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On refusing to accept a petition

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 

DECISION

ON THE PETITION OF THE VILNIUS REGIONAL ADMINISTRATIVE COURT, THE PETITIONER, REQUESTING AN INVESTIGATION INTO THE COMPLIANCE OF PARAGRAPH 3 (WORDING OF 19 SEPTEMBER 2000) OF ARTICLE 57 OF THE REPUBLIC OF LITHUANIA’S LAW ON THE PROCEEDINGS OF ADMINISTRATIVE CASES WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, AND INTO THE COMPLIANCE OF PARAGRAPH 3 (WORDING OF 16 DECEMBER 2003) OF ARTICLE 15 OF THE REPUBLIC OF LITHUANIA’S LAW ON STATE SECRETS AND OFFICIAL SECRETS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, AS WELL AS WITH PARAGRAPHS 1 AND 2 (WORDING OF 19 SEPTEMBER 2000) OF ARTICLE 51 AND PARAGRAPH 1 (WORDING OF 19 SEPTEMBER 2000) OF ARTICLE 53 OF THE REPUBLIC OF LITHUANIA’S LAW ON THE PROCEEDINGS OF ADMINISTRATIVE CASES

 

22 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, Ramutė Ruškytė, 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 (No. 1B-24/2007) of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether Paragraph 3 of Article 57 (wording of 19 September 2000) of the Republic of Lithuania’s Law on the Proceedings of Administrative Cases is not in conflict with Article 29 of the Constitution of the Republic of Lithuania, and whether Paragraph 3 (wording of 16 December 2003) of Article 15 of the Republic of Lithuania’s Law on State Secrets and Official Secrets is not in conflict with Article 29 of the Constitution of the Republic of Lithuania and the principles of justice and a state under the rule of law which, according to the petitioner, are entrenched in the Preamble to the Constitution of the Republic of Lithuania, and with Paragraphs 1 and 2 (wording of 19 September 2000) of Article 51 and Paragraph 1 (wording of 19 September 2000) of Article 53 of the Republic of Lithuania’s Law on the Proceedings of Administrative Cases.

The Constitutional Court

has established:

I

The Vilnius Regional Administrative Court, the petitioner, considered an administrative case. By its ruling, the said 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 57 (wording of 19 September 2000) of the Law on the Proceedings of Administrative Cases is not in conflict with Article 29 of the Constitution, and whether Paragraph 3 (wording of 16 December 2003) of Article 15 of the Law on State Secrets and Official Secrets is not in conflict with Article 29 of the Constitution and the principles of justice and a state under the rule of law which, according to the petitioner, are entrenched in the Preamble to the Constitution, and with Paragraphs 1 and 2 (wording of 19 September 2000) of Article 51 and Paragraph 1 (wording of 19 September 2000) of Article 53 of the Law on the Proceedings of Administrative Cases.

This petition of the petitioner was received at the Constitutional Court on 4 May 2007.

The Constitutional Court

holds that:

I

1. The Vilnius Regional Administrative Court, the petitioner, inter alia, requests an investigation into whether Paragraph 3 (wording of 19 September 2000) of Article 57 of the Law on the Proceedings of Administrative Cases is not in conflict with Article 29 of the Constitution.

2. Paragraph 3 (wording of 19 September 2000) of Article 57 of the Law on the Proceedings of Administrative Cases provides: “As a rule, the factual data which constitute a state or official secret may not be evidence in an administrative case, until the data have been declassified in the manner prescribed by law.”

3. On 8 May 2007, in the public Court hearing the Constitutional Court considered Case No. 7/04-8/04 subsequent to the petitions of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether Paragraph 3 of Article 57 of the Law on the Proceedings of Administrative Cases is not in conflict with Article 29 of the Constitution, whether Paragraph 4 of Article 10 of the Law on State Secrets and Official Secrets is not in conflict with Paragraph 1 of Article 30 and Paragraph 1 of Article 109 of the Constitution, and whether Paragraphs 1 and 2 of Article 11 of the Law on State Secrets and Official Secrets are not in conflict with the principles of justice and a state under the rule of law which, according to the petitioner, are entrenched in the Preamble to the Constitution and with Article 29 of the Constitution, as well as with Paragraphs 1 and 2 of Article 51 and Paragraph 1 of Article 53 of the Law on the Proceedings of Administrative Cases and on 15 May 2007 the Constitutional Court adopted the Ruling “On the Compliance of Paragraph 3 (wording of 19 September 2000) of Article 57 of the Republic of Lithuania’s Law on the Proceedings of Administrative Cases, Paragraph 4 (wording of 25 November 1999) of Article 10 and Paragraphs 1 and 2 of Article 11 (wording of 25 November 1999) of the Republic of Lithuania’s Law on State Secrets and Official Secrets with the Constitution of the Republic of Lithuania” whereby, inter alia, Paragraph 3 (wording of 19 September 2000) (Official Gazette Valstybės žinios, 2000, No. 85-2566) of Article 57 of the Law on the Proceedings of Administrative Cases was ruled to be not in conflict with the Constitution.

The said ruling of the Constitutional Court was officially published in the official gazette “Valstybės žinios” on 17 May 2007 (2007, No. 54-2097) and is in force as of the same day.

4. The issue of the compliance of Paragraph 3 (wording of 19 September 2000) (the compliance of which with the Constitution is doubted by the Vilnius Regional Administrative Court, the petitioner) of Article 57 of the Law on the Proceedings of Administrative Cases with the Constitution has been decided in the aforesaid ruling of the Constitutional Court.

5. Under Item 3 of Paragraph 1 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, by a decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the compliance of the legal act with the Constitution specified in the petition has already been investigated by the Constitutional Court and the ruling on this issue adopted by the Constitutional Court is still in force.

Taking account of the arguments set forth, the Constitutional Court must refuse to consider the petition of the Vilnius Regional Administrative Court, the petitioner, to the extent that it requests an investigation into whether Paragraph 3 (wording of 19 September 2000) of Article 57 of the Law on the Proceedings of Administrative Cases is not in conflict with Article 29 of the Constitution.

II

1. The Vilnius Regional Administrative Court, the petitioner, also requests an investigation into whether Paragraph 3 (wording of 16 December 2003) of Article 15 of the Law on State Secrets and Official Secrets is not in conflict with Article 29 of the Constitution and the principles of justice and a state under the rule of law which, according to the petitioner, are entrenched in the Preamble to the Constitution.

2. Paragraph 3 (wording of 16 December 2003) of Article 15 of the Law on State Secrets and Official Secrets provides: “In the course of a pre-trial investigation and consideration of a criminal case the file whereof contains classified information, the suspect (the accused) and counsel for the defence of the suspect (the accused) shall have the right, in accordance with the procedure laid down by the Code of Criminal Procedure, to familiarise themselves with the classified information contained in the file, except for the data assisting in the identification of a victim or witness who has been granted anonymity.”

It is clear that this paragraph (wording of 16 December 2003) regulates the relations which occur in the course of the conduct of pre-trial investigation and consideration of a criminal case, i.e. it regulates the relations of criminal procedure, but not relations which occur in the course of consideration of an administrative case, i.e. they are not relations of administrative procedure.

3. The petition of the Vilnius Regional Administrative Court, the petitioner, to the extent that it requests an investigation into whether Paragraph 3 (wording of 16 December 2003) of Article 15 of the Law on State Secrets and Official Secrets is not in conflict with the Constitution is substantiated by the fact that, according to the petitioner, under this paragraph, the suspect (the accused) and counsel for the defence of the suspect (the accused) shall have the right, in accordance with the procedure laid down by the Code of Criminal Procedure, to familiarise themselves with the classified information contained in the case file in the course of the conduct of pre-trial investigation and consideration of a criminal case, however, such legal regulation does not grant the right to participants of administrative case proceedings to familiarise themselves with classified information contained in the case file; according to the petitioner, the impugned legal regulation does not allow participants of administrative case proceedings without exceptions to familiarise themselves with the classified information even when an administrative case of that person is being considered in the administrative court and the information which constitutes a state secret or an official secret is recognised and assessed as evidence in that case. In the opinion of the petitioner, due to this such a person finds himself in a non-equal-rights situation, if compared to the other party of the dispute, who has knowledge about the information which constitutes a state secret or an official secret and which is accessible to the said party; the petitioner believes that such legal regulation is in conflict with Article 29 of the Constitution and with the principles of justice and a state under the rule of law which, according to the petitioner, are entrenched in the Preamble to the Constitution.

Thus, the Vilnius Regional Administrative Court, the petitioner, impugns not something that is explicitly established in Paragraph 3 (wording of 16 December 2003) of Article 15 of the Law on State Secrets and Official Secrets, but something that, according to him, is not established, but, in its opinion, should have been established therein.

4. In this context, particular attention should be paid to the fact that the Vilnius Regional Administrative Court, the petitioner, when it argues its petition requesting an investigation into the compliance of Paragraph 3 (wording of 16 December 2003) of Article 15 of the Law on State Secrets and Official Secrets with the Constitution, maintains not only that, according to the explanation provided by it, the legal regulation established in the said paragraph does not allow participants of administrative case proceedings without exceptions to familiarise themselves with the classified information even when an administrative case of that person is being considered in the administrative court and the information which constitutes a state secret or an official secret is recognised and assessed as evidence in that case, but also that Paragraphs 1 and 2 (wording of 19 September 2000) of Article 51 of the Law on the Proceedings of Administrative Cases “virtually grants the right to the participants of administrative proceedings to familiarise themselves with all the evidence which constitute a state secret and which are contained in the case file”.

In addition, after it had doubted whether Paragraph 3 (wording of 16 December 2003) of Article 15 of the Law on State Secrets and Official Secrets is not in conflict with the Constitution due to the fact that, according to the explanation provided by it, the legal regulation established in the said paragraph does not allow participants of administrative case proceedings without exceptions to familiarise themselves with the classified information even when an administrative case of that person is being considered in the administrative court and the information which constitutes a state secret or an official secret is recognised and assessed as evidence in that case, the petitioner also requests the Constitutional Court to investigate whether Paragraph 1 (wording of 19 September 2000) of Article 53 of the Law on the Proceedings of Administrative Cases, which provides that, as a rule, the factual data which constitute a state or official secret may not be evidence in an administrative case, until the data have been declassified in the manner prescribed by law, is not in conflict with the Constitution, thus, one has not established any absolute prohibition on using also such factual data which constitute a state secret or an official secret as evidence in an administrative case, which have not been declassified (in this context, it should be mentioned that, as it was held in the Constitutional Court’s ruling of 15 May 2007, if the court deems that there is such evidence (material), which is information that does not constitute a state secret (or which is not other classified information), so that it can adopt a decision in the case considered by the court and to administer the justice as entrenched in the Constitution, then this information not subject to disclosure should not, in order to protect the public interest, be evidence in that case and the parties to the case may not be familiarised with it, and that a special responsibility falls upon the court, which is considering a case, when it decides whether certain information constituting a state secret (or other classified information) may be recognised as evidence in a corresponding case).

Thus, the arguments of the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into the compliance of Paragraph 3 (wording of 16 December 2003) of Article 15 of the Law on State Secrets and Official Secrets with the Constitution, are inconsistent and contradictory: on the one hand, the petitioner follows the provision that the legal regulation established in a certain law (the Law on State Secrets and Official Secrets) does not allow a person to implement his rights, while on the other hand it agrees that these rights can be implemented under a different law (Law on the Proceedings of Administrative Cases).

5. While deciding whether the petition of the Vilnius Regional Administrative Court, the petitioner, to the specified extent can be accepted for consideration at the Constitutional Court, it needs to be noted that the ruling of the Vilnius Regional Administrative Court whereby it was applied to the Constitutional Court was adopted in the course of investigation of an administrative case, but not a criminal case.

6. Thus, the Vilnius Regional Administrative Court, the petitioner, requests an investigation into whether the provisions of Paragraph 3 (wording of 16 December 2003) of Article 15 of the Law on State Secrets and Official Secrets are not in conflict with the Constitution, which, however, should not be applied in the case considered by the said court.

7. Under Paragraph 2 of Article 110 of the Constitution, in cases when there are grounds to believe that the law or other legal act which should be applied in a concrete case is in conflict with the Constitution, the judge shall suspend the consideration of the case and shall apply to the Constitutional Court requesting it to decide whether the law or other legal act in question is in compliance with the Constitution.

Under Paragraph 1 of Article 67 of the Law on the Constitutional Court, provided that there are grounds to consider that a law or other legal act applicable in a concrete case is in conflict with the Constitution, the court (judge) shall suspend the investigation of said case and, with regard to the competence of the Constitutional Court, shall apply to it with a petition to decide whether the said law or other legal act is in compliance with the Constitution.

Thus, under the Constitution and the Law on the Constitutional Court, a court can apply to the Constitutional Court with a petition requesting an investigation into whether not any law (part thereof) or any other legal act (part thereof), but only the law (part thereof) or the other legal act (part thereof) which should be applied in the case considered by the said court, is not in conflict with the Constitution.

Thus, under the Constitution and the Law on the Constitutional Court, a court does not have locus standi to apply to the Constitutional Court with a petition requesting an investigation into whether the law (part thereof) or the other legal act (part thereof) which should not be applied in the case considered by the said court, is not in conflict with the Constitution.

8. Under Item 1 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by a decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the petition was filed by an institution or person who does not have the right to apply to the Constitutional Court.

9. In addition, if a court has applied to the Constitutional Court with a petition requesting an investigation into whether a law (part thereof) or other legal act (part thereof), which should/could not be applied in the case considered by the said court, is not in conflict with the Constitution (thus, when the court does not have locus standi), one should decide, while taking account of all the entirety of the arguments substantiating such a petition, whether the reasoning of the petition of the petitioner applying to the Constitutional Court is legal one.

10. It has been held in this decision of the Constitutional Court that the arguments of the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into the compliance of Paragraph 3 (wording of 16 December 2003) of Article 15 of the Law on State Secrets and Official Secrets with the Constitution, are inconsistent and contradictory: on the one hand, the petitioner follows the provision that the legal regulation established in a certain law (the Law on State Secrets and Official Secrets) does not allow a person to implement his rights, while on the other hand it agrees that these rights can be implemented under a different law (the Law on the Proceedings of Administrative Cases).

Such reasoning of the application to the Constitutional Court, regardless of its legal terminology, especially when one takes account of the fact that the Vilnius Regional Administrative Court, the petitioner, clearly not having locus standi, has applied to the Constitutional Court, cannot be recognised as legal reasoning.

11. Under Item 5 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by a decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the petition is grounded on non-legal reasoning.

12. Taking account of the arguments set forth, the Constitutional Court must refuse to consider the petition of the Vilnius Regional Administrative Court, the petitioner, to the extent that it requests an investigation into whether Paragraph 3 (wording of 16 December 2003) of Article 15 of the Law on State Secrets and Official Secrets is not in conflict with Article 29 of the Constitution and the principles of justice and a state under the rule of law which, according to the petitioner, are entrenched in the Preamble to the Constitution.

III

1. The Vilnius Regional Administrative Court, the petitioner, requests an investigation into whether Paragraph 3 (wording of 16 December 2003) of Article 15 of the Law on State Secrets and Official Secrets is not in conflict, inter alia, with Paragraphs 1 and 2 (wording of 19 September 2000) of Article 51 and Paragraph 1 (wording of 19 September 2000) of Article 53 of the Law on the Proceedings of Administrative Cases.

2. In its acts the Constitutional Court has held more than once that under the Constitution it does not decide the compliance of a legal act with a legal act of the same legal force and that, under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitution Court, this constitutes grounds to refuse to accept a corresponding petition of the petitioner for consideration.

The same, by the way, has been held also in the Constitutional Court’s Decision “On the Petition (No. 1B-05) Requesting an Investigation into Whether Paragraph 3 of Article 57 of the Republic of Lithuania’s Law on the Proceedings of Administrative Cases is Not in Conflict with Article 29 of the Constitution of the Republic of Lithuania, Whether Paragraph 4 of Article 10 of the Republic of Lithuania’s Law on State Secrets and Official Secrets is Not in Conflict with Paragraph 1 of Article 30, Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, and Whether Paragraphs 1 and 2 of Article 11 of the Same Law are Not in Conflict with Article 29 of the Constitution of the Republic of Lithuania and the Principles of Justice and a State under the Rule of Law Established in the Preamble to the Constitution, as well as with Paragraphs 1 and 2 of Article 51 and Paragraph 1 of Article 53 of the Republic of Lithuania’s Law on the Proceedings of Administrative Cases” of 3 February 2004 and in the Constitutional Court’s Decision “On the Petition (No. 1B-06) Requesting an Investigation into Whether Paragraph 3 of Article 57 of the Republic of Lithuania’s Law on the Proceedings of Administrative Cases is Not in Conflict with Article 29 of the Constitution of the Republic of Lithuania, Whether Paragraph 4 of Article 10 of the Republic of Lithuania’s Law on State Secrets and Official Secrets is Not in Conflict with Paragraph 1 of Article 30, Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, and Whether Paragraphs 1 and 2 of Article 11 of the Same Law are Not in Conflict with Article 29 of the Constitution of the Republic of Lithuania and the Principles of Justice and a State under the Rule of Law Established in the Preamble to the Constitution, as well as with Paragraphs 1 and 2 of Article 51 and Paragraph 1 of Article 53 of the Republic of Lithuania’s Law on the Proceedings of Administrative Cases” of 3 February 2004 whereby the Constitutional Court refused to consider petitions Nos. 1B-05/2004 and 1B-06/2004 of the Vilnius Regional Administrative Court to the extent that the Constitutional Court was requested to investigate whether Paragraphs 1 and 2 of Article 11 of the Law on State Secrets and Official Secrets were not in conflict with Paragraphs 1 and 2 of Article 51 and Paragraph 1 of Article 53 of the Republic of Lithuania’s Law on the Proceedings of Administrative Cases.

3. It needs to be mentioned that in the said petitions (Nos. 1B-05/2004 and 1B-06/2004) the Constitutional Court was requested to investigate the compliance of the same law (i.e. the Law on State Secrets and Official Secrets) but only of an earlier wording with the same provisions of the same law (i.e. the Law on the Proceedings of Administrative Cases), which are pointed out by the Vilnius Regional Administrative Court, the petitioner, in this petition (No. 1B-24/2007) (the issue of acceptance whereof for consideration in the Constitution Court is being decided now).

4. Taking account of the arguments set forth, the Constitutional Court must refuse to consider the petitioner of the Vilnius Regional Administrative Court, the petitioner, to the extent that it requests an investigation into whether Paragraph 3 (wording of 16 December 2003) of Article 15 of the Law on State Secrets and Official Secrets is not in conflict, inter alia, with Paragraphs 1 and 2 (wording of 19 September 2000) of Article 51 and Paragraph 1 (wording of 19 September 2000) of Article 53 of the Law on the Proceedings of Administrative Cases.

Conforming to Articles 1, 28, Items 1, 2, and 5 of Paragraph 1 and Paragraph 2 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To refuse to consider the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether Paragraph 3 of Article 57 (wording of 19 September 2000) of the Republic of Lithuania’s Law on the Proceedings of Administrative Cases is not in conflict with Article 29 of the Constitution of the Republic of Lithuania, and whether Paragraph 3 (wording of 16 December 2003) of Article 15 of the Republic of Lithuania’s Law on State Secrets and Official Secrets is not in conflict with Article 29 of the Constitution of the Republic of Lithuania and the principles of justice and a state under the rule of law which, according to the petitioner, are entrenched in the Preamble to the Constitution of the Republic of Lithuania, and with Paragraphs 1 and 2 (wording of 19 September 2000) of Article 51 and Paragraph 1 (wording of 19 September 2000) of Article 53 of the Republic of Lithuania’s Law on the Proceedings of Administrative Cases.

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

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

Justices of the Constitutional Court:         Armanas Abramavičius

                                                                              Toma Birmontienė

                                                                              Egidijus Kūris

                                                                              Kęstutis Lapinskas

                                                                              Zenonas Namavičius

                                                                              Ramutė Ruškytė

                                                                              Vytautas Sinkevičius

                                                                              Stasys Stačiokas

                                                                              Romualdas Kęstutis Urbaitis