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On an ad hoc investigation commission of the Seimas for investigating the management of the Lithuanian National Radio and Television and its financial and economic activities

 

 

Case no 3/2018

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
IN THE NAME OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF THE RESOLUTION (No XIII-1022) OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA OF 12 JANUARY 2018 ON FORMING AN AD HOC INVESTIGATION COMMISSION OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA AND MANDATING IT TO CONDUCT A PARLIAMENTARY INVESTIGATION INTO THE MANAGEMENT OF THE LITHUANIAN NATIONAL RADIO AND TELEVISION AND ITS FINANCIAL AND ECONOMIC ACTIVITIES (AS AMENDED ON 20 SEPTEMBER 2018) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

16 May 2019, no KT14-N6/2019
Vilnius

              The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Gintaras Goda, Vytautas Greičius, Danutė Jočienė, Gediminas Mesonis, Vytas Milius, Daiva Petrylaitė, Janina Stripeikienė, and Dainius Žalimas

The court reporter – Daiva Pitrėnaitė

Andrius Kubilius and Mykolas Majauskas, members of the Seimas of the Republic of Lithuania, acting as representatives of a group of members of the Seimas, the petitioner

Agnė Širinskienė, the Chair of the Committee on Legal Affairs of the Seimas of the Republic of Lithuania, acting as the representative of the Seimas, 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, at the hearing of the Court on 16 April 2019, considered, under oral procedure, constitutional justice case no 3/2018 subsequent to the petition (no 1B-3/2018) of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether the resolution (No XIII-1022) of the Seimas of the Republic of Lithuania of 12 January 2018 on forming an ad hoc investigation commission of the Seimas of the Republic of Lithuania and mandating it to conduct a parliamentary investigation into the management of the Lithuanian National Radio and Television and its financial and economic activities is in conflict with Article 25 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

I

The arguments of the petitioner

1. The petition of the group of members of the Seimas, the petitioner, is based on these main arguments.

According to Article 1 of the resolution (No XIII-1022) of the Seimas of 12 January 2018 on forming an ad hoc investigation commission of the Seimas and mandating it to conduct a parliamentary investigation into the management of the Lithuanian National Radio and Television and its financial and economic activities (as amended on 20 September 2018) (hereinafter also referred to as the resolution of the Seimas of 12 January 2018), an ad hoc investigation commission of the Seimas was established, which had to perform an important function of exercising control over the activity of the national public broadcaster, i.e. to conduct an investigation into its management and its financial and economic activities.

The exclusive constitutional mission of the Lithuanian National Radio and Television (hereinafter referred to as the LRT) is defined in a number of articles of the Constitution, in particular in Article 25 thereof, which guarantees the human right to have one’s own convictions and freely express them and the right to seek, receive, or impart information and ideas unhindered, as well as in the preamble to the Constitution, which enshrines the striving for an open, just, and harmonious civil society and a state under the rule of law. The constitutional mission of the public broadcaster presupposes, among other things, its independence from interference with its activity by public authorities, officials, and other persons. Thus, the independence of the LRT can be guaranteed only by ensuring that public authorities and officials do not interfere with the activities of the LRT.

The activity of the national public broadcaster must be controlled in accordance with the model of control over its activity, where that model must be established by means of the law defining the activity of the national public broadcaster. The official constitutional doctrine states who is not allowed to exercise control over the activity of the national public broadcaster: persons who themselves are related to the national public broadcaster by official, property, or financial links or are dependent on it in one way or another, or who themselves have interests related to the activity of the national public broadcaster, or who belong to the interest groups (also institutionalised ones) that have precisely such interests.

According to the petitioner, the setting up of the Commission is a way of controlling the activity of the national public broadcaster and such control must not violate the independence of the national public broadcaster, which would be violated if such control were carried out by the persons who themselves have their own interests related to the activity of the national public broadcaster, or who belong to the interest groups (also institutionalised ones) that have precisely such interests. As one of the important tasks of the national public broadcaster is to provide objective coverage of the major events in the state, to provide information on the activities of the most important public authorities (the President of the Republic of Lithuania, the Government of the Republic of Lithuania, the Seimas, the political parties, the courts, other most important institutions), it is clear that the members of the Seimas and representatives of political parties fall into the category of persons who are not allowed to exercise control over the activities of the national public broadcaster, otherwise, the independence of the national public broadcaster would be violated.

Consequently, according to the provisions of the official constitutional doctrine, the Commission, which was mandated to exercise control over the activity of the national public broadcaster, could not be formed from members of the Seimas, and the resolution of the Seimas of 12 January 2018, which formed such a Commission, is in conflict with Article 25 of the Constitution and the constitutional principle of the rule of law.

II

The arguments of the representatives of the party concerned

2. In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations by Agnė Širinskienė, the Chair of the Committee of the Seimas on Legal Affairs, and Ona Buišienė, a senior adviser at the Legal Department of the Office of the Seimas, were received, in which they maintain that the impugned resolution of the Seimas of 12 January 2018 is not in conflict with the Constitution.

2.1. The position of Agnė Širinskienė, the Chair of the Committee of the Seimas on Legal Affairs, a representative of the Seimas, the party concerned, regarding the constitutionality of the resolution of the Seimas of 12 January 2018, is based on the following main arguments.

2.1.1. According to the provisions of the Republic of Lithuania’s Law on the National Radio and Television, the Seimas considers the annual report of the LRT Council. The annual activity report for 2016, submitted by the LRT Council, to the extent that it related to the use of the LRT budget funds and the LRT management, was incomplete and sketchy: it was unclear to the members of the Seimas how the LRT uses the funds allocated to it by the state and how the management of the LRT is organised. Therefore, a group of members of the Seimas twice approached the LRT with a request for certain information, but the LRT refused to provide some of the requested information due to confidentiality and some of the information provided was incomplete.

Precisely because the members of the Seimas had not received detailed information and explanations from the LRT regarding the LRT activity and how it used its budget funds, the Seimas was not able to fulfil its duty, when considering the annual report submitted by the LRT Council, to carry out parliamentary control, among other things, the Seimas was unable to properly assess the execution of the LRT budget, the use of the LRT funds, the application of the Law on the LRT and other legal acts governing the LRT management, and its financial and economic activities. For these reasons, a decision was made to set up an ad hoc investigation commission of the Seimas for conducting a parliamentary investigation into the management of the LRT and its financial and economic activities, which, under the Republic of Lithuania’s Law on Ad Hoc Investigation Commissions of the Seimas, has wider powers than a group of members of the Seimas.

2.1.2. The LRT is a state-owned public establishment. The LRT is provided funding from the state budget – funds allocated to the LRT are indicated in a separate line of the state budget.

Item 14 of Article 67 of the Constitution consolidates the constitutional function of the Seimas to approve the state budget and supervise its execution. This function of the Seimas is imperative. There are no provided exceptions when the Seimas may refuse to carry it out, nor are there any specified circumstances under which the Seimas has no right to perform parliamentary control actions regarding specific legal entities financed from the state budget funds, where those actions are related to the use of the allocated budget funds. Thus, the way the LRT, a state-owned public establishment, to which the state has ensured financing from the state budget funds, uses these funds, as well as the way it carries out economic and financial activities, and organises the related management of the establishment, is subject to parliamentary control, which is in line with the powers of the Seimas defined in Item 14 of Article 67 of the Constitution.

In addition, the establishment of the Commission was an ultima ratio measure (the LRT had not provided detailed explanations and had refused to provide a certain part of the information at all), as the Seimas had been unable to ensure the fulfilment of the duty entrusted to it by the Constitution – parliamentary control over the execution of the budget – and had failed to collect, for this purpose, the required exhaustive and objective information on the actual use of the LRT budget funds, the LRT financial and economic activities, and the related management of the LRT.

2.1.3. The Constitutional Court stated in its ruling of 21 December 2006 that the control of the national public broadcaster includes not only property or financial audits, but also other forms of control established by law. Thus, it also includes parliamentary control exercised, inter alia, by the Seimas in assessing compliance with laws, resolutions of the Seimas, and proposals and recommendations of its committees.

In addition, control over the LRT must, inter alia, ensure that the national public broadcaster does not abuse its special legal status and the opportunities afforded by that status (including in the radio and television services market) so that its activities do not deviate from the constitutional imperatives of fair competition, and that the funds allocated (not exclusively from the state budget) to the national public broadcaster so that it could carry out its special constitutional mission are used precisely for this purpose. Meanwhile, the performance and/or financial audits conducted by the National Audit Office of the Republic of Lithuania, control actions performed by the Competition Council of the Republic of Lithuania or by other institutions only partially cover the said areas of control and cannot change the powers of the Seimas that are defined in Item 14 of Article 67 of the Constitution or create the preconditions where the Seimas does not exercise these powers.

2.1.4. Agnė Širinskienė, a representative of the Seimas, the party concerned, disagrees with the petitioner’s statement that the provisions of the Constitutional Court’s ruling of 21 December 2006 “control over the LRT may not be exercised by such persons who themselves are related to the national public broadcaster by official, property, or financial links or are dependent on it in one way or another, or who themselves have interests related to the activity of the national public broadcaster, or who belong to the interest groups (also institutionalised ones) that have precisely such interests” should be interpreted broadly, without evaluating them systemically with the powers of the Seimas established in Item 14 of Article 67 of the Constitution.

On the other hand, the Seimas cannot be considered an institutionalised interest group within the meaning of the above provisions; otherwise, other institutions or establishments performing other control functions should be included in this category, too, which would mean that any control over the LRT would de facto become impossible.

2.1.5. Media freedom is not absolute, so there is a possibility of regulating the media and controlling media outlets to the extent that other constitutional obligations allow.

The provisions of Article 25 of the Constitution should be interpreted in the context of other norms of the Constitution. Although the Constitutional Court has not yet interpreted the relationship between Article 25 and Item 14 of Article 67 of the Constitution, in the opinion of the representative of the party concerned, media freedom enshrined in Article 25 of the Constitution does not deny parliamentary control of a media outlet funded from the state budget to the extent that this control is related to the constitutional obligation of the Seimas, established in Item 14 of Article 67 of the Constitution, to approve the state budget and supervise its execution.

Thus, the adoption of the resolution of the Seimas of 12 January 2018, which formulated the parliamentary investigation tasks relating to the effectiveness and rationality of the use of funds of the LRT budget as well as the publicity and transparency of the LRT, and created the Commission, does not violate the freedom and independence of the media, as guaranteed in Article 25 of the Constitution, nor does it violate the constitutional principle of a state under the rule of law.

2.2. The position of Ona Buišienė, a senior adviser at the Legal Department of the Office of the Seimas, a representative of the Seimas, the party concerned, regarding the constitutionality of the resolution of the Seimas of 12 January 2018, is based on the following main arguments.

2.2.1. Under the Law on the LRT, the state, as the founder of the LRT, must, among other things, ensure control over the activity of the LRT while complying with the constitutional prohibition on censorship of LRT programmes and broadcasts. Such control over the activity of the LRT is permanent and multifaceted, it is not limited solely to financial and property audits, and takes various forms. Institutional control in various aspects and forms is exercised (involved, supervised) by: the institutions established by the Republic of Lithuania’s Law on the Provision of Information to the Public (Articles 45–50), the National Audit Office (which carries out audit of the LRT and supervises the lawfulness and efficiency of the management and use of the state property held by the LRT in trust and the appropriations assigned to the LRT from the state budget), the Competition Council (which supervises whether the LRT abuses its special legal status and the opportunities that this status provides, and whether it, in its activity, deviates from the constitutional imperatives of fair competition), the Public Procurement Office of the Republic of Lithuania (which supervises the activity of the LRT in the field of public procurement when the LRT acts in the capacity of a contracting authority), the State Labour Inspectorate under the Ministry of Social Security and Labour of the Republic of Lithuania (which carries out supervision in the field of employment relationships), the State Tax Inspectorate under the Ministry of Finance of the Republic of Lithuania (which carries out supervision in the field of the LRT financial obligations to the state), etc. According to the Constitution, the activity of LRT is also subject to the form of judicial control.

2.2.2. Under the procedure for forming LRT institutions, as established in the Law on the LRT, the Seimas, as a state authority, participates in the formation of the highest public broadcasting institution – the LRT Council (it appoints 4 out of 12 members thereof); however, it does not participate in the formation of other LRT institutions (when appointing (and releasing from duties) the Director General or when forming the LRT Administrative Commission); nor do members of the Seimas participate in the management of the LRT, they may not be appointed to any LRT institution and do not participate in the activities of these institutions in any form.

Meanwhile, the fact that, under the Law on the LRT, the Seimas participates in the formation of the LRT Council cannot be considered a derogation from the imperative of the independence of the national public broadcaster and cannot be interpreted as meaning that members of the Seimas are themselves related to the LRT or have their own interests related to the activity of the national public broadcaster, or that they belong to interest groups (also institutionalised ones) that have namely such interests and therefore may not carry out a parliamentary investigation into the activity of the LRT. The appointment of the members of the LRT Council implements the duty of the Seimas, which is enshrined in the law, and this duty cannot deny the powers of the Seimas to perform the function of parliamentary control and to form the Commission.

2.2.3. The principle of the independence of the LRT is a constitutional value, but it should not be made absolute and deny either the function of parliamentary control established in the Constitution or its constitutional powers to undertake investigative activities of national importance in order to obtain full and objective information (required for taking certain decisions) about the processes taking place in the state and society, about the situation and arising problems in various spheres of the life of the state and society. This activity of the Seimas, as a parliament, logically follows from the mission that it has, as well as from its constitutional functions and constitutional powers. Under the Constitution, there is no exhaustive (final) list of questions for the investigation of which the Seimas may form ad hoc investigation commissions. There are no areas in the life of the state where the Seimas, provided there is a special matter (of state importance), could not exercise parliamentary control when paying regard to the Constitution.

The LRT is not an institution where an investigation into how it implements its constitutional powers or those provided for in laws would be limited by the Constitution. The LRT is entrusted with carrying out the constitutional mission of the public broadcaster and ensuring the public interest – the interest of society to be informed, which is established in, and defended and protected by, the Constitution. The fulfilment of this mission is a matter of national importance. As a result, the Seimas has the powers to form an ad hoc investigation commission that would investigate how the LRT performs its functions that are defined in the Constitution and laws, how it implements its powers laid down in the Constitution and laws, and to receive diverse and comprehensive information for these purposes. The receipt of such information is a public interest, which is linked with the striving for open society, as provided for in the Preamble to the Constitution, also with the principle, laid down in Article 1 of the Constitution, that the State of Lithuania is a republic, as well as with the principles of parliamentary democracy, which are enshrined in various provisions of the Constitution.

III

The material received in the case

3. In the course of the preparation of the case for the hearing of the Constitutional Court, the Constitutional Court received a written opinion of Liudvikas Gadeikis, the Chairperson of the LRT Council, and a conclusion prepared by Prof. Dr. Toma Birmontienė, which was presented by Prof. Dr. Lyra Jakulevičienė, the Dean of the Law School of Mykolas Romeris University.

3.1. The written opinion of Liudvikas Gadeikis, the Chairperson of the LRT Council, in principle supports the arguments expressed in the petition of the group of members of the Seimas.

The author of the written opinion points out that the resolution of the Seimas of 12 January 2018 lays down the Commission’s tasks that may be evaluated as expressing the aim to control (censor) the content of LRT broadcasts and thus influence the activity of the LRT; therefore, the resolution of the Seimas of 12 January 2018 is also in conflict with Paragraph 1 of Article 44 of the Constitution, which consolidates the prohibition on the censorship of mass information. The resolution of the Seimas of 12 January 2018 is also contrary to Articles 5 and 67 of the Constitution, as the tasks of the Commission established therein are not clear, accordingly, without having regard to the constitutional requirements for the establishment of ad hoc investigation commissions of the Seimas, and the powers of the Seimas to determine a specific question to be investigated by the Commission are thus transferred to the Commission itself. In the absence of a specific question, there is no constitutional basis for the Commission to conduct investigation. The resolution of the Seimas of 12 January 2018 is also contrary to Paragraph 1 of Article 134 of the Constitution, because only the National Audit Office, and not the Seimas, may investigate whether state property is lawfully managed and used.

3.2. The conclusion prepared by Prof. Dr. Toma Birmontienė, presented by Prof. Dr. Lyra Jakulevičienė, the Dean of the Law School of Mykolas Romeris University, in principle supports the arguments expressed in the petition of the group of members of the Seimas.

The author of the conclusion points out that the specific investigation questions formulated in Article 4 of the resolution of the Seimas of 12 January 2018 are essentially (except Item 12) related to the investigation of the LRT structure, the economic and organisational activities of the LRT, public procurement procedures (those questions are related to possible violations of the Republic of Lithuania’s Law on Public Procurement). Thus, basically, the impugned legal act (with the exception of Item 12 of the resolution of the Seimas of 12 January 2018) envisages an investigation into the financial activities of the LRT, i.e. the lawfulness of the use of state funds and assets. Meanwhile, the adoption of the resolution of the Seimas of 12 January 2018 was determined not by problems of particular importance in the life of the state and society, but by the need to apply additional parliamentary control measures (as compared to the measures – written questions and inquiries – provided for in the Statute of the Seimas).

Taking into account the provisions of the official constitutional doctrine of ad hoc investigation commissions of the Seimas, the author of the conclusion stresses that an ad hoc investigation commission of the Seimas should not take over the powers of not only the courts and the prosecutors, but also those of other constitutional institutions (such as the Seimas Ombudsmen of the Republic of Lithuania or the National Audit Office). The status and powers of the National Audit Office are enshrined in the Constitution (Chapter XII thereof), which is an institution of economic and financial control that supervises the lawfulness of the possession and use of state-owned property and the execution of the state budget (the function enshrined in Paragraph 1 of Article 134 of the Constitution). Thus, the functions of the control (audit) of the management of the LRT and its financial and economic activities, i.e. the tasks assigned to the Commission in the resolution of the Seimas of 12 January 2018, should be categorised as belonging to the National Audit Office. Therefore, there are grounds to believe that the impugned legal act has assigned to the Commission the powers of the National Audit Office, thereby violating Paragraph 1 of Article 134 of the Constitution and the constitutional principle of a state under the rule of law.

According to the author of the conclusion, unlike what was aimed to show in the Constitutional Court’s ruling of 21 December 2006, the petitioner interprets the provisions of this ruling under which control over the activity of the national public broadcaster may not be exercised by such persons who themselves are related to the national public broadcaster by official, property, or financial links or are dependent on it in one way or another, or who themselves have interests related to the activity of the national public broadcaster, or who belong to the interest groups (also institutionalised ones) that have precisely such interests as meaning that members of the Seimas may not participate in carrying out individual actions of control and that they may not exercise such control over the national public broadcaster.

Although the impugned resolution of the Seimas of 12 January 2018 tasked the Commission only with investigating the aspects of the management and financial activities of the LRT, it is important to assess whether an ad hoc investigation commission of the Seimas could still be set up in order to exercise control over a certain aspect of the activity of the LRT. It is necessary to assess the link between the provisions of the official constitutional doctrine on the independence of the public broadcaster and on the formation of ad hoc investigation commissions of the Seimas. In this context, it is emphasised that an ad hoc investigation commission of the Seimas cannot be set up in such a way that would create the preconditions for violating the independence of the national public broadcaster. The Constitutional Court, in developing the official constitutional doctrine of the public broadcaster, particularly emphasised its independence and control over its activity based on this principle; such control cannot be exercised by a state authority, otherwise the independence of the public broadcaster, as well as the duty to ensure media freedom, arising from Article 25 of the Constitution and other constitutional provisions consolidating the freedom of individuals to seek, receive, and impart information, would be violated. The formation of ad hoc investigation commissions of the Seimas must not enable the Seimas to take over the constitutional powers from other institutions and thereby to violate the imperatives arising from the provisions of the Constitution. The formation of ad hoc investigation commissions of the Seimas must not be considered an additional measure in relation to other measures of parliamentary control, either.

Taking into consideration the doubt expressed by the group of members of the Seimas in the petition to the Constitutional Court whether members of the Seimas may exercise control over the national public broadcaster and whether the Seimas may establish an ad hoc investigation commission for that purpose, the author of the conclusion notes that, in exceptional cases, if it became necessary to clarify a question of state importance in the area of the provision of information to the public, inter alia, if there were a threat to the independence of the national public broadcaster, such an ad hoc investigation commission could be set up.

4. In the course of the preparation of the case for the hearing of the Constitutional Court, the following letters were received: the letter (No 4S-103) of the Public Procurement Office of 25 January 2019 on the submission of information in the constitutional justice case; the letter (No 13B-30 (2.4E)) of the National Audit Office on the submission of information in the constitutional justice case; and the letter (No 13B-34 (2.4E)) of the State Tax Inspectorate under the Ministry of Finance of the Republic of Lithuania of 30 January 2019.

IV

The specialists questioned in the case

5. In the course of the preparation of the case for the hearing of the Constitutional Court, the following specialists were questioned: Audronė Vaitkevičiūtė, Acting Chief Adviser of the Audit Development Department of the National Audit Office (at the time of the questioning, she was Acting Director of the Audit Development Department of the National Audit Office) and Raminta Jastremskienė, an adviser at the Legal Division of the National Audit Office.

5.1. In the course of the questioning, the specialist Audronė Vaitkevičiūtė indicated, among other things, that the public sector is divided into areas that are monitored in order to identify problems and higher risks; therefore, the National Audit Office within its competence should carry out a relevant investigation in that area. There are various criteria for determining what will be investigated: for example, evaluations are made as to the relationship of certain activities to strategic state documents, the amount of state budget appropriations allocated to the institution, the amount of managed state assets, and possible proposals for external audits (submitted by persons, as well as by other institutions, including the Seimas or the Government), etc.

Concerning the questions formulated for the ad hoc investigation commission of the Seimas in Article 4 of the resolution of the Seimas of 12 January 2018 whose investigation could fall within the competence of the National Audit Office, Audronė Vaitkevičiūtė noted the following: the question formulated in Item 1 could be an aspect of the investigation of the efficiency; the question formulated in Item 2 could be an aspect of the investigation of the effectiveness; the question formulated in Item 3 is not the subject of an audit, but could only be an audit criterion, since the assessment of relevant experience is not the subject of the investigation; the question formulated in Item 4 could be part of the assessment of internal control, with the exception of the assignment to establish responsible persons, i.e. this question could be categorised as belonging in part to internal control, and the assignment to establish responsible persons is not directly the subject of an audit; the question formulated in Item 5 is not the subject of an audit; the question formulated in Item 6 is not directly the subject of an audit, but there are other institutions that assess the risk of corruption, so if any manifestations of corruption are identified during an audit, it must be reported to other – law enforcement – institutions; the questions formulated in Items 7 and 9 should be examined together, since the organisation of the procurement process could be a possible subject of an audit, with the exception of the assignment to establish responsible persons, i.e. with the exception of the issue of responsibility; the question formulated in Item 8 is not the subject of an audit, but could be a source of information at the time of the audit; the question formulated in Item 10 could be the subject of an investigation in terms of economy; the question formulated in Item 11 relates to asset management and could therefore also be the subject of an investigation in terms of economy; the question formulated in Item 12 relates to the specific assessment of compliance with a specific requirement and could therefore be considered an assessment of lawfulness, i.e. an assessment of compliance with other requirements laid down in legal acts, but not the requirements for the management of funds and assets; however, in this case, the assignment to establish responsible persons could not be the object of an investigation. In answering the questions, the specialist also noted that an investigation into public procurement activities could be included in the assessment conducted by the National Audit Office in terms of lawfulness (funds management), as well as in terms of economy and efficiency, as it is a means of carrying out activities economically.

5.2. Audronė Vaitkevičiūtė noted that the Commission, when carrying out its investigation, applied to the National Audit Office, requesting the reports of the performed state audits of the LRT and information whether an audit of the LRT was planned for the first quarter of 2018. The National Audit Office provided all the requested data and indicated that the LRT financial audits were performed in 2010, 2013, 2015, and 2016, and no separate LRT audit was planned in the first quarter of 2018 or in the next quarters of that year, nor in 2019. The specialist noted that the Commission had not requested an LRT audit.

5.3. Raminta Jastremskienė, answering the question whether specialists of other state institutions could be engaged in an audit, noted that the officials of the National Audit Office may engage other state institutions and their specialists in accordance with the approved internal procedures, but this possibility also depends on whether those state institutions are able to provide the assistance requested.

5.4. Audronė Vaitkevičiūtė, while disclosing what information is available to the officials of the National Audit Office during an audit, stated that they have the right to work with all information related to the audit subject, including information classified as “Top Secret”, “Secret”, or “Confidential”, and they undertake not to disclose personal data received in the course of the audit and when preparing a report on it.

In this context, Raminta Jastremskienė noted that if, during an audit, it is necessary to work with the said information, it is not made public, i.e. the relevant parts of the audit report are classified.

V

The persons who participated in the hearing of the Constitutional Court and the explanations provided by them

6. At the hearing of the Constitutional Court, Andrius Kubilius and Mykolas Majauskas, the members of the Seimas who were acting as the representatives of the Seimas, the petitioner, indicated that they supported the position and arguments set out in the petition; also, they provided additional explanations and answered the questions asked by the representative of the party concerned and the justices of the Constitutional Court.

6.1. Andrius Kubilius, a representative of the group of members of the Seimas, the petitioner, further noted that the independence of the national public broadcaster is universally recognised as one of the necessary values of a democratic state, and international documents pay special attention to ensuring such independence. There are currently various challenges to the independence of the national public broadcaster, for example, when new political forces in power are taking steps to take control of the national public broadcaster. In the opinion of the representative of the petitioner, a similar situation existed when adopting the impugned resolution of the Seimas of 12 January 2018.

The representative of the petitioner emphasised that, despite the fact that it has broad constitutional powers, the Seimas must not take such actions that would violate the independence of the national public broadcaster. In this case, tasking the Commission with carrying out an investigation into the management of the national public broadcaster and its financial and economic activities does not ensure its independence, first of all, owing to the fact that parliamentary investigation is a means of exerting public pressure on the investigated institution (in this case, the LRT) and, consequently, a certain impact is made on journalists who, due to fear of public opinion, begin to limit their activities. In addition, in this case, the relevant investigation of the activity of the LRT was launched when preparing to the competition for the appointment of the head of the LRT; therefore, according to the representative of the petitioner, this investigation could seek to make an impact on the results of that competition. Taking into account the provisions of the official constitutional doctrine, in the opinion of Seimas member Andrius Kubilius, the resolution of the Seimas of 12 January 2018 is contrary to the Constitution, among other things, because both the management of the LRT and the model of control over its activity must be regulated by law, and no interested persons may participate in their implementation, and the formation of the Commission is a specific way of controlling the national public broadcaster by involving the members of the Seimas themselves.

According to Seimas member Andrius Kubilius, it is clear that the activities of the LRT must be controlled; however, for carrying out this function, there are other state institutions that do not have an interest and can exercise control over the activities of the national public broadcaster. In addition, more effective control over the activities of the national public broadcaster can be achieved through appropriate modifications to the legal regulation governing its activities (for example, through the consolidation of the obligation to prepare annual activity plans for the national public broadcaster and to present a report on their implementation at the end of the year). Since, when adopting the impugned resolution of the Seimas of 12 January 2018, another solution was chosen, deciding on its conformity with the Constitution it would be expedient to prevent such actions of members of the Seimas that interfere with the activities of institutions that are independent under the Constitution (similarly, someone could consider appropriate to investigate the activities of a court in a specific case). Meanwhile, the formation of the Commission violated, among other things, the prohibition, established in the official constitutional doctrine, to form such ad hoc investigation commissions of the Seimas that would be tasked with an investigation into the matters in the course of the investigation of which the powers of other institutions that exercise public power, as well as the powers of other state and municipal institutions provided for in the Constitution and/or laws, would be interfered with.

6.2. Mykolas Majauskas, a representative of the group of members of the Seimas, the petitioner, further noted that the constitutional mission of the national public broadcaster is to serve the public by providing it with objective information. According to the representative of the petitioner, there is no objective evidence that this mission is carried out improperly and that the content of programmes and broadcasts produced by the national public broadcaster does not meet public expectations. Although the same content may have been produced and the mission of the national public broadcaster could have been implemented at a lower cost, this does not create the preconditions for starting an appropriate investigation. Meanwhile, according to the representative of the petitioner, the impugned resolution of the Seimas of 12 January 2018 entrusted the Commission with the task of conducting an investigation in order to put pressure on journalists when the LRT leadership was changing, i.e. the purpose of setting up the Commission and of the investigation it was tasked with were different from those referred to in the impugned resolution.

The representative of the petitioner stressed that international institutions had negatively assessed the proposals, submitted by the Commission on the basis of investigation carried out when implementing the impugned resolution of the Seimas of 12 January 2018, on legal regulatory amendments related to the establishment of LRT management and activity control models. In the opinion of the representative of the petitioner, such an investigation should be regarded as an attempt to influence the activities of the LRT and to affect its independence.

6.3. Andrius Kubilius, a representative of the petitioner, in answering the questions of Agnė Širinskienė, a representative of the person concerned, noted that the resolution of the Seimas of 12 January 2018 in its entirety is in conflict with the constitutional provisions referred to in the petition. The impugned legal act violates the independence of the national public broadcaster, because it creates a special instrument from the members of the Seimas for exercising control of the LRT, and the formation of such a commission per se violates the Constitution. The representative of the petitioner also pointed out that the Seimas must exercise control over the execution of the budget, but not by forming the Commission. According to the representative of the petitioner, it would be possible to make changes to the legal regulation governing the activity of the national public broadcaster, for example, by establishing the obligation of the LRT to apply to an independent auditing bodies, which could verify the LRT financial statements, and the Seimas should not set up additional ad hoc investigation commissions; in addition, the existing models of control over financial accountability could be applied, among other things, it could be possible to refer to the National Audit Office. The representative of the petitioner also pointed out that although state institutions such as the Special Investigation Service of the Republic of Lithuania or other institutions may have institutional interests, they, unlike the members of the Seimas, have no political interests and therefore cannot be considered as such, according to the provisions of the official constitutional doctrine, that may not carry out an investigation into the activity of the national public broadcaster.

While replying to the question of Agnė Širinskienė, a representative of the party concerned, Mykolas Majauskas, a representative of the petitioner, noted that, if the members of the Seimas have doubts regarding the spending of the state budget funds, the special institutions (the National Audit Office, the Special Investigation Service, the Financial Crime Investigation Service under the Ministry of the Interior of the Republic of Lithuania, etc.) who have the necessary powers and are able to carry out audits that do not raise concerns about possible interference with the activity of the national public broadcaster, may examine such spending.

6.4. Answering the questions asked by the justices of the Constitutional Court, Andrius Kubilius, a representative of the petitioner, noted that it is difficult to define what investigation into the activity of the national public broadcaster could be carried out by an ad hoc investigation commission of the Seimas, but the investigation that the Commission had been tasked with is not allowed. According to the assessment made by the representative of the petitioner, an ad hoc investigation commission of the Seimas could possibly be tasked with investigating whether the mission of the national public broadcaster is appropriate and whether it should be adjusted, and, in this respect, the Committee on Culture of the Seimas could exercise the powers conferred on it. Meanwhile, in implementing the constitutional powers of the Seimas to legislate, special working groups may be formed for the preparation of a new legal regulation; however, their activities do not create such doubts about interference with the activities of the national public broadcaster that are created by the Commission formed by the impugned resolution of the Seimas of 12 January 2018.

Answering the questions asked by the justices of the Constitutional Court, Mykolas Majauskas, a representative of the petitioner, noted that, according to the current practice of forming provisional ad hoc investigation commissions of the Seimas, these commissions are usually tasked with identifying persons who violated certain legal acts and providing for appropriate sanctions. According to the representative of the petitioner, the impugned resolution of the Seimas of 12 January 2018 had envisaged it in analogous manner.

Andrius Kubilius, a representative of the petitioner, specifying which provisions of Article 25 of the Constitution are contradicted by the impugned resolution of the Seimas of 12 January 2018, stated that Paragraphs 1 and 2 of this article of the Constitution, which define the right to receive and impart information, freedom of speech, and the constitutional mission of the national public broadcaster, are the most relevant, but the other paragraphs of this article are also important. Specifying which provisions of the resolution of the Seimas of 12 January 2018 are being impugned in this case, the representative of the petitioner noted that the preamble to the resolution, together with the fact that the Commission had been set up and the tasks to the Commission set out in Article 4 thereof, comprised the substance of the said resolution; they are difficult to deal with separately, as the very substance is the fact that the Commission had been formed and tasked with carrying out an investigation into the management of the LRT into and its financial and economic activities. The representative of the petitioner indicated that the petitioner was contesting the entire Article 1 of the resolution of the Seimas of 12 January 2018, under which the Commission had been formed and tasked with carrying out an investigation into the management of the LRT and into its financial and economic activities.

Specifying which provisions of the resolution of the Seimas of 12 January 2018 were being impugned, Mykolas Majauskas, a representative of the petitioner, noted that the formation of the Commission had been unconstitutional in essence.

Andrius Kubilius, a representative of the petitioner, also noted that, following the formation of the Commission by the resolution of the Seimas of 12 January 2018, parliamentary control over the activities of the LRT had not been carried out, but, rather, control over the activities of the LRT had been taken over, i.e. the functions that other public authorities would have to assume had been taken over, thereby also infringing the independence of the national public broadcaster. However, parliamentary control over the activities of the national public broadcaster remained possible: the Committee on Culture of the Seimas has the power to exercise traditional parliamentary supervision, in particular, to consider the annual reports of the LRT activities. The representative of the petitioner also pointed out that, with regard to the activities of the national public broadcaster, there are a sufficient number of ordinary instruments of parliamentary control, including, among others, the powers of the Committee on Culture of the Seimas and the Committee on Audit of the Seimas. Meanwhile, the Seimas should not proceed with the establishment of an ad hoc investigation commission even if such a situation occurs where the National Audit Office, after carrying out its own investigation, identifies certain deficiencies in the activities of the national public broadcaster; otherwise, the preconditions for violating the independence of the national public broadcaster could be created. However, if one of the committees of the Seimas appropriately examined the results of investigations carried out by other state institutions and submitted proposals for changes in the legal regulation, this would not create the preconditions for violating the independence of the national public broadcaster.

In this context, Mykolas Majauskas, a representative of the petitioner, also pointed out that the Seimas and its committees had the necessary powers, they could apply to the state authorities for the submission of relevant information and also invite certain persons to their meetings.

7. At the hearing of the Constitutional Court, Agnė Širinskienė, the Chair of the Committee on Legal Affairs of the Seimas, a representative of the Seimas, the party concerned, pointed out that she supported the position, set out in her written explanations, that the impugned resolution of the Seimas of 12 January 2018 was not in conflict with the Constitution, provided the arguments substantiating this position, as wells additional explanations, and answered the questions asked by the representatives of the petitioner and by the justices of the Constitutional Court.

7.1. The representative of the party concerned further noted that, in 2017, the Seimas was presented with the annual activity report of the LRT, which did not include information on the use of the state budget funds by the LRT. In addition, at the same time, persons with a relevant disability appealed to the Seimas, stating that the LRT broadcasts were not translated into sign language, i.e. that their rights were not ensured in the course of the activities of the national public broadcaster. Therefore, a group of members of the Seimas prepared and submitted to the LRT questions on the use of state budget funds, including how they were used to meet the needs of the disabled. The LRT provided answers, but some of the requested information was not provided on the grounds that it was confidential, while some questions were not answered at all. Therefore, the group of members of the Seimas submitted a repeat inquiry in order to obtain additional and revised information related to the use of state budget funds allocated to the LRT. The second inquiry from the group of members of the Seimas was answered in more detail, but, as regards the procurement of programmes implemented by the LRT, no orderly and detailed information was provided. The members of the Seimas, understanding that no detailed answers would be received, and upon failing by the LRT to provide part of the information, stating that it was confidential, in the absence of the possibility to consider the annual activity report of the LRT and of other possibilities to receive the necessary information (among other things, because the committees of the Seimas did not have the relevant powers), it was decided to form an ad hoc investigation commission of the Seimas and to clarify the questions of the management of the LRT and its financial and economic activities, regarding which the members of the Seimas had not been provided any answers. The representative of the party concerned noted that, as can be seen, all of the questions formulated for the Commission in Article 4 of the resolution of the Seimas of 12 January 2018 are related to the economic activity of the LRT and, when formulating them, it was sought to submit proposals for the improvement of legal acts if the Commission had identified inaccuracies or the relevant state institutions had established violations.

The representative of the party concerned emphasised that the purpose of setting up the Commission and tasking it with carrying out the relevant investigation of the activities of the LRT was not to take over the powers of other state institutions. On the contrary, many state institutions had been active in cooperation with the Commission, as it was mandatory under the Law on Ad Hoc Investigation Commissions of the Seimas. For example, at the request of the Commission, the Special Investigation Service carried out an evaluation of the legal regulation governing the procurement of programmes, as well as the Public Procurement Office was addressed, which, in implementing its powers, once suspended public procurement carried out by the LRT, and, in another case, regarding public procurement carried out by the LRT, the Public Procurement Office applied to the Prosecution Service. In addition, the Chief Official Ethics Commission was also addressed with a request for assessing whether the public and private interests of persons associated with the LRT were properly declared. Therefore, the Commission, in carrying out its investigation, cooperated with other public authorities and used in its conclusion the findings of investigations carried out by those public authorities. Thus, on the one hand, the Commission did not seek to take over the powers of other state institutions and made a distinction between traditional parliamentary control and other forms of control over the activities of the national public broadcaster, and, on the other hand, it did not interfere in the activities of the LRT in terms of the content of its programmes.

The representative of the party concerned noted that the Commission was concerned only with the implementation of the constitutional powers of the Seimas to supervise the execution of the state budget, as provided for in Item 14 of Article 67 of the Constitution, and the Commission deepened its understanding of this matter together with other state institutions, which had granted the appropriate assistance to the Commission. This investigation was significant, among others, as a basis for determining how to bring more transparency in the activities of the national public broadcaster. Meanwhile, Item 14 of Article 67 of the Constitution does not provide for the possibility for the Seimas to refuse to exercise its constitutional powers to approve the state budget and supervise its execution, nor does it provide for circumstances when this function could not be performed. As the LRT is a public establishment financed exclusively from state budget funds and it is allocated a significant part of the state budget funds, in the opinion of the person concerned, in view of this fact, parliamentary control may be carried out and assessed how the state budget is executed and how the activities of the LRT are developed.

7.2. Answering the question of Andrius Kubilius, a representative of the petitioner, the representative of the party concerned pointed out that, in the present case, certain violations (in particular regarding public procurement) had been detected not by the Commission, but by relevant state institutions, and the Commission did not give, nor could it give them any instructions in this connection. The representative of the party concerned emphasised that, if they see violations, the members of the Seimas have the duty to take appropriate actions, i.e. to report the violations to the relevant state institutions.

Answering the question of Mykolas Majauskas, a representative of the petitioner, the representative of the party concerned indicated that, when establishing the Commission (and not by applying the existing methods of parliamentary control, including tasking the relevant Seimas committee with conducting an investigation) and in the light of the powers, established by law, of ad hoc investigation commissions of the Seimas, it was sought to give the members of the Commission an opportunity to access information that constituted a commercial secret. Furthermore, it is unclear why the right of members of the Seimas who are not members of the appropriate committees of the Seimas to participate in exercising parliamentary control should be restricted and why the powers of the Seimas to set up its ad hoc investigation commissions should be reduced, by making the LRT an exception in this respect. All the more so, since the Constitutional Court had emphasised that the control of the activity of the national public broadcaster includes not only property or financial auditing, but also other forms of control provided for by law, and it thus includes the activities of ad hoc investigation commissions of the Seimas as a form of parliamentary control set out in the law.

Answering the question of Andrius Kubilius, a representative of the petitioner, about the qualification of the members of the Commission to conduct the investigation commissioned to it, the representative of the party concerned noted that, under the Constitution, the rights of all members of the Seimas, regardless of their education, are equal. Meanwhile, in cases where the Commission’s investigation required special expertise or it was apparent that the Seimas could not carry out certain functions (such as performing an anti-corruption assessment), appropriate state institutions (such as the Special Investigation Service) were contacted. The members of the Seimas therefore did not undertake the implementation of the functions assigned to other state institutions.

Answering the question of Mykolas Majauskas, a representative of the petitioner, regarding the fact that the invitation to attend a meeting of an ad hoc investigation commission of the Seimas could be regarded as a kind of pressure on the person, the representative of the party concerned indicated that the observance of the law may not be interpreted as pressure. The Law on Ad Hoc Investigation Commissions of the Seimas makes a clear distinction between the public sector and the private sector and imposes an obligation on representatives from the public sector, among others, from public bodies, to participate in the activities of ad hoc investigation commissions of the Seimas.

Answering the question of Andrius Kubilius, a representative of the petitioner, the representative of the party concerned emphasised that there is a difference between the judicial power and the national public broadcaster also in terms of the independence granted to them by the Constitution.

7.3. In answering the questions of the justices of the Constitutional Court, the representative of the party concerned noted that, during the commissioned investigation, the Chair of the Commission had contacted the Head of the National Audit Office, but he had not been invited to the meeting of the Commission in order not to exert pressure on him. However, in the course of communication with representatives from the National Audit Office, it became clear that the said institution was not planning to launch an investigation of the LRT. In this case, the option of applying, by means of a resolution of the Seimas, to the National Audit Office and commissioning it to perform a performance audit of the LRT was considered, however, the reluctance of the representatives from the said institution to perform it was evident.

The representative of the party concerned also noted that, although the chosen title of the Commission indicates that the purpose of the Commission is to carry out an evaluation of the management of the LRT, and of its financial and economic activities, this title should be assessed in conjunction with the questions (to be answered by the Commission during the investigation commissioned to it) formulated in Article 4 of the resolution of the Seimas of 12 January 2018, some of which (for example, an anti-corruption assessment) do not fall within the competence of the National Audit Office. In addition, in this case, it was not possible to contact other authorities without prior collection of required information and of witness statements.

8. The hearing of the Constitutional Court was attended by Audronė Vaitkevičiūtė, Acting Chief Adviser of the Audit Development Department of the National Audit Office, who spoke and answered the questions of the representative of the party concerned and of the justices of the Constitutional Court.

8.1. At the hearing of the Constitutional Court, the specialist Audronė Vaitkevičiūtė virtually reiterated the explanations, provided in the course of the questioning conducted during the preparation of the case for the hearing of the Constitutional Court, regarding the categorisation of the questions formulated for the Commission in Article 4 of the impugned resolution of the Seimas of 12 January 2018 as possibly belonging to the competence of the National Audit Office.

8.2. Answering the question of the representative of the party concerned, the specialist additionally indicated that the National Audit Office monitors the entire public sector and has established appropriate criteria for evaluating issues in terms of performance audit. The activities of this institution are specifically focused on conducting investigations in the areas of greatest concern, where carrying out audits could have the highest impact. In this case, the analysis concluded that, in view of the available resources, attention would be focused on other topics and an audit of the activities of the LRT would not be carried out.

As regards financial audit, the LRT is one of the 600 entities whose financial statements are consolidated into a set of state consolidated reports. No financial audit of the LRT was planned for 2017 and 2018.

8.3. Answering the questions of the justices of the Constitutional Court, the specialist noted that the National Audit Office may consider not all the questions listed in Article 4 of the resolution of the Seimas of 12 January 2018 by carrying out an audit. The specialist also pointed out that the Seimas, in determining the time period for carrying out the audit, could instruct the National Audit Office to carry out, within its competence, a performance audit of the LRT and its financial audit.

The Constitutional Court

holds that:

I

The scope of investigation

9. A group of members of the Seimas, the petitioner, requests an investigation into the compliance of the resolution of the Seimas of 12 January 2018 with the Constitution.

9.1. On 12 January 2018, the Seimas passed the resolution (No XIII-1022) on forming an ad hoc investigation commission of the Seimas of the Republic of Lithuania and mandating it to conduct a parliamentary investigation into the management of the Lithuanian National Radio and Television and its financial and economic activities, which has been amended by: the resolution (XIII-1145) of the Seimas of 10 May 2018 on amending the resolution (No XIII-1022) of the Seimas of the Republic of Lithuania of 12 January 2018 on forming an ad hoc investigation commission of the Seimas of the Republic of Lithuania and mandating it to conduct a parliamentary investigation into the management of the Lithuanian National Radio and Television and its financial and economic activities; and the resolution (XIII-1485) of the Seimas of 20 September 2018 on amending the resolution (No XIII-1022) of the Seimas of the Republic of Lithuania of 12 January 2018 on forming an ad hoc investigation commission of the Seimas of the Republic of Lithuania and mandating it to conduct a parliamentary investigation into the management of the Lithuanian National Radio and Television and its financial and economic activities; the said resolutions amended Article 5 of the resolution of the Seimas of 12 January 2018 – they established a later deadline by which the Commission was tasked with carrying out the investigation and submitting a conclusion to the Seimas.

In this context, it should be noted that, as is evident from the totality of the arguments of the received petition, the petitioner requests an investigation into the compliance of the resolution of the Seimas of 12 January 2018 (as amended on 20 September 2018) with the Constitution.

9.2. As is apparent from the petition, the petitioner doubts the constitutionality of the resolution of the Seimas of 12 January 2018 on the grounds that, in the opinion of the petitioner, under the Constitution, the Commission could not be formed from the members of the Seimas in order to carry out a parliamentary investigation into the management of the LRT and into its financial and economic activities, since, according to the petitioner, this is a method of exercising control over the activity of the national public broadcaster. According to the petitioner, the formation of the Commission violates the constitutional imperative of the independence of the public broadcaster from interference with its activity by public authorities, officials, or other persons, and such formation of the Commission is incompatible with the constitutional mission of the public broadcaster, which arises from Article 25 of the Constitution, to seek and impart information and ideas, and incompatible with the requirements of the constitutional principle of a state under the rule of law.

In this context, it should be noted that the Commission has been formed and tasked with carrying out a parliamentary investigation into the management of the LRT and into its financial and economic activities under Article 1 of the resolution of the Seimas of 12 January 2018, and Article 4 of this resolution details the questions to be answered during the said parliamentary investigation.

Thus, although the petitioner impugns the entire resolution of the Seimas of 12 January 2018, still, taking into account the arguments presented by the petitioner, and also after evaluating the explanations provided by the representatives of the petitioner at the hearing of the Constitutional Court, the conclusion should be drawn that the petitioner essentially impugns Article 1 of the resolution of the Seimas of 12 January 2018, under which, according to the petitioner, the Commission could not be formed at all.

Consequently, the petition of a group of the Seimas requesting an investigation into the compliance of the resolution of the Seimas of 12 January 2018 with the Constitution is to be treated as a petition requesting an investigation into the compliance of Article 1 of the said resolution with the Constitution, insofar as, on the basis of that article, the Commission mandated with carrying out a parliamentary investigation into the management of the LRT and into its financial and economic activities was established.

10. Therefore, in this constitutional justice case, the Constitutional Court will investigate, subsequent to the petition of a group of members of the Seimas, the petitioner, whether Article 1 of the resolution of the Seimas of 12 January 2018, insofar as, on the basis of that article, the Commission mandated with carrying out a parliamentary investigation into the management of the LRT and into its financial and economic activities was established, is in conflict with Article 25 of the Constitution and the constitutional principle of a state under the rule of law.

II

The impugned legal regulation

11. On 12 January 2018, the Seimas passed the resolution (No XIII-1022) on forming an ad hoc investigation commission of the Seimas of the Republic of Lithuania and mandating it to conduct a parliamentary investigation into the management of the Lithuanian National Radio and Television and its financial and economic activities, which is impugned in the constitutional justice case at issue.

11.1. The resolution of the Seimas of 12 January 2018 prescribes:

The Seimas of the Republic of Lithuania,

having received the activity report of the Lithuanian National Radio and Television (hereinafter referred to as the LRT) Council for 2016 and the answers (in the letter (No 4RA-1222-(A1)) of the LRT of 28 November 2017 and the letter (No S6-01) of the LRT of 2 January 2018) to the questions submitted by a group of the members of the Seimas;

recognising that the above responses by the LRT require a detailed analysis and that parliamentary control over the LRT activity, the clarification of whose details was sought by the members of the Seimas in their inquiries, is necessary, in order to assess the application of the Republic of Lithuania’s Law on the Lithuanian National Radio and Television (hereinafter referred to as the Law) and other legal acts regulating the management of the LRT and of its financial and economic activities;

drawing attention to the fact that, even after a repeated referral by a group of the members of the Seimas, the LRT, for reasons of confidentiality, did not provide all the information requested by the members of the Seimas relating to the management of the LRT and of its financial and economic activities;

emphasising that Paragraph 1 of Article 2 of the Law defines the LRT as a public establishment belonging to the state by right of ownership and Paragraph 3 of Article 15 of the Law ensures the financing of the LRT from state budget funds – funds allocated to the LRT are indicated in a separate line of the state budget;

respecting the principles of the independence, transparency, and accountability of public service media, enshrined and guaranteed in international and Lithuanian legislation (where the example of the British broadcaster BBC may be considered the good practice of implementing in reality the said principles);

holding that Item 14 of Article 67 of the Constitution of the Republic of Lithuania consolidates the task of the Seimas to approve the state budget and to supervise its execution;

noting that, in its ruling of 21 December 2006 on the status, management, and rights of the national broadcaster, the Constitutional Court of the Republic of Lithuania stated that the control of the national public broadcaster includes not only property or financial audits, but also other forms of control established by law; thus, it should be concluded that it also includes parliamentary control carried out, among others, by the Seimas in assessing compliance with laws, resolutions of the Seimas, and proposals and recommendations of the committees;

observing that the above-mentioned ruling of the Constitutional Court also states that control over the LRT must, inter alia, be exercised over whether the national public broadcaster abuses its special legal status and the opportunities granted by that status (also those that are granted in the radio and television services market), whether, in its activity, the constitutional imperatives of fair competition are deviated from, and whether the funds that are allocated (not exclusively from the state budget) to the national public broadcaster so that it could carry out its special constitutional mission are used precisely for that purpose;

having regard to the fact that the performance and financial audits carried out by the National Audit Office of the Republic of Lithuania only partially cover the areas of control specified in the said ruling of the Constitutional Court;

having evaluated the content of the notion of a commercial secret enshrined in the Civil Code of the Republic of Lithuania, Paragraph 6 of Article 10 of the Law, as well as other legal acts of the Republic of Lithuania;

pursuant to Article 71 of the Statute of the Seimas of the Republic of Lithuania, resolves:

Article 1.

To establish an ad hoc Investigation Commission of the Seimas of the Republic of Lithuania (hereinafter referred to as the Commission) consisting of 13 members of the Seimas who, under the Republic of Lithuania’s Law on State Secrets and Official Secrets, have the right to handle or access classified information marked “Secret” and to mandate the Commission to conduct a parliamentary investigation into the management of the Lithuanian National Radio and Television and its financial and economic activities.

Article 2.

To approve the Commission of the following composition:

(1) Rimas Andrikis;

(2) Agnė Bilotaitė;

(3) Petras Čimbaras;

(4) Dainius Gaižauskas;

(5) Vanda Kravčionok;

(6) Kęstutis Mažeika;

(7) Andrius Navickas;

(8) Arvydas Nekrošius;

(9) Žygimantas Pavilionis;

(10) Virgilijus Poderys;

(11) Agnė Širinskienė;

(12) no member appointed;

(13) no member appointed.

Article 3.

To appoint Arvydas Nekrošius Chair of the Commission.

Article 4.

To mandate the Commission to evaluate the activity report of the LRT Council for 2016 and the answers (in the letter (No 4RA-1222-(A1)) of the LRT of 28 November 2017 and the letter (No S6-01) of the LRT of 2 January 2018) to the questions submitted by a group of the members of the Seimas and, when conducting a parliamentary investigation:

(1) to assess whether the management structure of the LRT, the number of employees employed, the amount of the salaries of the employees, and the ratio among the broadcasts created by the LRT itself, the broadcasts created by the LRT together with the companies providing production services or independent producers, and the broadcasts created by companies providing production services or by independent producers create the conditions for the rational use of state budget funds and meet the conditions of the Lithuanian market;

(2) to assess whether the management structure, its functions, and distribution of competence defined and established by means of legal acts, inter alia, internal legal acts of the LRT, are consistent with European practices applicable to national broadcasters, ensure the transparent operation of the LRT, and create the proper conditions for the fulfilment of the mission of the LRT as a national broadcaster;

(3) to assess the European experience in ensuring the publicity and accountability of the activity of national broadcasters and to determine what changes in the regulation of the LRT activities would help to guarantee greater transparency and accountability of the activity of the LRT to the public;

(4) to assess whether the methods of public dissemination of cultural, social, and educational information defined in Paragraph 3 of Article 6 of the Law (for a fee, other consideration, or free of charge) are applied by the LRT in a transparent manner and with adequate control. To identify those responsible should a lack of transparency and/or control adequacy in the choice of means of disseminating information be found. To identify loopholes in legislation where the lack of transparency and control is due to poor regulation;

(5) to assess whether the not updated (taking into account changes in the legal regulation governing public procurement at national and European Union level in the period 2009 to 2017), as of 1 February 2009, resolution (No 1264) of the Government of the Republic of Lithuania of 9 October 2003 on approving the description of the procedure for purchasing the services of the creation of radio and television programmes and of their broadcasting, and for purchasing air time for broadcasting already prepared programmes and radio and television broadcasts creates the prerequisites for using non-transparent procurement procedures of the contracting authorities, whether it creates conditions for uncompetitive behaviour of contracting authorities, by taking into account problems related to corruption, as well as the corruption risk factors identified in the corruption risk analysis performed by the Special Investigation Service of the Republic of Lithuania. Should the above circumstances be established, to find out why the LRT Council did not raise this issue and did not approach the Government in initiating the necessary legislative changes and to identify those responsible;

(6) to investigate and assess whether the application of the resolution (No 1264) of the Government of the Republic of Lithuania of 9 October 2003 on approving the description of the procedure for purchasing the services of the creation of radio and television programmes and of their broadcasting, and for purchasing air time for broadcasting already prepared programmes and radio and television broadcasts in some cases creates the preconditions for the emergence of a corruption environment and/or for avoiding, on the part of the LRT, the carrying out of public procurement procedures (for example, avoiding carrying out purchases through the Central Public Procurement Information System, avoiding the selection of procurement procedures according to the strict requirements established in legal acts, etc.) established by the Republic of Lithuania’s Law on Public Procurement, orders of the Director of the Public Procurement Office, Directive 2014/24/EU of the European Parliament and of the Council;

(7) to assess whether the LRT carries out public procurement procedures, which are implemented in accordance with the resolution (No 1264) of the Government of the Republic of Lithuania of 9 October 2003 on approving the description of the procedure for purchasing the services of the creation of radio and television programmes and of their broadcasting, and for purchasing air time for broadcasting already prepared programmes and radio and television broadcasts and the Law on Public Procurement, in a transparent manner and without creating restrictions on competition between suppliers, as well as whether timely and fully fledged supervisory and control mechanisms are used for monitoring the conducted procedures;

(8) to determine whether the supervisory authorities and other public administration entities have established violations, by the LRT, of the Law on Public Procurement and/or certain deficiencies in public procurement organised by LRT. Also, to assess the organisational or other measures taken by the LRT in cases where deficiencies had been identified. In cases where there was a failure to eliminate the violations, to identify those responsible and/or deficiencies of the legal regulation;

(9) to investigate and assess whether the LRT has an adequate and operating internal mechanism for organising, supervising, and controlling all public procurement conducted by it. Having identified the problems of the application of the legal acts and/or other shortcomings in the organisation of procurement and/or in internal control, to identify the persons responsible for this. To identify loopholes in legislation where the established deficiencies are due to poor regulation;

(10) to investigate and assess whether the prices of services purchased from producers and/or production service companies correspond to the market conditions. If the prices quoted in the transactions concluded by the LRT are considered to be unreasonable, to investigate and assess what transaction prices are considered to be reasonable in terms of market conditions;

(11) to investigate and assess whether the rental or other use of the assets (for example, premises) held by the LRT corresponds to the market conditions. If the prices quoted in the transactions concluded by the LRT are considered to be unreasonable, to investigate and assess what transaction prices are considered to be reasonable in terms of market conditions;

(12) to investigate and assess whether the programmes provided by the LRT adapted for hearing- or visually impaired people ensure the needs of people with disabilities. If the proportion of the programmes adapted for hearing- or visually impaired people is low (i.e. does not meet needs), to identify the causes of the low proportion of the LRT programmes adapted (as required by Item 9 of Article 5 of the Law) for hearing- or visually impaired people and, having identified the shortcomings, to identify those responsible. To identify loopholes in legislation where the established deficiencies are due to poor regulation.

Article 5.

To task the Commission with carrying out the investigation and presenting a conclusion to the Seimas by 1 June 2018.”

11.2. As mentioned above, the resolution of the Seimas of 12 January 2018 has been amended by: the resolution (XIII-1145) of the Seimas of 10 May 2018 on amending the resolution (No XIII-1022) of the Seimas of the Republic of Lithuania of 12 January 2018 on forming an ad hoc investigation commission of the Seimas of the Republic of Lithuania and mandating it to conduct a parliamentary investigation into the management of the Lithuanian National Radio and Television and its financial and economic activities; and the resolution (XIII-1485) of the Seimas of 20 September 2018 on amending the resolution (No XIII-1022) of the Seimas of the Republic of Lithuania of 12 January 2018 on forming an ad hoc investigation commission of the Seimas of the Republic of Lithuania and mandating it to conduct a parliamentary investigation into the management of the Lithuanian National Radio and Television and its financial and economic activities, which amended Article 5 of the resolution of the Seimas of 12 January 2018 – they established a later deadline by which the Commission was tasked with carrying out the investigation and submitting a conclusion to the Seimas; according to the latest amendment, the deadline for the parliamentary investigation instructed to the Commission was 8 October 2018.

11.3. Thus, the resolution of the Seimas of 12 January 2018:

formed the Commission, which was tasked with carrying out a parliamentary investigation into the management of the LRT and into its financial and economic activities (Article 1);

set the requirements for the composition of the Commission – it had to be composed of 13 members of the Seimas who had the right to handle or access classified information marked “Secret” under the Law on State Secrets and Official Secrets (Article 1);

approved the specific composition of the Commission (Article 2);

appointed one of the members of the Commission as its Chair (Article 3);

identified the questions that the Commission was mandated to examine while conducting the parliamentary investigation into the management of the LRT and into its financial and economic activities (Article 4);

set the deadline – 8 October 2018 – for the Commission by which it had to carry out its investigation and present its conclusion (Article 5 (wording of 20 September 2018)).

It should be noted from the aspect relevant in this constitutional justice case that the provisions of Article 1 of the resolution of the Seimas of 12 January 2018 concerning the requirements for the composition of the Commission, Article 2 thereof determining the composition of the Commission, Article 3 thereof specifying the Chair of the Commission, Article 4 thereof laying down the questions that the Commission is mandated to examine in conducting its parliamentary investigation into the management of the LRT and into its financial and economic activities, Article 5 thereof, which sets the deadline by which the Commission had to carry out the investigation entrusted to it and to present a conclusion, are intended to determine the composition of the Commission, which was established under Article 1 of that resolution, to detail the task established for the Commission in the said article, and to set the deadline for its execution.

11.4. The preamble to the resolution of the Seimas of 12 January 2018 specifies, among other things, the following factual circumstances that led to the adoption of this resolution, inter alia, the formation of the Commission and mandating it to conduct an investigation into the management of the LRT and into its financial and economic activities: the annual activity report of the LRT Council for 2016 and replies of the LRT to the questions of a group of the members of the Seimas had been received; the Seimas had stated that, even after a repeated referral by a group of the members of the Seimas, the LRT, for reasons of confidentiality, did not provide all the information requested by the members of the Seimas relating to the management of the LRT and of its financial and economic activities; in the light of these reasons, it had also been stated that, in order to thoroughly analyse the replies of the LRT, it was necessary to carry out parliamentary control over the LRT activities, the clarification of whose details had been sought in the inquiries of the members of the Seimas, by assessing the application of the Law on the LRT and the other legal acts governing the management of the LRT, and its financial and economic activities.

11.5. The preamble to the resolution of the Seimas of 12 January 2018 points out, among others, the following preconditions of a legal nature for the adoption of this resolution, inter alia, to form the Commission and to mandate it to conduct an investigation into the management of the LRT and into its financial and economic activities:

the task of the Seimas, consolidated in Item 14 of Article 67 of the Constitution, inter alia, to supervise the execution of the state budget;

the provision of the ruling of the Constitutional Court of 21 December 2006 that the control of the activity of the national public broadcaster includes not only property or financial auditing, but also other forms of control provided for by law; according to the Seimas, the said control includes parliamentary control, which, among other things, is exercised by the Seimas in order to assess compliance with laws, resolutions of the Seimas, and proposals and recommendations from committees of the Seimas;

the provision of the ruling of the Constitutional Court of 21 December 2006 that control exercised over the LRT must, inter alia, ensure that the national public broadcaster does not abuse its special legal status and the opportunities afforded by that status (including in the radio and television services market) so that its activities do not deviate from the constitutional imperatives of fair competition, and that the funds allocated (not exclusively from the state budget) to the national public broadcaster so that it could carry out its special constitutional mission are used precisely for this purpose; as stated in the preamble of the resolution of the Seimas of 12 January 2018, the performance and/or financial audits performed by the National Audit Office only partly cover the areas of control of the national public broadcaster that are listed in the ruling of the Constitutional Court of 21 December 2006.

11.6. As mentioned above, under Article 1 of the resolution of the Seimas of 12 January 2018, the Commission tasked with conducting a parliamentary investigation into the management of the LRT and into its financial and economic activities was established. This task given to the Commission should be interpreted in the light of the questions of the parliamentary investigation, which are detailed in Article 4 of this resolution.

In Article 4 of the resolution of the Seimas of 12 January 2018, the questions of the parliamentary investigation into the management of the LRT and into its financial and economic activities can be divided into the following groups according to the content:

the questions related to the effectiveness of the management of the LRT, and to the lawfulness, economy, and efficiency of the use of the state budget funds allocated to the LRT: (1) “to assess whether the management structure of the LRT, the number of employees employed, the amount of the salaries of the employees, and the ratio among the broadcasts created by the LRT itself, the broadcasts created by the LRT together with the companies providing production services or independent producers, and the broadcasts created by companies providing production services or by independent producers create the conditions for the rational use of state budget funds and meet the conditions of the Lithuanian market” (Item 1); (2) “to assess whether the management structure, its functions and distribution competence defined and established by means of legal acts, inter alia, internal legal acts of the LRT, are consistent with European practices applicable to national broadcasters, ensure the transparent operation of the LRT, and create the proper conditions for the fulfilment of the mission of the LRT as a national broadcaster” (Item 2); (3) “to investigate and assess whether the prices of services purchased from producers and/or production service companies correspond to the market conditions. If the prices quoted in the transactions concluded by the LRT are considered to be unreasonable, to investigate and assess what transaction prices are considered to be reasonable in terms of market conditions” (Item 10); (4) “to investigate and assess whether the rental or other use of the assets (for example, premises) held by the LRT corresponds to the market conditions. If the prices quoted in the transactions concluded by the LRT are considered to be unreasonable, to investigate and assess what transaction prices are considered to be reasonable in terms of market conditions (Item 11);

the questions related to the lawfulness and transparency of public procurement conducted by the LRT, and to the effectiveness of the established internal system for monitoring public procurement: (1) “to assess whether the not updated (taking into account changes in the legal regulation governing public procurement at national and European Union level in the period 2009 to 2017), as of 1 February 2009, resolution (No 1264) of the Government of the Republic of Lithuania of 9 October 2003 on approving the description of the procedure for purchasing the services of the creation of radio and television programmes and of their broadcasting, and for purchasing air time for broadcasting already prepared programmes and radio and television broadcasts creates the prerequisites for using non-transparent procurement procedures of the contracting authorities, whether it creates conditions for uncompetitive behaviour of contracting authorities, by taking into account problems related to corruption, as well as the corruption risk factors identified in the corruption risk analysis performed by the Special Investigation Service of the Republic of Lithuania. Should the above circumstances be established, to find out why the LRT Council did not raise this issue and did not approach the Government in initiating the necessary legislative changes and to identify those responsible” (Item 5); (2) “to assess whether the LRT carries out public procurement procedures, which are implemented in accordance with the resolution (No 1264) of the Government of the Republic of Lithuania of 9 October 2003 on approving the description of the procedure for purchasing the services of the creation of radio and television programmes and of their broadcasting, and for purchasing air time for broadcasting already prepared programmes and radio and television broadcasts and the Law on Public Procurement, in a transparent manner and without creating restrictions on competition between suppliers, as well as whether timely and fully fledged supervisory and control mechanisms are used for monitoring the conducted procedures” (Item 7); (3) “to determine whether the supervisory authorities and other public administration entities have established violations, by the LRT, of the Law on Public Procurement and/or certain deficiencies in public procurement organised by LRT. Also, to assess the organisational or other measures taken by the LRT in cases where deficiencies had been identified. In cases where there was a failure to eliminate the violations, to identify those responsible and/or deficiencies of the legal regulation” (Item 8); (4) “to investigate and assess whether the LRT has an adequate and operating internal mechanism for organising, supervising, and controlling all public procurement conducted by it. Having identified the problems of the application of the legal acts and/or other shortcomings in the organisation of procurement and/or in internal control, to identify the persons responsible for this. To identify loopholes in legislation where the established deficiencies are due to poor regulation” (Item 9);

the questions related to ensuring both the publicity of the activity of the LRT and its accountability to the public: (1) “to assess the European experience in ensuring the publicity and accountability of the activity of national broadcasters and to determine what changes in the regulation of the LRT activities would help to guarantee greater transparency and accountability of the activity of the LRT to the public” (Item 3); (2) “to assess whether the methods of public dissemination of cultural, social, and educational information defined in Paragraph 3 of Article 6 of the Law (for a fee, other consideration, or free of charge) are applied by the LRT in a transparent manner and with adequate control. To identify those responsible should a lack of transparency and/or control adequacy in the choice of means of disseminating information be found. To identify loopholes in legislation where the lack of transparency and control is due to poor regulation (Item 4);

the questions related to ensuring the prevention of corruption in the activity of the LRT: “to investigate and assess whether the application of the resolution (No 1264) of the Government of the Republic of Lithuania of 9 October 2003 on approving the description of the procedure for purchasing the services of the creation of radio and television programmes and of their broadcasting, and for purchasing air time for broadcasting already prepared programmes and radio and television broadcasts in some cases creates the preconditions for the emergence of a corruption environment and/or for avoiding, on the part of the LRT, the carrying out of public procurement procedures (for example, avoiding carrying out purchases through the Central Public Procurement Information System, avoiding the selection of procurement procedures according to strict requirements established in legal acts, etc.) established by the Republic of Lithuania’s Law on Public Procurement, orders of the Director of the Public Procurement Office, Directive 2014/24/EU of the European Parliament and of the Council” (Item 6);

the questions related to the formation of the programme schedule of the LRT: “to investigate and assess whether the programmes provided by the LRT that are adapted for hearing- or visually impaired people ensure the needs of people with disabilities. If the proportion of the programmes adapted for hearing- or visually impaired people is low (i.e. does not meet needs), to identify the causes of the low proportion of the LRT programmes adapted (as required by Item 9 of Article 5 of the Law) for hearing- or visually impaired people and, having identified the shortcomings, to identify those responsible. To identify loopholes in legislation where the established deficiencies are due to poor regulation” (Item 12).

11.7. In this context, it should be mentioned that, following the expiry of the deadline, referred to in Article 5 (wording of 20 September 2018) of the resolution of the Seimas of 12 January 2018, by which the Commission had to carry out the investigation assigned to it and present a conclusion, a draft resolution of the Seimas on the conclusion regarding the parliamentary investigation into the management of the Lithuanian National Radio and Television and its financial and economic activities carried out by an ad hoc investigation commission of the Seimas of the Republic of Lithuania was prepared, whose Article 1 envisaged supporting the conclusion of the Commission, and Article 2 envisaged acknowledging that the Commission had carried out the parliamentary investigation and completed its work. As seen from the minutes of the morning sitting (No SPP-250) of the Seimas of 20 December 2018, the Seimas did not pass the latter resolution on 20 December 2018.

III

The relevant legal regulation governing the activities of committees of the Seimas and of ad hoc investigation commissions of the Seimas

12. In the context of this constitutional justice case, mention should be made of the relevant provisions of the legal regulation consolidated in the Statute of the Seimas (wording of 22 December 1998, as subsequently amended; hereinafter referred to as the Statute of the Seimas) and governing the activities of the committees of the Seimas, as well as the legal regulation consolidated in the Statute of the Seimas and the Law on Ad Hoc Investigation Commissions of the Seimas and governing the formation and activities of ad hoc investigation commissions of the Seimas.

12.1. According to Article 25 (as amended on 8 November 2018), titled “Committees and Commissions of the Seimas”, of the Statute of the Seimas, the Seimas forms committees from among its members for the consideration of draft laws and other issues assigned to its remit by the Constitution (Paragraph 1), and, in order to resolve short-term issues or issues of narrower scope or to carry out specific assignments, the Seimas may, from among its members, form, inter alia, ad hoc investigation commissions (Paragraph 3).

Thus, in accordance with the legal regulation laid down in Paragraphs 1 and 3 of Article 25 (as amended on 8 November 2018) of the Statute of the Seimas, the Seimas may, among other things, establish the following structural units:

committees – for the resolution of long-term and wider issues (compared with the issues assigned to ad hoc investigation commissions), i.e. for the purpose of formulating questions implementing the constitutional powers of the Seimas, inter alia, for considering draft laws;

ad hoc investigation commissions – for the resolution of short-term and narrower issues (compared with the issues assigned to the committees) and for the purpose of dealing with specific tasks.

12.2. It needs to be noted that, according to Article 48 (wording of 27 June 2013), titled “Order of Business of Committees of the Seimas”, of the Statute of the Seimas, the remit of the committees of the Seimas, their powers, and the order of business are established in this Statute and laws (Paragraph 1).

It should also be noted that committees of the Seimas are responsible and accountable to the Seimas (Paragraph 2 of Article 48 (wording of 27 June 2013) of the Statute of the Seimas), they must, within the set time limit, consider and present conclusions on the issues referred to them for consideration and perform other tasks assigned to them by the Seimas (Paragraph 3 of Article 48 (wording of 27 June 2013) of the Statute of the Seimas).

Thus, under the legal regulation laid down in Paragraphs 1–3 of Article 48 (wording of 27 June 2013) of the Statute of the Seimas, committees of the Seimas are permanent structural units of the Seimas and are accountable to it; committees of the Seimas, when implementing their powers established in this statute and laws, carry out the tasks assigned to them by the Seimas, inter alia, draw conclusions on the issues referred to them for consideration.

12.2.1. In this context, it needs to be noted that Paragraph 1 of Article 49 (wording of 27 June 2013, as subsequently amended) of the Statute of the Seimas, which lays down the powers of committees of the Seimas, establishes, among other things, the following powers of committees of the Seimas with respect to issues falling within their remit where those powers are relevant to this constitutional justice case:

to prepare, on their own initiative or on the assignment of the Seimas, draft laws and other draft legal acts pending the adoption by by the Seimas (Item 2);

to hear, while exercising parliamentary control, information and reports of ministries and other state institutions on the implementation of laws of the Republic of Lithuania and other legal acts adopted by the Seimas; when necessary, to submit conclusions, proposals, and/or recommendations of the committee to state and municipal institutions; to control compliance with laws and implementation of resolutions of the Seimas, respect of the time limits for implementing them as set out in these legal acts, to monitor and evaluate the implementation of proposals and/or recommendations of the committee; to exercise parliamentary control over specific issues and to present conclusions, proposals and/or recommendations of the committee to the Seimas and, if necessary, to other state and municipal institutions on their own initiative or on the assignment of the Seimas; to receive, in accordance with the procedure laid down in legal acts, from state and municipal institutions relevant data, documents, and other material necessary when exercising parliamentary control; to hear annual activity reports of state institutions accountable to the Seimas and, if necessary, to present conclusions, proposals and/or recommendations of the committee to the Seimas and/or other state and municipal institutions (Item 5 (wording of 21 December 2017));

to analyse and control the economic effectiveness of the funds of the state budget of the current year, consider and submit conclusions and proposals on the items and programmes of a draft state budget for the next year, presented by the Government, within the remit of a committee, to evaluate the expediency of the programmes and the validity of appropriations earmarked for them (Item 8);

to consider public audit reports and conclusions (Item 9).

Thus, under the aforementioned legal regulation established in Paragraph 1 of Article 49 (wording of 27 June 2013, as subsequently amended) of the Statute of the Seimas, committees of the Seimas with respect to issues falling within their competence have, among other things, the respective powers, which have been granted to them in the legislative field, to exercise parliamentary control, inter alia, to hear information and reports from the relevant authorities and to receive from them the required material in connection with parliamentary control, to conduct parliamentary investigations into individual issues, the powers to exercise control over the use of state budget funds for the current year, and the powers to consider state audit reports and conclusions.

12.2.2. In the context of this constitutional justice case, it needs to be noted that the LRT is a public establishment owned by the state; the activity of the LRT is based on, inter alia, the Law on the Provision of Information to the Public; the LRT is financed, inter alia, from the state budget appropriations (Paragraph 2 of Article 1, Paragraph 1 of Article 2, and Paragraph 1 (wording of 8 May 2014) of Article 15 of the Law on the LRT (wording of 22 December 2005). In view of this, the following parliamentary committees established in accordance with Article 43 (wording of 15 November 2016), titled “List of the Committees of the Seimas”, of the Statute of the Seimas should be distinguished in connection with the aspect of parliamentary control related to the activity of the LRT: the Committee on Audit, the Committee on Budget and Finance, and the Committee on Culture (Items 2, 3, and 7).

12.2.2.1. Under Article 59 (wording of 5 September 2002, as subsequently amended) of the Statute of the Seimas, the activities of the Committee on Budget and Finance include, among others: exercising general and continuous control over the budgetary policy implementation and over the state budget execution (Item 2 (wording of 20 October 2015)); preparing draft laws and other draft legal acts, as well as proposals, regarding the budget and finance (Item 4); exercising parliamentary control over the use of state property and the presentation of proposals and recommendations relative thereto (Item 7 (wording of 17 November 2011)); considering the conclusions submitted by the National Audit Office to the Seimas and/or the Committee on Budget and Finance of the Seimas and assessing, together with the Committee on Audit of the Seimas and other committees of the Seimas (and, when necessary, providing assistance in) the implementation of the recommendations of the National Audit Office presented in the said conclusions (Item 8 (wording of 2 December 2004)); submitting proposals regarding assignments of the Seimas to the National Audit Office to perform a state audit (Item 9 (wording of 2 December 2004)).

12.2.2.2. According to Article 591 (wording of 2 December 2004, as subsequently amended) of the Statute of the Seimas, the activities of the Committee on Audit include, among others: considering state audit reports and conclusions submitted by the National Audit Office to the Seimas and/or the committees of the Seimas (Item 1); preparing a draft resolution of the Seimas concerning the implementation of the recommendations of the National Audit Office laid down in public audit reports and conclusions (Item 2); coordinating the activities of the committees and commissions of the Seimas when considering the issues of state audit and submitting conclusions thereon (Item 3); considering, together with other committees of the Seimas, whether the managers of appropriations use the state budget appropriations and the state property rationally and efficiently (Item 7); preparing and submitting to the Seimas draft resolutions on the assignment to the National Audit Office to perform a state audit not provided for in the annual state audit programme (Item 10).

12.2.2.3. According to Article 621 (wording of 15 November 2016) of the Statute of the Seimas, the activities of the Committee on Culture include, among others: considering and submitting proposals concerning the formulation of the national cultural and public information policy (Item 1); preparing proposals and draft laws, resolutions, and other draft legal acts pending the adoption by the Seimas regulating the fields of culture and provision of information of to the public (Item 2); hearing information and reports of the institutions and establishments providing information to the public and other state institutions and establishments with regard to the implementation of laws and other legal acts adopted by the Seimas related to the issues that are within the remit of the Committee on Culture (Item 7); examining the use of the appropriations of the state budget of the Republic of Lithuania allocated for culture and the provision of information to the public and evaluating the efficiency of the use thereof (Item 8).

12.2.3. Summarising from the aspect relevant in this constitutional justice case the specified legal regulation consolidated in Paragraph 1 of Article 49 (wording of 27 June 2013, as subsequently amended), Article 59 (wording of 5 September 2002, as subsequently amended), Article 591 (wording of 2 December 2004, as subsequently amended), and Article 621 (wording of 15 November 2016) of the Statute of the Seimas, it should be noted that, according to the said legal regulation:

the Committee on Culture is given legislative powers in the field of providing information to the public – it is empowered to prepare, on its own initiative or on the instruction of the Seimas, draft laws concerning the regulation of the fields of culture and provision of information to the public, thus, inter alia, draft laws regulating the activity of the LRT;

the Committee on Culture is empowered to hear, when exercising parliamentary control over the institutions and establishments providing information to the public and over other state institutions and establishments, their (inter alia, the LRT) information and reports and to receive from them the required information when exercising parliamentary control, and to conduct parliamentary investigations into individual issues related to the activity of, inter alia, the LRT;

the Committee on Budget and Finance and the Committee on Audit are empowered to submit, within their competence, proposals to the Seimas in connection with giving assignments to the National Audit Office to carry out a certain state audit, thus, also to submit proposals to the Seimas, inter alia, in connection with instructing the National Audit Office to carry out a relevant state audit of the LRT;

the Committee on Budget and Finance, the Committee on Audit, and the Committee on Culture are empowered, within their respective areas of competence, to consider the reports and conclusions of state audits, thus, to examine the efficiency of the use of, inter alia, state budget funds allocated to the LRT, and to consider the reports and conclusions of the state audits of the LRT.

12.3. In the context of this constitutional justice case, it needs to be noted that, as mentioned above, on 12 January 2018, the resolution of the Seimas was adopted, among other things, in accordance with Article 71, titled “Formation of Commissions”, of the Statute of the Seimas, which regulates, inter alia, the procedure for the formation of ad hoc investigation commissions of the Seimas.

12.3.1. Paragraph 1 of Article 71 of the Statute of the Seimas prescribes: “Having acknowledged the necessity, the Seimas may form standing commissions to examine special problems or form ad hoc investigation, control, revision, preparatory, editorial commissions or other ad hoc commissions to examine and prepare certain questions or to fulfil other assignments of the Seimas.”

It should be noted that, under Paragraph 1 of Article 72 of the Statute of the Seimas, ad hoc control or investigation commissions are formed for the purpose of control of the implementation of the decisions of the Seimas, collection and presentation of information and conclusions required to analyse a problem at hand, and in other instances stipulated in this statute.

As mentioned above, under the legal regulation established in Paragraph 3 of Article 25 (as amended on 8 November 2018) of the Statute of the Seimas, ad hoc investigation commissions are formed for the resolution of short-term and narrower issues (compared with the issues assigned to the committees) and for the purpose of dealing with specific tasks. It should be noted that, according to this legal regulation, ad hoc investigation commissions may be tasked with investigating, inter alia, issues related to the competence of several committees of the Seimas.

Thus, under the legal regulation enshrined in Paragraphs 1 and 3 of Article 25 (as amended on 8 November 2018), Paragraph 1 of Article 71, and Paragraph 1 of Article 72 of the Statute of the Seimas, the Seimas, having acknowledged the necessity, may form ad hoc investigation commissions to investigate issues falling within its competence under the Constitution where those issues are short-termed and narrower compared with those assigned to the committees, and where those issues may be related with the competence of several committees of the Seimas, inter alia, gather and submit to the Seimas information and conclusions on such issues as may be necessary for addressing a problem at hand.

12.3.2. In this context, mention should be made of the legal regulation governing the activities of ad hoc investigation commissions of the Seimas enshrined in the Law on Ad Hoc Investigation Commissions of the Seimas.

The Law on Ad Hoc Investigation Commissions of the Seimas, among other things, prescribes that:

the Seimas, having recognised the necessity to investigate a matter of state importance, may establish an ad hoc investigation commission of the Seimas (Paragraph 1 of Article 2, titled “Formation of the Commission and the Duration of Its Activities”); the procedure for the formation of the commission is regulated by the Statute of the Seimas (Paragraph 2 of Article 2);

the issue to be investigated by the commission and the duration of its work are determined by a resolution of the Seimas (Paragraph 3 of Article 2);

the results of the investigation conducted by the Commission are drawn up in a draft report; it indicates the facts ascertained in the course of the investigation, the collected evidence, and a legal assessment of the situation (Paragraph 1 of Article 8 (as amended on 3 April 2003)).

Thus, the legal regulation enshrined in the Law on Ad Hoc Investigation Commissions of the Seimas complements the legal regulation on the formation and activities of ad hoc investigation commissions of the Seimas enshrined in the Statute of the Seimas.

12.3.3. Summarising the aforementioned legal regulation enshrined in the Law on Ad Hoc Investigation Commissions of the Seimas, inter alia, in Paragraphs 1 and 3 of Article 2 thereof, and in the Statute of the Seimas, inter alia, Paragraph 3 of Article 25 (as amended on 8 November 2018) and Paragraph 1 of Article 72 thereof, it should be noted that an ad hoc investigation commission of the Seimas is formed by a resolution of the Seimas to investigate issues of state importance falling within its competence under the Constitution where those issues are short-termed and narrower compared with those assigned to the committees, and where those issues may be related with the competence of several committees of the Seimas; the Seimas resolution establishing the Seimas Provisional Investigation Commission is not an objective in itself: it establishes a specific issue of state importance whose investigation is commissioned to the commission and defines the boundaries of the commissioned investigation.

IV

The legal regulation governing the activities of the LRT that is relevant in this constitutional justice case

13. On 8 October 1996, the Seimas adopted the Republic of Lithuania’s Law on the National Radio and Television of Lithuania. The Republic of Lithuania’s Law Amending the Law on the National Radio and Television of Lithuania, which was adopted by the Seimas on 22 December 2005, set out the said law in its new wording. The Law on the National Radio and Television of Lithuania (wording of 22 December 2005; hereinafter referred to as the Law on the LRT) entered into force on 31 December 2005.

The Law on the LRT establishes the procedure of the founding, management, activity, reorganisation, and liquidation of the LRT and the rights, obligations, and liability of the LRT (Paragraph 1 of Article 1 of the Law on the LRT).

13.1. Under Paragraph 1 of Article 2, titled “The concept and status of the LRT” of the Law on the LRT, the LRT is a public establishment belonging to the state by right of ownership.

13.2. In this context, it should be mentioned that, according to Paragraph 1 of Article 5 of the Law on LRT, the LRT is the successor to the rights and responsibilities of the Lithuanian Radio and Television, founded by the Seimas. It should also be mentioned that, under Article 16 of the Law on LRT, the LRT is reorganised or liquidated in accordance with the law of the Republic of Lithuania.

Thus, under the legal regulation established in Paragraph 1 of Article 5 and Article 16 of the Law on LRT, the Seimas exercises the functions of the founder of the LRT as a public establishment belonging to the state by right of ownership.

13.3. It should be mentioned that Article 15 (as amended on 8 May 2014) of the Law on the LRT, among others, prescribes:

1. The LRT shall be financed from the state budget appropriations, income received for the sale of programmes, sponsorship announcements, publishing, as well as from support and income received from commercial and economic activities.

2. In accordance with the procedure established by this Law, the LRT shall perform commercial, economic, and publishing activities independently.

3. The funds allocated for the LRT shall be indicated in a separate line in the State Budget of the Republic of Lithuania. The funds allocated from the State Budget for broadcasting the LRT radio and television programmes shall be specified in a separate programme.”

Thus, according to the legal regulation established in Paragraphs 1–3 of Article 15 (as amended on 8 May 2014) of the Law on the LRT, the LRT is financed, inter alia, from the state budget appropriations indicated in a separate line of the state budget and independently carries out commercial, economic, and publishing activities.

13.4. In the context of this constitutional justice case, the legal regulation enshrined in Article 3 (as amended on 30 September 2010), Article 4 (wording of 30 September 2010, as amended on 18 October 2018), and Article 5 (as amended on 30 June 2011) of the Law on the LRT is relevant; the said legal regulation establishes the legal principles for the activity of the LRT, requirements for LRT programmes, and the rights and obligations of the LRT.

13.4.1. Article 3 (as amended on 30 September 2010), titled “The Principles of the Activity of the LRT”, of the Law on the LRT, prescribes:

1. The LRT must collect and publish information concerning Lithuania and the world, acquaint the public with the variety of European and world culture, the foundations of modern civilisation, reinforce the independence of the Republic of Lithuania and democracy, create, foster, and protect the values of national culture, promote tolerance and humanism, foster the culture of cooperation and thought, encourage good use of the Lithuanian language, strengthen public morality and civic consciousness, develop the country’s ecological culture. The contents, form, and language of the programmes prepared must be of good quality. In preparing and broadcasting its programmes, the LRT must be guided by the principles of objectivity, democracy, and impartiality, must ensure freedom of speech and creative freedom, must reflect in its broadcasts diverse opinions and convictions, with individuals of various convictions having the right to take part and voice their views in them. Human rights and dignity must be respected in the broadcasts, and the principles of morality and ethics must not be violated.

2. The reception area of radio and television programmes broadcast by the LRT shall cover the entire territory of the Republic of Lithuania.”

13.4.2. In this context, it should be mentioned that Article 4 (wording of 30 September 2010, as amended on 18 October 2018) of the Law on the LRT consolidates, among others, the following requirements for the radio and television programmes of the LRT:

these programmes must ensure a diversity of topics and genres and the broadcasts must be oriented towards the various strata of society and people of different ages, of various nationalities, and of different convictions; biased political views should not be allowed to predominate in the radio and television programmes of the LRT; the information presented in LRT information broadcasts and commentaries must be substantiated and reflecting various political views, and opinions and factual news must be authorised, verified, and comprehensive (Paragraph 1);

these programmes give priority to national culture, as well as information, world cultural, social and political, analytical, informative, educational, art, and sport broadcasts; mass culture is reflected in review, informative, and analytical broadcasts (Paragraph 2 (wording of 18 October 2018);

the LRT must broadcast programmes that disclose the diversity of the history of the peoples of Europe and their life at present (Paragraph 3).

13.4.3. In this context, it should also be mentioned that, according to Article 5 (as amended on 30 June 2011), titled “Rights and Obligations of the LRT”, of the Law on the LRT, the LRT must, among other things, in accordance with the established procedure, give air time to the President of the Republic of Lithuania in order that he/she can speak on domestic and foreign policy issues; at the request of the Seimas, the Government, or the Leader of the Opposition of the Seimas, the LRT must, as soon as possible, provide air time for official communications of the Seimas, the Government, or the opposition (Paragraph 6); the LRT gives the Lithuanian traditional and state-recognised religious communities air time to broadcast their religious services in accordance with the conditions and procedure established in bilateral agreements (Paragraph 7); the LRT prepares programmes for national minorities, which provide opportunities to promote the culture of national minorities (Paragraph 8 (wording of 30 September 2010)); the LRT prepares programmes for hearing- and visually-impaired people (Paragraph 9 (wording of 30 September 2010)).

13.4.4. Thus, according to the legal regulation laid down in Article 3 (as amended on 30 September 2010), Article 4 (wording of 30 September 2010, as amended on 18 October 2018), and Article 5 (as amended on 30 June 2011) of the Law on the LRT, the LRT is entrusted with the mission of the national public broadcaster, i.e. to broadcast, inter alia, radio and television programmes, inter alia, throughout the territory of the Republic of Lithuania, which would publish information about Lithuania and the world (inter alia, about the diversity of European and world culture), which would promote constitutional values (inter alia, the independence of the Republic of Lithuania, democracy, and civic consciousness), common human values (inter alia, humanism and tolerance), national cultural values (inter alia, the culture of national minorities); the preparation and publication of LRT broadcasts must be based, inter alia, on the principles of objectivity, democracy, impartiality, respect for human dignity and rights, freedom of speech and creative freedom, pluralism of opinion, morality and ethics; the LRT programmes must be aimed at public needs – they must be oriented towards the various strata of society and people of different ages, of various nationalities, and of different convictions (inter alia, hearing- and visually-impaired people, religious communities, national minorities), and must give opportunities to deliver official political communications – in accordance with the procedure established by law, the LRT must give air time to the President of the Republic of Lithuania in order that he/she can speak on domestic and foreign policy issues, and must provide air time, as soon as possible, for official communications of the Seimas, the Government, or the opposition.

13.5. Summarising from the relevant aspect of this constitutional justice case the legal regulation enshrined in the Law on the LRT, inter alia, in Paragraph 1 of Article 2, Article 3 (as amended on 30 September 2010), Article 4 (wording of 30 September 2010, as amended on 18 October 2018), Article 5 (as amended on 30 June 2011), and Paragraphs 1–3 of Article 15 (as amended on 8 May 2014) thereof, it should be noted that, under the said legal regulation: the LRT is a public establishment belonging to the state by right of ownership and, inter alia, financed from the state budget; the functions of the founder of the LRT are implemented by the Seimas; in order to ensure the public interest, the LRT is entrusted with the national public broadcaster’s mission – to provide to the public information about Lithuania and the world, to prepare and publish programmes, to promote constitutional and universal values as well as values of national culture based on the principles of objectivity, democracy, impartiality, respect for human dignity and human rights, freedom of speech and creative freedom, pluralism of opinion, morality, and ethics; it is worth noting that this legal regulation, established in the Law on the LRT, implies the autonomy and independence of the LRT as the national public broadcaster from state institutions, officials, and other persons.

13.6. It should be noted that the Law on the LRT establishes the structure of the management of the LRT: the LRT bodies are the LRT Council and the Director General (Paragraph 1 of Article 9).

13.6.1. In this context, mention should be made of the legal regulation (established in the Law on the LRT) revealing the status of the LRT Council.

13.6.1.1. Under Paragraph 2 of Article 9 of the Law on the LRT, the LRT Council is the supreme body representing the public interests; it is set up for 6 years and made up of 12 individuals – public, scientific, and cultural figures; the members of the LRT Council are appointed by the President of the Republic (4 members), the Seimas (4 members, 2 of whom are candidates proposed by the opposition political groups), the Research Council of Lithuania, the Lithuanian Education Council, the Lithuanian Creative Artists Association, and the Lithuanian Bishops’ Conference (one member each). According to Paragraph 4 of the same article, members of the Seimas, those of the Government, those of the Lithuanian Radio and Television Commission, state servants of political (personal) confidence, persons working under employment contracts in radio and television stations, including the LRT, as well as radio and television station owners and co-owners, may not be members of the LRT Council.

Thus, under the legal regulation established in Paragraphs 2 and 4 of Article 9 of the Law on the LRT, the LRT Council is the supreme body of the LRT, representing the public interest, which is set up for 6 years and made up of 12 individuals – public, scientific, and cultural figures.

13.6.1.2. In this context, mention should be made of the following powers of the LRT Council consolidated in the Law on the LRT:

taking into account the financial possibilities of the LRT, it determines the scope of broadcasts for hearing- or visually impaired people in television programmes (Paragraph 9 (wording of 30 September 2010) of Article 5);

it forms the state strategy of LRT radio and television programmes (Item 1 (wording of 30 September 2010) of Paragraph 1 of Article 10);

it determines the scope and structure of the LRT radio and television programmes, as well as the duration of the LRT radio and television broadcasts; it approves annually the composition (as well as its amendments) of LRT radio and television programmes (Item 2 (wording of 30 September 2010) of Paragraph 1 of Article 10);

it approves the By-Law of the LRT (Item 4 of Paragraph 1 of Article 10);

it oversees the implementation of LRT tasks and of requirements laid down in legal acts for broadcasters (Item 5 of Paragraph 1 of Article 10);

it approves the annual revenue and expenditure estimates submitted by the LRT administration and the reports on their implementation (Item 7 of Paragraph 1 of Article 10);

it considers and approves the annual activity reports of the LRT (Item 8 of Paragraph 1 of Article 10);

it approves the results of tenders for the preparation of LRT programmes (Item 10 (wording of 30 September 2010) of Paragraph 1 of Article 10);

it establishes the Administrative Commission for the consideration of economic and financial activities of the LRT (Item 11 of Paragraph 1 of Article 10); it approves the regulations of the Administrative Commission (Item 12 of Paragraph 1 of Article 10); it appoints the members of the Administrative Commission (Item 13 of Paragraph 1 of Article 10);

it appoints the Director General by open competition for a period of 5 years and determines his/her remuneration (Item 16 of Paragraph 1 of Article 10);

it determines the number of Deputy Directors General (Item 17 of Paragraph 1 of Article 10); it appoints and releases the Deputy Directors General on the proposal of the Director General (Item 18 of Paragraph 1 of Article 10).

13.6.1.3. It should be noted that the LRT Council decisions are binding on the LRT (Paragraph 3 of Article 10).

13.6.1.4. In the context of this constitutional justice case, it needs to be noted that, under Paragraph 1 of Article 5 of the Law on the LRT, the LRT Council performs the functions of the general meeting of the LRT. Mention should be made of the following functions of the general meeting of stakeholders, established in Paragraph 1 (as amended on 24 May 2018) of Article 10 of the Republic of Lithuania’s Law on Public Establishments (wording of 27 January 2004), which are performed by the LRT Council:

the general meeting of stakeholders approves, within four months of the end of the financial year, the set of annual financial statements (Item 6 (wording of 24 May 2018));

it determines the information to be made available to the public on the activities of the public establishment (Item 7);

it decides on the transfer, lease, transfer under a loan-for-use agreement, or pledge of the fixed assets owned by the public establishment (Item 8);

it lays down the procedure for the internal control of the state establishment (Item 13).

13.6.1.5. Summarising, from the point of view relevant to this constitutional justice case, the powers of the LRT Council consolidated in the Law on the LRT, inter alia, Paragraph 1 of Article 5 and Paragraph 1 (as amended on 30 September 2010) of Article 10 thereof, it should be noted that the LRT Council, as the supreme body of the LRT, acting in the public interest, performs the following main functions:

it determines the national strategy, scope, structure, and composition of the LRT radio and television programmes, inter alia, the scope of broadcasts for hearing- or visually impaired people in television programmes;

it forms the administration of the LRT: appoints and releases the Director General, determines the number of his/her deputies, appoints and releases Deputy Directors General on the recommendation of the Director General;

it approves the By-Law of the LRT;

it forms the Administrative Commission and approves its regulations;

it approves the LRT annual revenue and expenditure estimates submitted by the LRT administration and reports on their implementation, and decides on the transfer, lease, transfer under a loan-for-use agreement, or pledge of the fixed assets owned by the LRT;

it approves the results of tenders for LRT programmes;

it establishes the internal control procedures of the LRT, oversees the implementation of LRT tasks and of requirements laid down in legal acts for broadcasters;

it determines the information to be made available to the public on the activities of the LRT activities, also considers and approves the annual reports of LRT activities.

Thus, according to the aforementioned legal regulation established in the Law on LRT, the LRT Council, inter alia, adopts the most important decisions concerning LRT radio and television programming and the economic and financial activities of the LRT, performs the functions of internal control and supervision, inter alia, oversees the implementation of LRT tasks.

13.6.1.6. In the context of this constitutional justice case, it needs to be noted that, under Paragraph 6 (wording of 30 September 2010) of Article 10 of the Law on the LRT, the Chair of the LRT Council makes a report once a year for the activity of the LRT at the Seimas plenary session.

13.6.2. Mention should also be made of the legal regulation enshrined in the Law on the LRT, revealing the status of the Director General of the LRT.

Under Paragraph 1 of Article 12 of the Law on the LRT, the LRT is directed and represented by the Director General; the Director General is responsible for the activities of the LRT, the programmes produced and broadcast by the LRT, as well as for the implementation of the resolutions of the LRT Council. According to Paragraph 2 of Article 12 of the Law on the LRT, the Director General is appointed by the LRT Council by open competition for a period of five years.

In this context, mention should be made of the following provisions of Article 13, titled “The Functions, Rights, and Accountability of the Director General”, of the Law on the LRT:

the Director General heads the activity of the LRT, represents the LRT in the country, abroad, in international organisations, as well as before a court, approves the structure of the LRT, its administrative regulations, the remuneration system, concludes contracts, issues orders, and controls their implementation (Item 1 of Paragraph 1);

at the request of the LRT Council, informs the LRT Council about the implementation of the LRT functions provided for in the laws, the implementation of the resolutions of the LRT Council, and the conclusions of the Administrative Commission (Item 2 of Paragraph 1);

the Director General prepares and submits to the LRT Council for approval the annual report of the activity of the LRT (Paragraph 3).

Thus, according to the legal regulation enshrined in the Law on the LRT, inter alia, Paragraph 1 of Article 12 and Paragraphs 1 and 3 of Article 13 thereof, the Director General is a body who is appointed by the LRT Council and accountable to it, who heads the activity of the LRT, and who represents the LRT.

13.6.3. As mentioned above, under Item 11 of Paragraph 1 of Article 10 of the Law on the LRT, the LRT Council establishes the Administrative Commission for the consideration of economic and financial activities of the LRT.

Under the provisions of the Law on the LRT, the Administrative Commission is composed of five members; its members are appointed by the LRT Council for a period of 4 years (Paragraph 1 of Article 11); the members of the Administrative Commission must be management and/or financial specialists (Paragraph 1 of Article 11).

In the context of this constitutional justice case, mention should be made of the following powers of the Administrative Commission that are established in Paragraph 6 (as amended on 23 September 2014) of Article 11 of the Law on the LRT:

to submit, among other things, the following conclusions to the LRT Council: on the economic and financial feasibility of the prospective and annual plans of the activity of the LRT (Item 1), on the LRT annual revenue and expenditure estimates and the report on their implementation (Item 2); and on bank credits, providing guarantees, and the fulfilment of obligations (Item 3), when the LRT Council concludes investment agreements provided that the transaction amount is not less than EUR 29 000 (Item 4 (wording of 23 September 2014));

to give conclusions on the financial feasibility of the projects of the LRT programmes submitted as tenders (Item 5 (wording of 30 September 2010));

to submit, among other things, the following conclusions to the Director General of the LRT: on the use of funds not provided for in the approved LRT estimate (Item 6), on the economic feasibility of a draft agreement with the trade unions of LRT employees (Item 7);

to advise the LRT Council and the Director General on financial matters (Item 8);

to propose that the LRT Council initiate an audit of the economic and financial activities of the LRT or of its separate units (Item 9).

In this context, it should also be mentioned that, under Paragraph 9 of Article 11 of the Law on the LRT, the Administrative Commission reports to the LRT Council at least once a year on its activities in accordance with the procedure established in the By-Law of the LRT.

Thus, according to the legal regulation enshrined in the Law on the LRT, inter alia, Paragraphs 1, 2, and 6 (as amended on 23 September 2014) of Article 11 thereof, the Administrative Commission is an LRT advisory body, which is established by the LRT Council and accountable to it, which is formed from management and/or financial specialists, and which, inter alia, assists the LRT Council in making the most important decisions regarding economic and financial activities, and in performing the functions of internal control and supervision.

V

The legal regulation governing the activities of the National Audit Office that is relevant in this constitutional justice case

14. In the context of this constitutional justice case, the relevant aspects of the legal regulation governing the activities of the National Audit Office, related to the powers to perform, inter alia, an audit of the LRT, should be noted.

14.1. The Republic of Lithuania’s Law on the National Audit Office (wording of 13 December 2001; hereinafter referred to as the Law on the National Audit Office) regulates the activities of the National Audit Office and the legal relationships of service in the National Audit Office (Article 1).

14.1.1. Under Paragraph 4 (wording of 6 November 2014) of Article 2 of the Law on the National Audit Office, the National Audit Office is an institution performing state audit and carrying out budget policy monitoring.

Paragraph 1 of Article 3, titled “The Legal Status of the National Audit Office”, of the Law on the National Audit Office provides: “The National Audit Office shall be a supreme state audit institution, which is accountable to the Seimas.”

Paragraph 2 of Article 5 of the Law on the National Audit Office establishes the principles of the activities of the National Audit Office: “The activities of the National Audit Office shall be based on the principles of independence, lawfulness, publicity, neutrality, and professionalism.”

Thus, according to the legal regulation established in Paragraph 4 of Article 2 (wording of 6 November 2014), Paragraph 1 of Article 3, and Paragraph 2 of Article 5 of the Law on the National Audit Office, the National Audit Office is the supreme state audit institution, which performs state audit and carries out budget policy monitoring and whose activities are based on the principles of independence, lawfulness, publicity, neutrality, and professionalism.

14.1.2. Under Paragraph 1 of Article 9, titled “The Competence of the National Audit Office”, of the Law on the National Audit Office, while supervising the lawfulness and efficiency of the management and use of state-owned property and the execution of the state budget, the National Audit Office carries out audit, among others, of: the execution of the state budget (Item 1); the use of state funds (Item 2); and the management, use, and disposal of state-owned property (Item 3).

14.1.2.1. In this context, it needs to be noted that, according to Paragraph 8 of Article 2 (wording of 6 November 2014) of the Law on the National Audit Office, state audit is an audit performed in entities audited by the National Audit Office in accordance with the State Auditing Requirements. Pursuant to Paragraph 1 of Article 13, titled “The Types of State Audit” (wording of 22 December 2005), state audit performed by the National Audit Office includes financial (regularity) and performance audit.

The said types of audit are defined in Article 2 (wording of 6 November 2014) of the Law on the National Audit Office:

– “financial (regularity) audit” means the evaluation of the data of sets of financial statements and reports on the execution of the budget, sets of annual consolidated statements, a national set of statements and reports and/or other statements of an audited entity, the assessment of the legality of the management, use, and disposal of the state funds and property, the assessment of their use for the purposes set in laws, as well as the giving of an independent opinion (Paragraph 3);

– “performance audit” means the evaluation of the economy, efficiency, and effectiveness of the public and internal administration activities of the audited entity (Paragraph 9).

14.1.2.2. In the context of this constitutional justice case, it needs to be noted that state audit entities are, among others, the state, state establishments and institutions, enterprises and other legal persons to which state or municipal institutions have provided funds or transferred assets (Items 1 and 5 of Paragraph 2 (wording of 3 December 2013) of Article 14 of the Law on the National Audit Office).

As mentioned above, under Paragraph 1 of Article 2 of the Law on the LRT, the LRT is a state-owned public establishment; according to the legal regulation laid down in Paragraphs 1 and 3 of Article 15 (as amended on 8 May 2014) of the Law on the LRT, the LRT is financed, inter alia, from the state budget appropriations indicated in a separate line of the state budget.

In view of this, inter alia, under Item 5 of Paragraph 2 (wording of 3 December 2013) of Article 14 of the Law on the National Audit Office, the LRT is a state audit entity, which may be audited by the National Audit Office, or under its supervision, in order to find out whether state-owned property is managed and used lawfully and efficiently; under the legal regulation established in the Law on the National Audit Office, inter alia, Paragraph 4 of Article 2 (wording of 6 November 2014) and Items 1–3 of Paragraph 1 of Article 9 thereof, the National Audit Office has the power to perform a state audit of the LRT – its financial (regularity) and performance audit.

14.1.2.3. In this context, it should be noted that the National Audit Office, in order to perform its functions effectively, determines the scope of state audit; the National Audit Office annually determines the scope of state audit in state audit programmes (Paragraph 1 (wording of 22 December 2005) of Article 14 of the Law on the National Audit Office).

Under Paragraph 5 (wording of 19 November 2009) of Article 14 of the Law on the National Audit Office, the Seimas may also, by means of its resolution, instruct the National Audit Office to perform a state audit within its competence.

Thus, according to the provisions of Paragraph 1 (wording of 22 December 2005) and Paragraph 5 (wording of 19 November 2009) of Article 14 of the Law on the National Audit Office, state audit (financial (regularity) and/or performance audit) of a specific entity, inter alia, of the LRT, may be performed when the National Audit Office itself has determined the need for such audit or on the initiative of the Seimas, when the Seimas instructs, by means of its resolution, the National Audit Office to perform a state audit of a specific entity, inter alia, of the LRT.

14.1.2.4. It should be mentioned that, according to Paragraph 2 of Article 13 (wording of 22 December 2005) of the Law on the National Audit Office, a state audit is carried out according to the State Auditing Requirements approved by the Auditor General.

In this context, it should also be mentioned that, by his order (No V-26) of 21 February 2002 on approving the State Audit Requirements, the Auditor General of the Republic of Lithuania approved the State Audit Requirements, which are set out in their new wording by the order (No V-171) of the Auditor General of 28 June 2012 on amending the order (No V-26) of the Auditor General of 21 February 2002 on approving the State Audit Requirements.

The State Audit Requirements (wording of 28 June 2012, as subsequently amended), among other things, detail the objectives of financial (regularity) and performance audits carried out by the National Audit Office. They provide, among other things, that:

the objective of financial (regularity) auditing is to assess the audited entity’s sets of annual (consolidated) financial and budget implementation statements and reports, the national set of statements and reports, and to express an independent opinion as to whether they present a true and fair view or are prepared in accordance with the applicable procedures for financial statements, also to assess the lawfulness of the management, use, and disposal of the audited entity’s funds and property, and the assessment of their use for the purposes set in laws, as well as to express an independent opinion (Item 16);

the objective of performance auditing is to evaluate the public and internal administration of the audited entity in terms of economy, efficiency, and effectiveness (Item 50); economy is understood as the minimal use of resources while maintaining the quality of the product and/or services provided (Item 51 (wording of 20 June 2017)); efficiency is understood as the best ratio between resources used and the product (service) received (in terms of quantity, quality, and time) (Item 52 (wording of 20 June 2017)); effectiveness is understood as a level of the achievement of goals (Item 53 (wording of 20 June 2017)); the objective of a particular audit may be established to evaluate the performance of the audited entity on the basis of one or more approaches (Item 54); the subject of audit is the activities of the audited entity (or entities) or separate parts of the said activities (programme, services, etc.), the management of a particular public sector area (or a system), etc. (Item 57 (wording of 20 June 2017)).

14.2. Summarising from the relevant aspect in this constitutional justice case the legal regulation consolidated in the Law on the National Audit Office, inter alia, Paragraph 4 of Article 2 (wording of 6 November 2014), Paragraph 1 of Article 3, Paragraph 2 of Article 5, Paragraph 1 of Article 9, and Paragraph 1 (wording of 22 December 2005) and Paragraph 5 (wording of 19 November 2009) of Article 14 thereof, it should be noted that the National Audit Office, the supreme state audit institution, which is accountable to the Seimas, either on its own initiative or at the instruction of the Seimas, has the power to carry out the state audit of the LRT – financial (regularity) audit, i.e. the assessment of the lawfulness of the management, use, and disposal of the funds and property of the LRT, and the assessment of their use for the purposes set in laws, and performance audit, i.e. the evaluation of the public and internal administration activities of the LRT in terms of economy, efficiency, and effectiveness; it should be noted that the powers of the National Audit Office, inter alia, when conducting a state audit of the LRT, must be implemented in accordance with the principles of independence, lawfulness, publicity, neutrality, and professionalism.

14.3. In this context, it should be mentioned that, under Paragraph 1 of Article 12 (wording of 22 December 2005) of the Law on the National Audit Office, the officials of the National Audit Office performing a state audit are entitled, among other things, to use experts of appropriate fields and audit companies when carrying out audits of specific areas.

VI

The European standards relating to the independence of public broadcasters and
the regulation of their activities

15. In the course of the examination of this constitutional justice case, mention should be made of the relevant provisions of European Union legislation and documents adopted by the institutions of the Council of Europe.

16. It is worth noting that the European Union (hereinafter also referred to as the EU) recognises the particular importance of freedom of expression in the public sphere. As noted in the European Parliament resolution of 21 May 2013 on the EU Charter: standard settings for media freedom across the EU (hereinafter referred to as the Resolution), freedom of expression in the public sphere has been shown to be formative of democracy and the rule of law itself, and coaxial to its existence and survival (point B of the preamble); the Member States and the EU must respect, guarantee, protect, and promote the fundamental right to freedom of expression and information, as well as media freedom and pluralism, and hence to refrain from exerting threats to media freedom (point 1).

16.1. In this context, the public service media have a specific and exclusive role to play (under the Protocol (No 29) to the Treaty on the Functioning of the European Union on the systems of public broadcasting systems in the Member States (hereinafter referred to as Protocol No 29), also under point 10 of the Resolution, under points 9–10 of the Communication from the Commission on the application of State aid rules to public service broadcasting (hereinafter referred to as the Communication), etc.). In Protocol No 29, the EU has undertaken to implement the system of public broadcasting in the Member States, recognising that the system of public broadcasting in the Member States is directly related to the democratic, social, and cultural needs of each society and to the need to preserve media pluralism (Protocol No 29, point 11 of the Resolution). The EU must ensure namely a dual system, in which private and public service media play their respective roles (point 8 of the Resolution), inter alia, ensuring the unique EU audiovisual landscape, based on a true balance between public service and commercial broadcasters (point E of the preamble to the European Parliament resolution of 25 November 2010 on public service broadcasting in the digital era: the future of the dual system (hereinafter referred to as the Resolution on public service broadcasting in the digital era: the future of the dual system).

16.2. It should be noted that many EU legal acts and other documents recognise the importance of ensuring the financing and independence of a public broadcaster, as, for instance:

it is recognised that safeguards for the independence of broadcasting are of key importance, in line with the general principle of freedom of expression, as embodied in Article 11 of the Charter of Fundamental Rights of the European Union and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention), which is a general principle of law the respect of which is ensured by the European Courts (point 10 of the Communication);

it is underlined that respect for European standards relating to freedom of expression, media pluralism and the independence, remit and funding of public service media should be a priority for all the Member States (point U of the Resolution on public service broadcasting in the digital era: the future of the dual system);

it is recalled that it is necessary to take account of the Council of Europe’s recommendations and declarations, which have been agreed upon by all the EU Member States and lay down European standards relating to freedom of expression, press freedom, media pluralism, and the independence, organisation, remit, and funding of public service media, particularly in the information society, thereby safeguarding the credibility of public service broadcasting (point 17 of the Resolution on public service broadcasting in the digital era: the future of the dual system).

16.3. Thus, the above provisions of EU legislation guarantee freedom of expression and information, media freedom, and pluralism in the EU, among other things, by giving a special role to public service media, inter alia, public broadcasters; therefore, EU Member States should take measures to ensure, inter alia, the independence of public broadcasters; in doing so, they must take into account the relevant European standards that have been disclosed in the documents adopted by the Council of Europe.

17. As regards the documents of the Council of Europe in the context of this constitutional justice case, mention should be made, first of all, of the Convention, Article 10 of which provides:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

In this constitutional justice case, certain provisions of the jurisprudence of the European Court of Human Rights (ECtHR) concerning the principles of the implementation of freedom of expression, as guaranteed in this article of the Convention, are relevant.

17.1. As has been repeatedly emphasised in the ECtHR jurisprudence, there can be no democracy without pluralism; democracy thrives on freedom of expression (e.g. the ECtHR, the judgment of 17 September 2009, Manole and Others v Moldova, no 13936/02, paragraph 95; the judgment of 25 May 1998, Socialist Party and Others v Turkey, no 21237/93, paragraph 41), it constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress (e.g. the ECtHR, the judgment of 8 July 1986, Lingens v Austria, no 9815/82, paragraph 41).

In this context, the audiovisual media have a particular role to play, because the audiovisual media have often a much more immediate and powerful effect than the print media, since the audiovisual media have means of conveying through images meanings which the print media are not able to impart (e.g. the ECtHR, the judgment of 23 September 1994, Jersild v Denmark [GC], no 15890/89, paragraph 31). Therefore, as emphasised by the ECtHR, in disclosing, among other things, the content of freedom of expression, in such a sensitive sector as the audio-visual media, in addition to its negative duty of non-interference the state has a positive obligation to put in place an appropriate legislative and administrative framework to guarantee effective pluralism (the ECtHR, the judgment of 7 June 2012, Centro Europa 7 S.r.l and Di Stefano v Italy [GC], no 38433/09, paragraph 134).

17.2. In disclosing the content of freedom of expression where a state does decide to create a public broadcasting system, the ECtHR stressed, among other things, the need for domestic law and practice to guarantee that the system provides a pluralistic service, including the transmission of impartial, independent, and balanced news, information and comment, and the provision of a forum for public discussion in which as broad a spectrum as possible of views and opinions can be expressed (Manole and Others v Moldova, paragraph 101). In this context, revealing, inter alia, the role of a public broadcaster, the ECtHR has also taken into account the standards of public service broadcasting disclosed in documents of the Committee of Ministers of the Council of Europe, inter alia, the standards consolidated in Resolution No 1 on the future of public service broadcasting, which was adopted at the Fourth European Ministerial Conference on Mass Media Policy in Prague on 7–8 December 1994, Recommendation No R(96)10 of the Committee of Ministers of the Council of Europe on the guarantee of the independence of public service broadcasting, which was adopted on 11 September 1996, and the Declaration of the Committee of Ministers of the Council of Europe on Public Service Media Governance, which was adopted on 15 February 2012 (Manole and Others v Moldova, paragraphs 51, 52, 54, and 102).

18. In this constitutional justice case, the provisions of some of the documents adopted by the Committee of Ministers of the Council of Europe are relevant.

18.1. At the Fourth European Ministerial Conference on Mass Media Policy, which took place on 7–8 December 1994, the Committee of Ministers of the Council of Europe adopted, among other things, Resolution No 1 on the future of public service broadcasting (hereinafter referred to as the Resolution on the future of public service broadcasting).

The Resolution on the future of public service broadcasting was adopted, inter alia, by acknowledging that public service broadcasting, both radio and television, support the values underlying the political, legal, and social structures of democratic societies, and in particular respect for human rights, culture, and political pluralism.

The Resolution on the future of public service broadcasting noted the commitment of the participating States to ensure the independence of public broadcasters from political and economic interference. In this context, it is particularly important that day-to-day management and editorial responsibility for programme schedules and the content of programmes must be a matter entirely for the broadcasters themselves. The Resolution on the future of public broadcasting services stressed that the control and accountability of public service broadcasters, especially as regards the discharge of their missions and use of their resources, must be guaranteed by appropriate means. Public service broadcasters must be directly accountable to the public, among other things, they should regularly publish information on their activities and develop procedures for allowing viewers and listeners to comment on the way in which they carry out their missions.

Thus, the Resolution on the future of public service broadcasting emphasises the particular role of public service broadcasters in a democratic society and recognises the necessity to ensure their independence and accountability to the public.

18.2. On 11 September 1996, the Committee of Ministers of the Council of Europe adopted Recommendation No R(96)10 on the guarantee of the independence of public service broadcasting (hereinafter referred to as the Recommendation on the guarantee of the independence of public service broadcasting).

This recommendation was adopted taking into account, among others, the fact that public service broadcasting is an essential factor of pluralistic communication, which is accessible to everyone at both national and regional levels, and that the independence of public service broadcasting should be guaranteed expressly at the national level by means of a body of rules dealing with all aspects of its functioning. In this recommendation, the Committee of Ministers of the Council of Europe, inter alia, recommended that the Member States include in their domestic law or in instruments governing public service broadcasting organisations provisions guaranteeing their independence in accordance with the guidelines set out in this recommendation.

18.2.1. According to the appendix to the Recommendation on the guarantee of the independence of public service broadcasting, titled “Guidelines on the guarantee of the independence of public service broadcasting” (hereinafter referred to as the Guidelines), which lay down requirements for the legal framework governing public service broadcasting organisations:

the legal framework should clearly stipulate the editorial independence and institutional autonomy of public broadcasters, and should clearly define the provisions relating to their responsibility and supervision; their programming activities must not be subject to any form of censorship and no a priori control of their activities may be exercised by external persons or bodies (except in exceptional cases provided for by law) (Chapter I “General provisions”);

the legal framework governing public service broadcasting organisations should define clearly and precisely the competences of their supervisory bodies; these bodies should not exercise any a priori control over programming (Part 1 “Competences” of Chapter III “Supervisory bodies of public service broadcasting organisations”);

the rules governing the status of the supervisory bodies of public service broadcasting organisations should be defined in a way which avoids placing the bodies at risk of political or other interference; these rules should therefore guarantee, among other things, that the members of the supervisory bodies: are appointed in an open and pluralistic manner; represent collectively the interests of society in general; may not receive any mandate or take any instructions from any person or body other than the one which appointed them; may not, directly or indirectly, exercise functions, receive payment or hold interests in enterprises or other organisations in media or media-related sectors (Part 2 “Status” of Chapter III “Supervisory bodies of public service broadcasting organisations”).

18.2.2. When disclosing the content of the principles formulated in the Guidelines, the provisions of the explanatory memorandum detailing the principles formulated in the Guidelines are also important. Mention should be made of the following provisions of the said memorandum that are relevant to this constitutional justice case:

the Guidelines require the principles of editorial independence and institutional autonomy of public service broadcasting organisations to be explicitly embodied in the legal framework governing these organisations; editorial independence means the right of public service broadcasting organisations to determine the content of their programmes freely and without interference from any external authority, within the limits prescribed by law or other rules in order to safeguard legitimate rights and interests, as well as to determine the content and timing of the programmes, the persons taking part in them, etc. (point 9); editorial independence implies that no external authority whether public or private may interfere with the day-to-day running of public service broadcasting organisations (point 10); editorial independence goes hand in hand with the institutional autonomy of public service broadcasting organisations, i.e. the right of such bodies freely to organise and administer their activities, within the limits prescribed by law or other rules concerning in particular the responsibilities of their management and supervision bodies; needless to say, the institutional autonomy of public service broadcasting organisations does not mean that their structures and operating arrangements cannot be reviewed by the public authorities, e.g. in order to rationalise their activities, provided that any such changes comply with the principles set forth in the various guidelines (point 11); the various areas encompassed by the principle of institutional autonomy form a whole, each part of which is inseparable from the rest; otherwise, broadcasters’ institutional autonomy and editorial independence could be rendered ineffective by indirect interference in their activities; thus, the freedom of broadcasting organisations to settle their own programming and to devise and produce their own programmes could be challenged in practice even where explicitly upheld by the statutes governing their operation, unless these also defined the principles of independent financial management and full legal capacity (point 13);

the editorial independence and administrative autonomy of public service broadcasting organisations do not mean that these organisations need not answer for the way in which they accomplish their missions and use the resources allocated to them for this purpose; thus the boards of their management, which are solely responsible for the day-to-day operation of these organisations, are accountable for the performance of their functions to their own supervisory bodies (point 14); besides this internal supervision, public service broadcasting organisations must be amenable to the courts, particularly for infringements of various legitimate rights which may occur during their programmes, and, in addition, they may in certain circumstances be accountable for the conduct of their activities not only before the courts but also to other external authorities provided that these are independent authorities (they may for instance be subject to supervision by regulatory bodies in the broadcasting sector); likewise, the financial management situation of public service broadcasting organisations may undergo review by specialised authorities or courts as to the use of the public funds allocated (point 15); the grounds and the procedures for invoking the accountability of public service broadcasting organisations must be clearly specified by the statutes governing their operation (point 16); as to the grounds on which public service broadcasting organisations may be held accountable for the content of the programmes broadcast, reference should be made to Article 10 of the Convention (point 17); public service broadcasters must be directly accountable to the public (point 18);

the instruments governing the operation of public service broadcasting organisations should clearly and accurately define the competences of their supervisory bodies (point 32); the supervisory bodies of public service broadcasting organisations may vary in their nature, being either external (parliamentary commissions, broadcasting sector regulating agencies), internal (public service broadcasting organisation superintending boards) or a combination of both; their actual composition and the manner of their appointment may also vary considerably; however, in all cases the rules governing the status of the supervisory bodies should be defined so as to avoid them being subject to any political or other interference (point 37); the members of the supervisory bodies of public service broadcasting organisations should be appointed in a transparent and pluralist manner, the supervisory bodies must comprise representatives of various groups (points 38 and 39).

18.2.3. Thus, according to the Recommendation on the guarantee of the independence of public service broadcasting, the Guidelines, and the explanatory memorandum, the independence of a public broadcaster, which means, inter alia, its editorial independence and institutional autonomy, must also be ensured by legally regulating all aspects of the activity of a public broadcaster, including its responsibility and supervision, as well as the competence of the supervising bodies; however, this does not preclude the public authorities from reviewing the structure or operation arrangements of a public broadcaster, provided that other principles are respected, nor does it imply that a public broadcaster is not responsible for how it fulfils its mission and uses the resources allocated to implement it; such responsibility of public broadcasters include, inter alia, their internal responsibility (to their own supervisory authorities) and external responsibility to independent external entities, as well as accountability to the public; the procedure for supervising the activities of public broadcasters must be laid down in such a way as to clearly and accurately define the competencies of their supervisory bodies and to guarantee the independence of the public broadcasters, inter alia, by creating the preconditions for avoiding any political or other interference in their activities.

18.3. On 27 September 2006, the Committee of Ministers of the Council of Ministers adopted a “Declaration on the guarantee of the independence of public service broadcasting in the member states” (hereinafter referred to as the Declaration on the guarantee of the independence of public service broadcasting in the member states), in which, among other things, it once again called on member states to provide the legal, political, financial, technical, and other means necessary to ensure genuine editorial independence and institutional autonomy of public service broadcasting organisations, so as to remove any risk of political or economic interference.

The appendix to that declaration, reviewing, among other things, the state of public broadcasting independence in the Member States existing at that time in terms of the openness, transparency, and accountability of public service broadcasters, notes that they are relatively open and transparent in most Member States. Many public service broadcasters regularly publish information on their activities, and some are required by law to publish an annual report on their activities or submit such a report to the parliament; this ensures the desired public control. However, in some cases, sufficient openness, transparency and accountability of the public broadcaster to the public (in the broad sense) as to how it implements its mission and uses the public resources available to it are not ensured. Furthermore, despite the public broadcaster’s obligation to submit an annual report on its activities to the national parliament, such a report is rarely carefully considered and rarely genuinely debated.

Thus, according to the Declaration on the guarantee of the independence of public service broadcasting in the Member States and its annex, when ensuring the editorial independence and institutional autonomy of the public broadcaster, not fake, but genuine openness and transparency of the public broadcaster and its accountability to the public must be ensured simultaneously. One of the possible means of ensuring genuine, but not fake, openness and transparency of the public broadcaster and its accountability to the public is the submission of its annual activity report to the parliament for consideration, which must consider it fully and comprehensibly.

18.4. On 15 February 2012, the Committee of Ministers of the Council of Europe adopted the Declaration on Public Service Media Governance (hereinafter referred to as the Declaration on public service media governance), which emphasised, among other things, the obligation of public service media to uphold democratic values and promote their variety, repeated the commitment of the Member States to support the mission, editorial independence, and institutional autonomy of public service media, and called for dialogue at all levels with all parties concerned, including the public at large.

18.5. On 15 February 2012, the Committee of Ministers of the Council of Europe adopted Recommendation CM/Rec(2012)1 on public service media governance (hereinafter referred to as the Recommendation on public service media governance) together with the Declaration on public service media governance.

This recommendation was adopted taking into account, among other things, the fact that public service media need to operate and evolve within a sustainable governance framework, which secures both the necessary editorial independence and public accountability. By means of this recommendation, the Committee of Ministers of the Council of Europe recommended that the Member States, among other things, further strengthen and, where necessary, enhance the appropriate legal and financial environment, thereby guaranteeing the independence and sustainable development of public service media.

18.5.1. Mention should be made of the following provisions of the Guiding Principles for public service media governance, which are appended to the Recommendation on public service media governance (hereinafter referred to as the Guiding Principles) and which are relevant to this constitutional justice case:

ensuring proper level of independence from the state is one of the challenges facing public service media across Europe (point 1); the first priority for public service media must be to ensure, among other things, that their activities reflect and ensure editorial and operational independence (point 2);

it is vitally important that the Member States review, and where necessary strengthen, the external governance arrangements for public service media designed to guarantee editorial and operational independence as well as appropriate funding; this should be accompanied by a matching obligation for public service media themselves to assess the adequacy of their internal governance arrangements (point 13);

public service media may take into account, among other things, whether principles such as independence, accountability, effective management, transparency, and openness, as well as responsiveness and responsibility are ensured when assessing their internal governance structure (point 17);

while it inevitably remains the state’s responsibility to set both the method and the level of funding, it is nevertheless imperative that the system should be so designed that it cannot be used to exert influence on the content or threaten institutional autonomy (either of which would undermine the editorial independence of the public service media) (point 26);

public service media are ultimately, and fundamentally, accountable to the public; in this respect, the public is composed of a wide range of entities: the public as represented by the state, inter alia, through parliament, as well as other independent regulatory and supervisory bodies; the public directly as audience and as citizens; the public as represented by civil society groups as well as wider communities of interest (point 28); the precise nature of this accountability will necessarily differ between countries (point 29); however, any accountability framework should offer clear answers to the four questions: to whom are accountable public service media, for what are they accountable, how are they held accountable, and when are they held accountable (point 30).

18.5.2. Thus, the Recommendation on public service media governance and the Guiding Principles underline the importance of ensuring the independence of the public broadcaster from the state, inter alia, when establishing its governance structure, which, among others, must be such as to ensure, inter alia, accountability, effective management, transparency, openness, and responsibility, as well as when establishing the system for financing the public broadcaster; at the same time, the need to ensure the accountability of the public service broadcaster to the public is stressed.

19. In the context of this constitutional justice case, mention should be made of the provisions of the instruments adopted by the European Commission for Democracy through Law (hereinafter referred to as the Venice Commission), acting as an advisory body to the Council of Europe on constitutional matters, which are relevant to this constitutional justice case.

The Venice Commission, when revealing, inter alia, the characteristics of the status of the public broadcaster, has stated that:

public broadcasting is a public service; public broadcasters have certain obligations (for instance, the provision of a universal service, the provision of a wide range of quality programmes), and, in return, they enjoy a privileged access to resources and facilities; public service broadcasting must be free from the constraining forces of the state and, on the other hand, enjoy autonomy and independence from the market place; public service broadcasting is typically universal in terms of content and access, it guarantees editorial independence and impartiality, it provides a benchmark of quality, it offers a variety of programmes and services catering for the needs of all groups in society and is publicly accountable (Opinion on the compatibility of certain Italian laws with the Council of Europe standards in the field of freedom of expression and pluralism of the media, adopted by the Venice Commission at its 63rd Plenary Session on 10–11 June 2005);

there is no common European model of public media sector governance (Opinion on media legislation of Hungary, adopted by the Venice Commission at its 103rd Plenary Session on 19–20 June 2015);

one of the most typical features of the public broadcasting service is that it should operate independently of those holding economic and political power (Opinion on the compatibility of certain Italian laws with the Council of Europe standards in the field of freedom of expression and pluralism of the media, adopted by the Venice Commission at its 63rd Plenary Session on 10–11 June 2005).

VII

The provisions of the Constitution and the official constitutional doctrine

20. In this constitutional justice case, the Constitutional Court investigates whether Article 1 of the resolution of the Seimas of 12 January 2018, insofar as, on the basis of that article, the Commission mandated with carrying out a parliamentary investigation into the management of the LRT and into its financial and economic activities was established, is in conflict with Article 25 of the Constitution and the constitutional principle of a state under the rule of law.

21. The Constitutional Court has developed a broad official constitutional doctrine of ad hoc investigation commissions of the Seimas.

21.1. Under the Constitution, the Seimas is the representation of the People (inter alia, the Constitutional Court’s rulings of 30 December 2003 and 13 May 2004). The constitutional nature of the Seimas as the representation of the People determines its special place in the system of the institutions of the branches of state power, its functions, as well as the powers necessary to perform these functions (the Constitutional Court’s rulings of 13 May 2004, 1 July 2004, and 29 June 2018).

It should be noted that, according to the Constitution, each member of the Seimas represents the whole of the People (the Constitutional Court’s ruling of 25 January 2001); under the Constitution, a member of the Seimas is not a representative at the Seimas of political parties or political organisations, public or other organisations, interest groups, territorial communities or the voters of the constituency in which he/she was elected, but represents the whole of the People (the Constitutional Court’s ruling of 1 July 2004 and its conclusion of 22 December 2017).

It should be mentioned that, as the Constitutional Court stated in its ruling of 27 May 2014, the Seimas, in its nature and essence, is a political institution, whose decisions reflect the political will of the majority of the members of the Seimas and are based on political arrangements and compromises.

21.2. The Constitutional Court has held that, in the exercise of its constitutional powers, the Seimas fulfils the classical functions of the parliament of a democratic state under the rule of law: it passes laws (the legislative function), carries out parliamentary control over executive and other state institutions (except the courts) (the control function), establishes state institutions, appoints (and releases) their heads and other state officials (the founding function), approves the state budget and supervises its execution (the budgetary function), etc. (inter alia, the Constitutional Court’s ruling of 13 May 2004, its conclusion of 3 June 2014, and its ruling of 30 December 2015). The said functions of the Seimas as the representation of the People of a democratic state under the rule of law are constitutional values; under the Constitution, the legislature and other law-making entities may not establish any such legal regulation that would deny the said constitutional functions of the Seimas or would restrict the possibilities of performing them, since thereby the Seimas, the representation of the People, would be hindered from effective functioning in the interests of the People and the State of Lithuania (inter alia, the Constitutional Court’s rulings of 13 May 2004 and 13 May 2010, as well as its decision of 16 January 2014).

21.3. In the context of this constitutional justice case, it should be mentioned that, Item 14 of Article 67 of the Constitution prescribes that the Seimas, inter alia, supervises the execution of the state budget. In its ruling of 13 May 2004, the Constitutional Court held that this provision of Item 14 of Article 67 of the Constitution is concretised in Item 4 of Article 94 of the Constitution, which, inter alia, provides that the Government submits to the Seimas a report on the execution of the budget; thus, under the Constitution, the Seimas has the powers to approve this report.

It should be noted that, under the Constitution, the Government has the exceptional powers to execute the state budget (Item 4 of Article 94). As noted in the Constitutional Court’s ruling of 14 January 2002, the provision of Item 4 of Article 94 of the Constitution, whereby the Government executes the state budget, means that the Government has the duty to ensure that the state budget receives the specified revenue and that these funds are transferred to the entities specified in the law on the state budget. It is noted that, according to the Constitution, the Seimas exercises parliamentary control over the Government (the Constitutional Court’s ruling of 24 December 2002).

Thus, the power of the Seimas, enshrined in Item 14 of Article 67 of the Constitution, to supervise the execution of the state budget means not only that the Seimas, pursuant to Item 4 of Article 94 of the Constitution, approves a report on the execution of the budget, but also that the Seimas supervises the execution of the state budget by means of the forms of the parliamentary control of the Government, which are established by the Constitution.

In this context, it should be noted that the National Audit Office is a state institution exercising economic and financial control, which supervises the lawfulness of the possession and use of state-owned property and the execution of the state budget; it is accountable directly to the Seimas, which exercises parliamentary control over this institution (the Constitutional Court’s ruling of 6 December 1995). Thus, the power of the Seimas, enshrined in Item 14 of Article 67 of the Constitution, to supervise the execution of the state budget also means that the Seimas supervises the execution of the state budget by means of the forms of parliamentary control through the State Audit Office, which are established by the Constitution.

It should also be noted that, in exercising its power under Item 14 of Article 67 of the Constitution to supervise the execution of the state budget, the Seimas, while having regard to the Constitution, inter alia, to the principles of responsible governance and a state under the rule of law, which are entrenched in it, may also exercise parliamentary control over the institutions that have been founded by means of laws, are accountable to the Seimas, and are independent managers of state budget appropriations.

21.4. It should be noted that the constitutional functions of the Seimas and the powers of the Seimas consolidated in the Constitution presuppose the powers of the Seimas to seek the exhaustive and objective information needed to adopt particular decisions in every case when it becomes necessary to decide a certain question that falls under the constitutional competence of the Seimas; if necessary, the Seimas may carry out its own investigations in order to have exhaustive and objective information about the processes taking place in the state and society, as well as about the situation in various areas of the life of the state and society and arising problems; In the practice of the parliaments of democratic states under the rule of law, the opportunity of parliaments to take measures in order to receive the said information is also implemented by means of such institutions as ad hoc commissions (which are tasked with carrying out certain research) formed by parliaments, parliamentary hearings and deliberations, etc. (the Constitutional Court’s ruling of 4 April 2006).

21.4.1. In this context, it should be noted that, under Article 76 of the Constitution, the structure and procedure of activities of the Seimas are established by the Statute of the Seimas.

In its ruling of 13 May 2004, in disclosing the powers of the Seimas, which arise from the Constitution, inter alia, Article 76 thereof, to establish its own structure, the Constitutional Court held, among other things, that:

the Seimas, while having regard to the Constitution, has the right to decide the questions of the formation of its own structural units and those of their competence and organisation of their work; no other state institution may interfere with these constitutional powers of the Seimas;

the Seimas has the constitutional power to set up, inter alia, such structural units that are tasked only with investigating or resolving a particular issue (or particular issues) and that terminate their activity after they have investigated or resolved the said issue (or issues), i.e. the Seimas has the constitutional power to set up ad hoc structural units; thus, the Seimas has discretion in setting up its own structural units, which are entrusted with the task of carrying out an investigation in order to gather information about the processes taking place in the state and society, as well as about the situation in various areas of the life of the state and society and arising problems.

21.4.2. As the Constitutional Court has held in its ruling of 4 April 2006, under the Constitution, it is not permitted to establish any exhaustive (final) list of questions for the investigation of which the Seimas may form ad hoc investigation commissions: since the Seimas, as the representation of the People and the institution of legislation (performing, as mentioned above, not only the legislative but also various other functions), may pass laws and other legal acts regulating the widest possible range of social relationships, it can virtually set up ad hoc investigation commissions to investigate the widest possible range of processes taking place in the state and society.

21.4.2.1. It should be noted in this context that the Constitutional Court, having regard to the principle of responsible governance enshrined in the Constitution, has noted that the Constitution does not imply any such activities of the Seimas where the Seimas itself collects all information necessary for legislation and other functions of the Seimas, without relying on the information submitted to it by other state institutions, and where the activities of the Seimas are dominated by the setting up of ad hoc or similar commissions and investigation performed by them; quite to the contrary, the Constitution implies the institution of ad hoc investigation commissions of the Seimas and the legal regulation governing the setting up of such commissions and their activities where the said ad hoc investigation commissions are set up not in order to investigate any, but only special questions, i.e. those of state importance; the powers of ad hoc investigation commissions of the Seimas should be related to the constitutional mission and functions of the Seimas (the Constitutional Court’s ruling of 4 April 2006 and its decision of 21 November 2006).

The Constitutional Court also noted in its decision of 21 November 2006 that the Constitution also enshrines parliamentary democracy; however, parliamentary democracy is not “the convent rule”, it is not a system where the parliament directly organises the work of other state or municipal institutions or may, at any time, interfere with the activities of any state or municipal institutions (their officials) that implement public power; nor is parliamentary democracy a system where the parliament, at the slightest pretext, may exert control over any decisions of such institutions (their officials), initiate the application of sanctions against certain persons, let alone itself adopt decisions for the state or municipal institutions (their officials) that have particular competence, i.e. adopt such decisions that can be adopted only by the state institutions (their officials) that have particular competence, for example, the courts, the National Audit Office; a different interpretation of the provisions of the Constitution that consolidate the control function performed by the Seimas (inter alia, the provisions substantiating the possibility of forming provisional investigation commissions of the Seimas) would unavoidably deny the constitutional principles of responsible governance, of the separation of powers, of a state under the rule of law, and of democracy, as well as the striving for an open, harmonious, and just civil society, as proclaimed in the Preamble to the Constitution; such a different interpretation would create the preconditions for instability in the governance of the state and in the management of public affairs, as well as the preconditions for violating the rights and freedoms, as well as the legitimate interests and legitimate expectations of a person, and for violating other values consolidated in, and defended and protected by, the Constitution.

21.4.2.2. In its ruling of 13 May 2004, when revealing the restrictions, arising from the Constitution, on the discretion of the Seimas to set up ad hoc investigation commissions, the Constitutional Court held that, under the Constitution, the Seimas does not have the power to establish such ad hoc investigation commissions that would be tasked with:

an investigation into such matters that institutions of public power, under the Constitution, may not investigate at all (as, for example, the circumstances of the private or family life of an individual if such an investigation unreasonably, from the constitutional point of view, interferes with his/her private life, which is defended and protected under the Constitution, if the inviolability of private life is violated, etc.);

an investigation into the matters in the course of the investigation of which the powers of other institutions that exercise public power, as well as the powers of other state and municipal institutions provided for in the Constitution and/or laws, would be interfered with; for instance, an ad hoc investigation commission of the Seimas cannot take over the constitutional powers of the courts or otherwise interfere with the implementation of the constitutional competence of the courts, nor may it itself administer justice; an ad hoc investigation commission of the Seimas may not take over the constitutional powers of the prosecutors or otherwise interfere in the exercise of the constitutional competence of the prosecutors.

Thus, as the Constitutional Court pointed out in its decision of 21 November 2006, the provisions of the Constitution imply the possibility of establishing by law broad powers of ad hoc investigation commissions of the Seimas; however, they also consolidate certain limits on the investigation activity of ad hoc investigation commissions of the Seimas; the said limits may not be expanded by means of laws or other legal acts. In the said decision, the Constitutional Court emphasised that the Constitution demands, in an imperative manner, the establishment of such a legal regulation – first of all, a regulation established by law – that, on the one hand, would ensure the activity of ad hoc investigation commissions of the Seimas that are commissioned by the Seimas, the representation of the People, to conduct an investigation in order to collect information about certain processes taking place in the state and society, about the situation in various spheres of the life of the state and society and arising problems, and would thus also ensure the performance of the control function by the Seimas (parliamentary control), consequently, would ensure that there are no spheres in the life of the state in which the Seimas, the representation of the People, is prevented from exercising, by paying regard to the Constitution, parliamentary control (provided there is a special matter (of state importance)), and, on the other hand, would ensure that no harm would be inflicted on any values entrenched in, and defended and protected by, the Constitution if ad hoc investigation commissions of the Seimas are formed for an investigation into such matters that, under the Constitution, cannot be investigated by the institutions of public power at all (for instance, the circumstances of the private or family life of an individual if such an investigation unreasonably, from the constitutional point of view, interferes with the private life of an individual, which is defended and protected under the Constitution, if the inviolability of private life is violated, etc.), or any such matters in the course of the investigation of which the powers of other state and municipal institutions (their officials) (inter alia, the powers of the courts and the prosecutors), which are provided for in the Constitution, would be interfered with. Consequently, as the Constitutional Court held in its decision of 21 November 2006, the legal regulation established in laws and other legal acts must be such that would ensure a rational balance between these two imperatives, which arise from the Constitution, and would ensure that none of the said imperatives would be ignored or sacrificed for another.

21.4.2.3. Revealing the particularities of the implementation of the relevant powers of the Seimas resulting from the restrictions on the discretion of the Seimas to set up ad hoc investigation commissions, the Constitutional Court stated in its ruling of 4 April 2006 that, in each particular case, the Seimas, before deciding on the establishment of an ad hoc investigation commission of the Seimas, must consider and assess whether, under the Constitution and laws, such an ad hoc investigation commission of the Seimas may be set up. Thus, as the Constitutional Court noted in the said ruling, the Seimas:

must deliberate and assess, inter alia: whether the issue due to which the establishment of an ad hoc investigation commission of the Seimas is proposed is really of state importance; whether it is proposed that the said ad hoc investigation commission of the Seimas be tasked with an investigation into such matters that the institutions of public power may not investigate at all under the Constitution; whether it is proposed that this ad hoc investigation commission of the Seimas be tasked with an investigation into the matters in the course of the investigation of which the powers of other institutions that exercise public power, as well as the powers of other state and municipal institutions provided for in the Constitution and/or laws, would be interfered with;

before deciding on the formation of an ad hoc investigation commission, may also assess (inter alia, also from the aspect of expediency) whether there are any circumstances that would justify the non-forming of such a commission, as, for instance, whether a relevant question has already been investigated or whether it is under investigation by an ad hoc investigation commission of the Seimas or by another institution, whether particular work may be performed by a structural unit of the Seimas that is already established and is operational, etc.

21.4.3. In the context of this constitutional justice case, it needs to be noted that, under the Constitution, inter alia, Article 76 thereof, the Seimas may, so as to collect the necessary exhaustive and objective information in order to fulfil its constitutional powers, set up ad hoc structural units – ad hoc investigation commissions – and instruct them to carry out the relevant investigation; having regard to the constitutional principles of responsible governance, the separation of powers, a state under the rule of law, and democracy, as well as the striving for an open, harmonious, and just civil society, which is stated in the Preamble to the Constitution, ad hoc investigation commissions of the Seimas, under the Constitution, may be established for examining not any issues, but only special issues, i.e. issues of state importance. The Constitution therefore requires the Seimas to establish, when setting up an ad hoc investigation commission of the Seimas, only such issues of state importance the investigation of which is entrusted to this commission and only such limits of the investigation so that this investigation carried out by the commission does not harm any of the values enshrined in, and protected and defended by, the Constitution, and that the powers, enshrined in the Constitution and/or laws, of other state and municipal institutions are not taken over or any other form of interference is prevented in the exercise of their competences established in the Constitution and/or laws, inter alia, so that such decisions are not drafted that may be adopted under the Constitution and/or laws only by state or municipal institutions (or their officials) with the appropriate competence.

22. In the context of this constitutional justice case, it should be noted that Chapter XII of the Constitution enshrines the institution of national audit.

Paragraph 1 of Article 134 of the Constitution provides that the National Audit Office supervises the lawfulness of the possession and use of state-owned property and the execution of the state budget.

22.1. As stated by the Constitutional Court in its ruling of 6 December 1995, under the Constitution, the National Audit Office is an institution of economic and financial control supervising the execution of the state budget; it is accountable directly to the Seimas, which exercises parliamentary control over this institution; to enable the National Audit Office to objectively fulfil all functions vested in it, the independence of this institution must be safeguarded.

In its ruling of 30 September 2003, the Constitutional Court stated that state-owned property is not an objective in itself, it should benefit society; while acting in the interests of society, state institutions must serve the common good of the people; according to Paragraph 1 of Article 134 of the Constitution, state-owned property must be possessed and used lawfully; this is supervised by the National Audit Office. In this context, the Constitutional Court also held that the provision of Paragraph 2 of Article 23 of the Constitution, under which the rights of ownership are protected by law, also means that laws must protect the rights of all owners; thus, laws must also protect the right of ownership of the state as the organisation of all society; the striving for an open, harmonious, and just civil society, which is consolidated in the Preamble to the Constitution, the constitutional principle that ownership includes obligations, Paragraph 2 of Article 23 of the Constitution, under which the rights of ownership are protected by law, the provision of Paragraph 2 of Article 128 of the Constitution, whereby the procedure concerning the possession, use, and disposal of state-owned property is established by law, as well as other provisions of the Constitution, give rise to the requirement that state-owned property must be used sparingly and not wasted; such property must be managed rationally.

22.2. Thus, Paragraph 1 of Article 134 of the Constitution, according to which the National Audit Office supervises the lawfulness of the possession and use of state-owned property and the execution of the state budget, interpreted in the context of the other provisions of the Constitution, inter alia, Paragraph 2 of Article 23 and Paragraph 2 of Article 128 thereof, gives rise to the power of the National Audit Office to verify the lawfulness and effective use of state-owned property, inter alia, state budget funds, i.e. whether it is used to serve the general good of the people, inter alia, whether it is used sparingly and not wasted, and whether it is managed rationally and effectively. In other words, under Paragraph 1 of Article 134 of the Constitution, the National Audit Office has the power to conduct a state audit, i.e. to inspect state assets, inter alia, state budget appropriations, the activities of the managing and using entities, inter alia, in terms of economy, efficiency, and effectiveness, including assessing the lawfulness of the management and use of state assets, as well as, inter alia, the compliance of the management and use of state assets with the objectives set in the Constitution and/or laws.

22.3. It should be noted that the constitutional mission of the National Audit Office, the constitutional principles of a state under the rule of law and the separation of powers imply the constitutional requirement for the National Audit Office to exercise its powers (inter alia, to conduct a state audit), arising from Paragraph 1 of Article 134 of the Constitution, independently from other state authorities, inter alia, from the Seimas, the President of the Republic, or the Government. Therefore, the fact that, under the Constitution, the National Audit Office is accountable to the Seimas does not mean that the Seimas may, inter alia, by exercising parliamentary control over the National Audit Office, take over the constitutional powers of the National Audit Office or otherwise interfere in their implementation, inter alia, even if it entrusts the National Audit Office with the task of carrying out state audits of entities managing and using state assets, inter alia, state budget appropriations.

23. As mentioned above, in this constitutional justice case, the petitioner questions the compliance of Article 1 of the resolution of the Seimas of 12 January 2018, insofar as, on the basis of that article, the Commission mandated with carrying out a parliamentary investigation into the management of the LRT and into its financial and economic activities was established, with, inter alia, Article 25 of the Constitution.

23.1. Article 25 of the Constitution prescribes:

Everyone shall have the right to have his own convictions and freely express them.

No one must be hindered from seeking, receiving, or imparting information and ideas.

The freedom to express convictions, as well as to receive and impart information, may not be limited otherwise than by law when this is necessary to protect human health, honour or dignity, private life, or morals, or to defend the constitutional order.

The freedom to express convictions and to impart information shall be incompatible with criminal actions – incitement to national, racial, religious, or social hatred, incitement to violence or to discrimination, as well as defamation and disinformation.

Citizens shall have the right to receive, according to the procedure established by law, any information held about them by state institutions.”

As stated by the Constitutional Court in its ruling of 19 September 2005, the provisions of Article 25 of the Constitution constitute the constitutional basis for freedom of information; they are all interrelated and supplement each other; constitutional freedom of information is inseparable from constitutional freedom of convictions and of their expression, and is a condition of the latter. Thus, the provisions of Article 25 of the Constitution, which enshrine the human right to have one’s own convictions and freely express them (freedom of convictions and their expression) and the freedom to seek, receive, or impart information and ideas (freedom of information), which in turn are also directly linked to each other, imply that all paragraphs of Article 25 of the Constitution are interrelated and must be interpreted in conjunction with one another.

23.1.1. When interpreting the content of freedom of information, which is entrenched in the Constitution, as innate freedom of an individual, the Constitutional Court has held that this freedom is one of the grounds of an open, fair, and harmonious civil society and a democratic state, and an important precondition for implementing various rights and freedoms of a person, which are consolidated in the Constitution, since a person can implement most of his/her constitutional rights and freedoms in a fully fledged manner only if he/she has the right to seek, receive, or impart information unhindered; the Constitution guarantees and protects the interest of the public to be informed, inter alia, it guarantees and protects freedom of the mass media (the Constitutional Court’s rulings of 23 October 2002 and 26 January 2004); Article 25 of the Constitution and other provisions of the Constitution consolidating and guaranteeing the freedom of an individual to seek, receive, or impart information give rise to freedom of the mass media (the Constitutional Court’s ruling of 23 October 2002).

In this context, it needs to be stressed that, under the Constitution, Lithuania is a pluralistic democracy (the Constitutional Court’s ruling of 21 December 2006). Freedom of the mass media, which is enshrined in the Constitution, inter alia, in Article 25 thereof, is one of the foundations of a pluralistic democracy.

23.1.2. Revealing the content of freedom of the mass media, which is enshrined in the Constitution, it should be noted that the provisions of Article 25 of the Constitution, when interpreted together with the provisions of Paragraph 1 of Article 46 of the Constitution and other provisions of the Constitution, also express the constitutional principle of the variety of sources of public information (the Constitutional Court’s ruling of 21 December 2006). The interest of society to be informed (which is guaranteed and protected under the Constitution) and constitutional freedom of information can be ensured only when various types of the mass media function freely (which does not mean that without any restrictions) in the state; a mature and developed system of the mass media is a necessary condition for ensuring the interest of the public, i.e. the interest of society, to be informed (inter alia, the Constitutional Court’s rulings of 23 October 2002, 4 March 2003, and 21 December 2006).

It needs to be noted from the aspect relevant to this constitutional justice case that the Constitution implies that various broadcasters must operate in the radio and television broadcasting services market (the Constitutional Court’s ruling of 21 December 2006).

23.1.3. It follows from the Constitution that the legislature has the duty to establish by law the guarantees of freedom of the mass media (inter alia, the Constitutional Court’s rulings of 23 October 2002, 4 March 2003, and 21 December 2006).

In its ruling of 21 December 2006, the Constitutional Court held that the interest of the public to be informed, which is guaranteed and protected by the Constitution, implies relevant constitutional obligations for the state. The state (its institutions and officials) has not only the duty of negative content not to hinder the free flow of information and ideas, but also the duty of positive content to take all necessary measures so that other persons would not hinder the said flow; in this context, it should be emphasised that Article 44 of the Constitution provides that censorship of mass information is prohibited (Paragraph 1) and that the state, political parties, political or public organisations, or other institutions or persons may not monopolise the mass media (Paragraph 2) (the Constitutional Court’s ruling of 21 December 2006).

It should also be stressed that the state (which is consolidated in the Constitution as the common good of all society) is under the constitutional obligation to take measures (positive activity) itself (through its institutions) in order to inform the public about the most important processes taking place in society and the state so that citizens (and other residents) would receive as accurate information as possible about the things that they should know, that citizens could participate in the adoption of decisions of state importance, that people could participate in the adoption of other decisions related to managing public affairs, as well as decisions related to the implementation of their rights and freedoms; otherwise, preconditions would be created to violate not only the rights of the individual, but also other values enshrined in, and defended and protected by, the Constitution (the Constitutional Court’s ruling of 21 December 2006).

23.1.4. As regards restrictions on freedom of the mass media under the Constitution, it needs to be noted that, as the Constitutional Court has repeatedly held, freedom of information is not absolute, its limits are defined in the Constitution. The provision of Paragraph 2 of Article 25 of the Constitution that no one must be hindered from seeking, receiving, or imparting information and ideas must not be interpreted as permitting the exercise of freedom of information in a manner that violates the values referred to in Paragraph 3 of Article 25 of the Constitution: human health, honour, dignity, private life, morals, or the constitutional order (the Constitutional Court’s ruling of 8 July 2005). The limits of the implementation of freedom of information are defined in the Constitution (the Constitutional Court’s ruling of 21 December 2006).

23.1.4.1. Under the Constitution, it is not permitted to establish any such legal regulation that, when consolidating the guarantees of implementing freedom of information, would create the preconditions for violating other constitutional values and the balance among constitutional values (the Constitutional Court’s ruling of 23 October 2002). However, any restrictions on freedom of information must be based on the same constitutional criteria as the restrictions on the use of other fundamental human rights and freedoms: freedom of information may be restricted only if this is done by law, only if such restrictions are necessary in a democratic society in order to protect the rights and freedoms of other persons, the values that are entrenched in the Constitution, as well as constitutionally important objectives, only if the restrictions do not deny the nature and essence of this freedom, and only if the constitutional principle of proportionality is followed (the Constitutional Court’s rulings of 23 October 2002 and 26 January 2004).

In this context, it should be emphasised that making use of freedom of information and its implementation by means of mass media should be related to special obligations and responsibility; the specific character of radio and television as means of mass media increases this responsibility even more (the Constitutional Court’s ruling of 21 December 2006).

23.1.4.2. It should also be noted that the provision of Paragraph 4 of Article 25 of the Constitution, whereby the freedom to express convictions and to impart information is incompatible with criminal actions – incitement to national, racial, religious, or social hatred, incitement to violence or to discrimination, as well as defamation and disinformation, means that the prohibition on imparting information of the said content is absolute; thus, the constitutional concept of freedom of information does not encompass the alleged freedom (which denies the constitutional values in substance) to perpetrate the criminal actions specified in Paragraph 4 of Article 25 of the Constitution, i.e. to impart such thoughts, views, etc. by which national, racial, religious, or social hatred, as well as violence or discrimination, is incited, persons are defamed, or society and its individual members are disinformed otherwise (the Constitutional Court’s rulings of 8 July 2005 and 19 September 2005). The concept of constitutional freedom of information does not encompass war propaganda, either, which is prohibited by Paragraph 2 of Article 135 of the Constitution (the Constitutional Court’s ruling of 19 September 2005).

As stated by the Constitutional Court in its ruling of 19 September 2005, the provisions of Paragraph 4 of Article 25 of the Constitution, inter alia, the phrase “criminal actions”, may not be interpreted only linguistically, i.e. as meaning that the constitutional freedom to express convictions and impart information is incompatible with only such actions for which laws provide for criminal liability; under the Constitution, the constitutional freedom to express convictions and impart information is incompatible with any actions that are contrary to law, by which national, racial, religious, or social hatred, as well as violence or discrimination, are incited and by which persons are defamed and society or its individual members are disinformed otherwise; under the Constitution, the legislature has the duty to establish such a legal regulation that would ensure that public power (its institutions, officials) will be able to promptly take the measures preventing such acts by which, under the cover of freedom of information, the values entrenched in, and protected and defended by, the Constitution are encroached upon.

Thus, the Constitution, inter alia, Paragraph 4 of Article 25 and Paragraph 2 of Article 135 thereof, gives rise to the duty of the state to take effective measures against the imparting of such information that incites national, racial, religious, or social hatred, violence or discrimination, or spreads defamation, as well as against disinformation (in particular, against the imparting of organised fake or false information in order to manipulate the public, thus inflicting damage on the values protected and defended under the Constitution) and against war propaganda (especially, against the incitement of aggression in the area of international relations).

23.2. While interpreting the provisions of Article 25 of the Constitution, the Constitutional Court has held that the information that the state (its institutions) is constitutionally obliged to impart to citizens and residents through the mass media, inter alia, through radio and television, is linked with fostering various values, which are entrenched in, and protected and defended by, the Constitution, and with implementing various principles of the Constitution; the dissemination of such information is aimed to attain socially and constitutionally important objectives, and its imparting to the public is a necessary condition for the proper fulfilment of various state functions (the Constitutional Court’s ruling of 21 December 2006). In its ruling of 21 December 2006, the Constitutional Court noted that the state may choose various ways of imparting the said information through radio and television, i.e. rendering particular public services to the public by using various ways.

23.3. As the Constitutional Court stated in its ruling of 21 December 2006, the duty of the state (its institutions) to impart to the public through the mass media (inter alia, through radio and television) information related to fostering various values entrenched in, and protected and defended by, the Constitution and to implementing various principles of the Constitution, as well as the fact that the state opportunities to entrust private broadcasters with imparting such information and providing particular public services to society are limited ones, implies the constitutional necessity to found a public radio and television broadcaster and to regulate the relationships connected with its activity in order that the said duty of the state would be properly fulfilled; experience in other states shows that, as a rule, states need to have at least one public radio and television broadcaster (which is, as a rule, founded by the state itself); a special subject – a public broadcaster that is established and operates on the grounds other than private (commercial) broadcasters – is entrusted volens nolens with broadcasting socially and constitutionally important information to the public.

As also held by the Constitutional Court in its ruling of 21 December 2006, the fact that the Constitution does not use the term “public broadcaster” does not mean that no requirements arise for a public broadcaster from the Constitution, which are determined by the particularities of a public broadcaster, compared with other – private (commercial) – broadcasters.

23.4. In interpreting a public broadcaster’s special mission, arising from the Constitution, inter alia, Article 25 thereof, the Constitutional Court stated in its ruling of 21 December 2006 that:

the raison d’être of a public broadcaster is to ensure the public interest – the interest of the public to be informed, which is entrenched in, and protected and defended by, the Constitution; the concept of all radio and television broadcasters, including that of a public broadcaster, is closely related to the public interest, i.e. the interest of the public to be informed, as well as to freedom of information and the constitutional concept of fair competition; the mission and functions of a public broadcaster stem from various norms and principles of the Constitution, as well as from the values entrenched in the Constitution;

the broadcasting of programmes and broadcasts by a public broadcaster must be the rendering of public services, i.e. the rendering of services to the public, since public services must satisfy the public interest; thus, such public services must be of a public nature; in this respect, a public broadcaster expresses the public interest; consequently, a public broadcaster must always remain independent of any particular – private or group – interests (political, economic, or other interests).

As mentioned above, the information that the state (its institutions) is constitutionally obliged to impart to citizens and residents through the mass media, inter alia, through radio and television, is linked with fostering various values, which are entrenched in, and protected and defended by, the Constitution, and with implementing various principles of the Constitution. Imparting such information is aimed to attain socially and constitutionally important objectives, i.e. to ensure the protection of national interests (inter alia, national security), strengthen democracy, promote civic consciousness, build respect for law, develop the openness and tolerance of society, foster language and culture, etc. (the Constitutional Court’s ruling of 21 December 2006).

In this context, it should also be noted that the Constitutional Court stressed in its ruling of 21 December 2006 that, in a pluralistic democracy, the activity of a public broadcaster must be based on objectiveness, impartiality, and justice, and it must not depend on any party or other political preferences; the activity of a public broadcaster must bring together and not divide society; in the programmes broadcast by this broadcaster, various views must be represented, universal human values verified by the civilisation and time must be propagated, the entire variety of life of society and the state, as well as the variety of cultures, must be reflected, various topics and issues, inter alia, such that are important to people with special needs, whose socialisation and integration into society are more difficult than that of other people (for example, people with disabilities), must be discussed; an important part of the mission of a public broadcaster, which arises from the Constitution, is to ensure that the imparting of the information broadcast by it would help to increase social capital, to decrease social exclusion and to increase social solidarity, to strengthen constitutionally valuable social ties, civic consciousness, and an open, just, and harmonious civil society, to help society to perceive itself as the national community – the civic People, to increase the creative potential of society, to promote civilisation, ecological awareness, to foster the culture of society, the cultural affinity and cultural continuity of the people, as well as human self-expression, and to promote the rational resolution of social and state issues.

23.5. As stated in the Constitutional Court’s ruling of 21 December 2006, the public interest – the interest of society to be informed, which is enshrined in, and protected and defended by, the Constitution – as well as the special mission of a public broadcaster and its functions arising from various norms and principles of the Constitution and from the values enshrined in the Constitution, implies that a national public broadcaster must be established; the said broadcaster must provide the relevant public services in such a way that they cover all society, help ensure the national interests, and promote the development of civil society and the fostering of culture; together with the national public broadcaster, there could be other public broadcasters that operate not at state level (but, for example, at regional level), whose mission may have certain particularities determined by the specificity of the audience of their listeners and/or viewers.

23.6. It should be noted from the aspect relevant in this constitutional justice case that the Constitution, inter alia, Article 25 thereof, gives rise to the mission of the national public broadcaster to ensure the public interest – the interest of society to be properly informed (which is enshrined in, and protected and defended by, the Constitution), i.e. to impart information to society at national level by fostering constitutional and common human values, inter alia, by protecting national interests, strengthening democracy, promoting civic consciousness, building respect for law, developing openness and tolerance of society, fostering language and culture, and preventing disinformation; the activity of the national public broadcaster in the implementation of this mission must be based on the principles of, inter alia, a pluralistic democracy, objectivity, impartiality, respect for human dignity and rights, inter alia, freedom of convictions and their expression, as well as moral and ethical principles.

23.7. In the context of this constitutional justice case, it should be noted that the mission of a public broadcaster, inter alia, that of the national public broadcaster, which arises from the Constitution, inter alia, Article 25 thereof, implies the said broadcaster’s independence, which is necessary in order to carry out this mission. In its ruling of 21 December 2006, when revealing the particularities of a public broadcaster’s status, which are determined by its special constitutional mission, the Constitutional Court held that the constitutional mission of a public broadcaster also implies the fact that material, organisational, and financial conditions must be created in order that such a public broadcaster would successfully discharge its mission, that a legal regulation established by law would guarantee the independence of the public broadcaster from interference of public authorities, officials, and other persons with the activity of the said broadcaster; in order that a public broadcaster could carry out its mission, this is a conditio sine qua non.

As mentioned above, under the Constitution, a public broadcaster must always remain independent of any particular – private or group – interests (political, economic, or other interests); the activity of a public broadcaster must not depend on any party or other political preferences. In its ruling of 21 December 2006, the Constitutional Court also emphasised that the mere fact that the state is the founder of a public broadcaster does not mean that the imperative of the independence of the public broadcaster is deviated from.

23.7.1. In this context, it should be noted that a public broadcaster’s (inter alia, the national public broadcaster’s) independence, which is implied by a public broadcaster’s mission, arising from the Constitution, inter alia, Article 25 thereof, from interference with its activity by public authorities, officials, or other persons, means, inter alia, that the public broadcaster must be ensured the right, without external interference and having regard to its constitutional mission, to freely determine the structure of its programmes, as well as the content, timing, etc. of its broadcasts (independence with respect to freedom of information, i.e. editorial independence), as well as the right to organise and conduct in an autonomous manner, in accordance with the procedure established in laws, its own activity through its own managing bodies that are independent from public authorities, officials, political parties and organisations, other persons, inter alia, from private (commercial) broadcasters (institutional independence).

23.7.2. In this context, it should be mentioned that, as stated by the Constitutional Court in its ruling of 21 December 2006, a law must establish such a model of governance of a public broadcaster that would ensure that the constitutional mission of the said broadcaster will not be deviated from and that the independence of the said broadcaster will not be denied; in itself, it is impossible to regard as a deviation from the independence imperative the fact that certain state institutions, which are provided for in a law, may participate in the formation of the highest institution of a public broadcaster, where the said highest institution has the powers to decide the most important issues of the activity of the public broadcaster, as, for example, to plan the strategy of the activity of the public broadcaster, to establish requirements for programmes and broadcasts, etc. (this highest institution may be named in a varied manner: a council, a board, etc.), as well as in the formation of the institutions supervising the activity of the public broadcaster; however, a public broadcaster founded by the state may reasonably be regarded as a public broadcaster only when the institution that has the powers to decide the most important issues of the activity of the public broadcaster is composed not of state officials or state servants, but of persons who could reasonably be called representatives of all society, but not of some interest groups (including professional and institutionalised groups, inter alia, those linked with the mass media, with radio and television in particular, as well as groups uniting persons whose creative work or production could be promoted in a varied manner by the public broadcaster).

23.7.3. As regards the relevant aspect of this constitutional justice case, it should be noted that the aforementioned aspects of a public broadcaster’s (inter alia, the national public broadcaster’s) independence, which is implied by the mission of the public broadcaster (inter alia, that of the national public broadcaster) – its independence in terms of freedom of information (editorial independence) and its institutional independence – are inseparably linked. The failure to ensure the institutional independence of the public broadcaster, inter alia, the national public broadcaster, inter alia, interference by public authorities or officials with the exercise of the powers, established in the law, of the bodies of the public broadcaster in organising its activities, can create the preconditions for state authorities or officials to have influence, inter alia, on the establishment of the structure and content of the programmes of the public broadcaster, i.e. to violate the editorial independence of the public broadcaster.

23.8. In the context of this constitutional justice case, it should also be noted that the special mission of a public broadcaster, inter alia, the national public service broadcaster, which derives from the Constitution, inter alia, Article 25 thereof, and which, as mentioned above, must ensure the public interest – the public interest enshrined in, and defended and protected by, the Constitution, to be properly informed – also implies that the public broadcaster, inter alia, the national public broadcaster, is accountable to the public.

In this context, it should be noted that the state is a political organisation of society as a whole, whose power extends over the entire territory of the state and is designed to ensure human rights and freedoms and to guarantee the public interest (the Constitutional Court’s ruling of 30 December 2003). The Constitutional Court also held in its ruling of 21 December 2006 that the nature and constitutional mission of a public broadcaster also imply not only the state obligation to found a public broadcaster, but also the duty to ensure the activity of the public broadcaster, inter alia, the duty to allocate proper financing to the public broadcaster so that it could carry out the said mission and render particular public broadcasting services.

Thus, a public broadcaster’s (inter alia, the national public broadcaster’s) independence, implied by its mission, which arises from the Constitution, inter alia, Article 25 thereof, does not deny the obligation of the public broadcaster, inter alia, the national public broadcaster, to account to the public for the fulfilment of its constitutional mission, as well as the obligation of the state, which is the founder of the public broadcaster, inter alia, the national public broadcaster, to monitor the implementation of its constitutional mission and the use of the resources allocated to the said broadcaster for the purpose of implementing that mission, inter alia, the use of the funding provided to it by the state.

23.8.1. In this context, it should be noted that, as mentioned above, according to the Constitution, only the Seimas is the representation of the People; under the Constitution, each member of the Seimas represents the whole of the People.

Thus, the accountability of a public broadcaster (inter alia, of the national public broadcaster) to the public, which is implied by the said broadcaster’s mission, arising from the Constitution, inter alia, Article 25 thereof, means not only that the public broadcaster, inter alia, the national public broadcaster, is required to make public its activity reports containing, inter alia, information on the fulfilment of its constitutional mission and the use of state budget appropriations allocated for the implementation of that mission, but also information on the fact that, in accordance with the procedure laid down in laws, the public broadcaster, inter alia, the national public broadcaster, is obliged to report on its activities to the Seimas as the representation of the People and its founder, inter alia, on how it implements its constitutional mission and how the state budget appropriations allocated for the implementation of that mission are used.

23.8.2. In this context, it should be noted that the Constitutional Court stated in its ruling of 21 December 2006 that a law must also establish an appropriate model for control over the activities of the national public broadcaster; such control over the activity of the national public broadcaster must be comprehensive, it may not be just formal; such control may not be exercised by such persons who themselves are related to the national public broadcaster by official, property, or financial links or are dependent on it in one way or another, or who themselves have interests related to the activity of the national public broadcaster, or who belong to the interest groups (also institutionalised ones) that have precisely such interests; this control over the national public broadcaster includes, among other things, a financial and property audit, which is a very important part of this control; inter alia, control must be exercised over whether the national public broadcaster abuses its special legal status and the opportunities granted by this status (also those that are granted in the radio and television services market), whether, in its activity, the constitutional imperatives of fair competition are deviated from, and whether the funds that are allocated (not exclusively from the state budget) to the national public broadcaster so that it could carry out its special constitutional mission are used precisely for this purpose; however, control over the activities of the national public service broadcaster cannot be understood as a mere financial or property audit: such control must also include control (both a priori (preliminary) and a posteriori (successive)) over the trend in the content and structure of the programmes and broadcasts of the national public broadcaster, i.e. such monitoring and inspection thereof where the programmes and broadcasts of the national public broadcaster are also assessed from the aspect of this broadcaster’s mission, which arises, inter alia, from the Constitution and is defined in laws; such control must not become the censorship of the programmes and broadcasts of the national public broadcaster, which, as censorship of any other mass media, is prohibited expressis verbis by the Constitution.

23.8.3. It should be noted from the aspect relevant in this constitutional justice case that, under the Constitution, the regulation of the activity of the national public broadcaster should be based on such a model of control over its activity that, on the one hand, would create the preconditions for the state to effectively fulfil its duty of control over the implementation by the national public broadcaster of its constitutional mission and over the use of the resources designated for the implementation of this mission, and that, on the other hand, would be compatible with the national public broadcaster’s independence, which is implied by its mission, arising from the Constitution, inter alia, Article 25 thereof, from interference with its activity by public authorities, officials, or other persons. Such a model, which is implied by the Constitution, of effective control over the activity of the national public broadcaster includes internal and external control over its activity.

23.8.3.1. It should be noted that internal control over the activity of the national public broadcaster is control over its activity exercised or organised by its supreme body, which is empowered to deal with the most important issues of the activity of this broadcaster, inter alia, control over the structure of, and the orientation of the content of, programmes and broadcasts (i.e. such monitoring and inspection of the activity of the national public broadcaster when its programmes and broadcasts are assessed, inter alia, in terms of this broadcaster’s mission, which arises from the Constitution and is defined in laws), as well as control over the use of resources allocated to the national public broadcaster by the state and the supervision of the organisation and performance of the national public broadcaster’s activity. As mentioned above, such a supreme body of the national public broadcaster must be composed not of state officials or state servants, but of persons who can reasonably be called representatives of the public and not of any interest groups. It should be noted that, when internal control over the activities of the national public service broadcaster is carried out, compliance with that requirement creates the preconditions not to violate the national public broadcaster’s independence (implied by its mission, arising from the Constitution, inter alia, Article 25 thereof) from interference by public authorities, officials, or other persons.

23.8.3.2. It needs to be noted that external control over the activity of the national public broadcaster means that control over its activity (over how such a broadcaster implements its constitutional mission and uses the resources designated for the implementation of this mission) must be exercised by state authorities and/or officials with appropriate powers established in the Constitution and/or laws. It should be emphasised that, having regard to the imperative of the national public broadcaster’s independence, which is implied by its mission, arising from the Constitution, inter alia, Article 25 thereof, the activity of the national public broadcaster must be controlled by such state authorities and/or officials that, in accordance with the Constitution and/or the laws, exercise their powers independently, primarily from political power (such as the prosecutors who, under Paragraph 3 of Article 118 of the Constitution, when performing their functions, are independent and obey only the law, or independent bodies established by law and regulating and supervising the activities of the media).

23.8.3.3. It should be noted from the aspect relevant in this constitutional justice case that, as mentioned above, under Paragraph 1 of Article 134 of the Constitution, the National Audit Office has the power to conduct a state audit, i.e. to inspect state assets, inter alia, state budget appropriations, the activities of the managing and using entities, inter alia, in terms of economy, efficiency, and effectiveness, including assessing the lawfulness of the management and use of state assets, as well as, inter alia, the compliance of the management and use of state assets with the objectives set in the Constitution and/or laws. It has also been mentioned that the constitutional mission of the National Audit Office, the constitutional principles of a state under the rule of law and the separation of powers imply the constitutional requirement for the National Audit Office to exercise its powers (inter alia, to conduct a state audit), arising from Paragraph 1 of Article 134 of the Constitution, independently from other state authorities, inter alia, from the Seimas, the President of the Republic, or the Government.

Thus, under the Constitution, inter alia, Paragraph 1 of Article 134 thereof, the National Audit Office has the power to exercise external control over the activities of the national public broadcaster – to conduct a state audit, inter alia, to inspect the activities of the national public broadcaster, among other things, in terms of economy, efficiency, and effectiveness, inter alia, by assessing the lawfulness of the management and use of state assets entrusted to that broadcaster. It should be emphasised that the assignment given to the National Audit Office, which should exercise its constitutional powers independently of other state authorities, inter alia, from the Seimas, the President of the Republic, or the Government, to conduct a state audit of the national public broadcaster does not in itself violate its independence (implied by its mission, arising from the Constitution, inter alia, Article 25 thereof) from interference with its activities by public authorities, officials, or other persons.

23.8.3.4. As mentioned above, when implementing its constitutional powers, the Seimas performs the classical functions of the parliament of a democratic state under the rule of law, inter alia, it exercises parliamentary control; in exercising its power under Item 14 of Article 67 of the Constitution to supervise the execution of the state budget, the Seimas, while having regard to the Constitution, inter alia, to the principles of responsible governance and a state under the rule of law, which are entrenched in it, may also exercise parliamentary control over the institutions that have been founded by means of laws, are accountable to the Seimas, and are independent managers of state budget appropriations. It has also been mentioned that the accountability of the national public broadcaster to the public, which is implied by its mission, arising from the Constitution, inter alia, Article 25 thereof, means, inter alia, that, in accordance with the procedure established in laws, the national public broadcaster is obliged to account for the implementation of its constitutional mission to the Seimas as the representation of the People and as its founder, inter alia, for the use of the state budged appropriations allocated for the implementation of the said mission.

Therefore, the Constitution cannot be interpreted as meaning that it does not allow the exercise of parliamentary control over the activities of the national public broadcaster. As mentioned above, under the Constitution, only the Seimas is the representation of the People; a member of the Seimas is not a representative of political parties or political organisations, public or other organisations, interest groups, territorial communities or the voters of the constituency in which he/she was elected, but a member of the Seimas represents the whole of the People. Against this background, parliamentary control over the national public broadcaster exercised by the Seimas, inter alia, its structural units, cannot in itself be understood as control, prohibited by the Constitution, exercised over the activity of the national public broadcaster by persons pursuing their own interests in connection with the activity of the national public broadcaster.

However, as mentioned above, in its nature and essence, the Seimas is a political institution, whose decisions reflect the political will of the majority of the members of the Seimas and are based on political arrangements and compromises. With this in mind, it should be emphasised that parliamentary control over the national public broadcaster carried out under the Constitution must not violate the imperative of the national public broadcaster’s independence, which is implied by its mission, arising from the Constitution, inter alia, Article 25 thereof. This means that, under the Constitution, parliamentary control exercised over the national public broadcaster by the Seimas must not undermine the independence of the national public broadcaster in terms of freedom of information (editorial independence), inter alia, it is not allowed to carry out such control of programmes and broadcasts of the national public broadcaster that would be equivalent to censorship; in addition, it is not allowed to violate the institutional independence of the national public broadcaster, inter alia, by interfering with the exercise of the powers, established by law, of the bodies of this broadcaster in organising its activity, thereby creating the preconditions for exerting political influence on the content of programmes and broadcasts.

23.8.3.5. Having in mind the aspect relevant to this constitutional justice case, it should be noted that, although, under the Constitution, inter alia, Article 76 thereof, the Seimas has wide discretion to establish ad hoc structural units – ad hoc investigation commissions, inter alia, meant for fulfilling the functions of parliamentary control, it may not establish such ad hoc investigation commissions whose mandate would include investigation inflicting damage on freedom of the media, enshrined in Article 25 of the Constitution, inter alia, on the national public broadcaster’s mission, arising from this article, and on the national public broadcaster’s independence, which is implied by the said mission. This means, among other things, that, under the Constitution, inter alia, the constitutional principles of responsible governance and a state under the rule of law, and having regard to the national public broadcaster’s independence, which is implied by its mission, arising from the Constitution, inter alia, Article 25 thereof, it is not allowed to establish such ad hoc investigation commissions of the Seimas that would be given the task of carrying out an investigation that could create the preconditions for taking over the powers, enshrined in the Constitution and/or laws, of the other state authorities, inter alia, those of the National Audit Office, to exercise external control over the activity of the national public broadcaster, inter alia, such ad hoc commissions of the Seimas that would be be given the task of drafting such decisions that, under the Constitution and/or laws, may only be adopted by state authorities (their officials) with appropriate competence.

On the other hand, having regard to the imperative of the national public broadcaster’s independence, implied by its mission, which arises from the Constitution, inter alia, Article 25 thereof, the Seimas, under the Constitution, inter alia, Article 76 thereof, whenever the implementation of its constitutional powers requires it to collect detailed and objective information, may establish an ad hoc investigation commission for the provision of the necessary, exhaustive, and objective information when a special issue, i.e. of state importance, arises, which is related, for instance, to a threat to the independence of the national public broadcaster, or facts (inter alia, violations of law) established by state authorities and/or officials authorised by the Constitution and/or laws to exercise external control over the national public broadcaster, when those facts show that the activity of the national public broadcaster may not be in line with its constitutional mission and/or that the state budget appropriations for the implementation of this mission are inappropriately used. It should also be noted in the context of this constitutional justice case that, before the Seimas sets up such an ad hoc investigation commission, it must (inter alia, in terms of expediency) assess whether the relevant work can be performed by any already established and functioning structural unit of the Seimas that has the powers, under the Statute of the Seimas and/or laws, to exercise parliamentary control over the national public broadcaster.

VIII

The assessment of the compliance of the resolution of the Seimas of 12 January 2018 with the Constitution

24. As mentioned above, subsequent to the petition by a group of members of the Seimas, the petitioner, the Constitutional Court investigates whether Article 1 of the resolution of the Seimas of 12 January 2018, insofar as, on the basis of that article, the Commission mandated with carrying out a parliamentary investigation into the management of the LRT and into its financial and economic activities was established, is in conflict with Article 25 of the Constitution and the constitutional principle of a state under the rule of law.

25. It has been mentioned that the petitioner doubts the constitutionality of the impugned legal regulation on the grounds that, in the opinion of the petitioner, under the Constitution, the Commission could not be formed from the members of the Seimas in order to carry out a parliamentary investigation into the management of the LRT and into its financial and economic activities, since, according to the petitioner, this is a method of exercising control over the activity of the national public broadcaster; according to the petitioner, the formation of the Commission violates the constitutional imperative of the independence of the public broadcaster from interference with its activity by public authorities, officials, or other persons, and such formation of the Commission is incompatible with the public broadcaster’s constitutional mission, which arises from Article 25 of the Constitution, to seek and impart information and ideas, and incompatible with the requirements of the constitutional principle of a state under the rule of law.

26. It should be noted that, as mentioned above:

the Constitution, inter alia, Article 25 thereof, gives rise to the national public broadcaster’s mission to ensure the public interest – the interest of society to be properly informed (which is consolidated in, and protected and defended by, the Constitution), i.e. to impart information to society at national level by fostering constitutional and common human values, inter alia, by protecting national interests, strengthening democracy, promoting civic consciousness, building respect for law, developing openness and tolerance of society, fostering language and culture, and preventing disinformation; the activity of the national public broadcaster in the implementation of this mission must be based on the principles of, inter alia, a pluralistic democracy, objectivity, impartiality, respect for human dignity and rights, inter alia, freedom of convictions and their expression, as well as moral and ethical principles;

the aspects of a public broadcaster’s (inter alia, the national public broadcaster’s) independence, implied by the public broadcaster’s (inter alia, the national public broadcaster’s) mission, which arises from the Constitution, inter alia, Article 25 thereof – its independence in terms of freedom of information (editorial independence) and its institutional independence – are inseparably linked: the failure to ensure the institutional independence of the public broadcaster, inter alia, the national public broadcaster, inter alia, interference by public authorities or officials with the exercise of the powers, established in the law, of the bodies of the public broadcaster in organising the activities of that broadcaster, can create the preconditions for state authorities or officials to have influence, inter alia, on the establishment of the structure and content of the programmes of the public broadcaster, i.e. to violate the editorial independence of the public broadcaster;

under the Constitution, the regulation of the activity of the national public broadcaster should be based on such a model of control over its activity that, on the one hand, would create the preconditions for the state to effectively fulfil its duty of control over the implementation by the national public broadcaster of its constitutional mission and over the use of the resources designated for the implementation of this mission, and that, on the other hand, would be compatible with the national public broadcaster’s independence (implied by its mission, arising from the Constitution, inter alia, Article 25 thereof) from interference with its activity by public authorities, officials, or other persons;

external control over the activity of the national public broadcaster means that control over its activity (over how such a broadcaster implements its constitutional mission and uses the resources designated for the implementation of this mission) must be exercised by state authorities and/or officials with appropriate powers established in the Constitution and/or laws; having regard to the imperative of the national public broadcaster’s independence, implied by its mission, which arises from the Constitution, inter alia, Article 25 thereof, the activity of the national public broadcaster must be controlled by such state authorities and/or officials that, in accordance with the Constitution and/or the laws, exercise their powers independently, primarily from political power;

under the Constitution, inter alia, Paragraph 1 of Article 134 thereof, the National Audit Office has the power to exercise external control over the activities of the national public broadcaster – to conduct a state audit, inter alia, to inspect the activities of the national public broadcaster, among other things, in terms of economy, efficiency, and effectiveness, inter alia, by assessing the lawfulness of the management and use of state assets entrusted to that broadcaster; the assignment given to the National Audit Office, which should exercise its constitutional powers independently of other state authorities, inter alia, from the Seimas, the President of the Republic, or the Government, to conduct a state audit of the national public broadcaster does not in itself violate its independence (implied by its mission, arising from the Constitution, inter alia, Article 25 thereof) from interference with its activities by public authorities, officials, or other persons.

27. Assessing whether Article 1 of the resolution of the Seimas of 12 January 2018, insofar as, on the basis of that article, the Commission mandated with carrying out a parliamentary investigation into the management of the LRT and into its financial and economic activities was established, is in conflict with Article 25 of the Constitution and the constitutional principle of a state under the rule of law, it should be noted that, as mentioned above, under the Constitution:

when implementing its constitutional powers, the Seimas performs the classical functions of the parliament of a democratic state under the rule of law, inter alia, it exercises parliamentary control; in exercising its power under Item 14 of Article 67 of the Constitution to supervise the execution of the state budget, the Seimas, while having regard to the Constitution, inter alia, to the principles of responsible governance and a state under the rule of law, which are entrenched in it, may also exercise parliamentary control over the institutions that have been founded by means of laws and are accountable to the Seimas and that are independent managers of state budget appropriations; the Constitution cannot be interpreted as meaning that it does not allow the exercise of parliamentary control over the activities of the national public broadcaster;

parliamentary control over the national public broadcaster carried out by the Seimas must not violate the imperative of the national public broadcaster’s independence, implied by its mission, which arises from the Constitution, inter alia, Article 25 thereof; this means that, under the Constitution, parliamentary control exercised over the national public broadcaster by the Seimas must not undermine the independence of the national public broadcaster in terms of freedom of information (editorial independence); in addition, it is not allowed to violate the institutional independence of the national public broadcaster, inter alia, by interfering with the exercise of the powers, established by law, of the bodies of this broadcaster in organising its activity, thereby creating the preconditions for exerting political influence on the content of programmes and broadcasts;

even though the Seimas has wide discretion to establish ad hoc structural units – ad hoc investigation commissions, inter alia, meant for fulfilling the functions of parliamentary control, it may not establish such ad hoc investigation commissions whose mandate would include investigation inflicting damage on freedom of the media, enshrined in Article 25 of the Constitution, inter alia, on the national public broadcaster’s mission, arising from this article, and on the national public broadcaster’s independence, which is implied by the said mission; this means, among other things, that, under the Constitution, inter alia, the constitutional principles of responsible governance and a state under the rule of law, and having regard to the national public broadcaster’s independence, which is implied by its mission, arising from the Constitution, inter alia, Article 25 thereof, it is not allowed to establish such ad hoc investigation commissions of the Seimas that would be given the task of carrying out an investigation that could create the preconditions for taking over the powers, enshrined in the Constitution and/or laws, of the other state authorities, inter alia, those of the National Audit Office, to exercise external control over the activity of the national public broadcaster, inter alia, such ad hoc commissions of the Seimas that would be given the task of drafting decisions that, under the Constitution and/or laws, may only be adopted by state authorities (their officials) with appropriate competence;

the Seimas, whenever the implementation of its constitutional powers requires it to collect detailed and objective information, may establish an ad hoc investigation commission for the provision of the necessary, exhaustive, and objective information when a special issue, i.e. of state importance, arises, which is related, for instance, to a threat to the independence of the national public broadcaster, or facts (inter alia, violations of law) established by state authorities and/or officials authorised by the Constitution and/or laws to exercise external control over the national public broadcaster, when those facts show that the activity of the national public broadcaster may not be in line with its constitutional mission and/or that the state budget appropriations for the implementation of this mission are inappropriately used; before the Seimas sets up such an ad hoc investigation commission, it must (inter alia, in terms of expediency) assess whether the relevant work can be performed by any already established and functioning structural unit of the Seimas that has the powers, under the Statute of the Seimas and/or laws, to exercise parliamentary control over the national public broadcaster.

27.1. As mentioned above, under Article 1 of the resolution of the Seimas of 12 January 2018, among other things, the Commission, tasked with conducting a parliamentary investigation into the management of the LRT and into its financial and economic activities, was established; this task given to the Commission should be interpreted in the light of the issues of the parliamentary investigation, which are detailed in Article 4 of this resolution.

It has been mentioned that, in Article 4 of the resolution of the Seimas of 12 January 2018, the questions of the parliamentary investigation into the management of the LRT and into its financial and economic activities can be divided into the following groups according to the content:

the questions related to the effectiveness of the management of the LRT, and to the lawfulness, economy, and efficiency of the use of the state budget funds allocated to the LRT (for example, to assess whether the management structure of the LRT, the number of employees employed, the amount of the salaries of the employees, and the ratio among the broadcasts created by the LRT itself, the broadcasts created by the LRT together with the companies providing production services or independent producers, and the broadcasts created by companies providing production services or by independent producers create the conditions for the rational use of state budget funds and meet the conditions of the Lithuanian market; to investigate and assess whether the prices of services purchased from producers and/or production service companies correspond to the market conditions);

the questions related to the lawfulness and transparency of public procurement conducted by the LRT, and to the effectiveness of the established internal system for monitoring public procurement (for example, to assess whether the LRT conducts public procurement procedures in a transparent manner, without creating competitive constraints on suppliers, and whether timely and fully fledged supervisory and control mechanisms are used to monitor ongoing procedures; to investigate and assess whether the LRT has an adequate and operating internal mechanism for organising, supervising, and controlling all public procurement conducted by it);

the questions related to ensuring both the publicity of the activity of the LRT and its accountability to the public (for example, to assess whether the methods of public dissemination of cultural, social, and educational information are applied in a transparent manner and by exercising adequate control);

the questions related to ensuring the prevention of corruption in the activity of the LRT (for example, to assess whether the application of the government resolution (No 1264) of 9 October 2003 on the approval of the description of the procedure for purchasing the creation of radio and television programmes, the services of their preparation for broadcasting, and the air time for broadcasting prepared radio and television programmes creates in certain cases the preconditions for the occurrence of corruption and/or an opportunity for the LRT to avoid public procurement procedures);

the questions related to the formation of the programme schedule of the LRT (for example, to assess whether the programmes provided by the LRT that are adapted for hearing- or visually impaired people ensure the needs of people with disabilities).

It has also been mentioned that the preamble to the resolution of the Seimas of 12 January 2018 specifies, among other things, the factual circumstances that led, inter alia, to the formation of the Commission and tasking it with conducting an investigation into the management of the LRT and into its financial and economic activities: inter alia, the annual activity report of the LRT Council for 2016 and replies of the LRT to the questions of a group of the members of the Seimas were received; the Seimas stated that, in order to thoroughly analyse the replies of the LRT, it was necessary to carry out parliamentary control over the LRT activities, the clarification of whose details had been sought in the inquiries of the members of the Seimas, by seeking to assess the application of the Law on the LRT and the other legal acts governing the management of the LRT, and its financial and economic activities. The preamble to the resolution of the Seimas of 12 January 2018 also states, among other things, that Item 14 of Article 67 of the Constitution provides for the task of the Seimas, inter alia, to supervise the execution of the state budget.

27.2. It should be noted in this context that, as mentioned above, under the legal regulation consolidated in the Law on the National Audit Office, inter alia, Paragraph 4 of Article 2, Paragraph 1 of Article 3, Paragraph 2 of Article 5, Paragraph 1 of Article 9, and Paragraph 1 (wording of 22 December 2005) and Paragraph 5 (wording of 19 November 2009) of Article 14 thereof, the National Audit Office, the supreme state audit institution, which is accountable to the Seimas, has the power to carry out, either on its own initiative or at the instruction of the Seimas, the state audit of the LRT – financial (regularity) audit, i.e. the assessment of the legality of the management, use, and disposal of the funds and property of the LRT, and the assessment of their use for the purposes set in laws, and performance audit, i.e. the evaluation of the public and internal administration activities of the LRT in terms of economy, efficiency, and effectiveness; the powers of the National Audit Office, inter alia, when conducting a state audit of the LRT, must be implemented in accordance with the principles of independence, lawfulness, publicity, neutrality, and professionalism. It has also been mentioned that, under Paragraph 1 of Article 12 (wording of 22 December 2005) of the Law on the National Audit Office, the officials of the National Audit Office performing a state audit are entitled, among other things, to use experts of appropriate fields and audit companies when carrying out audits of specific areas.

27.3. Against this background, it should be noted that the task of the Commission, given to it by Article 1 of the resolution of the Seimas of 12 January 2018, to conduct a parliamentary investigation into the management of the LRT and its financial and economic activities, if interpreted in the context of the above-mentioned questions of the parliamentary investigation, which are detailed in Article 4 of the said resolution, should be treated as a task of evaluating the lawfulness of the management, use, and disposal of the funds and assets of the LRT, and of their use for the purposes defined in laws (inter alia, for implementing the national public broadcaster’s mission, which arises from the Constitution and is entrusted to the LRT in accordance with the legal regulation laid down in the Law on the LRT), and of evaluating the activities of the public and internal administration of the LRT in terms of economy, efficiency, and effectiveness, i.e. as a task for the Commission to exercise part of the powers of the National Audit Office, established by means of the legal regulation consolidated in the Law on the National Audit Office, to perform a state audit of the LRT – its financial (regularity) and performance audit. At the same time, such a task, established in Article 1 of the resolution of the Seimas of 12 January 2018, should also be treated as a task given to the Commission to carry out part of the powers, assigned, under the Constitution, inter alia, Paragraph 1 of Article 134 thereof, to the National Audit Office to exercise external control over the activity of the national public broadcaster – to conduct a state audit, i.e. inter alia, to verify the activity of the national public broadcaster, including in terms of economy, efficiency, and effectiveness, inter alia, in evaluating the lawfulness of the management and use of state assets entrusted to this broadcaster.

In this context, it should also be noted that although, as mentioned above, according to Paragraph 5 (wording of 19 November 2009) of Article 14 of the Law on National Audit Office, a state audit (financial (regularity) and/or performance audit) of the LRT may be carried out on the initiative of the Seimas when it adopts a decision to entrust the National Audit Office with the task of conducting a state audit of the LRT, the National Audit Office was not entrusted with such a task by the Seimas.

Thus, when, in accordance with Article 1 of the resolution of the Seimas of 12 January 2018, setting up the Commission and entrusting it with the task of carrying out a parliamentary investigation into the management of the LRT and its financial and economic activities, the requirement (arising, inter alia, from the Constitution, as well as from the constitutional principles of responsible governance and a state under the rule of law) to respect the imperative of the national public broadcaster’s independence, implied by its mission, which arises from the Constitution, inter alia, Article 25 thereof, was disregarded, i.e. the prohibition on establishing such ad hoc investigation commissions of the Seimas that would be entrusted with the task of conducting an investigation that could make it possible to create the preconditions for taking over the powers of the National Audit Office, which are entrenched in the Constitution and laws, inter alia, drafting such decisions that, under the Constitution and laws, may be adopted only by the National Audit Office, was not observed. At the same time, it should be noted that the Commission was established in accordance with Article 1 of the resolution of the Seimas of 12 January 2018 in the absence of any facts (inter alia, violations of law) established by the state authorities and/or officials exercising external control over the national public broadcaster, indicating that the activities of the national public broadcaster may not be in line with the constitutional mission of the national public broadcaster and/or that state budget appropriations allocated for the implementation of this mission may be used improperly.

27.4. In the light of the foregoing, it should be concluded that Article 1 of the resolution of the Seimas of 12 January 2018, insofar as, on the basis of that article, the Commission mandated with carrying out a parliamentary investigation into the management of the LRT and into its financial and economic activities was established, is in conflict with Article 25 of the Constitution, as well as with the constitutional principles of responsible governance and a state under the rule of law.

27.5. Once it has been found that Article 1 of the resolution of the Seimas of 12 January 2018, to the extent stated, is in conflict with Article 25 of the Constitution, as well as with the constitutional principles of responsible governance and a state under the rule of law, it should also be held that the other provisions of the resolution of the Seimas of 12 January 2018, according to which, as mentioned above, the composition of the Commission set up on the basis of Article 1 of that resolution was determined, the task set for the Commission in that article was detailed, and the deadline for the fulfilment of that task was set, are also in conflict with Article 25 of the Constitution, as well as with the constitutional principles of responsible governance and a state under the rule of law.

28. In the light of the above arguments, it should be concluded that the resolution of the Seimas of 12 January 2018 is in conflict with Article 25 of the Constitution, as well as with the constitutional principles of responsible governance and a state under the rule of law.

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

ruling:

To recognise that the resolution (No XIII-1022) of the Seimas of the Republic of Lithuania of 12 January 2018 on forming an ad hoc investigation commission of the Seimas of the Republic of Lithuania and mandating it to conduct a parliamentary investigation into the management of the Lithuanian National Radio and Television and its financial and economic activities (Register of Legal Acts, 17-01-2018, No 704, identification code 2018-00704) (as amended on 20 September 2018; Register of Legal Acts, 20-09-2018, No 14783) is in conflict with Article 25 of the Constitution of the Republic of Lithuania, as well as with the constitutional principles of responsible governance and a state under the rule of law.

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

Justices of the Constitutional Court:            Elvyra Baltutytė

                                                                                 Gintaras Goda

                                                                                 Vytautas Greičius

                                                                                 Danutė Jočienė

                                                                                 Gediminas Mesonis

                                                                                 Vytas Milius

                                                                                 Daiva Petrylaitė

                                                                                 Janina Stripeikienė

                                                                                 Dainius Žalimas