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On the interpretation of the provisions of the Constitutional Court’s ruling of 15 May 2007 related to the right of judges to familiarise themselves with the information constituting a state secret

Case No. 7/04-8/04

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 DECISION

ON THE CONSTRUCTION OF CERTAIN PROVISIONS OF THE RULING OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA OF 15 MAY 2007

 3 July 2013

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, pursuant to Article 61 of the Law on the Constitutional Court Republic of Lithuania, at the Court’s public hearing, on 28 June 2013, heard the petition of the Supreme Administrative Court of Lithuania requesting the construction of the provisions of Item 10 of Chapter III of the reasoning part of the ruling of the Constitutional Court of the Republic of Lithuania of 15 May 2007.

The Constitutional Court

has established:

 

  1. On 15 May 2007, in constitutional justice case No. 7/04-8/04, the Constitutional Court issued 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” (hereinafter also referred to as the Constitutional Court’s ruling of 15 May 2007).
  2. The Supreme Administrative Court of Lithuania, the petitioner, requests the construction of whether the following provisions of Item 10 of Chapter III of the reasoning part of the Constitutional Court’s ruling of 15 May 2007—“[f]rom 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 administering of justice by the court as a state institution, but never by the inscription of the position of the judge on any lists’”—should be understood as meaning that “a judge, who considers a case, in case it is necessary to properly administer justice in the considered case, has the ex officio right, in conformity with the Constitution of the Republic of Lithuania, to become familiarised with classified information even in a situation where, according to the Republic of Lithuania’s Law on State Secrets and Official Secrets, he has no permission to handle or become familiar with classified information.”

The Constitutional Court

holds that:

I

  1. The powers of the Constitutional Court to officially construe its own rulings are entrenched in the Law on the Constitutional Court (Article 61).

The Constitutional Court has held that, even though the powers of the Constitutional Court to construe its rulings and other final acts are not expressis verbis consolidated in the Constitution, they doubtlessly stem from the Constitution—the entirety of the constitutional legal regulation (inter alia the constitutional principle of a state under the rule of law); such powers of the Constitutional Court are implied by the Constitutional Court’s constitutional mission itself to administer constitutional justice, to guarantee the supremacy of the Constitution in the legal system and the constitutional legality (the Constitutional Court’s decisions of 14 March 2006, 29 November 2012, and 13 March 2013).

  1. In its acts the Constitutional Court has held on more than one occasion that the purpose of the institute of the construction of its rulings and its other final acts is to disclose the contents and meaning of corresponding provisions of a ruling or another final act of the Constitutional Court more broadly and in more detail, if it is necessary, in order to ensure proper execution of that ruling or other final act of the Constitutional Court so that the said ruling or other final act of the Constitutional Court would be followed (inter alia the Constitutional Court’s decisions of 22 December 2010, 5 September 2011 and 29 November 2012). The construction of a ruling of other final act of the Constitutional Court might be significant not only in order to ensure the proper implementation of the decision consolidated in the operative part of that act, but also to ensure the fact that in the law-making process one would properly take account of the official constitutional doctrine formed by the Constitutional Court (the Constitutional Court’s decision of 29 November 2012). In its decision of 29 November 2012, the Constitutional Court emphasised that the purpose of the construction of a ruling and another final act of the Constitutional Court is to explain more comprehensively those provisions and formulations of the Constitutional Court’s ruling or its other final act due to the meaning of which there are some uncertainties, but not how to implement the said ruling or other final act in a concrete situation, inter alia in the sphere of application of law.
  2. The Constitutional Court has emphasised on more than one occasion that the consideration of a petition requesting the construction of a ruling or another final act Constitutional Court does not imply any new constitutional justice case.

In this context it needs to be noted that, under Paragraph 3 of Article 61 of the Law on the Constitutional Court, the Constitutional Court must construe its ruling without changing its contents. The Constitutional Court has held on more than one occasion that this provision, among other things, means that, while construing its ruling, the Constitutional Court may not construe its contents so that the meaning of its provisions, inter alia the notional entirety of the elements constituting the contents of the ruling, the arguments and reasons upon which the relevant ruling of the Constitutional Court is based, is changed. A ruling of the Constitutional Court is integral, its all constituent parts are interrelated; the operative (resolving) part of a ruling is based upon the arguments of the reasoning part; while construing its ruling, the Constitutional Court is bound by the contents of both the operative and reasoning parts of its ruling. In the course of the construction of Paragraph 3 of Article 61 of the Law on the Constitutional Court, the Constitutional Court’s acts have stated on more than one occasion that the Constitutional Court may not construe what it did not investigate in the constitutional justice case in which the ruling, the construction of which is requested, was adopted; this would imply a matter of special investigation.

  1. It should also be noted that the uniformity and continuity of the official constitutional doctrine implies the necessity to construe each provision of a ruling or another final act of the Constitutional Court in the light of the entire official constitutional doctrinal context, also of other provisions (explicit and implicit) of the Constitution that are related with the provision (provisions) of the Constitution in the course of the construction of which the corresponding official constitutional doctrine was formulated in the relevant Constitutional Court ruling or its other final act. As the Constitutional Court has held on more than one occasion, no official constitutional doctrinal provision of a ruling or another final act of the Constitutional Court may be construed in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set forth in the relevant ruling or other final act of the Constitutional Court, or in other Constitutional Court acts, as well as with other provisions (explicit and implicit) of the Constitution (inter alia the Constitutional Court’s decisions of 6 December 2007, 28 October 2009 and 13 March 2013).
  2. It has also been held in the jurisprudence of the Constitutional Court more than once that the formula “shall be final and not subject to appeal” of Paragraph 2 of Article 107 of the Constitution, which provides that the decisions of the Constitutional Court on issues ascribed to its competence by the Constitution shall be final and not subject to appeal, also means that the Constitutional Court’s rulings, conclusions and decisions by which a constitutional justice case is finished, i.e. final acts of the Constitutional Court, are obligatory to all state institutions, courts, all enterprises, establishments and organisations, as well as officials and citizens, including the Constitutional Court itself: the final acts of the Constitutional Court are obligatory to the Constitutional Court itself, they restrict the Constitutional Court in the aspect that it may not change them or review them if there are no constitutional grounds for that.

II

  1. The Supreme Administrative Court of Lithuania, the petitioner, requests the construction of the second section of Item 10 of Chapter III of the reasoning part of the Constitutional Court’s ruling of 15 May 2007, which was set forth as follows:

“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 administering of justice by the court as a state institution, but never by the inscription of the position of the judge on any lists’”.

The petitioner requests the construction of whether these provisions should be understood as meaning that, a judge, who considers a case, in case it is necessary to properly administer justice in the considered case, has the ex officio right, in conformity with the Constitution of the Republic of Lithuania, to become familiarised with classified information even in a situation where, according to the Republic of Lithuania’s Law on State Secrets and Official Secrets, he has no permission to handle or become familiar with classified information. Thus, the petitioner requests the construction of the provisions of Item 10 of Chapter III of the reasoning part of the Constitutional Court’s ruling of 15 May 2007 which are related to the right of a judge who considers a case to become familiarised with the case material and/or the material significant to the case which contains information constituting a state secret (or which is other classified information).

  1. The Constitutional Court’s ruling of 15 May 2007, the construction of the provisions of which is requested by the petitioner, was passed in the constitutional justice case that inter alia investigated whether Paragraph 1 of Article 11 (wording of 25 November 1999) of the Law on State Secrets and Official Secrets that had established that the right to familiarise oneself with classified information marked by the security levels “Top Secret”, “Secret”, and “Confidential” shall only be held by the persons having the permission to work or become familiar with such information and only with the information related with the performance of his duties and whether Paragraph 2 of this article that had established that the right to familiarise oneself with the classified information 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, as well as that such a person shall have a target order issued by the head of the institution where the person works and 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, were not in conflict with the Constitution. The compliance of these provisions with the Constitution had been impugned from the aspect that, in the opinion of the petitioner, those provisions, without any exceptions, did not permit that a person, who had no permission to work or become familiar with classified information, familiarise himself with classified information even when an administrative case regarding this person was considered in a court, and the information constituting a state secret or an official secret had been recognised and assessed as evidence and, due to this, such a person would find himself in a non-equal-rights situation, if compared with another party to the dispute, who had knowledge about the information constituting a state secret.

While having 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 had not been designed for the regulation of the relations of the use of the information constituting a state secret in court proceedings, the Constitutional Court recognised them as not being in conflict with the Constitution.

  1. It has been mentioned that no official constitutional doctrinal provision of a ruling or another final act of the Constitutional Court may be construed in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set forth in the relevant ruling of the Constitutional Court.

The provisions of the Constitutional Court’s ruling of 15 May 2007, the construction whereof is requested by the petitioner, from the specified aspect may not be construed inseparably from the other provisions of that ruling. While considering and assessing the legal regulation consolidated in the Law on State Secrets and Official Secrets, in its ruling of 15 May 2007, the Constitutional Court held that:

– the state secret is such information which is not subject to publishing or dissemination, whose disclosure could inflict damage on the state as the common good of entire society as well as on the political organisation of entire society whose purpose is to ensure human rights and freedoms and to guarantee the public interest;

– under the Constitution, the state has a duty to guarantee not only the secrecy of information constituting a state secret, but also the protection of the secrecy of certain other information, namely 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;

– certain requirements are raised for a person who is granted the right to familiarise himself with the information constituting a state secret; such requirements are related with the person’s credibility and his loyalty to the State of Lithuania, which should be linked to the trust of the state in that person; one can permit only such a person to familiarise himself with state secrets whose activity, personal qualities, connections, etc. cannot give any grounds to fear that in case he learns a state secret there would be a threat, let alone damage, inflicted upon the sovereignty of the state, its territorial integrity, constitutional order and defence power, as well as upon other especially important state interests and the bases of the life of society and the state, or that there would be violations of 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;

– when the relations linked with state secrets (or other classified information) and their protection are regulated by means of laws, one must establish inter alia 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;

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

  1. In this context it needs to be noted that the paragraph of Item 10 of Chapter III of the reasoning part of the Constitutional Court’s ruling of 15 May 2007 the construction whereof is requested by the petitioner quotes the Constitutional Court’s ruling of 19 December 1996 in which the Constitutional Court assessed certain provisions of the Republic of Lithuania’s Law on State Secrets and their Protection.

The Constitutional Court’s ruling of 19 December 1996 assessed the fact that the Law on State Secrets and Official Secrets did not indicate directly that a judge, when discharging his duties, is entitled to familiarise himself with the information constituting the state secret, as a deficiency of this law.

  1. It has been mentioned that the provisions of a ruling of the Constitutional Court must be construed in the light of the entire official constitutional doctrinal context, also of other provisions (explicit and implicit) of the Constitution, which are related with the provision (provisions) of the Constitution in the course of the construction of which in the relevant ruling or other final act of the Constitutional Court the corresponding official constitutional doctrine was formulated; no official constitutional doctrinal provision of a ruling of the Constitutional Court may be construed in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions, as well as with other provisions of the Constitution.

5.1. The provisions of the Constitutional Court’s ruling of 15 May 2007 the construction whereof is requested by the petitioner were formulated in the course of the construction of Paragraph 1 of Article 109 of the Constitution, under which justice shall be administered only by courts.

While construing the contents of Paragraph 1 of Article 109 of the Constitution, the Constitutional Court has inter alia held on more than one occasion that administration of justice is the purpose and constitutional competence of the judiciary (inter alia the Constitutional Court’s rulings of 28 March 2006, 27 November 2006, and 6 December 2012). Administration of justice is a function of courts, determining the place of this branch of power in the system of institutions of state power and the status of judges; no other state institution or official may discharge this function (inter alia the Constitutional Court’s rulings of 21 December 1999, 13 May 2004 and 7 June 2011). While administering justice, courts must ensure the implementation of the rights established in the Constitution, laws and other legal acts, guarantee the supremacy of law and protect human rights and freedoms (inter alia the Constitutional Court’s rulings of 21 December 1999, 24 October 2007, 10 April 2009, and 6 December 2012).

The principle of justice consolidated in the Constitution, as well as the provision that justice is administered by courts, means that not the adoption of a decision itself in a court, but rather the adoption of a just court decision, constitutes a constitutional value; the constitutional concept of justice implies not a perfunctory and nominal justice administered by the court, not an outward appearance of justice administered by the court, but, most importantly, such court decisions (other court final acts), which by their content are not unjust; the justice administered by the court only in a perfunctory manner is not the justice that is consolidated in and protected and defended by the Constitution (inter alia the Constitutional Court’s rulings of 21 September 2006, 25 September 2012, and 19 December 2012).

5.2. The constitutional imperative that only courts administer justice, as well as the requirement, stemming from the Constitution, that the case be considered justly, also implies that every final act of the court must be based on legal arguments (reasoning); the argumentation must be rational—the final act of the court must contain as many arguments so that it would be sufficient for the substantiation of this act of the court (inter alia the Constitutional Court’s rulings of 16 January 2006 and 28 March 2006).

5.3. Paragraph 1 of Article 109 of the Constitution is inseparably related to Paragraph 1 of Article 30 of the Constitution, which consolidates a person’s right to apply to court regarding the defence of his violated rights or freedoms (the Constitutional Court’s rulings of 2 July 2002, 10 December 2012, and 25 January 2013).

The Constitutional Court has held on more than one occasion that these provisions establish the right of a person to the judicial defence of his constitutional rights and freedoms. The guarantee of the protection of the rights and freedoms of persons is an essential element of the constitutional institute of rights and freedoms of persons (inter alia the Constitutional Court’s rulings of 30 June 2000, 29 December 2004, and 9 June 2011). The rights of the person must be defended not in a perfunctory manner, but in reality and effectively against unlawful actions of both private persons and state institutions (inter alia the Constitutional Court’s rulings of 8 May 2000, 28 March 2006, and 22 January 2008).

  1. In order to construe whether the provisions of the Constitutional Court’s ruling of 15 May 2007 specified by the petitioner mean that a judge, who considers a case, in case it is necessary to properly administer justice in the considered case, has the ex officio right, in conformity with the Constitution of the Republic of Lithuania, to become familiarised with classified information even in a situation where he has no permission to handle or become familiarised with classified information, it should be noted that, as mentioned before, the purpose and constitutional competence of the judiciary is to administer justice; courts have a duty to consider cases justly and objectively, to adopt reasoned and substantiated decisions; the adoption of a just court decision constitutes a constitutional value; every final act of the court must be based on legal arguments (reasoning); the rights of the person must be defended not in a perfunctory manner, but in reality and effectively; the justice administered by the court in a perfunctory manner is not the justice that is consolidated in and protected and defended by the Constitution.

6.1. It needs to be noted that, in order for the court to properly discharge its constitutional obligation to administer justice inter alia in reality and effectively, and not to defend the violated rights and freedoms of a person only in a perfunctory manner, under the Constitution, the legal regulation must be established that could ensure the right of a court (judge) that considers a case to become familiarised with all the case material and/or the material significant to the case.

Thus, under the Constitution, no such situation is allowed where, in the course of the fulfilment of its constitutional obligation to administer justice and, having a duty to consider the case justly and objectively, the court would be forced to adopt a decision without having any opportunity to become familiarised with all the case material and/or the material significant to the case, inter alia the material constituting a state secret or other classified information, irrespective of the fact whether the court has the permission to work or become familiarised with classified information, which is issued under the Law on State Secrets and Official Secrets. If the court had to adopt a decision without a comprehensive assessment of all the case material and/or the material significant to the case, inter alia the material constituting a state secret or other classified information, the adopted decision could not be substantiated properly and the preconditions would be created for the adoption of an unjust decision. It would mean that in the name of the Republic of Lithuania the court implemented not the justice that is consolidated in the Constitution, but, according to the Constitution, no justice at all. In such a way the constitutional concept of the court as an institution implementing justice in the name of the Republic of Lithuania would also be denied.

6.2. It has been mentioned that the duty of the state to guarantee the protection of the secrecy of information constituting a state secret (or other classified information) is related to the aim of the protecting of the values protected and defended by the Constitution. It has also been mentioned that the adoption of a just court decision constitutes a constitutional value.

It needs to be noted that the duty of the state to guarantee the protection of the secrecy of information constituting a state secret (or other classified information) may not be opposed to the court’s opportunity of the adoption of a just decision.

6.3. It has been mentioned that certain requirements are raised for a person who is granted the right to familiarise himself with the information constituting a state secret; such requirements are related with the person’s credibility and his loyalty to the State of Lithuania, which are related to the trust of the state in that person.

In this context it needs to be noted that, as the Constitutional Court has held on more than one occasion, special professional requirements are raised to judges; the judge must feel greatly responsible for how he administers justice—performs the obligation established to him in the Constitution; only the persons with high legal qualification and having experience of life may be appointed as judges (the Constitutional Court’s ruling of 21 December 1999); judges must meet very strict ethical and moral requirements: their reputation must be impeccable (the Constitutional Court’s ruling of 27 November 2006).

Consequently, the fact that the person is appointed as a judge and was entrusted with administration of justice in the name of the Republic of Lithuania shows the trust of the state in that person, thus, it is presumed that there is no ground for doubting about his credibility and loyalty to the State of Lithuania.

6.4. In view of the foregoing, the conclusion should be drawn that the provisions of the Constitutional Court’s ruling of 15 May 2007—“[f]rom 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 administering of justice by the court as a state institution, but never by the inscription of the position of the judge on any lists’”—inter alia mean that a court (judge) that considers a case, has the right in all cases to become familiarised with the case material and/or material significant to the case constituting a state secret (or other classified information) irrespective of the fact whether he has the permission to handle or become familiarised with classified information which is issued under the Law on State Secrets and Official Secrets.

III

  1. Under the Constitution, law-making institutions (officials) and those that apply law are bound by the concept of constitutional provisions and by the arguments set forth not only in rulings of the Constitutional Court, but also in its other acts (inter alia the Constitutional Court’s decision of 20 September 2005, rulings of 28 March 2006, and 5 September 2012).

While adopting new, amending and/or supplementing the already adopted laws and other legal acts (also in the case when a new legal regulation is established in order that the requirements of the Constitution could be executed or when the existing legal regulation is corrected so that it could be in line with the Constitution), all law-making subjects are bound by the jurisprudence of the Constitutional Court, inter alia the official constitutional doctrine—the official concept (official construction) of the provisions of the Constitution (the norms and principles thereof) and other legal arguments set forth in acts of the Constitutional Court—formulated in the Constitutional Court’s jurisprudence (in the reasoning part of the acts of the Constitutional Court) (inter alia the Constitutional Court’s rulings of 30 May 2003, 14 March 2006, 28 March 2006, and 5 September 2012). The legislator, while passing new or amending and supplementing the valid laws, may not disregard the concept of the provisions of the Constitution and the other legal arguments set forth in officially published and effective rulings of the Constitutional Court; otherwise, the preconditions could be created for the recognition of those laws, if one applied to the Constitutional Court regarding their constitutionality, as being in conflict with the Constitution (the Constitutional Court’s rulings of 19 January 2005, 22 December 2011, and 5 September 2012).

  1. In the context of the constitutional justice case at issue, it needs to be noted that Article 10 of Law on State Secrets and their Protection, the compliance whereof was investigated and assessed in the Constitutional Court’s ruling of 19 December 1996, used to establish that only the person who had been granted the permit to work with the information considered as a state secret shall have the right to familiarise oneself with such information and only with that information which is related to the performance of his duties (Paragraph 1); it was also established that the President of the Republic, the Prime Minister, the Members of the Seimas, and the persons who are appointed to discharge their duties by the President of the Republic, the Seimas, the Government, and the Prime Minister shall have ex officio the right to familiarise themselves with the information which is considered a state secret (Paragraph 4).

In its ruling of 19 December 1996, the Constitutional Court held that the norms of Article 10 of the Law on State Secrets and their Protection regulated the permission to familiarise oneself with the information considered a state secret and the fact that a person was entitled to familiarise himself with the information considered a state secret only in order to discharge certain duties.

  1. It has been mentioned that, in its ruling of 19 December 1996, the Constitutional Court assessed that the fact that the Law on State Secrets and their Protection did not directly indicate that a judge, when discharging his duties, should be entitled to familiarise himself with the information constituting a state secret, as a deficiency of this law. It has also been mentioned that, as it was held in that ruling, the right of a judge to familiarise himself with the information which constitutes a state secret and which is necessary for the investigation of a case is determined by the function of the administering of justice by the court as a state institution, but never by the inscription of the position of the judge on any lists.
  2. It needs to be noted that the Law on State Secrets and their Protection was later amended and/or supplemented as well as set forth in its new wording on more than one occasion. This law became no longer effective when, on 25 November 1999, the Seimas adopted the Republic of Lithuania’s Law on State Secrets and Official Secrets which, through the Republic of Lithuania’s Law Amending the Law on State Secrets and Official Secrets adopted by the Seimas on 16 December 2003, was set forth in its new wording.

It also needs to be noted that the legal regulation related to the permission to familiarise oneself with the information constituting a state secret has also been amended and/or supplemented more than once, inter alia by making changes to the circle of persons having the ex officio right to familiarise themselves with the information constituting a state secret (or other classified information).

It needs to be emphasised that Article 15 of the Law on State Secrets and Official Secrets, which at present regulates the permission to work or familiarise oneself with the classified information, inter alia provides that the President of the Republic, the Speaker of the Seimas and the Prime Minister may ex officio familiarise themselves with and use the classified information (Paragraph 2). Thus, the legal regulation related to the permission to familiarise with the information constituting a state secret which is consolidated in the Law on State Secrets and Official Secrets (wording of 16 December 2003) has not changed in the aspect that it does not specify directly that a judge has the ex officio right to become familiar with the information constituting a state secret.

  1. When adopting new laws, amending and supplementing the effective ones which regulate the right to become familiar with the information constituting a state secret (or other classified information), the legislator must have been aware of the provisions of the said official constitutional doctrine regarding the right of judges to familiarise with the information constituting a state secret (or other classified information). It needs to be noted that, when amending the legal regulation related to the right to familiarise with the information constituting a state secret (or other classified information), the legislator did not take account of the binding concept of the provisions of the Constitution set forth in the officially published and effective Constitutional Court’s ruling, inter alia it did not take account of the fact that the right of a judge to familiarise himself with the information which constitutes a state secret and which is necessary for the investigation of a case is determined by the function of the administering of justice by the court as a state institution, but never by the inscription of the position of the judge on any lists.
  2. It has been mentioned that the compliance of the legal regulation consolidated in the Law on State Secrets and Official Secrets establishing what persons may ex officio and under what procedure familiarise with the information constituting a state secret (or other classified information) with the Constitution, in the aspect that it does not prescribe that judges have the ex officio right to become familiarised with the case material and/or material significant to the case constituting a state secret (or other classified information), has not been investigated in the Constitutional Court’s rulings and this legal regulation has so far not been recognised as being in conflict with the Constitution.

The Constitutional Court has held that until the moment when the Constitutional Court adopts a decision that a legal act (part thereof) is in conflict with the Constitution, the legal regulation established therein is compulsory for respective subjects of legal relations (the Constitutional Court’s rulings of 13 December 2004, and 20 February 2008).

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 1 and 61 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 construe that the provisions of the ruling of the Constitutional Court of the Republic of Lithuania of 15 May 2007 (Official Gazette Valstybės žinios, 2007, No. 54-2097)—“[f]rom 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 administering of justice by the court as a state institution, but never by the inscription of the position of the judge on any lists’”—inter alia mean that a court (judge) that considers a case has the right in all cases to become familiarised with the case material and/or material significant to the case constituting a state secret (or other classified information) irrespective of the fact whether he has the permission to handle or become familiar with the classified information which is issued under the Law on State Secrets and Official Secrets.

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

Justices of the Constitutional Court:                         Egidijus Bieliūnas

                                                                                              Toma Birmontienė

                                                                                             Pranas Kuconis

                                                                                             Gediminas Mesonis

                                                                                             Ramutė Ruškytė

                                                                                             Egidijus Šileikis

                                                                                             Algirdas Taminskas

                                                                                             Romualdas Kęstutis Urbaitis