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On state secrets and official secrets

Case No. 7/04-8/04

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

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

 

15 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

Gediminas Sagatys, a senior advisor of the Legal Department of the Office of the Seimas, acting as the representative 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, in its public hearing, on 8 May 2007, considered case No. 7/04-8/04 subsequent to petitions No. 1B-05 and 1B-06 of the Vilnius Regional Administrative Court, the petitioner, 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;

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 and Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania;

Paragraphs 1 and 2 of Article 11 of the Republic of Lithuania’s 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 of the Republic of Lithuania and with Article 29 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

1. The Vilnius Regional Administrative Court, the petitioner, considered two administrative cases. By its rulings, the said court suspended the consideration of these cases and applied to the Constitutional Court with the petitions 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 Paragraphs 1 and 2 of Article 51 and Paragraph 1 of Article 53 of the Law on the Proceedings of Administrative Cases.

2. On 3 February 2004, the Constitutional Court adopted the 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” and the 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” whereby petitions Nos. 1B-05 and 1B-06 of the Vilnius Regional Administrative Court were accepted for consideration to the extent that they request 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, into 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, Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, and into whether Paragraphs 1 and 2 of Article 11 of the same law are not in conflict with Article 29 of the Constitution and the principles of justice and a state under the rule of law entrenched, according to the petitioner, in the Preamble to the Constitution. The Constitutional Court refused to consider these petitions to the extent that they requested an investigation into 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 Law on the Proceedings of Administrative Cases.

By the Constitutional Court’s decision of 11 February 2004, petitions Nos. 1B-05 and 1B-06 of the Vilnius Regional Administrative Court were joined into one case and it was given reference No. 7/04-8/04.

II

1. The petitions of the Vilnius Regional Administrative Court, the petitioner, are substantiated by these arguments.

1. Under Paragraph 3 of Article 57 of the Law on the Proceedings of Administrative Cases, 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. This virtually limits the right of the participants to the proceedings as well as that of the court to invoke the evidence which constitutes a state or official secret. Such limitation is not absolute, however, it is not clear from the said law when the information constituting a state or official secret could be recognised as evidence in a case: in some situations one can invoke such evidence for the advantage of the person or against him, although corresponding information has not been declassified, while in some other situation it is impossible to invoke such information. Therefore, in the opinion of the petitioner, such legal regulation is in conflict with Article 29 of the Constitution, under which all persons shall be equal before the law, the court, and other state institutions and officials.

2. Under Paragraph 4 of Article 10 of the Law on State Secrets and Official Secrets, decision on the annulment of a permit to work or familiarise oneself with information constituting a state secret may be appealed to the Commission for Secrets Protection Co-ordination of the Republic of Lithuania (hereinafter also referred to as the Commission), which adopts a final decision. Thus, no other institution, even the court, is permitted to assess the reasonableness of the said decision. Such legal regulation, according to the petitioner, might be in conflict with Paragraph 1 of Article 30 of the Constitution whereby the person whose constitutional rights or freedoms are violated shall have the right to apply to court, and with Paragraph 1 of Article 109 thereof whereby in the Republic of Lithuania justice shall be administered only by courts.

Article 11 of the Law on State Secrets and Official Secrets provides, inter alia, that the right to familiarise oneself with classified information, marked by security levels: “Top Secret,” “Secret,” “Confidential,” shall be held only by persons having a permit to work or familiarise oneself with such information and only with the information which is related with performance of his duties (Paragraph 1); the right to familiarise oneself with classified information, which is at the disposal of another subject of secrets, shall be given to a person by the head of the institution having access to such information; such a person shall have a target order issued by the head of the institution where the person works; such an order shall certify that the person has a permit to work with corresponding security level of classified information, as well as specify why and with what information the said person needs to familiarise himself with (Paragraph 2). These provisions without any exceptions do not permit a person, who has no permit to work or familiarise himself with classified information, to familiarise himself with the classified information even when an administrative case regarding this person is considered in a court, and the information constituting a state secret or an official secret is recognised and regarded as evidence. Due to this, such a person finds himself in a non-equal-rights situation, if compared with another party to the dispute, who has knowledge about the information constituting a state secret. Such legal regulation, in the opinion of the petitioner, 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.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from the representative of the Seimas, the party concerned, who was Gediminas Sagatys, a senior advisor of the Legal Department of the Office of the Seimas, in which it is maintained that the impugned legal regulation is not in conflict with the Constitution. The position of the party concerned is grounded on the following arguments.

1. Paragraph 3 of Article 57 of the Law on the Proceedings of Administrative Cases limits the right of the participants to the proceedings as well as that of the court to invoke the evidence, which constitutes a state or official secret, during the proceedings. However, the words “as a rule” employed therein means that this limitation is not absolute, thus, in separate (exceptional) situations the court, when it adopts a decision, can invoke the evidence which constitute a state secret or an official secret; the need to make use of the factual data constituting a state secret or an official secret can be determined by various circumstances related with a threat to sovereignty of the state.

2. The right of a person to work or familiarise himself with the information constituting a state secret is not his constitutional right. The said right does not determine the implementation of the right of the person to work as his constitutional right, either, because although the Constitution proclaims the right to work, this right does not ensure the right to receive a concrete job according to a chosen profession or an area of occupation; even when a certain position requires that the employee have a certain special permit, non-issuance or withdrawal of such a permit determines only a limitation on the right of that person to work in a concrete job, but not his right to work in general. The nature of the right of the person to work or to familiarise himself with information, which constitutes a state secret, determines that a decision in the disputes concerning recognition or deprivation of such a right should not be regarded as the administration of justice provided for in Paragraph 1 of Article 109 of the Constitution, since the said right is a special right, which has been granted by the state to a certain person because he has been entrusted with a special mission of state importance. Since it is a special right, the state, in case it is necessary, can limit such a right.

3. The Law on State Secrets and Official Secrets does not allow a person, who has not got a permit to work or familiarise himself with classified information, to familiarise himself with classified information also in situations where an administrative case regarding that person is considered and the information constituting a state or official secret is recognised as evidence and such information is assessed in the case. In such a situation there is a collision of the interests of the person who is a party to the administrative proceedings, and the state that is seeking to protect its secrets. The principle of proportionality is of essential importance here, under which the right of the person is not absolute, however, its limitation provided for in the law is possible only when it is proportionate to the legitimate objectives sought. The limitations entrenched in Paragraphs 1 and 2 of Article 11 of the Law on State Secrets and Official Secrets are proportionate since by such limitations one seeks to attain a legitimate objective—state security: the state, while protecting certain secrets, seeks to protect society from the negative consequences which could appear in case these secrets were unreasonably revealed.

IV

In the course of the preparation of the case for the judicial consideration, written explanations were received from J. Olekas, the Minister of National Defence of the Republic of Lithuania, G. Švedas, the then Vice-minister of Justice of the Republic of Lithuania, A. Balzaris, Deputy Director General of the State Security Department of the Republic of Lithuania, and A. Čepas, Director of the Institute of Law.

V

At the Constitutional Court’s hearing, the representative of the Seimas, the party concerned, who was G. Sagatys, virtually reiterated the arguments set forth in the written explanations and also submitted additional explanations, which are related, inter alia, with how the right to familiarise oneself and work with classified information is treated in the jurisprudence of the European Court of Human Rights.

The Constitutional Court

holds that:

I

1. In the constitutional justice case at issue, the compliance of Paragraph 4 (wording of 25 November 1999) of Article 10 and Paragraphs 1 and 2 of Article 11 (wording of 25 November 1999) of Article 11 of the Law on State Secrets and Official Secrets is impugned.

2. On 25 October 1995, the Seimas adopted the Republic of Lithuania’s Law on State Secrets and Their Protection, which came into force in 1 March 1996, as well as the Resolution (No. I-1075) “On Implementing the Republic of Lithuania’s Law on State Secrets and Their Protection” which came into force on 25 November 1995.

3. The said law was designed for regulating the relations linked with classification, protection, use, and declassification of information constituting a state secret in the Republic of Lithuania and its diplomatic missions and consular posts abroad, as well as the protection and use of the information constituting a secret of other states, which was handed over to the Republic of Lithuania (if international treaties of the Republic of Lithuania had established rules of protection and use of secrets of foreign states which were different from those established in this law, the rules of the international treaty would have been applied). It was defined, inter alia, as to what state secret is, categories of state secrets, subjects of state secrets, the conditions and procedure of issuance or non-issuance of a permit to work with information, which constitutes a state secret, the persons who ex officio have the right to familiarise themselves with information constituting a state secret, the procedure for control over the classification, protection, declassification, and safeguard of information constituting a state secret, and liability for disclosure of information constituting a state secret were established.

In the context of the constitutional justice case at issue, it needs to be mentioned that it was established in Article 10 of the Law on State Secrets and Their Protection (wording of 25 October 1995) that the right to familiarise oneself with information constituting a state secret shall be enjoyed only by the person who has a permit to work with this information and only with the information which is related with performance of his duties (Paragraph 1); a permit to familiarise oneself with information constituting a state secret, which is at the disposal of another subject of state secrets, shall be given to a person by the head of the institution having access to such information; such a person shall have a target order issued by the head of the institution where the person works; such an order shall certify that the person has a permit to work with information constituting a state secret, as well as specify the type and extent of information that the person needs to familiarise himself with and the motives for becoming familiar with such information (Paragraph 2); if one adopts a decision not to permit the person to familiarise himself with the information constituting a state secret, which is indicated in the target order, the head of this institution must reason his decision within 10 days and familiarise the head of the institution that has directed the said person with such a decision (Paragraph 3); the President of the Republic, the Prime Minister, Members of the Seimas, as well as the persons who are appointed to certain office by the President of the Republic, the Seimas, the Government or the Prime Minister, shall have the right ex officio to familiarise themselves with information constituting a state secret (Paragraph 4).

It also needs to be mentioned that the Constitutional Court has considered a constitutional justice case subsequent to the petition submitted to the Court by the petitioner—the First Vilnius City Local Court—requesting an investigation into whether Articles 5 and 10 of the Law on State Secrets and Their Protection were in compliance with Paragraphs 3 and 5 of Article 25 of the Constitution and into whether the provisions of the Resolution of the Government of the Republic of Lithuania (No. 309) “On the Approval of the List of the Information Which is Considered a State Secret of the Republic of Lithuania” of 6 March 1996 and those of the Resolution of the Government of the Republic of Lithuania (No. 310) “On the Approval of the List of Duties by Which the Persons Who Discharge Them are Entitled to Familiarise Themselves with the Information Which is Considered a State Secret Without Exceeding Their Competence Established by Law, as Well as on Notifying These Persons of Liability for Disclosure or Loss of Such Information” of 6 March 1996 were in compliance with Paragraphs 3 and 5 of Article 25, Paragraph 1 of Article 29 of the Constitution, and Articles 4, 31, 197, Paragraph 3 of Article 220, Articles 222 and 253 of the Republic of Lithuania’s Code of Civil Proceedings, and, on 19 December 1996, it adopted the Ruling “On the Compliance of Articles 5 and 10 of the Law of the Republic of Lithuania on State Secrets and Their Protection with the Constitution of the Republic of Lithuania as well as on the Compliance of the 6 March 1996 resolutions (Nos. 309 and 310) of the Government of the Republic of Lithuania with the Constitution of the Republic of Lithuania and the Norms of the Republic of Lithuania’s Code of Civil Proceedings” in which it held, inter alia, that Article 10 of the on State Secrets and Their Protection (wording of 25 October 1995) regulates the relations between the subject of a state secret and the persons who have a permit to work with information constituting a state secret; the person may familiarise himself with information constituting a state secret only because he has to perform certain duties; this article does not establish any procedure for use of information constituting a state secret in court proceedings. The said ruling of the Constitutional Court recognised, inter alia, that this article is not in conflict with the Constitution.

4. On 10 June 1997, the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on State Secrets and Their Protection by Article 1 whereof it amended the Law on State Secrets and Their Protection (wording of 25 October 1995) and set it forth in a new wording. The Law on State Secrets and Their Protection of the new wording came into force on 25 June 1997. It was established in Article 18 of the said law that the procedure of the implementation of this law shall be established by the Resolution of the Seimas of the Republic of Lithuania “On Implementing the Republic of Lithuania’s Law on State Secrets and Their Protection”.

The Law on State Secrets and Their Protection (wording of 10 June 1997) was supplemented.

5. On 1 July 1999, the Seimas adopted the Republic of Lithuania’s Law on State Secrets and Official Secrets as well as the Republic of Lithuania’s Law on Implementing the Law on State Secrets and Official Secrets.

The Law on State Secrets and Official Secrets, which was adopted by the Seimas on 1 July 1999, inter alia, prescribed: a subject of secrets may appeal against a refusal by the State Security Department (hereinafter also referred to as the SSD) to give consent to a permit to work or familiarise oneself with information constituting a state secret to the Commission for Secrets Protection Co-ordination, which shall adopt a final decision (Paragraph 2 of Article 9); a permit to work or familiarise oneself with information constituting a state secret shall be annulled by the subject of secrets on its own initiative or in accordance with a reasoned proposal by the SSD, while the subject of secrets shall notify the SSD of its decision (Paragraph 2 of Article 10); a person, who has not been granted a permit to work or familiarise himself with information constituting a state secret or such a permit has been annulled, or who has not been granted a right to work or familiarise himself with information constituting a state secret or such right has been abolished, in case there are no opportunities to the person to continue in office with no right to work or familiarise himself with classified information, shall be released form office according to the procedure established in laws and the person shall have the right to appeal such decisions to the Commission for Secrets Protection Co-ordination (Paragraph 4 of Article 10).

On 27 July 1999, the President of the Republic issued the Decree (No. 547) “On Referring the Republic of Lithuania’s Law on State Secrets and Official Secrets Back to the Seimas of the Republic of Lithuania for Repeated Consideration” by Item 1 of Article 2 whereof he referred the Law on State Secrets and Official Secrets adopted by the Seimas on 1 July 1999 back to the Seimas for repeated consideration, since the provisions of Article 9 and Paragraph 4 of Article 10 of this law adopted by the Seimas were doubtful as to their compliance with Paragraph 1 of Article 30 of the Constitution, while in Item 2 thereof he formulated draft amendments to the law and, inter alia, proposed to stipulate that decisions of the Commission (as the subject that coordinates the protection of classified information) regarding issuance a permit to work or familiarise oneself with information constituting a state secret or annulment of such a permit could be appealed before a court under procedure established in laws.

In its 14 September 1999 sitting the Seimas recognised the said law as one which was not adopted and by common agreement adopted a protocol decision to commission the Seimas Committee on National Security and Defence to form a working group and to prepare a new draft law.

The Law on Implementing the Law on State Secrets and Official Secrets (No. VIII-1280), which was adopted by the Seimas on 1 July 1999, was signed by the President of the Republic, officially published in the official gazette “Valstybės žinios” (Official Gazette Valstybės žinios, 1999, No. 81-2378) and came into force on 29 September 1999.

6. On 25 November 1999, the Seimas adopted the Law on State Secrets and Official Secrets, which came into force on 1 March 2000. After this law came into force, the Law on State Secrets and Their Protection (wording of 10 June 1997 with subsequent supplement) as well as the Law on Implementing the Law on State Secrets and Official Secrets (No. VIII-1280) became no longer valid. On the same day (i.e. on 25 November 1999), the Seimas adopted the Republic of Lithuania’s Law on Implementing the Law on State Secrets and Official Secrets (No. VIII-1444) which came into force on 9 December 1999.

The Law on State Secrets and Official Secrets (wording of 25 November 1999) was designed for regulating the relations linked with classification, protection, use, declassifying, coordination of safeguarding and control of information constituting a state secret as well as of the information constituting a secret of other states or international organisations handed over to the Republic of Lithuania.

According to this law, only persons having been granted special permits which are granted the permits to work or familiarise themselves with information constituting a state secret by the subject of the secret, may hold the office related to use and protection of information constituting a state secret (Paragraphs 2 and 3 of Article 9); a permit to work or familiarise oneself with information constituting a state secret shall be annulled by the subject of secrets on its own initiative or in accordance with a reasoned proposal by the State Security Department (Paragraph 2 of Article 10). For the first time one provided for a special institution coordinating the protection of classified information—the Commission for Secrets Protection Co-ordination—as well as the procedure of its formation, its powers and the legal force of decisions adopted by it. Two members to the Commission for Secrets Protection Co-ordination were delegated by the President of the Republic of Lithuania, the Speaker of the Seimas of the Republic of Lithuania, the Prime Minister of the Republic of Lithuania, each, while the Director General of the SSD was a member of this commission ex officio and chaired it. The SSD would appoint one of its officials as the secretary of the Commission. One of the functions of the Commission was to settle disputes between subjects of secrets as well as disputes between subjects of secret and other persons that appeared because of the classification, protection, use, declassification of information constituting a state or official secret, and control over the safeguard of such information, as well as the reasonableness of non-issuance or annulment of permits to work or familiarise oneself with information constituting a state secret or personal reliability certificates (Item 7 of Paragraph 3 of Article 12). The decision of a subject of secrets on non-issuance of a permit to work or familiarise oneself with information constituting a state secret could be appealed to the Commission which would adopt a “final decision” (Paragraph 8 of Article 9); annulment of a permit to work or familiarise oneself with information constituting a state secret could also be appealed to the Commission which would adopt a “final decision” (Paragraph 4 of Article 10). Decisions adopted by the Commission were mandatory to subjects of secrets (Paragraph 4 of Article 12).

7. The impugned provisions of the Law on State Secrets and Official Secrets established the following:

– “Annulment of a permit to work or familiarise oneself with information constituting a state secret may be appealed to the Commission for Secrets Protection Co-ordination of the Republic of Lithuania which shall adopt a final decision” (Paragraph 4 (wording of 25 November 1999) of Article 10);

– “The right to familiarise oneself with classified information, marked by security levels: ‘Top Secret,’ ‘Secret,’ ‘Confidential,’ shall be held only by persons having a permit to work or familiarise oneself with such information and only with the information which is related with performance of his duties” (Paragraph 1 of Article 11 (wording of 25 November 1999));

– “The right to familiarise oneself with classified information, which is at the disposal of another subject of secrets, shall be given to a person by the head of the institution having access to such information. Such a person shall have a target order issued by the head of the institution where the person works. Such an order shall certify that the person has a permit to work with corresponding security level of classified information, as well as specify why and with what information the said person needs to familiarise himself with” (Paragraph 2 of Article 11 (wording of 25 November 1999)).

8. The Law on State Secrets and Official Secrets (wording of 25 November 1999) has been amended and/or supplemented more than once (inter alia, Paragraph 1 of Article 10 thereof was amended), however, Paragraph 4 (wording of 25 November 1999) of Article 10 and Paragraphs 1 and 2 of Article 11 (wording of 25 November 1999) of this law have not been amended nor supplemented.

9. On 16 December 2003, the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on State Secrets and Official Secrets by Article 1 whereof the Law on State Secrets and Official Secrets (wording of 25 November 1999 with subsequent amendments and supplements) was set forth in a new wording. The Law on State Secrets and Official Secrets of the new wording came into force on 1 May 2004. The procedure of implementation of this law was established by the Republic of Lithuania’s Law on Implementing the Law on Amending the Law on State Secrets and Official Secrets, which was adopted by the Seimas on the same day (on 16 December 2003) and which came into force on 7 January 2004.

The Law on State Secrets and Official Secrets (wording of 16 December 2003) regulates the relations linked with classification, protection, use, declassification of information constituting a state secret, as well as coordination and control of safeguarding actions and establishes minimum requirements for information protection spheres (personnel reliability, administration of classified information, physical protection, security of classified transactions, protection of automatic data processing systems and networks). It also provides, inter alia, that the classified information of foreign states, the European Union and other international organisations, which has been handed over to the Republic of Lithuania, shall be protected and used according to the procedure established in international treaties of the Republic of Lithuania and decisions of international organisations based on these treaties and implementing them, as well as that established in acts of European Union law and this law; in cases where international treaties of the Republic of Lithuania and/or decisions of international organisations based on these treaties and/or implementing them, as well as acts of European Union law, establish requirements for protection and use of classified information of foreign states or international organisations, which are different from those established by this law, then the provisions of the international treaties of the Republic of Lithuania and/or decisions of international organisations based on these treaties and/or implementing them, as well as acts of European Union law, are applied (Paragraph 2 of Article 1).

The Law on State Secrets and Official Secrets (wording of 16 December 2003) has been amended and/or supplemented.

II

1. In the constitutional justice case at issue, the compliance of Paragraph 3 (wording of 19 September 2000) of Article 57 of the Law on the Proceedings of Administrative Cases is impugned.

2. On 14 January 1999, the Seimas adopted the Law on the Proceedings of Administrative Cases, which came into force on 1 May 1999.

This law has been amended and/or supplemented.

3. On 19 September 2000, the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on the Proceedings of Administrative Cases by Article 1 whereof it amended the Law on the Proceedings of Administrative Cases (wording of 14 January 1999 with subsequent amendments and supplements) and set it forth in a new wording. The Law on the Proceedings of Administrative Cases of the new wording came into force on 1 January 2001.

4. The impugned 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.”

5. The Law on the Proceedings of Administrative Cases (wording of 19 September 2000) was amended and/or supplemented, however, Paragraph 3 of Article 57 thereof has not been amended nor supplemented.

III

1. The state secret is a constitutional institute. The notion “state secret” is employed expressis verbis in the Constitution (Paragraph 1 of Article 117). The state secret is such information not subject to publishing or dissemination, whose disclosure could inflict damage on the state as the common good of entire society, on the political organisation of entire society whose purpose is ensuring human rights and freedoms and guaranteeing the public interest.

2. In its acts the Constitutional Court has held more than once that freedom of information is not absolute, also, that the Constitution does not permit the establishment of any such legal regulation whereby, by entrenching the guarantees of implementation of freedom of information, preconditions would be created to violate other constitutional values and their balance. It needs to be noted that under the Constitution the state has a duty not only to guarantee the secrecy of the information which constitutes a state secret, but also the protection of certain other information, i.e. so that one would not arbitrarily attempt to find out or impart the information whose disclosure could inflict damage on the rights and freedoms as well as legitimate interests of the person and on the other values entrenched in and defended and protected by the Constitution; for instance, in addition to a “state secret”, Paragraph 1 of Article 117 of the Constitution indicates “professional secret”, “commercial secret” as well as “the secrecy of private or family life of the human being”; Article 22 of the Constitution consolidates, inter alia, the inviolability of personal correspondence, telephone conversations, telegraph messages, and other communications as well as the prohibition on collecting information concerning the private life of a person otherwise than upon a justified court decision and only according to the law; various articles (parts thereof) of the Constitution consolidate the principle of secrecy of voting during elections; it needs to be noted that not all information which must be protected in such a manner is explicitly mentioned in the text of the Constitution. The Constitutional Court has held that the legislature must, by means of a law, define the content of the information the dissemination of which is either prohibited or limited, as well as the ways by means of which dissemination of certain information is prohibited, as well as other conditions of dissemination of corresponding information if this in any manner limits freedom of information; the legislature also must, by means of a law, establish: liability for disregard of the said prohibitions and limitations, including that for dissemination of information the dissemination of which is prohibited; subjects which enjoy the powers to supervise the observance of the prohibitions and/or limitations, which are established by law, to disseminate certain information; subjects that apply liability for disregard of the prohibitions and/or limitations, which are established by law, to disseminate certain information; efficient measures of judicial protection of freedom of information; the Constitution does not prevent regulation of certain relations linked with obtaining and dissemination of information, including the relations linked with supervision and control of the prohibitions, established by means of laws, to disseminate information and/or limitations on dissemination of information also by means of substatutory legal acts, inter alia, government resolutions, however, such substatutory legal acts cannot establish any such legal regulation which is not based on the Constitution and laws, nor any such legal regulation which competes with that established by law (the Constitutional Court’s ruling of 19 September 2005).

3. In its acts the Constitutional Court has held more than once also that it is not permitted to construe the Constitution only verbatim by applying only the linguistic (verbal) method; the same can be said as regards construction of all legal acts of lower legal force. It was held in the Constitutional Court’s rulings of 16 January 2006 and 19 August 2006 that the Constitution does not prevent the usage of words or formulas in laws and other legal acts that are different from those used in the text of the Constitution.

4. If various provisions of the Constitution, from which a duty of the state stems to guarantee the protection of secrecy of information constituting a state secret and to ensure that one would not arbitrarily attempt to find out or impart the information whose disclosure could inflict damage on the rights and freedoms as well as legitimate interests of the person and on the other values entrenched in and defended and protected by the Constitution, are construed in a systemic manner, it should be held that the constitutional notion “state secret” is a general one. The legislature, while defining, by means of a law, the content of the information whose dissemination is prohibited or whose dissemination is limited, as well as while defining the ways by which dissemination of certain information is prohibited, as well as the other conditions for imparting information (if it puts limitations on freedom of information), may employ also other notions (inter alia, by naming various kinds (categories) of secrets which are constitutionally protected); the legislature can also employ the notion “state secret” also not only in general meaning (as it is used in the text of the Constitution), but also in a narrower meaning.

However, in all cases one must pay heed to the constitutional concept of the state secret as information which is not subject to publishing or dissemination, whose revelation could inflict damage on the state as the common good of entire society, on the political organisation of entire society whose purpose is ensuring human rights and freedoms and guaranteeing the public interest.

5. Certain requirements are raised to a person, who is granted the right to familiarise himself with the information which constitutes a state secret; such requirements are related with his reliability and his loyalty to the State of Lithuania, which should be linked with the trust of the state in that person; the distrust of the state in a certain person could be determined by the activity of that person, inter alia, committed violations of law, as well as characteristics of the same person, his various personal ties as well as other important circumstances; one can permit only such a person to familiarise himself with state secrets, whose activity, characteristics, personal ties, etc. cannot give grounds to fear that in case he learns a state secret, there would be a threat let alone damage would be inflicted upon the sovereignty of the state, its territorial integrity, the constitutional order, defence power and upon other especially important state interests and the bases of the life of society and the state, then the most important relations regulated, defended and protected by the Constitution, which are protected and defended precisely by the fact that certain information, according to laws, is classified; a person, who lost the trust of the state in him, must be deprived of the right to familiarise himself or work with the information constituting a state secret.

6. Disclosure of a state secret may raise a threat or even inflict damage upon the sovereignty of the state, its territorial integrity, the constitutional order, defence power and upon other especially important state interests and the bases of the life of society and the state; if the disclosure (finding out, dissemination) of information, which constitutes a state secret, were not prevented, if such revelation were not legally persecuted, preconditions would be created to violate even the most important relations regulated, protected and safeguarded by the Constitution, thus, to give priority to the interest of a certain person or persons to know and impart certain information at the expense of the public interest.

In this context it needs to be mentioned that “the entrenchment and guarantee, as well as defence and protection of <…> [the public] interest are constitutionally reasoned”, since each public interest “reflects and expresses the fundamental values which are entrenched in, as well as protected and defended by the Constitution”, such as openness and harmony of society, the rights and freedoms of the person, the supremacy of law, etc. (the Constitutional Court’s ruling of 21 September 2006); the implementation of the public interest as the interest of society is one of the most important conditions of the existence and development of society itself (the Constitutional Court’s rulings of 6 May 1997, 13 May 2005, and 21 September 2006). To guarantee the public interest is a state obligation.

The Constitutional Court has also held that autonomous interest of an individual and the public interest cannot be opposed, it is necessary to coordinate them (since both the rights of the person and the public interest are constitutional values) and a fair balance should be ensured here (the Constitutional Court’s rulings of 6 May 1997, 13 December 2004, and 21 September 2006).

7. When the relations linked with state secrets (or other classified information) and their protection are regulated by means of laws, one must establish not only what information is regarded as a state secret (or what information constitutes classified information) and the liability for its revelation, but also what persons, under what procedure and conditions, can dispose of (or can be deprived of the right to dispose of) state secrets (or other classified information), as well as in what cases and under what procedure and conditions the information which constitutes a state secret (or other classified information) may be declassified and who is empowered to do so. These persons, procedure and conditions may be differentiated, inter alia, according to the kinds (categories) of state secrets (or other classified information) which are established by the legislature.

8. When revealing the content of the constitutional institute of the state secret, it should also be noted that the constitutional obligation to protect state secrets (or other classified information) also arises from the international treaties that are ratified by the Seimas, which are a constituent part of the legal system of the Republic of Lithuania (Paragraph 3 of Article 138 of the Constitution), the adherence to which is a constitutional self-obligation by the State of Lithuania and which, as the Constitutional Court held in its ruling of 14 March 2006, should be applied in cases where a national legal act establishes the legal regulation which competes with that established in an international treaty, inter alia, in international treaties upon which membership of the Republic of Lithuania in international organisations is based (in which it may participate unless this is not in conflict with the interests and independence of the Republic of Lithuania (Article 136 of the Constitution)). The international treaties ratified by the Seimas as well as membership of the Republic of Lithuania in international organisations imply the fact that the Republic of Lithuania (its institutions and officials) may also dispose of secrets, which belong to other states or international organisations. Doubtless to say, the constitutional obligation to protect state secrets (classified information) also includes an obligation to protect the secrets which belong to other states or international organisations, and which are disposed of by the Republic of Lithuania (its institutions and officials). In this context, it should be mentioned that, pursuant to Article 3 of the North Atlantic Treaty, which was ratified by the Seimas in 10 March 2004, in order more effectively to achieve the obligations of NATO members to cooperate in developing their collective capacity to resist armed attack, multilateral international treaties of NATO members were concluded, which established standards for protection of classified information necessary for ensuring NATO activity; their provisions are detailed and their content is construed in documents of NATO institutions. By Article 1 of the Republic of Lithuania’s Law on Ratifying the Agreement between the Parties to the North Atlantic Treaty for the Security of Information, the Agreement for the Mutual Safeguarding of Secrecy of Inventions Relating to Defence and for which Application for Patents Have Been Made and the NATO Agreement on the Communication of Technical Information for Defence Purposes, one ratified the North Atlantic Treaty for the Security of Information, done in Brussels on 6 March 1997, the Agreement for the Mutual Safeguarding of Secrecy of Inventions Relating to Defence and for which Application for Patents Have Been Made, done in Paris on 21 September 1960, and the NATO Agreement on the Communication of Technical Information for Defence Purposes, done in Brussels on 19 October 1970, while under Paragraph 2 of Article 3 of the same law in the Republic of Lithuania the said international treaties must be implemented by following the security standards established by the North Atlantic Council and other requirements for the implementation procedure and application of such agreements. The decisions made by the North Atlantic Council, which particularise the standards of protection of classified information, are mandatory in the Republic of Lithuania.

All this is applicable mutatis mutandis to secrets which belong to other states or international organisations, and which can be disposed of by the Republic of Lithuania (its institutions, officials) according to the international treaties of the Republic of Lithuania which the Seimas need not ratify under the Constitution and laws, as well as according to international agreements concluded by state institutions.

9. Under Paragraph 1 of Article 30, the person whose constitutional rights or freedoms are violated shall have the right to apply to court. The Constitutional Court has held in its acts more than once that: an imperative arises from the constitutional principle of a state under the rule of law that a person who thinks that his rights or freedoms have been violated has an absolute right to an independent and impartial court; this right cannot be artificially restricted or it is not permitted to artificially burden the implementation of such a right; it is not permitted to deny such a right; the person is guaranteed the defence of his violated rights in court regardless of the status of the said person; under the Constitution, the legislature has a duty to establish the legal regulation whereby all disputes regarding the violation of the rights or freedoms of a person might be possible to be settled in court; the violated rights of the person, inter alia, his acquired rights, as well as legitimate interests must be defended irrespective of whether they are directly entrenched in the Constitution; the rights of the person must be protected not formally, but in reality and efficiently, from unlawful actions of private persons, as well as those of state institutions or officials; the legal regulation entrenching the procedure of implementation of the right of a person to judicial defence must conform to the constitutional requirement of legal clarity; the legislature must clearly establish in laws in what manner and to which court a person can apply, so that he would implement his right in reality to apply to court regarding violation of his rights and freedoms.

10. When revealing the content of the constitutional institute of the state secret, it should also be noted that the Constitution entrenches the bases of protection of information which is not subject to publishing, inter alia, the state secret, when courts consider and decide cases at law: Paragraph 1 of Article 117 of the Constitution provides that “in all courts, the consideration of cases shall be public”, that “a closed court hearing may be held in order to protect the secrecy of private or family life of the human being, or where public consideration of the case might disclose a state, professional or commercial secret”. Thus, the constitutional principle of public consideration of cases in courts is not absolute nor without exceptions, inter alia, as regards the fact that there can be a closed court hearing if the publicity meant a threat that a state secret might be disclosed.

From Paragraph 1 of Article 109 of the Constitution whereby in the Republic of Lithuania justice shall be administered only by courts, there appears a duty of courts to consider cases justly and objectively, to adopt reasoned and substantiated decisions, therefore, there cannot be any such legal situation where a court would not be able to become familiarised with the case material which contains information constituting a state secret (or which is other classified information). In its ruling of 19 December 1996, the Constitutional Court held that “the right of a judge who investigates a case to familiarise himself with the information which is considered a state secret is grounded on Article 109 of the Constitution <…> as well as on Article 117 of the Constitution” and that “the right of a judge to familiarise himself with the information which is considered a state secret and which is necessary for the investigation of a case is determined by the function of the court as a state institution to implement justice but never by entering the position of the judge on any lists”.

11. The opportunities of the parties of a case considered by a court to become familiarised with information, which constitutes a state secret (as well as other classified information), if the court decides that this information may be regarded as evidence in a corresponding case, must be defined in laws; one must establish the legal regulation so that conditions might be created, when a court considers a case at law, to protect state secrets (as well as other classified information) from the disclosure which could make harm to the public interest protected by the Constitution.

As mentioned before, autonomous interests of an individual and the public interest cannot be opposed, it is necessary to coordinate them; in this context it needs to be mentioned that, as the Constitutional Court held in its ruling of 21 September 2006, every time when in the course of consideration of a case by a court “the question arises whether a certain interest should be considered as a public one, it must be possible to reason that without satisfying a certain interest of a person or a group of persons, certain values entrenched in, as well as protected and defended by the Constitution, would be violated. While in the situations where the decision on whether a certain interest has to be considered as public and defended and protected as a public interest, must be adopted by the court, which considers a case, it is necessary to reason it in the corresponding act of the court. Otherwise, there would arise a grounded doubt that what is protected and defended by the court as a public interest, actually is not a public but a private interest of a certain person”. In the same ruling of the Constitutional Court it was also held that “under the Constitution, it is not possible to establish any such legal regulation that the public interest would not be able to be defended by the court, to which it was applied, as well as that the court, while deciding a case, would be forced to adopt such decision, by which the public interest would be violated, thus, also any value (inter alia, a right or freedom of person), established in, as well as defended and protected by the Constitution. If the court adopted such decision, that decision would be unjust. It would mean that the court, on behalf of the Republic of Lithuania, administered not the justice, which is entrenched by the Constitution, thus, under the Constitution, it administered non-justice. Thus, also the constitutional concept of the court, as the institution which administers justice on behalf of the Republic of Lithuania would be denied”.

Taking account of the fact that, on the one hand, the necessity to protect the information constituting a state secret (or other classified information) is a public interest, and, on the other hand, one must ensure the right of a person to judicial defence, one must establish by means of a law, under what grounds, procedure and conditions one can familiarise himself with the information constituting a state secret (or other classified information) in the course of consideration of a case by a court, provided the court decides that the information in question may be regarded as evidence in a corresponding case, and one must also establish the legal regulation of corresponding procedural actions, so that it would be possible to ensure adherence to the constitutional principle of proportionality, to maintain a balance between the two said constitutional values—protection of the state secret (or other classified information) as a public interest and the rights and freedoms of the person which are defended by the said person in court. One should establish such legal regulation, whereby the court could administer justice without denying any of these values.

Thus, the law must establish the legal regulation whereby, on the one hand, a party to a case might request the recognition of certain information, which constitutes a state secret (or other classified information), as evidence in the corresponding case (if such information, in the opinion of the said party, is of evidential value), on the other hand, the court must decide every time whether such a request is a grounded one and whether it may be granted (either in its entirety or in part) according to the law, whether in case it is granted (either in its entirety or in part) the public interest (to ensure protection of the state secret (or other classified information)) as well as the values entrenched in as well as defended and protected by the Constitution, inter alia, the rights and freedoms of other persons, and international obligations of the Republic of Lithuania, will not be harmed. The said right of the party to a case to request that information, which constitutes a state secret (or other classified information), be recognised as evidence in the corresponding case in itself does not imply that the court must grant such a request (either in its entirety or in part), or that the request that the party must be familiarised with the information constituting with the information constituting a state secret (or other classified information); the fact that certain information constituting a state secret (or other classified information) could be evidence in a corresponding case depends on a great many factors which must be taken account of by the court. In this context, it should be mentioned that, as it has been held by the Constitutional Court, the public interest is dynamic and subject to change (the Constitutional Court’s rulings of 8 July 2005 and 21 September 2006); such public interest is a very varied one, therefore, virtually it is impossible to say a priori in which spheres of life, where legal disputes could arise or in which one would have to apply law (inter alia, to protect the secrets which are necessary to be protected under international obligations of the Republic of Lithuania), threats could occur to the public interest, or one have to ensure the public interest by means of interference by institutions of public power or their officials. Thus, it is impossible to define (enumerate) a priori all the situations where information, which constitutes a state secret (or other classified information) cannot be recognised evidence by a court decision, thus, the parties to the case may not become familiarised with such information. However, it is clear that 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.

It needs to be emphasised 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.

In the context of the constitutional justice case at issue it also needs to be noted that when state institutions decide whether a person has the right to work or familiarise himself with information, which constitutes a state secret (or other classified information), one must pay heed to the imperative that in order that a person should have such a right, the state must have unconditional confidence in him, and also that a person who lost the trust of the state in him, must be deprived of the said right.

12. Alongside, it needs to be emphasised that no court decision can be entirely substantiated by the information constituting a state secret (or other classified information), which is unknown to the parties (one party) to the case.

13. It also needs to be emphasised that court decisions, inter alia, decisions whereby certain information constituting a state secret (or other classified information) is not evidence in a corresponding case, may be appealed according to the procedure established in laws.

14. It needs to be noted that the legal regulation of the discussed legal relations may have certain peculiarities which are determined by the fact whether cases are considered according to the procedure of criminal, civil or administrative proceedings.

15. In the context of the constitutional justice case at issue, it should also be mentioned that such construction of the right of a party to a case with classified information is also characteristic of the jurisprudence of international courts.

For instance, it was held in the 27 October 2004 Decision of the European Court of Human Rights in the case Edwards and Lewis v. the United Kingdom (Cour eur. D. H., arrêt Edwards et Lewis c. Royaume-Uni du 27 octobre 2004, nos 39647/98 et 40461/98) that the entitlement to disclosure of relevant evidence is not, however, an absolute right; in any criminal court proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused; in some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest; only such measures restricting the rights of the defence which are strictly necessary are permissible; in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities.

In the 26 April 2005 Judgment of the Court of the First Instance of the European Communities in Joined Cases T-110/03, T-150/03 and T-405/03 Jose Maria Sison v. Council of the European Union (arrêt du Tribunal de priemière instance du 26 avril 2005, Jose Maria Sison/Conseil de l'Union européenne, affaires jointes T-110/03, T-150/03 et T-405/03, Rec. p. II-1429) it was held that the effectiveness of the fight against terrorism presupposes that information held by the public authorities on persons or entities suspected of terrorism is kept secret so that that information remains relevant and enables effective action to be taken. The Court in that case was following the provision that disclosure to the public of the document requested would necessarily have undermined the public interest in relation to public security and that any personal information, which was requested to be revealed, would necessarily reveal certain strategic aspects of the fight against terrorism, such as the sources of information, the nature of that information or the level of surveillance to which persons suspected of terrorism are subjected, therefore, it treated the information which was requested to be disclosed as not to be disclosed to the person requesting so. The Court of Justice of the European Communities in its 1 February 2007 Judgment in the case Jose Maria Sison v. Council of the European Union (arrêt de la Cour (priemière chambre) du 1er février 2007, Jose Maria Sison/Conseil de l'Union européenne, affaire C-266/05 P) dismissed the appeal lodged by Jose Maria Sison.

In its rulings, the Constitutional Court has held more than once that the jurisprudence of the European Court of Human Rights as a source of construction of law is important to construction and application of Lithuanian law as well; the same can be said mutatis mutandis as regards the jurisprudence of the Court of Justice of the European Communities and the Court of the First Instance of the European Communities.

IV

On the compliance of Paragraphs 1 and 2 of Article 11 (wording of 25 November 1999) of the Law on State Secrets and Official Secrets with Article 29 of the Constitution and the constitutional principles of justice and a state under the rule of law.

1. As mentioned before, it was established in Paragraph 1 of Article 11 (wording of 25 November 1999) of the Law on State Secrets and Official Secrets that the right to familiarise oneself with classified information, marked by security levels: “Top Secret,” “Secret,” “Confidential,” shall be held only by persons having a permit to work or familiarise themselves with such information and only with the information which is related with performance of his duties, while Paragraph 2 thereof prescribed that the right to familiarise oneself with classified information, which is at the disposal of another subject of secrets, shall be given to a person by the head of the institution having access to such information; such a person shall have a target order issued by the head of the institution where the person works; such an order shall certify that the person has a permit to work with corresponding security level of classified information, as well as specify why and with what information the said person needs to familiarise himself with.

2. It is clear from the arguments of the Vilnius Regional Administrative Court, the petitioner, that that the compliance of Paragraphs 1 and 2 of Article 11 (wording of 25 November 1999) of the Law on State Secrets and Official Secrets with the Constitution, is impugned in the aspect that, in the opinion of the petitioner, these provisions without any exceptions do not permit a person, who has no permit to work or familiarise himself with classified information, to familiarise himself with classified information even when an administrative case regarding this person is considered in a court, and the information constituting a state secret or an official secret is recognised and regarded as evidence. Due to this, such a person finds himself in a non-equal-rights situation, if compared with another party to the dispute, who has knowledge about the information constituting a state secret.

3. The petitioner impugns the compliance of this legal regulation with, inter alia, the constitutional principles of justice and a state under the rule of law which, according to the petitioner, are entrenched in the Preamble to the Constitution.

In its acts the Constitutional Court has held more than once that 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, which is proclaimed in the Preamble to the Constitution, implies an investigation into their compliance with the constitutional principle of a state under the rule of law.

4. As mentioned before, by its ruling of 19 December 1996, the Constitutional Court recognised that Article 10 (wording of 25 October 1995) of the on State Secrets and Their Protection is not in conflict with the Constitution. It was also mentioned that the following was established in the same article: the right to familiarise oneself with information constituting a state secret shall have the shall be enjoyed only by the person who has a permit to work with this information and only with the information which is related with performance of his duties (Paragraph 1); a permit to familiarise oneself with information constituting a state secret, which is at the disposal of another subject of state secrets, shall be given to a person by the head of the institution having access to such information; such a person shall have a target order issued by the head of the institution where the person works; such an order shall certify that the person has a permit to work with information constituting a state secret, as well as specify the type and extent of information that the person needs to familiarise himself with and the motives for becoming familiar with such information (Paragraph 2); if one adopts a decision not to permit the person to familiarise himself with the information constituting a state secret, which is indicated in the target order, the head of this institution must reason his decision within 10 days and familiarise the head of the institution that has directed the said person with such a decision (Paragraph 3); the President of the Republic, the Prime Minister, Members of the Seimas, as well as the persons who are appointed to a certain office by the President of the Republic, the Seimas, the Government or the Prime Minister, shall have the right ex officio to familiarise themselves with information constituting a state secret (Paragraph 4). It was also mentioned that it was held in the Constitutional Court’s ruling of 19 December 1996 that Article 10 of the on State Secrets and Their Protection (wording of 25 October 1995) regulates the relations between the subject of a state secret and the persons who have a permit to work with information constituting a state secret; the person may familiarise himself with information constituting a state secret only because he has to perform certain duties; this article does not establish any procedure for use of information constituting a state secret in court proceedings.

If the legal regulation established in Paragraphs 1 and 2 of Article 11 (wording of 25 November 1999) of the Law on State Secrets and Official Secrets is compared with that established in Article 10 (wording of 25 October 1995) of the on State Secrets and Their Protection, it becomes clear that they are similar, most of the provisions thereof, regardless of certain differences in the textual expression, are virtually identical. In the aspect that the Vilnius Regional Administrative Court, the petitioner, impugns the compliance of Paragraphs 1 and 2 of Article 11 (wording of 25 November 1999) of the Law on State Secrets and Official Secrets with Article 29 of the Constitution, there are not any essential differences.

5. Taking account of this, it should be held that the provisions of Paragraphs 1 and 2 of Article 11 (wording of 25 November 1999) of the Law on State Secrets and Official Secrets were not designed to regulate the relations linked with the use of information, constituting a state secret, in court proceedings, either.

6. Having held this, the conclusion should be drawn that Paragraphs 1 and 2 of Article 11 (wording of 25 November 1999) of the Law on State Secrets and Official Secrets were not in conflict with the Constitution, inter alia, with Article 29 of the Constitution, the constitutional principles of justice and a state under the rule of law, which were pointed out by the Vilnius Regional Administrative Court, the petitioner.

V

On the compliance of Paragraph 4 (wording of 25 November 1999) of Article 10 of the Law on State Secrets and Official Secrets with Paragraph 1 of Article 30 and Paragraph 1 of Article 109 of the Constitution.

1. As mentioned before, it was established in Paragraph 4 (wording of 25 November 1999) of Article 10 of the Law on State Secrets and Official Secrets that a decision on the annulment of a permit to work or familiarise oneself with information constituting a state secret may be appealed to the Commission for Secrets Protection Co-ordination, which adopts a final decision.

2. It is clear from the arguments of the Vilnius Regional Administrative Court, the petitioner, that the compliance of Paragraph 4 (wording of 25 November 1999) of Article 10 of the Law on State Secrets and Official Secrets with the Constitution is impugned in the aspect that, in the opinion of the petitioner, such legal regulation means that no other institution, even the court, is permitted to assess the reasonableness of a final decision, which is adopted by the Commission that has considered the appeal of a person regarding a decision of a subject of secrets to annul the permit to the said person to work or familiarise himself with information, which constitutes a state secret.

3. While deciding whether Paragraph 4 (wording of 25 November 1999) of Article 10 of the Law on State Secrets and Official Secrets was not in conflict with the Constitution, one has to ascertain as to what the provision that the Commission adopts a final decision means. When doing so, one must take account of other provisions of this law and the legal regulation established in the Law on the Proceedings of Administrative Cases (at the time when the Law on State Secrets and Official Secrets was set forth in the wording of 25 November 1999 with subsequent amendments and supplements made before the Seimas set forth this law in the new wording of 16 December 2003).

4. It has been held in this ruling of the Constitutional Court that certain requirements are raised to a person, who is granted the right to familiarise himself with the information which constitutes a state secret; such requirements are related with his reliability and his loyalty to the State of Lithuania, which should be linked with the trust of the state in that person; the distrust of the state in a certain person could be determined by the activity of that person, inter alia, committed violations of law, as well as characteristics of the same person, his various personal ties as well as other important circumstances; one can permit only such a person to familiarise himself with state secrets, whose activity, characteristics, personal ties, etc. cannot give grounds to fear that in case he learns a state secret, there would be a threat let alone damage would be inflicted upon the sovereignty of the state, its territorial integrity, the constitutional order, defence power and upon other especially important state interests and the bases of the life of society and the state, then the most important relations regulated, defended and protected by the Constitution, which are protected and defended precisely by the fact that certain information, according to laws, is classified; a person, who lost the trust of the state in him, must be deprived of the right to familiarise himself or work with the information constituting a state secret.

5. While choosing an institutional mechanism of ensuring state secrets protection (or protection of other classified information), the legislature enjoys broad discretion. For instance, one can establish an institution in the system of state security, which will have the powers to control how state secrets (or other classified information) is protected and to adopt corresponding decisions mandatory for subjects of secrets.

6. As mentioned before, the Commission for Secrets Protection Co-ordination as provided for in the Law on State Secrets and Official Secrets (wording of 25 November 1999) is a special institution coordinating the protection of classified information, one of the functions of which was to settle disputes between subjects of secrets as well as disputes between subjects of secrets and other persons that appeared because of the classification, protection, use, declassification, and control over the safeguard of information constituting a state or official secret as well as the reasonableness of non-issuance or annulment of permits to work or familiarise oneself with information constituting a state secret or personal reliability certificates (Item 7 of Paragraph 3 of Article 12). Thus, under this law, the Commission was a special administrative pre-judicial institution which inter alia, had the powers to assess, if necessary, whether the subjects of state secrets (or other classified information) are following the requirements of the Law on State Secrets and Official Secrets, while in case violations of the law are established, it had the powers to state so and to adopt a decision to annul the permit of the person to work or familiarise himself with information, which constitutes a state secret (or other classified information). According to Paragraph 4 (wording of 25 November 1999) of Article 10 of the Law on State Secrets and Official Secrets, decisions adopted by the Commission were mandatory to subjects of secrets.

There exists no legal ground to question the constitutionality of this provision (whereby one seeks to ensure the public interest—to protect state and official secrets from disclosure).

7. The Law on the Proceedings of Administrative Cases (at the time when the Law on State Secrets and Official Secrets was set forth in the wording of 25 November 1999 with subsequent amendments and supplements made before the Seimas set forth this law in the new wording of 16 December 2003) established, inter alia, the following: the Administrative court shall settle disputes over issues of law in public or internal administration (Paragraph 1 (wording of 14 January 1999) of Article 3; Paragraph 1 (wording of 19 September 2000) of Article 3); persons as well as other subjects of public administration, including state and municipality public administration employees, officers and agency heads shall have the right to file a complaint (application) against an administrative act adopted by a subject of public or internal administration or against an action (failure to act) of the above subjects when they believe that their rights or interests have been infringed (Paragraph 1 (wording of 14 January 1999) of Article 9 (wording of 14 January 1999 also with subsequent supplement); when the Law on the Proceedings of Administrative Cases was set forth in the wording of 19 September 2000, this provision was supplemented and it was established therein that it is permitted to submit an application also when the persons think that also their interests protected by law have been infringed (Paragraph 1 of Article 22 (wording of 19 September 2000)). According to Paragraph 3 (wording of 14 January 1999) of Article 9 (wording of 14 January 1999 also with subsequent supplement) and Paragraph 2 of Article 22 (wording of 19 September 2000) of the same law, it was possible to directly apply to an administrative court with a complaint (application). Article 4 (wording of 14 January 1999) of the Law on the Proceedings of Administrative Cases indicated the cases which were to be considered by administrative courts (Article 15 (wording of 19 September 2000) indicated the cases falling within the competence of administrative courts), while Article 5 (wordings of 14 January 1999 and 13 April 1999) indicated cases which were not to be considered by administrative courts (Article 16 (wordings of 19 September 2000 and 3 April 2003)), i.e., cases not falling within the competence of administrative courts).

It needs to be noted that the Law on the Proceedings of Administrative Cases did not contain (nor does it contain at present) any provisions which would permit asserting that administrative courts cannot decide disputes regarding the reasonableness of non-issuance or annulment of permits to work or familiarise oneself with information constituting a state secret or personal reliability certificates (inter alia, regarding the corresponding decisions of the Commission for Secrets Protection Co-ordination).

8. It also needs to be mentioned that it was established in Paragraph 5 of Article 4 (wording of 8 April 2003) of the Law on the Proceedings of Administrative Cases that “in case there is a conflict between the norms of this Law and other laws (save special laws), the court must follow the norms of the Law on the Proceedings of Administrative Cases”, while in Paragraph 6 thereof it was prescribed that “if there is not a law, which could regulate the relation of the dispute, the court shall apply the law regulating similar relations, while in the absence of such a law, it shall follow the general basics of laws ad their meaning as well as the criteria of justice and reasonableness”.

9. In view of the foregoing, it is possible to hold that disputes regarding the reasonableness of non-issuance or annulment of permits to work or familiarise oneself with information constituting a state secret or personal reliability certificates are within the sphere of the relations regulated by the Law on the Proceedings of Administrative Cases.

Therefore, it would not be correct to assert that the legal regulation established in Paragraph 4 (wording of 25 November 1999) of Article 10 of the Law on State Secrets and Official Secrets should be judged to be one preventing a person from applying to court for defence of violated rights, or as one hindering the court to administer justice.

10. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 4 (wording of 25 November 1999) of Article 10 of the Law on State Secrets and Official Secrets was not in conflict with Paragraph 1 of Article 30 and Paragraph 1 of Article 109 of the Constitution.

11. In this context, it needs to be noted that Paragraph 5 (wording of 16 December 2003) of Article 18 of the Law on State Secrets and Official Secrets provides: “A person or a subject of secrets shall have the right to appeal a decision on annulment of the permit to work or to familiarise oneself with information constituting a state secret or personal reliability certificates, within 30 days of receiving such a decision, upon reception of a reasoned proposal from the State Security Department on the annulment of the permit, to the Commission for Secrets Protection Co-ordination. If necessary, this commission shall obligate the institutions which have verified the candidacy of the said person that they should collect and submit additional data about the same person. The decision of the Commission for Secrets Protection Co-ordination shall be mandatory to the subject of secrets.”

VI

On the compliance of Paragraph 3 (wording of 19 September 2000) of Article 57 of the Law on the Proceedings of Administrative Cases with Article 29 of the Constitution.

1. As mentioned before, 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.”

2. It is clear from the arguments of the Vilnius Regional Administrative Court, the petitioner, that the compliance of Paragraph 3 (wording of 19 September 2000) of Article 57 of the Law on the Proceedings of Administrative Cases with the Constitution is impugned in the aspect that, in the opinion of the petitioner, it is not clear from the said law when the information constituting a state or official secret could be recognised as evidence in a case: in some situations one can invoke such evidence for the advantage of the person or against him, although corresponding information has not been declassified, while in some other situation it is impossible to invoke such information, although, under Article 29 of the Constitution, all persons shall be equal before the law, the court, and other state institutions and officials.

3. While deciding 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 the Constitution, the formula “as a rule” of the said paragraph is of particular importance. This paragraph establishes a rule that the factual data which constitute a state or official secret may be used as evidence in an administrative case only after they have been declassified in the manner prescribed by means of a law (namely, the Law on State Secrets and Official Secrets), i.e. the use of non-declassified data as evidence is virtually prohibited. However, such a prohibition is not absolute. The question whether factual data, which constitute a state or official secret, will be regarded as evidence in an administrative case is decided by the court when the said court takes account of all circumstances of the case. It has been held in this ruling of the Constitutional Court that the fact that certain information constituting a state secret (or other classified information) could be evidence in a corresponding case (and if so, then to what extent) depends on a great many factors and also that 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.

In this context, it should be emphasised that, as it has been held in this ruling of the Constitutional Court, when state institutions decide whether a person has the right to work or familiarise himself with information, which constitutes a state secret (or other classified information), one must pay heed to the imperative that in order that a person should have such a right, the state must have unconditional confidence in him, and also that a person who lost the trust of the state in him, must be deprived of the said right.

It has also been held 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.

4. It is impossible to draw the conclusion from Paragraph 3 (wording of 19 September 2000) of Article 57 of the Law on the Proceedings of Administrative Cases that the criteria by following which the court which is considering a case whether factual data, which constitute a state or official secret, may be evidence in that case, can depend on any subjective circumstances. The court can adopt a decision whether the said factual data can be included into the case as evidence only after it has taken account of the material of the corresponding case and after it has assessed whether it will be able to administer justice without these factual data.

5. Thus, there are no legal arguments permitting one to assert that the legal regulation established in Paragraph 3 (wording of 19 September 2000) of Article 57 of the Law on the Proceedings of Administrative Cases creates certain preconditions for a court to treat, in the aspect specified by the petitioner, the parties to a case as non-equal.

6. Taking account of the arguments set forth, the conclusion should be drawn that 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.

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:

1. To recognise that Paragraph 3 (Official Gazette Valstybės žinios, 2000, No. 85-2566) of Article 57 of the Republic of Lithuania’s Law on the Proceedings of Administrative Cases is not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that Paragraph 4 (wording of 25 November 1999) of Article 10 and Paragraphs 1 and 2 (Official Gazette Valstybės žinios, 1999, No. 105-3019) of Article 11 (wording of 25 November 1999) of the Republic of Lithuania’s Law on State Secrets and Official Secrets were not in conflict with the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court:           Armanas Abramavičius

                                                                                Toma Birmontienė

                                                                                Egidijus Kūris

                                                                                Kęstutis Lapinskas

                                                                                Zenonas Namavičius

                                                                                Ramutė Ruškytė

                                                                                Vytautas Sinkevičius

                                                                                Stasys Stačiokas

                                                                                Romualdas Kęstutis Urbaitis