitioner, by its 1 March 2002 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law on the Restraint of Organised Crime are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution.

The Klaipėda City Local Court, a petitioner, by its 23 July 2002 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law is not in conflict with Paragraph 1 of Article 30, Paragraph 2 of Article 21 and Paragraph 4 of Article 22 of the Constitution.

The Šiauliai City Local Court, a petitioner, by its 26 November 2002 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution.

The Šiauliai City Local Court, a petitioner, by its 6 January 2003 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 3 of Article 6 of the Law, to the extent that it does not provide for the right to appeal in court against the decision on application of an official warning to a person, is not in conflict with Paragraph 2 of Article 21 and Paragraph 4 of Article 22 of the Constitution.

The Šiauliai City Local Court, a petitioner, by its 7 January 2003 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 3 of Article 6 of the Law, to the extent that it does not provide for the right to appeal in court against the decision on application of an official warning to a person, is not in conflict with Paragraph 2 of Article 21, Paragraph 4 of Article 22 and Paragraph 1 of Article 30 of the Constitution.

The Šiauliai City Local Court, a petitioner, by its 23 January 2003 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution.

The Panevėžys Regional Court, a petitioner, by its 11 September 2003 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

The Šiauliai City Local Court, a petitioner, by its 24 September 2003 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution.

The Šiauliai City Local Court, a petitioner, by its 28 November 2003 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

The Marijampolė District Local Court, a petitioner, by its 18 December 2003 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with the principle of a state under the rule of law entrenched in the Preamble to the Constitution and Articles 18, 22, 24, 31, 32 and 48 of the Constitution.

The Šiauliai City Local Court, a petitioner, by its 23 January 2004 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution.

The Marijampolė District Local Court, a petitioner, by its 30 March 2004 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3 and 4 (wording of 26 June 2001) of the Law are not in conflict with the principle of a state under the rule of law entrenched in the Preamble to the Constitution and Articles 18, 22, 24, 31, 32 and 48 of the Constitution.

The Panevėžys City Local Court, a petitioner, by its 28 Aril 2004 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31, 32 and 48 of the Constitution and the constitutional principle of a state under the rule of law.

The Alytus District Local Court, a petitioner, by its 25 May 2004 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31, 32 and 48 of the Constitution and the constitutional principle of a state under the rule of law.

The Panevėžys Regional Court, a petitioner, by its 19 July 2004 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001 with the subsequent amendment made by law No. IX-1486 of 3 April 2003) of the Law are not in conflict with Articles 18 and 31 of the Constitution and the constitutional principle of a state under the rule of law.

The Šiauliai City Local Court, a petitioner, by its 25 August 2004 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3, 4 and 8 (wording of 26 June 2001) of the Law are not in conflict with Articles 18, 22, 24, 31 and 32 of the Constitution.

The Marijampolė District Local Court, a petitioner, by its 6 October 2004 ruling applied to the Constitutional Court with the petition requesting an investigation into whether Articles 3 and 8 (wording of 26 June 2001) and Article 4 (wording of 3 April 2003) of the Law are not in conflict with Articles 18, 22, 24, 31, 32 and 48 of the Constitution and the constitutional principle of a state under the rule of law entrenched in the Preamble to the Constitution.

6. The petitioners, namely the Panevėžys Regional Court by its 11 September 2003 ruling, the Alytus District Local Court by its 25 May 2004 ruling, the Marijampolė District Local Court by its 18 December 2003 and 30 March 2004 rulings, the Panevėžys City Local Court by its 28 April 2004 ruling, the Šiauliai City Local Court by its 1 March 2002, 26 November 2002, 23 January 2003, 24 September 2003, 28 November 2003, 23 January 2004 and 25 August 2004 rulings, request an investigation, inter alia, into the compliance of Article 4 (wording of 26 June 2001) of the Law which was, as mentioned before, amended by Article 1 of the adopted on 3 April 2003 Law on Amending Article 4 of the Law on the Restraint of Organised Crime with the Constitution.

According to Paragraph 4 of Article 69 of the Law on the Constitutional Court, the annulment of the impugned legal act constitutes the grounds to adopt a decision to dismiss the instituted legal proceedings. In its rulings the Constitutional Court has held more than once that the formula “shall be grounds <…> to dismiss the instituted legal proceedings” of Paragraph 4 of Article 69 of the Law on the Constitutional Court should be construed as the one which establishes the right of the Constitutional Court, having considered the circumstances of the case at issue, to dismiss the instituted legal proceedings in cases where it is not courts but other subjects listed in Article 106 of the Constitution who apply to the Constitutional Court, but not as the one which stipulates that the instituted legal proceedings should be dismissed in every case where the impugned legal act is annulled; according to the Constitution, in the cases where the Constitutional Court is addressed by a court which considers a case and which has doubts concerning the compliance of the applicable in particular case law with the Constitution and laws the Constitutional Court has the duty to consider the petition of the court irrespective of the fact whether the impugned law or other legal act is in force or not.

7. The petitioners, namely the Panevėžys Regional Court by its 11 September 2003 and 19 July 2004 rulings, the Alytus District Local Court by its 25 May 2004 ruling, the Marijampolė District Local Court by its 18 December 2003 and 6 October 2004 rulings, the Panevėžys City Local Court by its 28 April 2004 ruling, the Šiauliai City Local Court by its 1 March 2002, 26 November 2002, 23 January 2003, 24 September 2003, 28 November 2003, 23 January 2004 and 25 August 2004 rulings, request an investigation into the compliance of Article 8 (wording of 26 June 2001) of the Law with the Constitution.

The arguments of the petitioners reveal that the petitioners have doubts concerning the compliance only of Paragraph 1 of Article 8 (wording of 26 June 2001), but not of whole Article 8 (wording of 26 June 2001) of the Law, with the Constitution.

8. The petitioners, namely the Panevėžys Regional Court by its 11 September 2003 and 19 July 2004 rulings, the Alytus District Local Court by its 25 May 2004 ruling, the Marijampolė District Local Court by its 18 December 2003 and 30 March 2004 rulings, the Panevėžys City Local Court by its 28 April 2004 ruling and the Šiauliai City Local Court by its 28 November 2003 ruling, request an investigation into whether the provisions of Articles 3, 4 and 8 of the Law are not in conflict with the principle of a state under the rule of law entrenched in the Preamble to the Constitution.

The constitutional principle of a state under the rule of law may not be construed as the one which is entrenched only in the Preamble to the Constitution, nor may it be identified only with the declared therein striving for an open, just, and harmonious civil society and state under the rule of law. The constitutional principle of a state under the rule of law is consolidated not only by the striving for an open, just, and harmonious civil society and state under the rule of law, which is declared in the Preamble to the Constitution, but, in various aspects, by all the other provisions of the Constitution as well. The constitutional principle of a state under the rule of law integrates various values enshrined in, and protected and defended by the Constitution, including those which are expressed by the aforementioned striving. An investigation into the compliance of legal acts (parts thereof) with the striving for an open, just, and harmonious civil society and state under the rule of law, enshrined in the Preamble to the Constitution, implies an investigation into their compliance with the constitutional principle of a state under the rule of law (the Constitutional Court’s ruling of 13 December 2004).

9. The petitioners, namely the Panevėžys Regional Court by its 11 September 2003 and 19 July 2004 rulings, the Alytus District Local Court by its 25 May 2004 ruling, the Klaipėda City Local Court by its 23 July 2002 ruling, the Marijampolė District Local Court by its 18 December 2003, 30 March 2004 and 6 October 2004 rulings, the Panevėžys City Local Court by its 28 April 2004 ruling, the Šiauliai City Local Court by its 1 March 2002, 26 November 2002, 6 January 2003, 7 January 2003, 23 January 2003, 24 September 2003, 28 November 2003, 23 January 2004 and 25 August 2004 rulings, request an investigation into the compliance of the impugned provisions with, inter alia, Articles 22, 31, 32 and 48 of the Constitution.

The arguments listed in the petitions of the petitioners reveal that the petitioners have doubts concerning the compliance of the impugned provisions of the Law not with whole Article 22 of the Constitution, but with Paragraphs 1, 3 and 4 thereof only, not with whole Article 31 of the Constitution, but with Paragraphs 1 and 4 thereof only, not with whole Article 32 of the Constitution, but with Paragraphs 1 and 2 thereof only, and not with whole Article 48 of the Constitution, but with the provision that each human being may freely choose a job or business of Paragraph 1 of this article only.

10. Subsequent to the petitions of the petitioners the Constitutional Court will investigate:

1) whether Article 3 (wording of 26 June 2001) of the Law is not in conflict with Article 18, Paragraphs 1, 3 and 4 of Article 22, Article 24, Paragraphs 1 and 4 of Article 31, Paragraphs 1 and 2 of Article 32 of the Constitution, the provision that each human being may freely choose a job or business of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law;

2) whether Article 4 (wordings of 26 June 2001 and 3 April 2003) of the Law is not in conflict with Article 18, Paragraphs 1, 3 and 4 of Article 22, Article 24, Paragraphs 1 and 4 of Article 31, Paragraphs 1 and 2 of Article 32 of the Constitution, the provision that each human being may freely choose a job or business of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law;

3) whether Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law, to the extent that that it does not provide for the right to appeal in court against the decision on application of an official warning to a person, is not in conflict with Paragraph 2 of Article 21, Paragraph 4 of Article 22 and Paragraph 1 of Article 30 of the Constitution;

4) whether Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Article 18, Paragraphs 1, 3 and 4 of Article 22, Article 24, Paragraphs 1 and 4 of Article 31, Paragraphs 1 and 2 of Article 32, the provision that each human being may freely choose a job or business of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

II

1. Crimes are violations of law by which human rights and freedoms as well as other values protected and defended by the Constitution are grossly violated. The purpose of the state as a political organisation of the entire society is to ensure human rights and freedoms and to guarantee the public interest, therefore, while exercising its functions and acting in the interests of the entire society, the state has the obligation to efficiently ensure effective protection of human rights and freedoms, other values protected and defended by the Constitution, of every individual and the whole society from, inter alia, criminal attempts.

2. The entrenched in the Constitution negative attitude towards crimes as a social evil is reflected in various articles of the Constitution, inter alia, the ones in which the notions “crime”, “criminal actions”, “criminal” are used directly. For example, according to Paragraph 2 of Article 24 of the Constitution, without the consent of the resident, entry into his dwelling place is not permitted otherwise than, inter alia, by the procedure established by law when it is necessary to apprehend a criminal; according to Paragraph 4 of Article 25 of the Constitution freedom to express convictions and impart information is incompatible with criminal actions—the instigation of national, racial, religious, or social hatred, violence and discrimination, slander and disinformation; according to Article 27 of the Constitution the convictions, religion, or beliefs of the human being may not justify, inter alia, a crime; according to Article 31 of the Constitution a person is presumed innocent until proven and declared guilty by an effective court judgment in accordance with the procedure established by law (Paragraph 1), a person charged with the commission of a crime has the right to a fair public hearing of his case by an independent and impartial court (Paragraph 2), punishment may be imposed or applied only on the grounds established in law (Paragraph 4), no one may be punished a second time for the same crime (Paragraph 5), a person suspected of the commission of a crime or an accused, from the moment of his detention or first interrogation, is guaranteed the right to defence as well as the right to have an advocate (Paragraph 6); one of the grounds of removal of the highest state officials from office (revocation of the mandate of a member of the Seimas), specified in Article 74 of the Constitution, is “disclosure of the commission of a crime”.

3. The ensuring of safety of each human being and the whole society from crimes is a duty of the state and one of its priority tasks as by the crimes one violates not only human rights and freedoms and other values protected and defended by the Constitution, but also negative impact to living conditions and subsistence level of people is made as well as the fundamentals of the life of the state and society are encroached upon. In case the state fails to take proper actions in order to prevent crimes, the trust in state power and laws would be destroyed and disrespect in legal order and various social institutes would increase. Therefore, according to the Constitution, the state, an organisation of the entire society, which must guarantee the public interest, has not only the right, but also a duty to take various lawful measures preventing the crimes, as well as restricting and reducing crime. The measures established and applied by the state must be efficient.

4. In a democratic state under the rule of law the legislature has the right and, alongside, the duty to prohibit by law the deeds by which essential harm is inflicted on the interests of persons, society or those of the state, or in case a threat occurs when due to such deeds the said damage will be inflicted. According to the Constitution it is only the law by which one may define what deeds are criminal and establish criminal liability for such deeds. It should be noted that only the deeds which are truly dangerous and by which harm is really inflicted on the interests of the person, society and the state or in case a threat occurs when due to such deeds the said damage will be inflicted, may be recognised in the law as criminal deeds.

5. The legislature, having considered the threat caused by crimes, the scope of crimes, their occurrence, dynamics, structure, as well as various criminogenic factors, has the duty to establish measures, the purpose of which is to protect the person, society and the state from criminal attempts. Under the Constitution, the legislature enjoys the right to choose various measures of restricting and reducing crime, as well as to establish the conditions and procedure of application thereof. When doing so the legislature must observe the Constitution.

6. Both legal and other than legal (organisational, economic, etc.) measures should be applied when seeking to restrict crime and to reduce it. In the context of the constitutional justice case at issue, it should be noted that the legal measures of restricting and reducing crime differ also in whether they are aimed at reacting to the already committed crime and deterring the persons who have already committed crimes and other persons from new criminal attempts (repressive measures), or at preventing crimes, where the risk of their commission is greater in case no such measures are taken (preventive measures).

The repressive measures of restricting and reducing crime comprise, inter alia, the fact that in laws one defines which deeds are criminal and establishes punishment for commission of such deeds. By these measures one strives not only to establish the legal bases for punishing the persons guilty of committing a crime, but by these measures, by threatening with punishments and establishing the legal bases for punishing the persons who committed crimes, every person, the whole society and the state are protected from criminal attempts. According to the Constitution the state prosecutes the persons who committed crimes, their guilt is being proven upon the procedure established by law, and the punishments, established by law, for the committed crimes are being imposed upon them.

When restricting and reducing crime it is not only repressive, but also preventive measures that should be applied. In its 9 December 1998 ruling, the Constitutional Court stressed the importance of the efficiently applied system of various preventive measures in crime prevention. It was mentioned that the preventive measures are aimed at preventing crimes, where the risk of their commission is greater in case no such measures are taken.

It must be noted that although the final objective of the repressive and preventive measures of restricting and reducing crime is the same—they are aimed at eliminating crime—they still have objective differences—they differ in the bases of their application, direct aim, content, as well as legal consequences of their application. By repressive measures one reacts to the already committed crime and seeks to deter the persons who have already committed crimes and other individuals from new criminal attempts, while by preventive measures one strives to prevent crimes, where the risk of their commission is greater in case no such measures are taken. Within the context of the constitutional justice case at issue, it should be noted that a punishment may be imposed upon the person who has committed the crime, meanwhile, preventive measures do not constitute a punishment, their purpose is to prevent a person from committing a crime and, thus, to protect the public interest as well. Moreover, in this way, finally, the person who, according to the data received in a legal manner, if not deterred from by preventive measures would tend to commit a crime, is protected himself as well. It should also be noted that the preventive measures which are aimed at restricting and reducing crime, are, as a rule, linked with a particular limitation on the implementation of human rights and freedoms, by which, it should be stressed, the essence of these rights and freedoms may not be denied.

The aforementioned objective differences between repressive and preventive measures determine also the particularities of their legal regulation.

7. Within the context of the constitutional justice case at issue it is also to be noted that organised criminal groups (syndicates), the crimes committed by them or the fact that they are going to commit such crimes pose a special threat to a person, his rights and freedoms, society and the state.

It is worth stressing that the majority of especially dangerous crimes, for example, terrorism, trafficking in people, criminal trade in weapons and drugs, money laundering, financial crimes and crimes related to corruption, are often committed namely by organised criminal groups (syndicates). If organised crime were not prevented and organised criminal groups (syndicates) were not prosecuted, the constitutional values, inter alia, the rights and freedoms of the person, the legal bases of the life of society entrenched in the Constitution, the state as an organisation of the entire society and the entire society would be under the threat.

It should also be noted that in the modern world organised crime often reaches beyond the state borders and causes threat to the international community as well. If the activity of organised criminal groups (syndicates) were not persecuted at the time when it is spreading from one country to another, the most important values of both the communities of democratic states and the international community would become under the threat.

Therefore, modern states establish and apply various measures, both repressive and preventive, for restricting and reducing organised crime. Lithuania as a democratic state under the rule of law and a member of the international community has also the duty to establish and apply both repressive and preventive measures which are adequate to the threat posed by organised crime. When assessing these measures, in general, it should be noted, that the construction that, purportedly, the constitutional recognition of the innate nature of human rights and freedoms, the broad as well as entrenched in the Constitution catalogue of innate rights and freedoms of a human being and other constitutional institutes does not permit the establishment and application of efficient and, if needed, quite strict measures of the restriction and reduction of organised crime, would be misleading. On the contrary, the duty of the state as an organisation of the entire society to protect the person and the state from the threat caused by crimes obligates it to establish and unhesitatingly apply efficient measures of restricting and reducing crime, thus, organised crime as well.

In this context it, should be noted that in the Constitution one has consolidated the concept of a democratic state, where the state not only seeks to protect and defend the person and society from crimes and other dangerous violations of law, but also is able to do this efficiently. Such a state must create and efficiently apply a system of measures of restricting and reducing crime, especially organised crime, which would comprise the preventive measures adequate to the threat caused by organised crime, as well. Otherwise, the duty, according to the Constitution, of the state to ensure the security of each human being and the entire society, as well as the legal order based on the constitutional values, would not be implemented.

On the other hand, the entrenched in the Constitution concept of a democratic state under the rule of law, which seeks and is able to protect and defend the person and society from crimes and other dangerous violations of law, may not become a basis for violating human rights and freedoms, for restricting them more than one needs in order to attain the important to the society and legitimate objectives or for denying by such restrictions the essence of human rights and freedoms. Therefore, the preventive measures by which one strives to restrict and reduce crime, thus, organised crime as well, must be established by law in which one must provide for the bases and objectives of the application of these measures; a system of control over the imposing and applying various preventive measures, comprising, inter alia, judicial control and the right of a person to apply to court regarding the violation of his rights, must also be consolidated by law.

III

1. It has been mentioned that the petitioners have doubts as to whether the impugned articles (parts thereof) of the Law are not in conflict with the constitutional principle of a state under the rule of law, Articles 18 and 21, Paragraphs 1, 3 and 4 of Article 22, Articles 24 and 30, Paragraphs 1 and 4 of Article 31, Paragraphs 1 and 2 of Article 32, and the provision that each human being may freely choose a job or business of Paragraph 1 of Article 48 of the Constitution.

2. When construing the content of the constitutional principle of a state under the rule of law, the Constitutional Court in its rulings has held more than once that the constitutional principle of a state under the rule of law is a universal principle, on which the whole legal system of Lithuania and the Constitution of the Republic of Lithuania itself are based, that the constitutional principle of a state under the rule of law should be construed inseparably from the striving for an open, just, and harmonious civil society and state under the rule of law, which is declared in the Preamble to the Constitution, and that the content of the aforementioned constitutional principle reveals itself in various provisions of the Constitution.

The essence of the constitutional principle of a state under the rule of law is the rule of law. The constitutional imperative of the rule of law means that freedom of power is limited by law which must be obeyed by all the subjects of legal relations, including law-making subjects as well. The discretion of all the law-making subjects is limited by the supreme law—the Constitution. All the legal acts and decisions of all the state and municipal institutions and officials must be in conformity and must not be in conflict with the Constitution.

The constitutional principle of a state under the rule of law is especially capacious, it comprises a range of various inter-related imperatives. In its rulings the Constitutional Court has held more than once that the principle of a state under the rule of law consolidated in the Constitution, apart from other requirements, also implies that human rights and freedoms must be secured, that all institutions exercising state power and other state institutions, municipal institutions and all the officials must act while observing law and in compliance with the Constitution and law, that the Constitution has the supreme legal force and that all the legal acts must be in conformity with the Constitution. The jurisprudence of the Constitutional Court has pointed out many times the imperative originating from the constitutional principle of a state under the rule of law and other provisions of the Constitution that a person, who believes that his rights or freedoms are violated, enjoys an absolute right to a hearing of his case by an independent and impartial court, which would settle the dispute. The right of an individual to apply to court implies also his right to a due judicial process and constitutes a compulsory condition of the implementation of justice. It should be stressed that the constitutional right of an individual to apply to court may not be artificially restricted and its implementation may not be unreasonably impeded.

The constitutional principle of a state under the rule of law implies various requirements upon the legislature and other law-making subjects, inter alia, that the requirements established in legal acts must be based on provisions of general type (legal norms and principles), which may be applied in regard to all the specified subjects of respective legal relations; differentiated legal regulation must be based only on the objective differences of the status of the subjects of public relations, which are regulated by respective legal acts; formulas of legal acts must be precise, consistency and internal harmony of the legal system must be ensured; legal regulation must be relatively stable so that the subjects of legal relations could orient their behaviour in accordance with the requirements of law; etc.

It is established in Article 28 of the Constitution that in exercising rights and freedoms, the human being must observe the Constitution and the laws of the Republic of Lithuania and must not impair the rights and freedoms of other people. The constitutional consolidation of human rights and freedoms does not mean that their implementation may not be subject to limitation. In its rulings, the Constitutional Court has held more than once that according to the Constitution it is allowed to limit the implementation of human rights and freedoms if the following conditions are followed: it is made by law; the limitations are necessary in a democratic society in order to ensure the rights and freedoms of other persons and values entrenched in the Constitution, as well as the constitutionally important objectives; the limitations do not deny the nature and essence of the rights and freedoms; the constitutional principle of proportionality is followed.

Within the context of the constitutional justice case at issue, it should be noted that when deciding whether the law by which the implementation of the rights and freedoms of a person are limited does not infringe the constitutional principle of proportionality as one of the elements of the constitutional principle of a state under the rule of law, it is necessary to assess whether the measures established in the law are in compliance with legitimate objectives that are important to society, whether these measures are necessary in order to attain the specified objectives and whether these measures do not restrict the rights and freedoms of the person apparently more than necessary in order to attain the said objectives.

The constitutional principle of a state under the rule of law must be followed not only when creating, but also when applying law. When applying law it is necessary, inter alia, to observe such requirements originating from the constitutional principle of a state under the rule of law as the equal rights of persons, non-permission to punish twice for the same violation of law, etc. It should be noted that jurisdictional and other law-applying institutions must be impartial, they must strive to find out the objective truth and to make decisions based only on law (the Constitutional Court’s rulings of 11 May 1999, 19 September 2000, 24 January 2003, and 13 December 2004). In the context of the constitutional justice case at issue, it should be noted that jurisdictional and other law-applying institutions, while applying the preventive measures which are aimed at restricting and reducing organised crime and which are linked with the limitation on the implementation of particular rights and freedoms of a person, in every case must thoroughly assess a concrete situation, investigate all the influential circumstances, find out if it is possible to achieve the same objectives without limiting the implementation of human rights and freedoms, and having find out that such limitation is necessary in order to attain the said objectives of the application of the preventive measures, to ensure that the implementation of these rights and freedoms is not limited more than necessary in order to achieve the said objectives. If this is not done, human rights and freedoms could be violated.

3. It is established in Article 18 of the Constitution that human rights and freedoms are innate.

The principle of recognition of the innate nature of human rights and freedoms is consolidated in this article of the Constitution. It should be noted alongside that in this article of the Constitution one does not specify particular innate human rights and freedoms—they are entrenched in other articles (parts thereof) of the Constitution.

The consolidated in the Constitution principle of the recognition of the innate nature of human rights and freedoms means that the human being enjoys the rights and freedoms which are inseparable from his person and which may not be taken from him, as well as that the person enjoys them ipso facto.

In its 9 December 1998 ruling, the Constitutional Court stated: “The innate nature of human rights means that they are inseparable of an individual and that they are linked with neither a territory nor a nation. An individual possesses his innate rights regardless of whether they are entrenched in legal acts of the state or not. These rights are enjoyed by every individual, and this means that they are enjoyed by the best and worst people alike.” The constitutional recognition of the innate nature of human rights and freedoms implies that one may not establish such a procedure of the implementation of these rights and freedoms, where their implementation would depend upon the decisions of the state institutions, officials or other persons which are not based on law.

The principle of recognition of the innate nature of human rights and freedoms is revealed in various articles (parts thereof) of the Constitution, which consolidate certain human rights and freedoms, as well. This principle is also one of the fundamentals of the constitutional order of the Republic of Lithuania as a democratic state under the rule of law: one of the major tasks of a democratic state under the rule of law is to defend and protect these rights and freedoms. The consolidation of human rights and freedoms in the Constitution implies the duty of the legislature and other law-making subjects, when issuing legal acts, which regulate the relations of an individual and the state, to follow the priority of human rights and freedoms, to establish sufficient measures of protecting and defending human rights and freedoms, by no means to violate these rights and freedoms and not to allow others to violate them.

It should also be noted that one may not construe that, purportedly, any entrenched in the Constitution human right or freedom is innate only due to the fact that it is consolidated in the Constitution. A violation of a certain human right or freedom entrenched in the Constitution in itself does not mean that the principle of recognition of the innate nature of human rights and freedoms consolidated in Article 18 of the Constitution is violated as well.

The human rights and freedoms entrenched in the Constitution comprise a single and harmonious system. The Constitution consolidates the concept of human rights and freedoms, where the rights and freedoms of one person cohabitate with the rights and freedoms of other persons. It has been mentioned that when exercising his rights and freedoms, the human being must observe the Constitution and the laws of the Republic of Lithuania and must not impair the rights and freedoms of other people (Article 28 of the Constitution). In its 13 February 1997 ruling, the Constitutional Court stated that between, first, rights and freedoms of an individual and, second, interests of the society conflicts often arise and sometimes even contradictions originate, that such contradictions in a democratic state are solved by harmonising different interests and striving not to disturb their balance, and that one of the ways to harmonise the interests is a limitation on the implementation of human rights and freedoms.

The principle of the recognition of the innate nature of human rights and freedoms does not deny the fact that the implementation of human rights and freedoms may be subject to limitation. It was held in this ruling of the Constitutional Court that, according to the Constitution, the implementation of the constitutional human rights and freedoms may be subject to limitation if the following conditions are satisfied: this is done by law; the limitations are necessary in a democratic society in order to secure the rights and freedoms of other persons and values entrenched in the Constitution, as well as the constitutionally important objectives; the limitations do not deny the nature and essence of the rights and freedoms; the constitutional principle of proportionality is followed.

4. Paragraph 1 of Article 22 of the Constitution provides: “The private life of a human being shall be inviolable.”

Paragraphs 3 and 4 of Article 22 of the Constitution provide:

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

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

The private life of a human being is the personal life of an individual, i.e. the way of life, marital status, dwelling surroundings, relations with other persons, the views, convictions, habits of the individual, his physical and psychological state, his health, honour, dignity etc.

The quoted provisions of Article 22 of the Constitution consolidate the right of a human being to privacy. In its rulings of 21 October 1999, 8 May 2000, 19 September 2002, 23 October 2002 and 24 March 2003, the Constitutional Court held that that this right encompasses private, family and house life, physical and psychological inviolability, honour and reputation, secrecy of personal facts and prohibition on publicising received or acquired confidential information etc. Arbitrary or unlawful interference in the private life of an individual constitutes, alongside, an encroachment upon his honour and dignity.

The provision “information concerning the private life of a person may be collected only upon a justified court decision and only in accordance with the law” of Paragraph 3 of Article 22 of the Constitution and the provision “the law and the court shall protect everyone from arbitrary or unlawful interference in his private and family life, from encroachment upon his honour and dignity” of Paragraph 4 of Article 22 of the Constitution are some of the most important guarantees of the inviolability of the private life of a person. By the said provisions the private life of the individual is protected against unlawful interference by the state, other institutions, their officers and other persons (the Constitutional Court’s ruling of 19 September 2002).

The human right to privacy is not an absolute one. According to the Constitution it is allowed to limit the constitutional human right to privacy, if the general requirements of limiting human rights and freedoms (this is done by law, the limitations are necessary in a democratic state in order to secure the rights and freedoms of other persons and values entrenched in the Constitution, as well as the constitutionally important objectives; the limitations do not deny the nature and essence of the rights and freedoms; the constitutional principle of proportionality is followed) which originate from the Constitution are followed.

It is worth noting that the legal concept of the private life is linked with legitimate expectations of the private life of the person. If a person commits criminal deeds or those contrary to law, by his unlawful actions violates the interests protected by law, inflicts damage on particular persons, society or the state, he is aware or must and can be aware of the fact that this will cause corresponding reaction of state institutions and that for the breach of law being committed (or already committed) the state may apply force measures and that by such measures his behaviour will be influenced in a certain way. It needs to be noted that a person who has committed a criminal deed cannot and may not expect that the protection of his private life will be the same as that of the persons observing the laws (the Constitutional Court’s ruling of 24 March 2003).

In the context of the constitutional justice case at issue, it should be noted that, as already held in this ruling of the Constitutional Court, crimes are the violations of law by which human rights and freedoms and other values protected and defended by the Constitution are grossly violated. It is also held in this ruling of the Constitutional Court that organised criminal groups (syndicates), the crimes committed by them or the fact that they are going to commit such crimes, pose a special threat to a person, his rights and freedoms, society and the state.

It should be noted also that in cases where the data, received upon the procedure established by law, about the relations of persons with organised groups, criminal syndicates or their members, constitute a sufficient basis for considering that these persons may commit grave crimes, i.e. when particular activity of the persons, their relations prove the threat to constitutional values, inter alia, human rights and freedoms, constitutional order, the safety of society and the state, as well as public order, one may establish by law the preventive measures which provide for a certain control over the behaviour of such persons. The preventive measures which are aimed at restricting and reducing organised crime, in themselves, should not be considered a constitutionally unreasonable limitation on the human right to privacy, however, only if they are established by law, if they are necessary in a democratic society in order to secure the rights and freedoms of other persons and values entrenched in the Constitution, if they do not deny the nature and essence of the right of the person to privacy, as well as if they are proportionate to the objective sought and which may not be attained by any other means. While applying the aforementioned preventive measures the jurisdictional and other law-applying institutions must in every case assess the particular situation, investigate all the important circumstances, and find out, whether the same objectives may be attained without interfering with the private life of a human being and family life and without limiting the human right to privacy more than it is needed in order to achieve the said important to the society and constitutionally grounded objective.

In order to protect the person from arbitrary and unlawful restriction of privacy, the preventive measures, which interfere into the implementation of the human right to private life, may be imposed only on the bases established in the law, only by following the procedure established by law and only by providing for the right of a person to appeal against the imposed preventive measure in court.

5. Article 24 of the Constitution provides:

The dwelling place of a human being shall be inviolable.

Without the consent of the resident, entry into his dwelling place shall not be permitted otherwise than by a court decision, or the procedure established by law when it is necessary to guarantee public order, apprehend a criminal, save the life, health, or property of a human being.”

The principle of inviolability of the dwelling place of the person is consolidated in Article 24 of the Constitution. Other constitutional human rights and freedoms, i.e. the right to privacy, right to ownership etc., as well as acquired rights, are also secured by the constitutional guarantee of inviolability of the dwelling place of the person, security of the dwelling place of the human being from encroachment of outsiders.

It should be noted alongside that under the Constitution the inviolability of the dwelling place of a human being is not absolute to the extent that without the consent of the resident entry into his dwelling place is permitted when it is necessary to guarantee the values protected and defended by the Constitution (Paragraph 2 of Article 24 of the Constitution). For example, it is permitted to enter the dwelling place without the consent of the resident by a court decision adopted in order to ensure the values protected and defended by the Constitution or by the procedure established by law when it is necessary to guarantee public order, apprehend a criminal, save the life of a human being, health, or property. The aforementioned constitutional provisions imply the duty of the legislature to establish by law the procedure for entering into the dwelling place without the consent of the resident. When setting this procedure the legislature must regulate also the way how a respective court decision should be executed, as well as how the dwelling place is entered without the consent of the resident in cases when it is necessary to guarantee public order, to apprehend a criminal, save the life of a human being, health, or property. When establishing such legal regulation, the legislature must pay heed to the norms and principles of the Constitution.

6. It is established in Paragraph 1 of Article 30 of the Constitution: “The person whose constitutional rights or freedoms are violated shall have the right to apply to court.”

The constitutional principle of judicial defence is universal (the Constitutional Court’s rulings of 2 July 2002, 23 October 2002, and 17 August 2004). In a state under the rule of law a possibility is ensured for everyone to protect his rights in court from other persons, as well as unlawful actions of state institutions or officials (the Constitutional Court’s rulings of 1 October 1997 and 17 August 2004). Under Paragraph 1 of Article 30 of the Constitution, a person must be guaranteed the right to an independent and impartial arbiter of the dispute, who would in essence settle the legal dispute on the grounds of the Constitution and laws; every person enjoys this right; the person is guaranteed the defence of his violated rights in court regardless of the legal status of the person; the infringed rights and legitimate interests of persons must be defended in court irrespective of whether or not they are directly established in the Constitution; the rights of the person must be defended not formally, but in reality and effectively from unlawful actions of both private persons and state institutions or officials (the Constitutional Court’s rulings of 1 October 1997, 8 May 2000, 12 July 2001, 17 August 2004, and 13 December 2004). The guarantee of the judicial protection of the rights and freedoms of persons is a guarantee of procedural nature, an essential element of the constitutional institute of rights and freedoms of persons, a necessary condition of the implementation of justice, an inseparable element of the content of the constitutional principle of a state under the rule of law (the Constitutional Court’s ruling of 30 June 2000).

The right to apply to court is an absolute one (the Constitutional Court’s rulings of 30 June 2000 and 17 August 2004). It is not permitted to limit or deny this right. Under the Constitution, the legislature has a duty to establish legal regulation so that it could be possible to settle all disputes concerning violations of rights and freedoms of persons in court. Legal acts can also establish a procedure of out-of-court settlement of disputes. However, it is not permitted to establish any such legal regulation which would deny the right of a person, who thinks that his rights or freedoms have been violated, to defend his rights or freedoms in court (the Constitutional Court’s rulings of 2 July 2002, 4 March 2003, and 17 August 2004). The legal regulation consolidating the procedure of the implementation of the right of a person to judicial defence of his rights and freedoms must be in compliance with the requirement of clarity which emerges from the constitutional principle of a state under the rule of law. In order to provide an opportunity for a person to implement in reality his right to apply to court regarding violation of his rights and freedoms, the legislature must clearly establish in laws in what way and to what court the person may apply.

7. It is established in Paragraph 1 of Article 31 of the Constitution: “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 presumption of innocence consolidated in Paragraph 1 of Article 31 of the Constitution is one of the most important guarantees of the implementation of justice in a democratic state. It is a fundamental principle of the implementation of justice in the process of criminal cases, an important guarantee of human rights and freedoms. A person is considered having not committed a crime until his guilt is proven upon the procedure established by law and recognised guilty by an effective court judgment. The presumption of innocence is inseparably linked with the respect to and protection of other constitutional human rights and freedoms as well as acquired rights. It is especially important that state institutions and officials follow the presumption of innocence. It should be noted that public persons should in general restrain from referring to a person as a criminal until the guilt of the person in committing the crime is proven upon the procedure established by law and recognised guilty by an effective court judgment. Otherwise, human honour and dignity could become violated and human rights and freedoms could be undermined.

The presumption of innocence consolidated in Paragraph 1 of Article 31 of the Constitution may not be construed only linguistically and as the one which is linked only with administration of justice in the process of criminal cases. The consolidated in Paragraph 1 of Article 31 of the Constitution presumption of innocence, when evaluated in the context of other provisions of the Constitution, has a broader content, it may not be linked with the criminal legal relations only.

8. Paragraph 4 of Article 31 of the Constitution provides: “Punishment may be imposed or applied only on the grounds established in law.”

When construing the content of Paragraph 4 of Article 31 of the Constitution, according to which punishment may be imposed and applied only on the grounds established in law, the Constitutional Court in its 10 June 2003 ruling stated that this paragraph means, inter alia, that the legislature has the duty to establish by law as to what deeds are criminal ones, as well as criminal liability for such deeds. Upon establishing as to what deeds are criminal ones, as well as criminal liability for them, the legislature is bound by the principles of natural justice and proportionality established by the Constitution as well as other requirements of a state under the rule of law. According to the Constitution, in the Republic of Lithuania justice is administered solely by courts (Paragraph 1 of Article 109 of the Constitution). Provisions of Paragraph 4 of Article 31 of the Constitution imply that only the court enjoys an exceptional right, upon the procedure established in law, to decide the issue of guilt (innocence) of a person and to impose the punishment established in the law.

In the context of the constitutional justice case at issue, it should be noted that, as already held in this ruling of the Constitutional Court, not only repressive but also preventive measures are applied when restricting and reducing crime. It has been mentioned that although the final purpose of the repressive and preventive measures of restricting and reducing crime is the same—they are aimed at eliminating crime—they have objective differences, the bases of their application, directions of effect, direct purpose, content, as well as legal consequences of their application are different. By repressive measures one reacts to the already committed crime and seeks to deter the persons who have already committed crimes and other persons from new criminal attempts, while by preventive measures one strives to prevent crimes, where the risk of their commission is greater in case no such measures are taken. It has been mentioned also that a punishment may be imposed upon the person who committed the crime, meanwhile, preventive measures do not constitute a punishment, their purpose is to prevent a person from committing a crime and thus, to protect the public interest as well.

9. Paragraphs 1 and 2 of Article 32 of the Constitution provide:

A citizen may move and choose his place of residence in Lithuania freely, and may leave Lithuania freely.

The said rights may not be restricted other than by law and if it is necessary to protect the security of the State, the health of the people, as well as to administer justice.”

The citizen’s freedom of movement is an important element of the constitutional status of a member of the civil community. It should be noted that the rights and freedoms entrenched in Paragraph 1 of Article 32 of the Constitution are guaranteed both to citizens of the Republic of Lithuania and other persons, who according to Lithuanian law and international treaties of the Republic of Lithuania reside in Lithuania, in case their legal status does not imply other implementation of these rights and freedoms.

The provisions of Article 32 of the Constitution mean that only the citizen himself has the right to decide, in which place of the territory of the Republic of Lithuania he stays, when to leave this place and move to another place, to finally decide as to what permanent or temporary place of residence to choose, as well as to decide whether to stay in Lithuania or leave it, as well as the right to choose himself the time of departure. The latter right implies also the freedom of the citizen to choose any legal manner of departure. It should be noted that according to the Constitution it is not permitted to establish a procedure for the implementation of these rights and freedoms so that the citizen has to apply for a permission of any state institution to implement the freedom of movement which belongs to him, as well as the right to choose a place of residence in Lithuania, the right to freely leave Lithuania, or so that these rights and freedoms are unreasonably restricted. It is also worth noticing that the rights and freedoms entrenched in Article 32 of the Constitution create preconditions for implementing certain other human rights and freedoms: freedom to freely choose a job and business, the right to ownership, the right to education etc.

The entrenched in Article 32 of the Constitution right of movement, the right to choose a place of residence in Lithuania, as well as the right to leave Lithuania freely are not absolute ones. Under Paragraph 2 of Article 32 of the Constitution, they may be subject to limitation, however, this may be done only by law and only when it is necessary in order to protect security of the state and health of people; they may also be subject to limitation if it is necessary while administering justice.

In the context of the constitutional justice case at issue, it should be noted that, as already held in this ruling of the Constitutional Court, crimes are the violations of law by which human rights and freedoms and other values protected and defended by the Constitution are grossly violated. It is also held in this ruling of the Constitutional Court that organised criminal groups (syndicates), the crimes committed by them or the fact that they are going to commit such crimes, pose a special threat to a person, his rights and freedoms, society and the state. In cases where the data, received upon the procedure established by law, about the relations of persons with organised groups, criminal syndicates or their members, constitute a sufficient basis for considering that these persons may commit the most dangerous crimes, i.e. when a certain activity of the persons, their relations prove the threat to the constitutional values, inter alia, human rights and freedoms, constitutional order, the safety of society and the state, as well as public order, one may establish by law the preventive measures which provide for certain control over the behaviour of such persons. The preventive measures which are aimed at restricting and reducing organised crime, in themselves, are not to be considered a constitutionally unreasonable limitation on freedom of movement of the person, as well as the right to freely choose the place of residence in Lithuania and the right to leave Lithuania freely, however, these provisions are applicable only if they are established by law, if they are necessary in a democratic society in order to protect the values defended and protected by the Constitution, if they do not deny the nature and essence of the freedom of movement of the person as well as the right to freely choose the place of residence in Lithuania and the right to leave Lithuania freely, and if they are proportionate to the objective sought which may not be achieved in any other manner. The jurisdictional and other law-applying institutions, while applying the aforementioned preventive measures, in every case must thoroughly assess the specific situation, investigate all the influential circumstances, find out if it is possible to achieve the same objectives without interfering into the freedom of movement of the person, as well as the right to freely choose the place of residence in Lithuania and the right to leave Lithuania freely and without limiting the freedom of movement of the person, as well as the right to freely choose the place of residence in Lithuania and the right to leave Lithuania freely more than it is necessary in order to achieve the said important to society and constitutionally reasonable objective.

10. It is consolidated in Paragraph 1 of Article 48 of the Constitution, inter alia, that each human being may freely choose a job and business.

This freedom is one of the essential conditions of ensuring the satisfaction of vital needs of a human being and his proper status in society. In its 25 November 2002 and 4 July 2003 rulings, the Constitutional Court noted that the constitutional freedom of each human being to freely choose a job and business implies the duty of the legislature to create legal preconditions for the implementation of this freedom. While creating them, the legislature is empowered, while taking account of the nature of the job and business, to establish the conditions of the implementation of the right to freely choose a job and business. While doing this, he must pay heed to the Constitution.

In the context of the constitutional justice case at issue, it should be noted that it is not permitted to limit the human right to freely choose a job and business by preventive measures aimed at preventing organised crime.

11. Paragraph 2 of Article 21 of the Constitution provides: “The dignity of the human being shall be protected by law.”

Dignity is an integral characteristic of a human being as the greatest social value. Each member of society enjoys innate dignity. In its 9 December 1998 ruling, the Constitutional Court held that the innate human rights are innate opportunities of an individual which ensure his human dignity in the spheres of social life. It should be noted that dignity is characteristic of every human being, irrespective of how he himself or other persons assess him.

Paragraph 2 of Article 21 of the Constitution should be construed within the context of Paragraph 3 of this article as well. It is established in Paragraph 3 of Article 21 of the Constitution, inter alia, that it is prohibited to degrade the dignity of the human being. Thus, in the Constitution one has established the duty of the state to ensure the protection and defence of human dignity. The fact that the legislature, while regulating relations linked with the implementation of human rights and freedoms, must guarantee their proper protection constitutes one of the conditions of ensuring the human dignity as the constitutional value.

The duty of the state to ensure the protection and defence of human dignity means also that state institutions and officials may not unreasonably limit human rights and freedoms, treat the human being solely as a subject belonging to particular social, economic, professional or other category. In every case one must consider the human being as a free personality, whose human dignity should be respected. State institutions and officials have a duty to respect human dignity as a special value. Violations of human rights and freedoms can infringe human dignity as well.

IV

1. The human rights and freedoms indicated in the petitions of the petitioners are consolidated in international legal acts.

In Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter also referred to as the Convention) the right of everyone to liberty and security of person is entrenched, in Article 6 the entitlement of everyone to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law is consolidated, Article 8 provides that everyone has the right to respect for his private and family life, his home and his correspondence, and that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 2 of Protocol No. 4 securing certain rights and freedoms other than those included in the Convention for the Protection of Human Rights and Fundamental Freedoms and the First Protocol thereto provides that everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence, that everyone shall be free to leave any country, including his own, that no restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others, and that the rights set forth may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.

2. The Convention also provides for other grounds of restriction of the rights and fundamental freedoms of the person. For instance, Article 8 thereof provides that that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

3. In this context, the jurisprudence of the European Court of Human Rights should be mentioned in the cases in which one was considering application of preventive measures against organised crime in various states, inter alia, in the aspect of its compliance with the Convention.

The Constitutional Court has held in its rulings more than once that the jurisprudence of the European Court of Human Rights as a source of construction of law is also important to the construction and application of Lithuanian law.

The European Court of Human Rights noted in the case Labita v. Italy (European Court of Human Rights, judgment in the case Labita v. Italy of 6 April 2000, No. 26772/95) that it is lawful to apply preventive measures, including special supervision, against persons who are suspected of belonging to mafia, even before adoption of the judgment, since the purpose of these measures is prevention of crimes. In this case the European Court of Human Rights also noted that suspicion is regarded as reasonable if there are certain facts or data which can convince an objective observer that the person—participant of the case—could commit a violation of law.

The European Court of Human Rights recognised in the case Raimondo v. Italy (European Court of Human Rights, judgment in the case Labita v. Italy of 22 February 1994, Series A 281-A) that the special supervision by the police did not deprive the person of freedom in the sense of Paragraph 1 of Article 5 of the Convention and that restrictions on the freedom of movement due to the special supervision did not violate Article 2 of Protocol No. 4 to the Convention. The European Court of Human Rights also recognised in this case that it is lawful to apply preventive measures, including special supervision, against persons who are suspected of belonging to mafia, since the purpose of these measures is prevention of crimes; and it is not necessary that upon acquittal of these persons the grounds for application of such special measures would disappear, as the evidence collected during the court proceedings, even if insufficient for adoption of a judgment of conviction, can confirm reasonable fears that these persons may commit crimes in the future.

While investigating whether the private life of a person had been lawfully restricted, the European Court of Human Rights held in the case Malone v. United Kingdom (European Court of Human Rights, judgment in the case Malone v. United Kingdom of 2 August 1984, Series A No. 82) that interference with the private life of a person must be grounded on provisions of domestic law, however, domestic law must be in line with the principle of the rule of law in a democratic state, and that there must be a necessity for such interference by the state. In the case Olsson v. Sweden (European Court of Human Rights, decision in the Olsson Case of 25 June 1987, Series A No. 130) the European Court of Human Rights noted that according to the established practice of the Court, the term “necessity” means that the interference is in line with the existing social need and is proportionate to the objective sought.

4. Prevention of organised crime is also provided for in other international legal acts. On 13 December 2000, in Palermo, the authorised persons of governments of member states of the United Nations signed the United Nations Convention against Transnational Organised Crime. The Seimas ratified this convention by the 19 March 2002 Republic of Lithuania’s Law “On Ratifying the United Nations Convention against Transnational Organised Crime”. It is declared in this convention that its purpose is to promote cooperation to prevent and combat transnational organised crime more effectively. This convention applies to the prevention, investigation and prosecution of serious crime as defined in Article 2 of this convention where the offence is transnational in nature and involves an organised criminal group. This convention also provides for prevention of transnational organised crime, too. Under Article 31 of the said convention, State Parties shall endeavour to develop and evaluate national projects and to establish and promote best practices and policies aimed at the prevention of transnational organised crime; State parties, inter alia, shall, through appropriate legislative, administrative or other measures, endeavour to reduce existing or future opportunities for organised criminal groups to participate in lawful markets with proceeds of crime, to prevent the misuse by organised crime groups of tender procedures conducted by public authorities and of subsidies and licences granted by public authorities for commercial activity, and to prevent the misuse of legal persons by organised criminal groups. By the said convention, the State Parties also undertook to evaluate periodically existing relevant legal instruments and administrative practices with a view to detecting their vulnerability to misuse by organised criminal groups and to endeavour to promote public awareness regarding the existence, causes and gravity of and the threat posed by transnational organised crime.

5. The Council of the European Union, having regard to the threat of international organised crime and seeking to strengthen the cooperation between Member States’ law enforcement agencies, on 29 November 1996 adopted the Joint Action on the basis of Article K.3 of the Treaty on European Union, concerning the creation and maintenance of a directory of specialised competencies, skills and expertise in the fight against international organised crime, in order to facilitate law enforcement cooperation between the Member States of the European Union (96/747/JHA). By Article 1 of this legal act the Europol Drugs Unit was commissioned to establish, maintain and disseminate a directory of specialised competencies, skills and expertise for the fight against international crime. Under this legal act, Member States shall submit their contributions to be entered in the directory.

On 20 December 1996, the Council of the European Union adopted the Resolution on individuals who cooperate with the judicial process in the fight against international organised crime (97/C 10/01), by which it calls on Member States to adopt appropriate measures to encourage individuals who participate or have participated in an association of criminals or other criminal organisation of any kind, or in organised crime offences, to cooperate with the judicial process.

On 5 December 1997, the Council of the European Union adopted the Joint Action on the basis of Article K.3 of the Treaty on European Union, establishing a mechanism for evaluating the application and implementation at national level of international undertakings in the fight against organised crime (97/827/JHA). This legal act provides for establishment of a mechanism for peer evaluation of the application and implementation at national level of European Union and other international acts and instruments in criminal matters, of the resulting legislation and practices at national level and of international cooperation actions in the fight against organised crime in the Member States.

On 8 December 2000, the Council of the European Union adopted the Decision on the signing, on behalf of the European Community, of the United Nations Convention against transnational organised crime and its Protocols on combating trafficking in persons, especially women and children, and the smuggling of migrants by land, air and sea (2001/87/EC) whereby it authorised to designate the persons who are empowered, on behalf of the Community, to sign the said convention. On behalf of the European Community, this convention was signed on 12 December 2000.

V

1. Article 1 (wording of 26 June 2001) of the Law on the Restraint of Organised Crime consolidates that this law establishes the measures of restraint of organised crime, the principles and bases of their application as well as the procedure of their imposition. Under Article 2 of the Law (wording of 26 June 26), the preventive measures are applied while observing the principles of lawfulness, protection of the rights and freedoms of the person, and those of humaneness, as well as the principle of coordination of persuasion with compulsion.

It has been mentioned that Article 3 (wording of 26 June 2001) of the Law provides that if the bases provided for in Article 4 of the Law exist, one may apply preventive measures: official warning, court injunctions. Article 4 (wording of 26 June 2001) of the Law defined the bases for application of preventive measures as follows: “The preventive measures provided for in Article 3 of this Law may be applied in regard to the persons, if the data, received upon the procedure established by law, about the relations of these persons with organised groups, criminal syndicates or their members, constitute a sufficient basis for considering that these persons may commit grave crimes, and the preventive measures should be applied in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons.”

According to Article 5 (wording of 26 June 2001) of the Law, the official warning is a written demand by an authorised officer that a person should necessarily abide by the Constitution and laws, should not restrict the rights and freedoms of other people, should not commit violations of law, also setting forth the possible legal consequences.

The procedure and consequences of the official warning are provided for in Article 6 (wording of 26 June 2001) of the Law. Under the said article, the head of a police establishment or the police officer acting as his deputy, while taking account of the data specified in Article 4 of the Law, authorises a police officer to issue an official warning to the person. When implementing the decision regarding application of the official warning, the authorised police officer shall have the right to summon the person to the police establishment. The decision on the application of the official warning to the person is formalised by a written resolution. The resolution is confirmed by the head of the police establishment. The official warning is presented to the person so that he could familiarise himself with it and sign it. The person must be handed in an official copy of the warning. If the person to whom the official warning is applied does not follow the requirements of this warning, the head of the police establishment or the police officer acting as his deputy may authorise a police officer to decide whether to request that the court impose court injunctions against this person.

Article 7 (wording of 26 June 2001) of the Law provides for the procedure for imposition of court injunctions. Under the said article of the Law, the authorised police officer, while executing the order of the head of the police establishment or the police officer who acts as his deputy under Paragraph 6 of Article 6 of the Law, must summon the person to the police establishment and question the person as to the circumstances due to which it is possible to apply to court and impose court injunctions. The authorised police officer, after he has questioned the person, informs the head of the police establishment or the police officer who acts as his deputy about the result of the questioning. The head of the police establishment or the police officer who acts as his deputy may, while taking account of the results of the questioning, authorise the police officer to draw up a reasoned proposal to the court to impose court injunctions. The proposal regarding imposition of court injunctions to the person shall specify: the surname and position of the police officer who has drawn up the reasoned proposal; the name and surname of the person to whom court injunctions are proposed to be imposed, as well as his place of residence, the character of work (occupation), the main source income, marital status; the reasoning upon which the necessity to apply court injunctions is grounded; types, duration and conditions of the proposed injunctions; the documents about a dangerous character of the activity of the person and other documents of importance in deciding the issue of imposition of court injunctions are attached to the proposal. The reasoned proposal to impose court injunctions is considered and decided by one judge of a local or regional court in the presence of the person in regard of whom the imposition of court injunctions is proposed and the authorised police officer. In the course of decision of the issue of imposition of court injunctions in court an advocate may participate. The court considers the received proposal to impose court injunctions on the person within 48 hours. After he has heard the explanations and familiarised himself with the material, the judge either adopts a decision to impose court injunctions on the person, or refuses to impose them in a reasoned manner. The person, upon whom court injunctions are proposed, has the right to give explanations to the judge and to familiarise himself with the material submitted to the court. The person, upon whom court injunctions are proposed, has the right to familiarise himself, under procedure established in the Republic of Lithuania’s Law on State and Official Secrets and other legal acts, with information classified under procedure established in laws, as well as with the material the disclosure of which is limited. Court injunctions may be imposed for the period of 1-6 months. If there are grounds, the imposed court injunctions may be prolonged once for additional 3 months. The issue of prolongation is decided and decisions on imposition or non-imposition of injunctions are appealed against under procedure established in Article 7 (wording of 26 June 2001) of the Law. The person who was imposed court injunctions, either himself or though his advocate, as well as the authorised police officer, has the right to appeal against the decision of the judge in a higher court: that of the judge of a local court—in the regional court, that of the judge of a regional court—in the Court of Appeal of Lithuania. Complaints are filed within 3 days of the adoption of the decision by the judge. Having appealed against the court decision to impose court injunctions, the person must abide by the injunctions until the adoption of the final decision. The decision of a higher court must be adopted within 7 days of the reception of the complaint. The decision of the higher court is final and not subject to appeal.

Article 8 (wording of 26 June 2001) of the Law provides that the court may issue one or several injunctions against a person: not to maintain any contact with the persons specifically named, directly, through other persons, by technical or other means; not to change the permanent place of residence without a consent by the authorised supervising police officer and to remain at the place of residence at the appointed time; not to frequent the places indicated. In issuing court injunctions, the court shall establish the length of injunctions. Article 9 (wording of 26 June 2001) of the Law provides that police establishments shall control the implementation of the injunctions issued by the court. Under Article 10 (wording of 26 June 2001) of the Law, a person who has violated the injunctions established by the court, shall be held liable in accordance with the procedure established by law.

2. It has been mentioned that on 3 April 2003 the Seimas adopted the Law on Amending Article 4 of the Law on the Restraint of Organised Crime in Article 1 whereof it was prescribed that in Article 4 of the Law after the word “grave” the words “or very grave” are entered and this article was set forth as follows: “The preventive measures provided for in Article 3 of this Law may be applied in regard to the persons, if the data, received upon the procedure established by law, about the relations of these persons with organised groups, criminal syndicates or their members, constitute a sufficient basis for considering that these persons may commit grave or very grave crimes, and the preventive measures should be applied in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons.”

It was established in Article 2 of the Law on Amending Article 4 of the Law on the Restraint of Organised Crime that this law shall go into effect together with the CC and the CCP. It needs to be noted that this amendment to Article 4 of the Law is related with the entry into effect of the new CC which also consolidated the institute of very grave crimes.

It has been mentioned that Article 4 (wording of 26 June 2001) of the Law on the Restraint of Organised Crime used to provide: “The preventive measures provided for in Article 3 of this Law may be applied in regard to the persons, if the data, received upon the procedure established by law, about the relations of these persons with organised groups, criminal syndicates or their members, constitute a sufficient basis for considering that these persons may commit grave crimes, and the preventive measures should be applied in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons.”

After comparing the provisions of the wordings of 26 June 2001 and 3 April 2003 of Article 4 of the Law, it is clear that virtually the same legal regulation is consolidated in them, under which the preventive measures provided for in Article 3 (wording of 26 June 2001) of the Law may, inter alia, be applied in regard to persons if the data, received upon the procedure established by law, about the relations of these persons with organised groups, criminal syndicates or their members, constitute a sufficient basis for considering that these persons may commit the most dangerous crimes, which were named as grave crimes in Article 4 of the Law in its wording of 26 June 2001 and as grave or very grave crimes in Article 4 of the Law in its wording of 3 April 2003.

VI

On the compliance of Article 3 (wording of 26 June 2001), Article 4 (wordings of 26 June 2001 and 3 April 2003) of the Law on the Restraint of Organised Crime with Article 18, Paragraphs 1, 3, and 4 of Article 22, Article 24, Paragraphs 1 and 4 of Article 31, Paragraphs 1 and 2 of Article 32, Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law, on the compliance of Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law with Paragraph 2 of Article 21, Paragraph 4 of Article 22 and Paragraph 1 of Article 30 of the Constitution and on the compliance of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law with Article 18, Paragraphs 1, 3, and 4 of Article 24, Paragraphs 1 and 4 of Article 31, Paragraphs 1 and 2 of Article 32, Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

1. Article 3 (wording of 26 June 2001) of the Law on the Restraint of Organised Crime provides:

If the bases provided for in Article 4 of this Law exist, one may apply preventive measures:

1) official warning;

2) court injunctions.”

Article 4 (wording of 26 June 2001) of the Law on the Restraint of Organised Crime used to provide: “The preventive measures provided for in Article 3 of this Law may be applied in regard to the persons, if the data, received upon the procedure established by law, about the relations of these persons with organised groups, criminal syndicates or their members, constitute a sufficient basis for considering that these persons may commit grave crimes, and the preventive measures should be applied in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons.”

2. In Article 3 (wording of 26 June 2001) of the Law the preventive measures are specified, which may be applied under the Law: they are an official warning and court injunctions. The content of the preventive measures—official warning and court injunctions—themselves is not revealed in Article 3 (wording of 26 June 2001) of the Law.

It is also established in this article of the Law that the said preventive measures may be applied only if the bases provided for in Article 4 of the Law exist. This formula of Article 3 (wording of 26 June 2001) of the Law is of a directing character, therefore, if one is willing to assess the compliance of the impugned provisions of Article 3 (wording of 26 June 2001) of the Law with the Constitution, it is necessary, first of all, to assess the constitutionality of the bases of application of the preventive measures established in Article 4 (wording of 26 June 2001) of the Law.

3. The following provisions are consolidated in Article 4 (wording of 26 June 2001) of the Law:

1) the preventive measures provided for in Article 3 of the Law may be applied in regard to the person;

2) the preventive measures provided for in Article 3 of the Law may be applied in regard to the person only if there are these bases for application of the preventive measures:

a) data must be received about the relations of these persons with organised groups, criminal syndicates or their members;

b) the said data must be received upon the procedure established by law;

c) the said data must constitute a sufficient basis for considering that these persons may commit grave crimes;

3) the preventive measures provided for in Article 3 of the Law may be applied when one is seeking to attain these objectives: to guarantee the safety of society and the state and to ensure public order as well as the rights and freedoms of persons.

The said provisions of Article 4 (wording of 26 June 2001) of the Law constitute a single whole: the preventive measures established in Article 3 of the Law may be applied in regard of the person only in case there are the bases established in Article 4 (wording of 26 June 2001) of the Law and only when one seeks to attain the objectives provided for in this article.

4. As mentioned before, organised criminal groups (syndicates), the crimes committed by them or the fact that they are going to commit such crimes pose a special threat to a person, his rights and freedoms, society and the state. It has been noted in this ruling of the Constitutional Court that the majority of especially dangerous crimes, for example, terrorism, trafficking in people, criminal trade in weapons and drugs, money laundering, financial crimes and crimes related to corruption, are often committed namely by organised criminal groups (syndicates). If organised crime were not prevented and organised criminal groups (syndicates) were not prosecuted, the constitutional values, inter alia, the rights and freedoms of the person, the legal bases of the life of society entrenched in the Constitution, the state as an organisation of the entire society and the entire society would be under the threat. It was also held in this ruling of the Constitutional Court that in the Constitution one has consolidated the concept of a democratic state, where the state not only seeks to protect and defend the person and society from crimes and other dangerous violations of law, but also is able to do this efficiently. Such a state must create and efficiently apply a system of measures of restricting and reducing crime, especially organised crime, which would comprise preventive measures adequate to the threat caused by organised crime, as well.

5. It needs to be noted that the preventive measures are defined in Article 4 (wording of 26 June 2001) of the Law as “the preventive measures provided for in Article 3 of this Law”. This article of the Law does not reveal as to what measures they are, what their content is and who applies them and in what manner. It also needs to be noted that the preventive measures listed in Article 3 (wording of 26 June 2001) of the Law, their content, the subjects that apply these measures, and the procedure of application thereof are established in other articles of the Law.

In Article 4 (wording of 26 June 2001) of the Law the bases for the application of the preventive measures were established. As mentioned before, the preventive measures specified in Article 3 (wording of 26 June 2001) of the Law could be applied in regard to persons only in case there were all bases for application of these measures listed in Article 4 (wording of 26 June 2001) of the Law, i.e. if one received data about the relations of these persons with organised groups, criminal syndicates or their members, if these data were received upon the procedure established by law, if these data constituted a sufficient basis for considering that these persons may commit grave crimes, and when one had to apply these measures while seeking to attain these objectives: to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons.

While assessing these provisions of Article 4 (wording of 26 June 2001) of the Law, it needs to be noted that, according to the legal regulation established therein, first of all, the data specified in Article 4 (wording of 26 June 2001) of the Law had to be received not in any manner but only under the procedure established by law; second, the said data had to testify the existence of the relations of the persons with organised groups, criminal syndicates or their members, i.e. these data had to reveal the link of the persons with organised groups, criminal syndicates or their members exactly as with organised groups, criminal syndicates or their members; third, the formula “if the data <…> about the relations of these persons with organised groups, criminal syndicates or their members, constitute a sufficient basis for considering that these persons may commit grave crimes” of Article 4 (wording of 26 June 2001) of the Law means that one of the necessary bases in order to apply the preventive measures established in the Law in regard of the person must be the data reflecting such actions of the said persons, which testify not only the fact that these persons maintain relations with organised groups, criminal syndicates or their members, but also the fact that these relations reasonably permit one to assume that these persons may commit grave crimes. It also needs to be noted that the preventive measures provided for could be applied only when one was seeking to attain these objectives: to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons, i.e. when one was seeking to defend respective constitutional values.

In this context, it should be held that the statement of the petitioners that, purportedly, the basis of the application of the preventive measures, according to Article 4 (wording of 26 June 2001) of the Law, could be a mere suspicion that the person maintains relations with organised groups, criminal syndicates or their members is groundless.

6. Thus, after Article 4 (wording of 26 June 2001) of the Law established the bases and objectives of the preventive measures provided for in Article 3 (wording of 26 June 2001) of the Law, one was seeking to defend and protect constitutional values.

7. It has been mentioned that in Article 4 (wording of 3 April 2003) of the Law virtually the same legal regulation was consolidated as in Article 4 (wording of 26 June 2001) of the Law. Having held in this ruling of the Constitutional Court that after Article 4 (wording of 26 June 2001) of the Law established the bases and objectives of the preventive measures provided for in Article 3 (wording of 26 June 2001) of the Law, one was seeking to defend and protect constitutional values, one is also to hold that after Article 4 (wording of 3 April 2003) of the Law established the bases and objectives of the preventive measures provided for in Article 3 (wording of 26 June 2001) of the Law, one is seeking to defend and protect constitutional values, too.

8. Alongside, it needs to be emphasised that in the course of the application of the preventive measures provided for in Article 3 (wording of 26 June 2001) of the Law, one must verify whether there are all bases of their application established in Article 4 (wordings of 26 June 2001 and 3 April 2003) of the Law, i.e. whether there are data received upon the procedure established by law about the relations of the persons to whom the said preventive measures are applied with organised groups, criminal syndicates or their members, whether such data testify the link of the persons with organised groups, criminal syndicates or their members exactly as with organised groups, criminal syndicates or their members, whether these relations reasonably permit one to assume that these persons may commit grave crimes (or very grave crimes). Also, in every case one must ascertain whether when one seeks to guarantee the safety of society and the state and ensure public order and the rights and freedoms of persons, the precisely chosen preventive measures are necessary.

While construing the legal regulation established in Article 4 (wordings of 26 June 2001 and 3 April 2003) in the context of the constitutional principle of a state under the rule of law, it should be especially emphasised that in the course of application of the preventive measures provided for in Article 3 (wording of 26 June 2001) of the Law, one must pay heed to the constitutional principle of proportionality, i.e. that one must choose such preventive measures and that they must be applied only to such an extent that is necessary in seeking to attain the objectives that are important and legitimate to society.

Thus, the subjects commissioned to apply the preventive measures provided for in Article 3 (wording of 26 June 2001) of the Law can apply them only in the presence of all the aforementioned bases for application of these measures, and only when one seeks to attain constitutionally important objectives—guaranteeing the safety of society and the state and ensure public order and the rights and freedoms of persons, and only when one pays heed to the constitutional principle of proportionality.

9. As mentioned before, it is established in Article 3 (wording of 26 June 2001) of the Law that if the bases provided for in Article 4 of the Law exist, one may apply preventive measures: official warning, court injunctions.

While assessing the compliance of the legal regulation established in Article 3 (wording of 26 June 2001) of the Law with the Constitution, it should be noted that, as held in this ruling of the Constitutional Court, in the Constitution one has consolidated the concept of a democratic state, where the state not only strives to protect and defend the person and society from crimes and other dangerous violations of law, but also is able to do this efficiently. Such a state must create and efficiently apply a system of measures of restricting and reducing crime, especially organised crime, which would comprise the preventive measures adequate to the threat caused by organised crime, as well.

It was also held in this ruling of the Constitutional Court that after Article 4 (wordings of 26 June 2001 and 3 April 2003) of the Law established the bases and objectives of the preventive measures, one was seeking to defend and protect constitutional values.

10. One of the types of preventive measures established in Article 3 (wording of 26 June 2001) of the Law is official warning. In this article the content of the notion of official warning is not revealed. The notion of official warning is revealed in Article 5 (wording of 26 June 2001) of the Law: the official warning is a written demand by an authorised police officer that a person should necessarily abide by the Constitution and laws, should not restrict the rights and freedoms of other people, should not commit violations of law, also setting forth the possible legal consequences.

Under the Law, a necessary element of the official warning is the person’s familiarisation with possible legal consequences. Such warning should be stated only in case there are all bases established in Article 4 (wordings of 26 June 2001 and 3 April 2003) of the Law, i.e. if the data, received upon the procedure established by law, about the relations of these persons with organised groups, criminal syndicates or their members, constitute a sufficient basis for considering that these persons may commit grave (or very grave) crimes and the preventive measures should be applied in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons. It should be noted that in every case the authorised police officer must state the official warning while following the form and the procedure of the official warning established in the Law. Thus, it is clear that the purpose of the type of preventive measures, official warning, in case there are the bases established in Article 4 (wordings of 26 June 2001 and 3 April 2003) of the Law, is to prevent most dangerous crimes threatening these constitutional values: the safety of society and the state, public order and the rights and freedoms of persons.

Thus, by a type of preventive measures, official warning, provided for in Article 3 (wording of 26 June 2001) of the Law, one seeks to defend and protect the said constitutional values.

11. Another type of preventive measures established in Article 3 (wording of 26 June 2001) of the Law is court injunctions. In this article the content of the notion “court injunctions” is not revealed. The Law does not contain a definition of this notion at all. Alongside, it needs to be noted that Article 8 (wording of 26 June 2001) of the Law enumerates the court injunctions that may be imposed on the persons specified in Article 4 (wordings of 26 June 2001 and 3 April 2003) of the Law. Under Article 8 (wording of 26 June 2001) of the Law, the court may issue one or several injunctions against a person: not to maintain any contact with the persons specifically named, directly, through other persons, by technical or other means; not to change the permanent place of residence without a consent by the authorised supervising police officer and to remain at the place of residence at the appointed time; not to frequent the places indicated. It has been mentioned that the procedure of issuing injunctions by the court is established in Article 7 (wording of 26 June 2001) of the Law.

The formula “court injunctions” of Article 3 (wording of 26 June 2001) of the Law is a general notion meaning authoritative instructions of the court to the person to observe certain prohibitions or to perform certain actions.

It needs to be noted that, under the Law, court injunctions can be issued only in case there are all bases established in Article 4 (wordings of 26 June 2001 and 3 April 2003) of the Law, i.e. i.e. if the data, received upon the procedure established by law, about the relations of these persons with organised groups, criminal syndicates or their members, constitute a sufficient basis for considering that these persons may commit grave (or very grave) crimes and the preventive measures should be applied in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons. Thus, it is clear that the purpose of the type of preventive measures, court injunction, in case there are the bases established in Article 4 (wordings of 26 June 2001 and 3 April 2003) of the Law, is to prevent most dangerous crimes threatening these constitutional values: the safety of society and the state, public order and the rights and freedoms of persons. While issuing a court injunction, one must ascertain in every case that in order to guarantee the safety of society and the state, and to ensure public order and the rights and freedoms of persons precisely this preventive measure is necessary.

Court injunctions may be issued only by observing the procedure of issuance of court injunctions established in Article 7 (wording of 26 June 2001) of the Law. Under Paragraph 8 of Article 7 (wording of 26 June 2001) of the Law, the person who was imposed court injunctions, either himself or though his advocate, as well as the authorised police officer, has the right to appeal against the decision of the judge in a higher court: that of the judge of a local court—in the regional court, that of the judge of a regional court—in the Court of Appeal of Lithuania.

Thus, it is clear that by means of the type of preventive measures, court injunctions, established in Article 3 (wording of 26 June 2001) of the Law, one seeks to defend and protect the constitutional values: the safety of society and the state, public order and the rights and freedoms of persons.

12. Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law on the Restraint of Organised Crime provides: “The decision on the application of the official warning to the person shall be formalised by a written resolution. The resolution shall be confirmed by the head of the police establishment.”

13. It has been mentioned that the Klaipėda City Local Court and the Šiauliai City Local Court, petitioners, had doubts as to whether Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law, to the extent that it does not provide for the right to appeal in court against the decision on application of an official warning to a person, is not in conflict with Paragraph 2 of Article 21, Paragraph 4 of Article 22, and Paragraph 1 of Article 30 of the Constitution. The doubts of the petitioners are grounded on the fact that Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law does not expressis verbis provide for an opportunity to apply to court for a person, whose rights and freedoms could be violated due to the official warning.

Thus, the doubts of the petitioners concerning the compliance of Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law with the Constitution are grounded on the fact that, in their opinion, the said paragraph of the article does not contain a certain legal regulation which, according to the petitioners, ought to be established in Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law. The petitioners virtually impugn not the legal regulation expressis verbis established in Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law, but the legislative omission, which is, in their opinion, in Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law, i.e. something that is not established in this paragraph of the article of the legal act, although, in the opinion of the petitioner, it ought to be established, under the Constitution, by the legislature, namely, the petition impugns the gap in the legal regulation which, according to the petitioner, is prohibited by the Constitution.

14. It needs to be noted that Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law provides as to how the decision on the application of the official warning to the person is formalised, i.e. it is formalised by a written resolution, and the subject confirming the said resolution is named, i.e. it is confirmed by the head of the police establishment. Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law does not contain any other legal regulation.

It also needs to be noted that the Law on the Restraint of Organised Crime does not, in general, contain any provisions regulating the relations linked with the right of the person to whom an official warning has been issued to apply to court.

15. While assessing the legal regulation established in Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law, it should be noted that, under Paragraph 1 of Article 30 of the Constitution, the person whose constitutional rights or freedoms are violated shall have the right to apply to court.

It has been held in this ruling of the Constitutional Court that in a state under the rule of law a possibility is ensured for everyone to protect his rights in court from other persons, as well as unlawful actions of state institutions or officials; that a person must be guaranteed the right to an independent and impartial arbiter of the dispute, who would in essence settle the legal dispute on the grounds of the Constitution and laws; that every person enjoys this right; that the person is guaranteed the defence of his violated rights in court regardless of the legal status of the person; that the infringed rights and legitimate interests of persons must be defended in court irrespective of whether or not they are directly established in the Constitution; that the rights of the person must be defended not formally, but in reality and effectively from unlawful actions of both private persons and state institutions or officials. It was also held in this ruling of the Constitutional Court that the right to apply to court is an absolute one; that it is not permitted to limit or deny this right; that, under the Constitution, the legislature has a duty to establish legal regulation so that it could be possible to settle all disputes concerning violations of rights and freedoms of persons in court; that legal acts can also establish a procedure of out-of-court settlement of disputes, however, it is not permitted to establish any such legal regulation which would deny the right of a person, who thinks that his rights or freedoms have been violated, to defend his rights or freedoms in court.

16. Under Article 111 of the Constitution, the courts of the Republic of Lithuania shall be the Supreme Court of Lithuania, the Court of Appeal of Lithuania, regional and local courts (Paragraph 1); for the consideration of administrative, labour, family and other categories of cases, specialised courts may be established pursuant to law (Paragraph 2).

Under Item 4 of Article 12 (wording of 24 January 2002) of the Republic of Lithuania’s Law on Courts, the Supreme Administrative Court of Lithuania and regional administrative courts are specialised courts considering cases concerning the disputes arising from administrative legal relations.

The procedure of consideration of cases concerning the disputes arising from administrative legal relations is established by the Law on the Proceedings of Administrative Cases, Item 16 of Article 2 (wording of 26 June 2001) whereof defines administrative legal relations as public relations developing in the process of effecting public administration as well as internal administration. Under Item 1 of Article 2 (wording of 26 June 2001) of the said law, public administration means executive activity of state and local self-government institutions and other subjects regulated by law, the purpose whereof is the implementation of laws, other legal acts, of local self-government institutions’ decisions as well as administration and provision of public services provided for. Item 6 of the said law indicates subjects of state administration: state institutions, establishments, services as well as state servants (officials), who are conferred by law the rights of public administration.

Under Item 3 of Article 2 of the Law on Police Activities, the police officer enjoys public administrative powers with respect to persons who are not subordinate to him, thus, the police officer is a subject of state administration.

17. Under Item 1 of Article 15 (wordings of 19 September 2000 and 11 November 2004) of the Law on the Proceedings of Administrative Cases, administrative courts shall decide cases relating to lawfulness of legal acts passed and actions performed by subjects of public administration.

As mentioned before, neither Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law on the Restraint of Organised Crime, nor other articles of this law contain any norms regulating the relations linked with the right of the person to whom an official warning has been issued to apply to court. Thus, the Law does not provide for any special procedure for appealing in court against the decision of the authorised police officer (respective resolution confirmed by the head of the police establishment) to state an official warning to the person.

18. Taking account of the fact that the decision to issue an official warning is taken by a police officer authorised by the head of the police establishment or the police officer acting as his deputy, i.e. by a subject of public administration, and of the fact that the legislature did not establish any special procedure for appealing in court against a decision of the authorised police officer (respective resolution confirmed by the head of the police establishment) to state an official warning to the person, also of the fact that, under the Law on the Proceedings of Administrative Cases, administrative courts shall decide cases relating to lawfulness of legal acts passed and actions performed by subjects of public administration, it should be held that, under the Law on the Proceedings of Administrative Cases, a person, to whom an official warning has been issued, may appeal against the decision (respective resolution confirmed by the head of the police establishment) concerning the issuance of the official warning in the administrative court.

Thus, the right of the person to whom an official warning has been issued in pursuance of the Law on the Restraint of Organised Crime to appeal in court against the decision concerning the application of the official warning is consolidated in the legal system of Lithuania.

19. In the context of the constitutional justice case at issue, it needs to be noted that either in Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law on the Restraint of Organised Crime, or in the entire Law on the Restraint of Organised Crime, there is no legislative omission presumed by the petitioners, i.e. the gap in the legal regulation which is prohibited by the Constitution. Thus, there are no grounds to maintain that Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law on the Restraint of Organised Crime in the aspect pointed out by the petitioners is in conflict with Paragraph 2 of Article 21, Paragraph 4 of Article 22 and Paragraph 1 of Article 30 of the Constitution.

20. Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law on the Restraint of Organised Crime provides:

The court may issue one or several injunctions against a person:

1) not to maintain any contact with the persons specifically named, directly, through other persons, by technical or other means;

2) not to change the permanent place of residence without a consent by the authorised supervising police officer and to remain at the place of residence at the appointed time;

3) not to frequent the places indicated.”

21. It needs to be noted that the court may issue the injunctions indicated in this article, if there are the bases for application of preventive measures provided for Article 4 (wordings of 26 June 2001 and 3 April 2003) of the Law, while seeking to achieve the objectives of the preventive measures established in Article 4 (wordings of 26 June 2001 and 3 April 2003) of the Law, and following the procedure of issuance of court injunctions consolidated in Article 7 (wording of 26 June 2001) of the Law.

Paragraph 2 of Article 8 (wording of 26 June 2001) of the Law provides that, in issuing court injunctions, the court shall establish their length. Under Item 7 of Article 7 (wording of 26 June 2001) of the Law, court injunctions may be imposed for the period of 1–6 months. If there are grounds, the imposed court injunctions may be prolonged once for additional 3 months.

22. While deciding whether the court injunctions established in Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law are not in conflict with the articles (parts thereof) of the Constitution, which are indicated by the petitioners, one must elucidate: whether such court injunctions are necessary in a democratic society in an attempt to protect the rights and freedoms of other persons and values entrenched in the Constitution, as well as constitutionally important objectives; whether by means of the injunctions one does not deny the nature and essence of the rights and freedoms; whether the injunctions are grounded on objective needs of society; whether the injunctions are in line with the constitutional principle of proportionality.

23. In the context of the constitutional justice case at issue, it should be noted that, as it was held in this ruling of the Constitutional Court, organised criminal groups (syndicates), the crimes committed by them or the fact that they are going to commit such crimes pose a special threat to a person, his rights and freedoms, society and the state. If organised crime were not prevented and organised criminal groups (syndicates) were not prosecuted, the constitutional values, inter alia, the rights and freedoms of the person, the legal bases of the life of society entrenched in the Constitution, the state as an organisation of the entire society and the entire society would be under the threat. State institutions are under a duty to establish and apply preventive measures adequate to the threat posed by organised crime.

The court injunctions established in Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law are preventive measures against organised crime that are applied when one seeks for the constitutionally important objective, which is grounded on the objective need to ensure the safety of the person, society and the state from organised crime. The purpose of the court injunctions established in Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is protection and defence of the following constitutional values against the threat of organised crime: rights and freedoms of the person, the safety of society and the state as well as public order.

24. Under Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, the court the court may issue an injunction in regard of the person not to maintain any contact with the persons specifically named, directly, through other persons, by technical or other means.

24.1. While assessing the legal regulation consolidated in Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, one should take account of the provisions of Article 3 (wording of 26 June 2001), Article 4 (wordings of 26 June 2001 and 3 April 2003) and Article 7 (wording of 26 June 2001) of the Law.

The court may issue an injunction to a person, under Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, not to maintain any contact with the persons specifically named, directly, through other persons, by technical or other means, only in case there are the bases established in the Law, i.e. if there are data, received upon the procedure established by law, about the relations of these persons with organised groups, criminal syndicates or their members, constitute a sufficient basis for considering that these persons may commit grave (or very grave) crimes, and the preventive measures should be applied in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons.

It needs to be noted that the injunction not to maintain any contact with the persons specifically named, directly, through other persons, by technical or other means, is issued in regard of the person after he had already been officially warned by a writ to abide by the Constitution and laws, not to restrict the rights and freedoms of other people, not to commit violations of law, after he had been familiarised with the possible legal consequences and had not followed these requirements. As mentioned before, the right of the person to whom an official warning has been issued in pursuance of the Law on the Restraint of Organised Crime to appeal in court against the decision concerning the application of the official warning is consolidated in the legal system of Lithuania.

Thus, the court injunction in regard of the person not to maintain any contact with the persons specifically named, directly, through other persons, by technical or other means, may be issued, under the Law, only in case there are the aforesaid bases established in the Law and while seeking for the aforesaid objectives established in the Law and while following the procedure for issuance of court injunctions which is established in the Law.

It also needs to be noted that the court, while issuing the court injunction not to maintain any contact with the persons specifically named, directly, through other persons, by technical or other means, must assess, in each case, the concrete situation, to investigate all circumstances related with the bases of issuance of the court injunction, to ascertain whether it is possible to achieve the objective of prevention of organised crime by not applying such court injunction.

24.2. The petitioners had doubts whether Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Article 18, Paragraphs 1, 3, and 4 of Article 22, Article 24, Paragraphs 1 and 4 of Article 31, Paragraphs 1 and 2 of Article 32 of the Constitution, the provision of Paragraph 1 of Article 48 thereof that each human being may freely choose a job and business, and with the constitutional principle of a state under the rule of law.

24.3. As mentioned before, Paragraph 1 of Article 48 of the Constitution provides, inter alia, that that each human being may freely choose a job and business.

The court may issue an injunction to a person, under Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, not to maintain any contact with the persons specifically named, directly, through other persons, by technical or other means. Thus, by the court injunction provided for in Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law the ties of the person with other persons are limited.

It also needs to be noted that it is not permitted to construe the legal regulation established in Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law under which the court may issue an injunction in regard of the person not to maintain ties with the persons specifically named, directly, through other persons, by technical or other means as the one permitting to limit the ties of the person with other persons, which are objectively necessary due to a legal job performed or legal business engaged by this person. If such limitations were established, the constitutional right of the person to a job and business would unreasonably be limited.

Having compared the provision of Paragraph 1 of Article 48 of the Constitution that each human being may freely choose a job and business and the legal regulation consolidated in Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, one can notice that they regulate different relations. Thus, Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with the provision of Paragraph 1 of Article 48 of the Constitution that each human being may freely choose a job and business.

24.4. As mentioned before, in Article 24 of the Constitution the principle of inviolability of the dwelling place of a human being is entrenched.

Under Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, the court may issue an injunction in regard of the person not to maintain ties with the persons specifically named, directly, through other persons, by technical or other means. It has been mentioned that by the court injunction provided for in Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law the ties of the person with other persons are limited.

Having compared the legal regulation consolidated in Article 24 of the Constitution with that of Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, one can notice that they regulate different relations. Thus, Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Article 24 of the Constitution.

24.5. Under Paragraph 1 of Article 32 of the Constitution, a citizen may move and choose his place of residence in Lithuania freely, and may leave Lithuania freely, while under Paragraph 2 of this article, the said rights may not be restricted other than by law and if it is necessary to protect the security of the state, the health of the people, as well as to administer justice.

Under Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, the court may issue an injunction in regard of the person not to maintain ties with the persons specifically named, directly, through other persons, by technical or other means. It has been mentioned that by the court injunction provided for in Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law the ties of the person with other persons are limited.

Having compared the legal regulation consolidated in Paragraphs 1 and 2 of Article 32 of the Constitution with that of Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, one can notice that they regulate different relations. Thus, Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Paragraphs 1 and 2 of Article 32 of the Constitution.

24.6. Under Paragraph 1 of Article 22 of the Constitution, the private life of a human being shall be inviolable, under Paragraph 3 of the same article, information concerning the private life of a person may be collected only upon a justified court decision and only in accordance with the law, while under Paragraph 4 of the same article, the law and the court shall protect everyone from arbitrary or unlawful interference in his private and family life, from encroachment upon his honour and dignity.

Under Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, the court may issue an injunction in regard of the person not to maintain ties with the persons specifically named, directly, through other persons, by technical or other means. It has been mentioned that by the court injunction provided for in Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law the ties of the person with other persons are limited.

While assessing the compliance of Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law with Paragraphs 1, 3, and 4 of the Constitution, it should be noted that the court injunctions provided for in Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law in regard to the person not to maintain ties with the persons specifically named, directly, through other persons, by technical or other means, means that the person is prohibited from maintaining ties with the persons who are members of criminal groups or criminal syndicates, if due to such ties there is a sufficient basis for considering that these persons may commit grave (or very grave) crimes, and if this preventive measure has to be applied in order to achieve these objectives: to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons. Thus, the restriction of the ties of this person with the other persons is determined by a possible threat to the aforesaid constitutional values and the striving for protection of these values.

The court can issue the injunction provided for in Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law only after it has taken account of the concrete situation, only after it has assessed, according to all significant circumstances, that there is a sufficient basis for considering that this person may commit grave (or very grave) crimes, and if this preventive measure has to be applied in order to achieve these objectives: to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons, and only after it has considered the compliance of the injunction with the objective sought.

Alongside, it needs to be noted that it is not permitted to construe the provisions of Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law as granting the right to the court to issue an injunction in regard of the person not to maintain ties with persons, who are not linked with organised groups or crimes, or permitting to prohibit the person from maintaining ties with his family members and close relatives. Under these provisions also it is not permitted to limit the ties of the person with other persons, if these ties are necessary due to a legal job or legal business. If one understands the legal regulation established in Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law in this way, then Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Paragraphs 1, 3 and 4 of Article 22 of the Constitution.

24.7. Under Paragraph 1 of Article 31 of the Constitution, 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. As mentioned before, in Paragraph 1 of Article 31 of the Constitution the presumption of innocence of a person is consolidated. By Paragraph 4 of Article 31 of the Constitution, punishment may be imposed or applied only on the grounds established in law.

Under Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, the court may issue an injunction in regard of the person not to maintain ties with the persons specifically named, directly, through other persons, by technical or other means. It has been mentioned that by the court injunction provided for in Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law the ties of the person with other persons are limited.

While assessing the compliance of Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law with Paragraph 1 of Article 31 of the Constitution, it should be noted that the court injunction provided for in Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is a preventive measure, which may be applied to persons, if the data, received upon the procedure established by law, about the relations of these persons with organised groups, criminal syndicates or their members, constitute a sufficient basis for considering that these persons may commit grave (or very grave) crimes and this preventive measure has to be applied in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons. Thus, the said court injunction is not a punishment, which can be imposed, under the Constitution, by a court judgment on a person for commission of a crime, but a preventive measure applied in order to restrict and diminish organised crime. After this preventive measure is issued, the person is not recognised as being guilty of commission of a crime. This measure is applied when there is a sufficient basis for considering that this person may commit grave (or very grave) crimes and when it is necessary to protect the constitutional values: the safety of society and the state, public order and the rights and freedoms of persons. It also needs to be noted that, on the one hand, the objective of this measure is not to allow that the person commit a grave (or very grave) crime, i.e. not to allow the commission of the most dangerous violations of law for the commission of which or an attempt of the commission of which a punishment may be imposed on the person, and, on the other hand, to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons.

Thus, Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Paragraph 1 of Article 31 of the Constitution.

24.8. It has been held in this Ruling of the Constitutional Court that Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Paragraphs 1, 2 and 4 of Article 22, Paragraphs 1 and 2 of Article 31, Paragraphs 1 and 2 of Article 32 of the Constitution, the provision of Paragraph 1 of Article 48 thereof that each human being may freely choose a job and business. Having held this, one is also to hold that Item 1 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Article 18 of the Constitution and the constitutional principle of a state under the rule of law.

25. Under Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, the court may issue an injunction in regard of the person not to change the permanent place of residence without a consent by the authorised supervising police officer and to remain at the place of residence at the appointed time.

Two elements constitute the content of the court injunction consolidated in Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law: the requirement that the person not change the permanent place of residence without a consent by the authorised supervising police officer and the requirement that he remain at the place of residence at the appointed time.

25.1. When assessing the legal regulation established in Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, one must pay heed to the provisions of Article 3 (wording of 26 June 2001), Article 4 (wordings of 26 June 2001 and 3 April 2003) and Article 7 (wording of 26 June 2001) of the Law.

According to Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law the court may impose upon a person an injunction not to change the permanent place of residence without a consent by the authorised supervising police officer and to remain at the place of residence at the appointed time only when the bases established in law exist, i.e. if the data are received about the relations of the persons with the organised groups, criminal syndicates or their members, if such data are received upon the procedure established by law and if the collected data constitute a sufficient basis for considering that these persons may commit grave (or very grave) criminal deeds, while striving to attain the following objectives as well: to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons. It should be noted that the court by its decision may impose upon a person an injunction not to change the permanent place of residence without the consent by the authorised supervising police officer and to remain at the place of residence at the appointed time only after the person was officially warned in writing by the authorised police officer to follow the Constitution and laws, not to restrict rights and freedoms of other persons, not to commit violations of law, was familiarised with the possible legal consequences and failed to meet these requirements. It was mentioned that the right of the person to whom an official warning is issued according to the Law on the Restraint of Organised Crime to appeal against the official warning in court is entrenched in the legal system of Lithuania.

Thus, a court injunction in regard of the person not to change the permanent place of residence without a consent by the authorised supervising police officer and to remain at the place of residence at the appointed time may be imposed only when the specified bases established in the Law exist, only in order to achieve the specified objectives established in the Law and only in compliance with the established in the Law procedure of imposing court injunctions.

It also needs to be noted that the court, when applying the said court injunction, must assess, in each case, the concrete situation, to investigate all circumstances related with the bases of issuance of the court injunction, to ascertain whether it is possible to achieve the objective of prevention of organised crime by not applying such court injunction.

25.2. The petitioners had doubts whether Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Article 18, Paragraphs 1, 3, and 4 of Article 22, Article 24, Paragraphs 1 and 4 of Article 31, Paragraphs 1 and 2 of Article 32 of the Constitution, the provision of Paragraph 1 of Article 48 thereof that each human being may freely choose a job and business, and with the constitutional principle of a state under the rule of law.

25.3. According to Paragraph 1 of Article 32 of the Constitution the citizen may move and choose his place of residence in Lithuania freely, and may leave Lithuania freely, and, under Paragraph 2 of this article, the said rights may not be restricted other than by law and if it is necessary to protect the security of the state, the health of the people, as well as to administer justice.

It has been mentioned that the content of the court injunction entrenched in Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law comprises two elements: the requirement not to change the permanent place of residence without a consent by the authorised supervising police officer and the to remain at the place of residence at the appointed time.

By the court injunction in regard to the person not to change the permanent place of residence without a consent by the authorised supervising police officer and to remain at the place of residence at the appointed time, entrenched in Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, one strives to limit the opportunity of the person to maintain ties with organised criminal groups, criminal syndicates or their members, and to provide legal conditions for the authorised supervising police officer to possess the information about the place of permanent residence of the person and the fact whether the person is at his place of residence at the appointed time.

The formula “to remain at the place of residence at the appointed time” of Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law means that the person is obligated by the court at the appointed time to remain at the place of residence and that he may not leave this place during the said time. The formula “to remain at the place of residence at the appointed time” may not be construed as the one which means that in exceptional justifiable cases (illness, death of close relatives etc.) the person, having coordinated this with the authorised supervising police officer, is not permitted to leave the place of residence for a certain period.

The injunction to remain at the at the place of residence at the appointed time, established in Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, may not be construed as the one which means that the court enjoys the discretion to impose the injunction according to which the person must stay at the place of residence at the time appointed by the court and, therefore, is not able to implement his other constitutional rights and freedoms. This injunction imposed by the court must be reasonable and in compliance with the legitimate objective sought.

The formula “not to change the permanent place of residence without a consent by the authorised supervising police officer” of Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law may not be construed only linguistically. When construing the this formula only linguistically, one could state that, purportedly, Article 8 (wording of 26 June 2001) of the Law establishes the legal regulation where the person upon whom the court has imposed the injunction not to change the permanent place of residence without a consent by the authorised supervising police officer, in all cases, when he really wishes to change the permanent place of residence, must get the permission of the authorised supervising police officer, and until the permission is received has no right to change the permanent place of residence. The formula “not to change the permanent place of residence without a consent by the authorised supervising police officer” should be construed teleologically and systemically, while taking account, inter alia, of Article 1 (wording of 26 June 2001) of the Law, according to which this Law provides for the measures of restraint of the organised crime, the principles of their application, their bases, procedure of their imposition, of Article 2 (wording of 26 June 2001) of the Law, according to which the preventive measures are applied, inter alia, while following the principles of lawfulness, protection of human rights and freedoms, and humaneness, of the provision of Article 4 (wordings of 26 June 2001 and 3 April 2003) of the Law that the preventive measures should be applied in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons, i.e. to protect and defend the constitutional values.

The formula “not to change the permanent place of residence without a consent by the authorised supervising police officer” should be construed as the one which means that if the person who is subject to the court injunction, inter alia, not to change the permanent place of residence without a consent by the authorised supervising police officer wishes to change the permanent place of his residence, he has the duty to inform in advance the authorised supervising police officer about his intention to change the permanent place of residence, so that the authorised supervising police officer could check and ascertain whether the permanent place of residence is really changed, as well as whether one does not try to evade the implementation of the injunction imposed by the court by such changing the permanent place of residence. The part of this formula “without a consent by the authorised supervising police officer” may not be construed as the one which means that the authorised supervising police officer, having checked and ascertained, after the person informs him about the intention to change the permanent place of residence, that one does not try to evade the implementation of the court injunction by such changing the permanent place of residence, is permitted not to allow the said person to change the permanent place of residence. It is worth to be stressed that the person who has not received the consent of the authorised supervising police officer concerning the change of the permanent place of residence, may appeal against such a decision of the officer in court. It should be noted that when the person subject to the injunction established in Item 2 of Paragraph 1 (wording of 26 June 2001) of the Law changes the permanent place of residence, the court injunction to remain at the place of residence at the appointed time remains effective and the said person must implement this injunction. Thus, if the said person changed the permanent place of residence without giving an advance notice to the authorised supervising police officer, i.e. without discussing the changing the permanent place of residence with this officer, one would create conditions for such person to evade the injunction imposed by the court to remain at the place of residence at the appointed time. It should be noted, alongside, that the said part of the formula “without a consent by the authorised supervising police officer” is formulated in a legally incorrect and imprecise manner and should be corrected according to the specified arguments, however, the deficiency of this formula, in itself, does not constitute a sufficient reason to state that the legal regulation established in Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, according to which the court may impose an injunction upon the person, inter alia, not to change the permanent place of residence without a consent by the authorised supervising police officer is in conflict with the Constitution.

By the court injunction not to change the permanent place of residence without a consent by the authorised supervising police officer and to remain at the place of residence at the appointed time one may interfere in the right of the citizen to move and choose his place of residence in Lithuania freely, and to leave Lithuania freely, established in Paragraph 1 of Article 32 of the Constitution. It has been mentioned that under Paragraph 2 of Article 32 of the Constitution the said rights may not be restricted other than by law and if it is necessary to protect the security of the state, the health of the people, as well as to administer justice. The court injunction established in Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law should be assessed as a constitutionally reasoned one, when the data about the relations of these persons with organised groups, criminal syndicates or their members are received, if this is done upon the procedure established by law, if the said data constitute a sufficient basis for considering that these persons may commit grave (or very grave) crimes, and if the preventive measures should be applied when striving for the constitutionally important objectives: in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons.

Thus, having considered the facts set forth, it should be concluded that Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Paragraphs 1 and 2 of Article 32 of the Constitution.

25.4. It has been mentioned that it is established in Paragraph 1 of Article 48 of the Constitution, inter alia, that every human being may freely choose a job and business.

According to Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law the court may issue an injunction to a person not to change the permanent place of residence without a consent by the authorised supervising police officer and to remain at the place of residence at the appointed time.

The legal regulation entrenched in Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, under which the court may issue an injunction to a person not to change the permanent place of residence without a consent by the authorised supervising police officer and to remain at the place of residence at the appointed time, may not be construed as the one which permits the court to appoint any time when the person must remain at the place of residence without considering whether such injunction would not hinder the person from the implementation of his right to be engaged in a legal job or legal business. Otherwise, one would create preconditions for preventing the person from having a legal source to earn his living and, alongside, preconditions for denying the right of a human being may freely choose a job and business entrenched in Paragraph 1 of Article 48 of the Constitution.

If one understands the legal regulation established in Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law in this way, there are no grounds to state that Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is in conflict with the provision of Paragraph 1 of Article 48 that every human being may freely choose a job and business.

25.5. It has been mentioned that the principle of inviolability of the dwelling place of a human being is entrenched in Article 24 of the Constitution.

According to Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law the court may issue an injunction to a person not to not to change the permanent place of residence without a consent by the authorised supervising police officer and to remain at the place of residence at the appointed time. By the said injunction one strives to create legal preconditions for the authorised supervising police officer to know the permanent place of residence of the person, as well as to provide him an opportunity to check whether the person stays in his place of residence at the appointed time.

By such court injunction one interferes, to a certain extent, in the inviolability of the dwelling place of the human being entrenched in Article 24 of the Constitution, however, in case such court injunction is applied when the data, upon the procedure established by law, are received about the relations of the persons with the organised groups, criminal syndicates or their members, in case the collected data constitute a sufficient basis for considering that this person may commit grave (or very grave) criminal deeds, and in case by this injunction one strives to attain the constitutionally important objectives—to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons—this court injunction should be assessed as constitutionally reasonable.

By understanding the legal regulation established in Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law in this way, there are no grounds to state that Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is in conflict with Article 24 of the Constitution.

25.6. According to Paragraph 1 of Article 22 of the Constitution, the private life of a human being is inviolable, under Paragraph 3 of this article, information concerning the private life of a person may be collected only upon a justified court decision and only in accordance with the law, and, under Paragraph 4 of this article, the law and the court protect everyone from arbitrary or unlawful interference in his private and family life, from encroachment upon his honour and dignity.

According to Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law the court may impose an injunction upon the person not to change the permanent place of residence without a consent by the authorised supervising police officer and to remain at the place of residence at the appointed time.

When assessing the compliance of Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law with Paragraphs 1 and 3 of Article 22 of the Constitution, it should be noted that by the court injunction provided for in the said item the conditions may be created to a certain extent to interfere in the private life of the person, however, in case such court injunction is applied when the data, upon the procedure established by law, are received about the relations of the persons with organised groups, criminal syndicates or their members, in case the collected data constitute a sufficient basis for considering that this person may commit grave (or very grave) criminal deeds, and in case by this injunction one strives to attain the constitutionally important objectives—to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons—this court injunction should be assessed as constitutionally reasonable.

Thus, Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Paragraphs 1, 3 and 4 of Article 22 of the Constitution.

25.7. According to Paragraph 1 of Article 31 of the Constitution a person is presumed innocent until proven guilty and declared guilty by an effective court judgment in accordance with the procedure established by law. The presumption of innocence is consolidated in Paragraph 1 of Article 31 of the Constitution. According to paragraph 4 of Article 31 of the Constitution punishment may be imposed or applied only on the grounds established in law.

According to Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law the court may impose an injunction upon the person not to change the permanent place of residence without a consent by the authorised supervising police officer and to remain at the place of residence at the appointed time.

When assessing the compliance of Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law with Paragraph 1 of Article 31 of the Constitution, it should be noted that the court injunction provided for in Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is a preventive measure, which may be applied in regard to the persons, if the data, received upon the procedure established by law, about the relations of these persons with organised groups, criminal syndicates or their members, constitute a sufficient basis for considering that these persons may commit grave (or very grave) crimes, and this preventive measure should be applied in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons. The said court injunction is not a punishment, which may be imposed upon the person by the court judgment for the commission of a crime, but a preventive measure applied in order to restrict and diminish organised crime. By imposing this preventive measure the person is not recognised guilty of commission of a crime, this measure is applied when sufficient reasons exist to believe that the person may commit grave (or very grave) crimes and when it is necessary in order to protect the constitutional values: the safety of society and the state, public order and the rights and freedoms of persons. It is worth noticing that, on the one hand, the objective of this measure is to prevent the person from committing a grave (or very grave) crime, i.e. preventing him from committing dangerous violations of law for the commission of which or an attempt to commit which a punishment may be imposed upon the person, and, on the other hand, to guarantee the safety of society and the state, public order and the rights and freedoms of persons.

Thus, Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Paragraphs 1 and 4 of Article 31 of the Constitution.

25.8. In this Constitutional Court’s ruling it has been held that Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Paragraphs 1, 3 and 4 of Article 22, Article 24, Paragraphs 1 and 4 of Article 31, Paragraphs 1 and 2 of Article 32 of the Constitution, the provision of Paragraph 1 of Article 48 thereof that each human being may freely choose a job and business. Having held this, one is also to hold that Item 2 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Article 18 of the Constitution and the constitutional principle of a state under the rule of law.

26. According to Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law the court may issue an injunction to a person not to frequent the places indicated.

By such court injunction wherein one defines the places which the person is prohibited from visiting, the right of the person to freely choose the place of staying is limited.

26.1. When assessing the legal regulation consolidated in Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law one should consider provisions of Article 3 (wording of 26 June 2001), Article 4 (wordings of 26 June 2001 and 3 April 2003) and Article 7 (wording of 26 June 2001) of the Law. The court may issue an injunction to a person not to frequent the specified places only when the reasons provided for in the Law exist, i.e. if there are data, received upon the procedure established by law, about the relations of these persons with organised groups, criminal syndicates or their members, if the said data constitute a sufficient basis for considering that these persons may commit grave (or very grave) crimes, and only when seeking to attain the constitutionally important objectives: to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons. In this context, it should be noted that organised crime is social evil, therefore, establishment of respective preventive measures is an objective need of society.

It should be noted that the court injunction not to frequent the places indicated is issued in regard of the person after he had already been officially warned by a writ to abide by the Constitution and laws, not to restrict the rights and freedoms of other people, not to commit violations of law, after he had been familiarised with the possible legal consequences and had not followed these requirements. As mentioned before, the right of the person to whom an official warning has been issued in pursuance of the Law on the Restraint of Organised Crime to appeal in court against the decision concerning the application of the official warning is consolidated in the legal system of Lithuania.

Thus, the court injunction not to frequent the places indicated may be issued only in case there are the aforesaid bases established in the Law and while seeking for the aforesaid objectives established in the Law and while following the procedure for issuance of court injunctions which is established in the Law.

26.2. The petitioners had doubts whether Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Article 18, Paragraphs 1, 3, and 4 of Article 22, Article 24, Paragraphs 1 and 4 of Article 31, Paragraphs 1 and 2 of Article 32 of the Constitution, the provision of Paragraph 1 of Article 48 thereof that each human being may freely choose a job and business, and with the constitutional principle of a state under the rule of law.

26.3. It has been mentioned that pursuant to Paragraph 1 of Article 48 of the Constitution each human being may freely choose a job and business.

According to Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law the court may issue an injunction to a person not to frequent the places indicated. As mentioned before, having indicated, by the court injunction provided for in Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, the places which the person is prohibited from visiting, one limits the right of the person to freely choose the place where he stays.

It should be noted, alongside, that the legal regulation entrenched in Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, according to which the court may issue an injunction to a person not to frequent the places indicated, may not be construed as the one which permits to issue an injunction in regard to the person not to visit also the places, in which the presence of the person is objectively necessary due to his legal job and legal business. Otherwise, the constitutional right of the person to a job and business would become unreasonably limited.

Having compared the legal regulation entrenched in Paragraph 1 of Article 48 of the Constitution with the one entrenched in Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, one may find that the relations regulated therein are different. Thus, Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with the provision of Paragraph 1 of Article 48 of the Constitution that each human being may freely choose a job and business.

26.4. It has been mentioned that the principle of inviolability of the dwelling place of a human is consolidated in the provisions of Article 24 of the Constitution.

According to Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law the court may issue an injunction to a person not to frequent the places indicated. As mentioned before, having indicated, by the court injunction provided for in Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, the places which the person is prohibited from visiting, one limits the right of the person to freely choose the place where he stays.

Having compared the legal regulation entrenched in Article 24 of the Constitution with the one entrenched in Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law one may find that the relations regulated therein are different. Thus, Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict Article 24 of the Constitution.

26.5. Under Paragraph 1 of Article 32 of the Constitution, a citizen may move and choose his place of residence in Lithuania freely, and may leave Lithuania freely, while under Paragraph 2 of this article, the said rights may not be restricted other than by law and if it is necessary to protect the security of the state, the health of the people, as well as to administer justice.

According to Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law the court may issue an injunction against the person not to frequent the places indicated. As mentioned before, having indicated, by the court injunction provided for in Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, the places which the person is prohibited from visiting, one limits the right of the person to freely choose the place where he stays.

Having considered the bases of application of this preventive measure, it should be stated that it may be applied in regard to the person only if the data, received upon the procedure established by law, about the relations of these persons with organised groups, criminal syndicates or their members, when such relations constitute a sufficient basis for considering that these persons may commit grave (or very grave) crimes and these preventive measures should be applied while striving for the following objectives: in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons.

When assessing the court injunction not to frequent the places indicated, which is provided for in the impugned Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, it is also to be noted that this injunction should be formulated in the court decision by clearly naming the place with its own particular characteristics, which the person is prohibited from visiting due to the fact that his presence in this particular place may create preconditions for the person to maintain relations with organised groups, criminal syndicates or their members constituting a sufficient reason to consider that this person may commit grave (or very grave) crimes. Such injunction should be necessarily applied in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons.

If one understands the legal regulation established in Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law in this way, this item is not in conflict with Paragraphs 1 and 2 of Article 32 of the Constitution.

26.6. Under Paragraph 1 of Article 22 of the Constitution, the private life of a human being is inviolable, under Paragraph 3 of this article, information concerning the private life of a person may be collected only upon a justified court decision and only in accordance with the law, while under Paragraph 4 of this article, the law and the court protect everyone from arbitrary or unlawful interference in his private and family life, from encroachment upon his honour and dignity.

According to Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, the court may issue an injunction against a person not to frequent the places indicated. As mentioned before, having indicated, by the court injunction provided for in Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, the places which the person is prohibited from visiting, one limits the right of the person to freely choose the place where he stays.

When assessing the compliance of Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law with Paragraphs 1 and 3 of Article 22 of the Constitution, it should be noted that by the court injunction provided for in the said item of the Law conditions could be created to interfere in the private life of the person to a certain extent, however, in case such court injunction is applied when the data, upon the procedure established by law, are received about the relations of the persons with the organised groups, criminal syndicates or their members, in case the collected data constitute a sufficient basis for considering that this person may commit grave (or very grave) criminal deeds, and in case by this injunction one strives to attain the constitutionally important objectives—to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons—this court injunction should be regarded as constitutionally reasonable.

Thus, Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Paragraphs 1, 3 and 4 of Article 22 of the Constitution.

26.7. Pursuant to Paragraph 1 of Article 31 of the Constitution a person is presumed innocent until proven guilty and declared guilty by an effective court judgment in accordance with the procedure established by law. The presumption of innocence is consolidated in Paragraph 1 of Article 31 of the Constitution. According to Paragraph 4 of Article 31 of the Constitution punishment may be imposed or applied only on the grounds established in law.

According to Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law the court may impose an injunction against a person not to frequent the places indicated. It has been mentioned that by the court injunction, provided for in Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law, wherein one indicates the places which the person is prohibited from visiting, the right of the person to freely choose the place of staying is limited.

When assessing the compliance of Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law with Paragraph 1 of Article 31 of the Constitution, it should be noted that the court injunction provided for in Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is a preventive measure, which may be applied in regard to the persons in case the data, received upon the procedure established by law, about the relations of these persons with organised groups, criminal syndicates or their members constitute a sufficient basis for considering that this person may commit grave (or very grave) criminal deeds, and in case this preventive measure should be applied in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons.

Thus, the said court injunction is not a punishment, which may be imposed, according to the Constitution, upon the person by the court judgment for a commission of a crime, but a preventive measure applied in order to restrict and diminish organised crime. By imposing this preventive measure the person is not recognised guilty of commission of a crime. This measure is applied when a sufficient reason exists to believe that the person may commit grave (or very grave) crimes and when it is necessary in order to protect the constitutional values: the safety of society and the state, public order and the rights and freedoms of persons. It is worth noticing that, on the one hand, the objective of this measure is to prevent the person from committing a grave (or very grave) crime, i.e. preventing him from committing dangerous violations of law for the commission of which or an attempt to commit which a punishment may be imposed upon the person, and, on the other hand, to guarantee the safety of society and the state, public order and the rights and freedoms of persons.

Thus, Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Paragraphs 1 and 4 of Article 31 of the Constitution.

26.8. In this Ruling of the Constitutional Court it was held that Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Paragraphs 1, 3 and 4 of Article 22, Article 24, Paragraphs 1 and 4 of Article 31, Paragraphs 1 and 2 of Article 32 of the Constitution, the provision of Paragraph 1 of Article 48 thereof that each human being may freely choose a job and business. Having held this, one is also to hold that Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Article 18 of the Constitution and the constitutional principle of a state under the rule of law. Having held this, it should be held also that Item 3 of Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Article 18 of the Constitution and the constitutional principle of a state under the rule of law.

27. One should draw his attention to the fact that when imposing a measure of prevention of organised crime, provided for in the Law, it is necessary, each time, to check whether all the bases of its application provided for in the Law exist, i.e. whether any data are received upon the procedure established by law about the relations of the person with organised groups, criminal syndicates or their members, whether such data witness relations of this person with the organised groups, criminal syndicates or their members precisely as with the organised groups, criminal syndicates or their members, and whether such relations permit to reasonably assume that these persons may commit grave (or very grave) crimes. Moreover, in each case one should ascertain that precisely the chosen preventives measures are necessary in order to guarantee the safety of society and the state, to ensure public order and the rights and freedoms of persons. One may not impose any measures of prevention of organised crime, which are disproportionate to the constitutionally reasonable objective of imposing these measures.

It should be noted, alongside, that the provisions of Article 3 (wording of 26 June 2001), Article 4 (wordings of 26 June 2001 and 3 April 2003), Paragraph 3 of Article 6 (wording of 26 June 2001), and Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law may not be construed as the ones which prohibit the person in whose regard the preventive measures provided for in the Law on the Restraint of Organised Crime, including an official warning, are issued from applying to court concerning the reasonability of issuance the preventive measure defined in the Law.

28. Taking account of the arguments set forth, it should be concluded that:

1) Article 3 (wording of 26 June 2001) of the Law is not in conflict with Article 18, Paragraphs 1, 3, and 4 of Article 22, Article 24, Paragraphs 1 and 4 of Article 31, Paragraphs 1 and 2 of Article 32, Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law;

2) Article 4 (wordings of 26 June 2001 and 3 April 2003) of the Law is not in conflict with Article 18, Paragraphs 1, 3, and 4 of Article 22, Article 24, Paragraphs 1 and 4 of Article 31, Paragraphs 1 and 2 of Article 32, Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law;

3) Paragraph 3 of Article 6 (wording of 26 June 2001) of the Law is not in conflict with Paragraph 2 of Article 21, Paragraph 4 of Article 22, and Paragraph 1 of Article 31 of the Constitution;

4) Paragraph 1 of Article 8 (wording of 26 June 2001) of the Law is not in conflict with Article 18, Paragraphs 1, 3, and 4 of Article 22, Article 24, Paragraphs 1 and 4 of Article 31, Paragraphs 1 and 2 of Article 32, Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

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

ruling:

To recognise that Article 3 (wording of 26 June 2001), Article 4 (wordings of 26 June 2001 and 3 April 2003), Paragraph 3 of Article 6 (wording of 26 June 2001), and Paragraph 1 of Article 8 (wording of 26 June 2001) of the Republic of Lithuania’s Law on the Restraint of Organised Crime are not in conflict with the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court of the Republic of Lithuania 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

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas