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On dismissing legal proceedings

Case No. 43/06

 

 

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 

DECISION

ON THE DISMISSAL OF THE LEGAL PROCEEDINGS IN THE CASE SUBSEQUENT TO THE PETITION OF A GROUP OF MEMBERS OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA, THE PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER PARAGRAPH 3 (WORDING OF 30 MARCH 2004) OF ARTICLE 20 OF THE REPUBLIC OF LITHUANIA’S LAW ON DOCUMENTS AND ARCHIVES IS NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

28 May 2007

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Vytautas Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, at its procedural sitting, has considered the petition of a group of members of the Seimas of the Republic of Lithuania, composed of Vilija Aleknaitė Abramikienė, Jurgis Razma, Irena Degutienė, Rimantas Jonas Dagys, Audronius Ažubalis, Ramūnas Garbaravičius, Danutė Bekintienė, Arimantas Dumčius, Liudvikas Sabutis, Rasa Juknevičienė, Andrius Kubilius, Algirdas Vrubliauskas, Edmundas Pupinis, Julius Dautartas, Saulius Pečeliūnas, Antanas Matulas, Vincė Vaidevutė Margevičienė, Audrius Endzinas, Violeta Boreikienė, Povilas Jakučionis, Antanas Napoleonas Stasiškis, Vida Marija Čigriejienė, Dalia Teišerskytė, Kęstutis Glaveckas, Gintaras Šileikis, Algis Čaplikas, Rimantas Remeika, Arminas Lydeka, Saulius Lapėnas, Vytautas Bogušis, Jonas Čekuolis, and Algis Kašėta, the petitioner, requesting an investigation into whether Paragraph 3 (wording of 30 March 2004) of Article 20 of the Republic of Lithuania’s Law on Documents and Archives, to the extent that it provides that access to the intelligence information containing documents, belonging to the National Documentary Fund, of the Lithuanian Soviet Socialist Republic’s (SSR) subdivision of the former USSR State Security Committee (KGB), the Ministry of the Interior of the Lithuanian SSR and other special services which operated on the territory of Lithuania, as well as produced criminal and deportation case files shall be limited for a period of 70 years from the production thereof, is not in conflict with Articles 25 and 42 of the Constitution of the Republic of Lithuania and with the constitutional principles of Lithuania as an independent state, of democracy, open civil society and a state under the rule of law.

The Constitutional Court

has established:

I

1. A group of members of the Seimas, the petitioner, applied to the Constitutional Court with a petition, requesting an investigation into whether Paragraph 3 (wording of 30 March 2004) of Article 20 of the Law on Documents and Archives (hereinafter also referred to as the Law), to the extent that it provides that access to the intelligence information containing documents, belonging to the National Documentary Fund, of the Lithuanian SSR subdivision of the former USSR State Security Committee (KGB), the Ministry of the Interior of the Lithuanian SSR and other special services which operated on the territory of Lithuania, as well as produced criminal and deportation case files shall be limited for a period of 70 years from the production thereof, is not in conflict with Articles 25 and 42 of the Constitution and with the constitutional principles of Lithuania as an independent state, of democracy, open civil society and a state under the rule of law.

This petition was received at the Constitutional Court on 26 September 2006.

2. Under the 9 October 2006 ordinance (No. 2B-133) of the President of the Constitutional Court, subsequent to this petition of a group of members of the Seimas, the petitioner, the preparation of case No. 43/06 for the Constitutional Court’s hearing was begun.

II

1. It was established in Paragraph 3 (wording of 30 March 2004) of Article 20 of the Law:

Access to the intelligence information containing documents, belonging to the National Documentary Fund, of the Lithuanian SSR subdivision of the former USSR State Security Committee (KGB), the Ministry of the Interior of the Lithuanian SSR and other special services which operated on the territory of Lithuania, as well as produced criminal and deportation case files shall be limited for a period of 70 years from the production thereof. The Government of the Republic of Lithuania shall establish the procedure for using such documents.”

III

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

1. Publicity is one of the conditions for democracy. The Nation, when adopting decisions on most important issues of the Republic of Lithuania, an open civil society have the right to know what persons used to serve the occupants; transparency must be ensured. This must be done by consolidating the protection of the rights of the third persons and the personal liability of users of the archives, however, it is impermissible to classify for a 70 year-period the content of documents of the structures of a foreign state, which used to operate in Lithuania unlawfully; the classification of information about anti-state activity prevents the society from its familiarisation about the criminal organisations of the foreign state-aggressor, as well as the members and co-workers of such organisations. The fact that the independent Republic of Lithuania, which was restored on the basis of continuity of the state and citizenship, grants a special protection to documents of the criminal organisations of the state that used to act against the Republic of Lithuania and its citizens is incompatible with the status of the Republic of Lithuania as an independent state.

2. Freedom of information may be limited by means of a law when such limitations are necessary in a democratic society and when one seeks to protect, by means of the limitations, such values as the health of a human being, his honour and dignity, private life and the constitutional order.

However, a democratic society is inseparable from publicity; an open civil society of Lithuania is hard to imagine without information about the structures of a foreign state which used to conduct anti-state activities in the territory of the Republic of Lithuania and about the persons who served them. A permit to society to access the documents of criminal structures of a foreign state (the Lithuanian SSR subdivision of the USSR State Security Committee (KGB), the Ministry of the Interior if the Lithuanian SSR, and other USSR special services which operated on the territory of Lithuania) would strengthen the participation of the civil society in democratic governance and it would strengthen the constitutional order, while the possibilities of manipulation with persons due to their participation in the anti-state activities would be reduced to the minimum.

In addition, the limits of the protection of the private life of a human being end at the point when he, by his actions or in other unlawful manner, violates the interests protected by law, inflicts damage on individual persons, society and the state.

Therefore, the limitation established in Paragraph 3 of Article 20 of the Law whereby one seeks to protect the documents of the structures that operated for unlawful purposes cannot be regarded as a necessary one in the democratic society of the Republic of Lithuania, nor may it be justified by the protection of private life or the constitutional order.

3. An open civil society is unimaginable without the most important function of archives properly discharged, which is the presentation of the kept material to society and researches of the past of Lithuania. The impugned limitation blocks the research of the history of the XX century, which is important not only to the society of Lithuania, but also in the international context. Due to the classification of the part of the KGB archives, which is related with intelligence information, with criminal and deportation files, the studies of the post-war resistance, the holocaust and the Soviet period come to a dead-end.

The Constitutional Court

holds that:

1. On 30 March 2004, the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on Archives by Article 1 whereof it amended the Republic of Lithuania’s Law on Archives, which was adopted by the Seimas on 5 December 1995 and which had been in effect as from 30 December 1995, set it forth in a new wording and changed its title—this law was titled the Republic of Lithuania’s Law on Documents and Archives. The Law on Documents and Archives (wording of 30 March 2004) came into force on 1 January 2005.

As mentioned before, under Paragraph 3 (wording of 30 March 2004) of Article 20 of the Law, access to the intelligence information containing documents, belonging to the National Documentary Fund, of the Lithuanian SSR subdivision of the former USSR State Security Committee (KGB), the Ministry of the Interior of the Lithuanian SSR and other special services which operated on the territory of Lithuania, as well as produced criminal and deportation case files shall be limited for a period of 70 years from the production thereof; the Government had to establish the procedure for using such documents.

2. On 19 December 2006, the Seimas adopted the Republic of Lithuania’s Law on Amending and Supplementing Articles 1, 2, 3, 14, and 20 of the Law on Documents and Archives and Supplementing the Law with an Annex, by Paragraph 1 of Article 5 whereof it amended Paragraph 3 (wording of 30 March 2004) of Article 20 of the Law on Documents and Archives. The Law on Amending and Supplementing Articles 1, 2, 3, 14, and 20 of the Law on Documents and Archives and Supplementing the Law with an Annex came into force on 11 January 2007.

Paragraph 3 (wording of 19 December 2006) of Article 20 of the Law provides:

Access to the documents of the special part of the National Documentary Fund, covered in Paragraph 3 of Article 3 of this Law, shall not be limited. Access to the documents of the special part of the National Documentary Fond shall be regulated in accordance with the procedure laid down in Paragraphs 2 and 3 of Article 19 of this Law. Access to the documents containing information regarding the persons who have admitted to secret collaboration with the intelligence agencies of the USSR and who have been entered on the record of the persons who have confessed, as well as in the cases when a person who suffered from the intelligence agencies of the USSR expresses his will on the limitation on the use of the information on him until his death, shall be limited. The procedure for accessing and using the restricted documents, as well as the procedure according to which a person who suffered from the special services of the USSR expresses his will on the limitation on the use of the information on him shall be laid down by the Government of the Republic of Lithuania in compliance with this and other laws.”

Paragraph 3 (wording of 19 December 2006) of Article 3 of the Law, to which reference is made in Paragraph 3 (wording of 19 December 2006) of Article 20 of the same law, provides:

The special part of the National Documentary Fund shall consist of the activity documents of the structures of the opposition (resistance) to the occupation regimes of the USSR and Germany, the People’s Commissariat for Internal Affairs of the Lithuanian SSR (from 1940 to 1941 and from 1944 to 1946), the People’s Commissariat for State Security of the Lithuanian SSR (in 1941 and from 1944 to 1946), the Ministry for State Security of the Lithuanian SSR (from 1946 to 1953), the Ministry of Internal Affairs of the Lithuanian SSR (from 1946 to 1954), the Committee for State Security of the Lithuanian SSR (from 1954 to 1991), the People’s Commissariat for State Security of the USSR (NKGB), the Ministry for State Security of the USSR (MGB), the subdivisions of the Committee for State Security of the USSR (KGB) which operated in Lithuania from 1940 to 1991, the subdivisions of the People’s Commissariat for Internal Affairs of the USSR (NKVD) and the Ministry of Internal Affairs of the USSR (MVD) which operated in Lithuania from 1946 to 1954, the subdivisions of the People’s Commissariat of Defence of the USSR (NKO) and the People’s Commissariat (Ministry) of the Navy (NKVMF) which operated in Lithuania in 1941, from 1943 to 1946, the subdivisions of the Main Intelligence Directorate of the General Staff of the Soviet Army (GRU) which operated in Lithuania from 1940 to 1991, the Communist Party of Lithuania, as well as the structures subordinate to these organisations, services. The documents of the special part of the National Documentary Fund, with the exception of the documents of the former secret (first) divisions of the state establishments, enterprises and organisations that operated in the Lithuanian SSR, must be transferred in accordance with the procedure laid down in Paragraph 2 of Article 4 of this Law and preserved in the Lithuanian Special Archives. The documents of the former secret (first) divisions of the state establishments, enterprises and organisations that operated in the Lithuanian SSR shall be preserved in other state archives.”

Paragraphs 2 and 3 (wording of 19 December 2006) of Article 19 of the Law, to which reference is also made in Paragraph 3 (wording of 19 December 2006) of Article 20 of the same law, provide:

– “A person who wishes to get acquainted himself with the documents the access to which is not limited, must apply to the document holder, submitting a written request and a document proving his identity. A person should not be obliged to give reasons for having access to documents. A person may get access to documents only on the premises of the document holder” (Paragraph 2);

– “The document holder must provide a person who seeks access to documents with available finding aids and the documents requested by him or their copies. A person shall get finding aids and have access to documents for free. When access to documents is possible only by means of special equipment or when copies of documents are made at the person’s request, the person must cover the expenses related to the displaying or copying of documents. If a document holder refuses to present the documents requested by a person, he must explain in writing the reasons of the refusal and the possibility to appeal against such refusal in the manner prescribed by law” (Paragraph 3).

3. If one compares the legal regulation established in Paragraph 3 (wording of 19 December 2006) of Article 20 of the Law with the legal regulation which used to be established in Paragraph 3 (wording of 30 March 2004) of Article 20 of the Law, it is clear that the provision “Access to the intelligence information containing documents, belonging to the National Documentary Fund, of the Lithuanian SSR subdivision of the former USSR State Security Committee (KGB), the Ministry of the Interior of the Lithuanian SSR and other special services which operated on the territory of Lithuania, as well as produced criminal and deportation case files shall be limited for a period of 70 years from the production thereof” which is impugned by the group of members of the Seimas, the petitioner, is no longer there.

4. Paragraph 4 of Article 69 of the Law on the Constitutional Court provides that the annulment of the impugned legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings and, if it becomes clear before the beginning of the Court hearing, the Constitutional Court shall decide this question in the deliberation room.

In its acts 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 establishing the right of the Constitutional Court to dismiss the instituted legal proceedings, when not courts, but other subjects specified in Article 106 of the Constitution have applied to the Constitutional Court, and when one takes account of the circumstances of the case. The Constitutional Court has also held that the same can be said about the situations when the impugned legal act (part thereof) was not repealed, however, the legal regulation established in it was changed (the Constitutional Court’s ruling of 4 March 2003, its decisions of 14 March 2006 (cases Nos. 3/05 and 14/03), and its rulings of 30 March 2006, 14 April 2006, and 21 September 2006).

Conforming to Paragraphs 3 and 4 of Article 22, Article 28, and Paragraph 4 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has adopted the following

decision:

To dismiss the instituted legal proceedings in case No. 43/06 subsequent to the petition of a group of members of the Seimas, the petitioner, requesting an investigation into whether Paragraph 3 of Article 20 of the Republic of Lithuania’s Law on Documents and Archives, to the extent that it provides that access to the intelligence information containing documents, belonging to the National Documentary Fund, of the Lithuanian SSR subdivision of the former USSR State Security Committee (KGB), the Ministry of the Interior of the Lithuanian SSR and other special services which operated on the territory of Lithuania, as well as produced criminal and deportation case files shall be limited for a period of 70 years from the production thereof, is not in conflict with Articles 25 and 42 of the Constitution of the Republic of Lithuania and with the constitutional principles of Lithuania as an independent state, of democracy, open civil society and a state under the rule of law.

Justices of the Constitutional Court:            Armanas Abramavičius

                                                                                 Toma Birmontienė

                                                                                 Egidijus Kūris

                                                                                 Kęstutis Lapinskas

                                                                                 Zenonas Namavičius

                                                                                 Vytautas Sinkevičius

                                                                                 Stasys Stačiokas

                                                                                 Romualdas Kęstutis Urbaitis