States of emergency and fundamental rights: Lithuanian Perspective

Transcription

1 Co.Co.A. Comparing Constitutional Adjudication A Summer School on Comparative Interpretation of European Constitutional Jurisprudence 4th Edition States of emergency and fundamental rights Lithuania States of emergency and fundamental rights: Lithuanian Perspective Prepared by: Marius Greicius 1

2 States of emergency and fundamental rights: Lithuanian Perspective Marius Greicius Introduction The Constitution of the Republic of Lithuania 1 (came into force on 2 November 1992) contain provisions on emergency situations. The Constitution foresees two types of emergency rule; these are martial law and a state of emergency. The power to declare emergency rule is divided between the legislative (Lithuanian Parliament the Seimas) and executive branches: according to Items 16 and 17 of Article 84 «the President of the Republic: shall adopt, in the event of an armed attack which threatens State sovereignty or territorial integrity, decisions concerning defence against such armed aggression, the imposition of martial law as well as mobilisation, and submit these decisions to the next sitting of the Seimas for approval; shall declare a state of emergency according to the procedure and in cases established by law, and present this decision to the next sitting of the Seimas for approval» and according to Item 20 of Article 67 «the Seimas shall impose direct rule, martial law, and a state of emergency, declare mobilisation, and adopt a decision to use the armed forces». There is a distinction between dangers which are external from those that are internal, and this distinction corresponds to that marking a state of martial law from emergency rule. According to the First Paragraph of Article 142 «the Seimas shall impose martial law, announce mobilisation or demobilisation, adopt a decision to use the armed forces when a need arises to defend the Homeland or to fulfil the international obligations of the State of Lithuania» and according to the First Paragraph 1 2

3 of Article 144 «when a threat arises for the constitutional system or social peace of the State, the Seimas may impose a state of emergency throughout the territory of the State, or in any part of it». There is also provision that prohibits changes in the Constitution (according to the Second Paragraph of Article 147 «during a state of emergency or martial law, the Constitution may not be amended»). The Constitution lists in detail the rights and liberties that are subject to restrictions. According to Article 145 «after imposition of martial law or a state of emergency, the rights and freedoms specified in Articles 22, 24, 25, 32, 35, and 36 of the Constitution may be temporarily limited». However it should be mentioned that according to Article 48 although «forced labour shall be prohibited», but «military service or alternative service performed in place of military service as well as citizens work in time of war, natural disaster, epidemics, or other extreme cases shall not be considered forced labour». Besides, in the Constitution (Article 111) the creation of special (with extraordinary powers) courts is specifically prohibited, with the exception of martial law. Due to the fact imposition of nor martial law, neither a state of emergency was never imposed in modern Lithuania (when the Constitution of the Republic of Lithuania has been in force (from 2 November 1992), we have only few cases concerned. We would like to briefly present three cases indirectly related with the issue. Extract concerned of Decision of 13 November on the request of a group of Seimas members to investigate if the Provisional Law on the Suspension of the Validity of the Republic of Lithuania Law "On the Procedure and 2 3

4 Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" is in compliance with the Constitution of the Republic of Lithuania Part 4 of Article 106 of the Constitution stipulates that «upon the proposal of the President or the decision of the Seimas to investigate the conformity of the act with the Constitution, the validity of the act shall be suspended». If the Constitutional Court adopts a decision to accept a petition for a court investigation, the Chairperson of the Constitutional Court shall give an official announcement about the suspension of the validity of such an act (Part 2 of Article 26 of the Law on the Constitutional Court). Article 145 of the Constitution prescribes that under special conditions - during martial Law or a state of emergency, the rights and freedoms specified in Articles 22, 24, 25, 32, 35, and 36 of the Constitution may be temporarily restricted. This could be done by suspending the validity of certain norms of respective laws. The Constitution does not provide for any other cases of suspension of the law. Extract concerned of Ruling of 13 June on the compliance of Item 5 of Article 1, Parts 3 and 4 of Article 10, Part 1 of Article 15, Article 20, Item 2 of Article 21, Part 2 of Article 32, Parts 2, 3 and 4 of Article 34, Items 2 and 5 of Article 35, Item 2 of Article 37 and Items 2 and 3 of Article 38 of the Republic of Lithuania Law on Education with the Constitution of the Republic of Lithuania The freedom to have convictions may not be restricted in any way, while the freedom to express convictions may be restricted under the procedure provided for by the law and only in cases when it is necessary to protect the values pointed out in Part 3 of Article 25 of the Constitution, i.e., the health, honour and dignity, private life and morals of the person, or the constitutional order. The freedom of expression of 3 4

5 convictions may also be temporarily restricted during martial law or a state of emergency (Article 145 of the Constitution). The validity of restrictions of a fundamental right or freedom should be assessed by the criteria of common sense and those of evident necessity, it must be in compliance with the concept and requirements of justice and the possibilities and conditions of its restriction established in the Constitution (Constitutional Court ruling of 13 February 1997). Any restriction of fundamental rights and freedoms is to be linked with the rational relation guaranteeing that by the limitations the essence of respective human right be not violated. Extract concerned of Ruling of 8 July on the compliance of the Republic of Lithuania Law On the Procedure of Reorganisation and Liquidation of Establishments of culture (wording of 13 June 1995) and Items 1, 2.3 and 2.4 of Government of the Republic of Lithuania Resolution No On the House of Signatories to the Act of Independence of Lithuania and The House of Artists of Lithuania of 28 November 1997 with the Constitution of the Republic of Lithuania Freedom of spreading products of creative activity is not absolute; the established in the Constitution limits of freedom of spreading products of creative activity are narrower in comparison to the freedom of process of creative activity. Like the constitutional concept of freedoms of information and expression of convictions does not comprise an alleged freedom of spreading the ideas, attitudes, etc., by which national, racial, or social hatred, violence or discrimination is instigated, persons are slandered or society or its individual members are misinformed, the constitutional concept of freedom of spreading products of creative activity does not comprise an alleged freedom, which denies in essence the constitutional values, of spreading ideas, attitudes, etc., by which national, racial, or social hatred, violence or discrimination is 4 5

6 instigated, persons are slandered or society or its individual members are misinformed, orally, in writing, in signs, or by applying other ways and means of transferring information, i.e. it does not comprise the aforementioned alleged freedom, which denies the constitutional values, to engage in criminal actions indicated in Paragraph 4 of Article 25 of the Constitution. The Constitution does not tolerate situations where one abuses the freedom of spreading products of creative activity as the freedom of expression in general or any other constitutional human right or freedom, where one uses it as a cover for the actions, by which certain values entrenched in and protected by the Constitution are denied in essence. The state has a constitutional duty to establish such legal regulation, where one is able to ensure that the freedom of spreading products of creative activity will not be used as a cover while seeking to attain the aforementioned unconstitutional objectives. It should be noted also that according to the Constitution freedom of spreading products of creative activity, like the freedom of information and freedom of expression of convictions, may be restricted upon the procedure established by law and this may be done in cases, where it is necessary to protect values indicated in Paragraph 3 of Article 25 of the Constitution health, honour and dignity, private life, and morals of a human being, or to defend constitutional order (it may be inter alia temporarily limited by introducing martial law or a state of emergency). However, any restrictions of freedom of spreading products of creative activity must be based on the same constitutional criteria as the restrictions of other fundamental human rights and freedoms: this freedom may be restricted only if this is done by law, only if they 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 by the restrictions one does not deny the nature and essence of rights and freedoms, and only if the constitutional principle of proportionality is followed. In some other cases Constitutional provisions on the possibility to temporarily limit the rights and freedoms concerned after imposition of martial law or a state of 6

7 emergency were mentioned, but only in order to mention situations when the rights and freedoms can be temporarily limited. Finally, it can be said that the Lithuanian Constitutional Court has underlined proportionality and restrictive approach of using limitations of rights and liberties during states of emergency. Appendix. Articles on the rights and liberties concerned Article 22 The private life of a human being shall be inviolable. Personal correspondence, telephone conversations, telegraph messages, and other communications shall be inviolable. Information concerning the private life of a person may be collected only upon a justified court decision and only according to the law. The law and the court shall protect everyone from arbitrary or unlawful interference in his private and family life, from encroachment upon his honour and dignity. Article 24 The home of a human being shall be inviolable. Without the consent of the resident, entrance into his home shall not be permitted otherwise than by a court decision or the procedure established by law when this is necessary to guarantee public order, apprehend a criminal, save the life, health, or property of a human being. Article 25 7

8 The human being shall have the right to have his own convictions and freely express them. The human being must not be hindered from seeking, receiving and imparting information and ideas. Freedom to express convictions, to receive and impart information may not be limited otherwise than by law, if this is necessary to protect the health, honour and dignity, private life, and morals of a human being, or to defend the constitutional order. Freedom to express convictions and to impart information shall be incompatible with criminal actions incitement of national, racial, religious, or social hatred, violence and discrimination, with slander and disinformation. The citizen shall have the right to receive, according to the procedure established by law, any information concerning him that is held by State institutions. Article 32 A citizen may move and choose his place of residence in Lithuania freely and may leave Lithuania freely. These rights may not be restricted otherwise than by law and if it is necessary for the protection of the security of the State, the health of the people as well as for administration of justice. A citizen may not be prohibited from returning to Lithuania. Everyone who is Lithuanian may settle in Lithuania. Article 35 Citizens shall be guaranteed the right to freely form societies, political parties and associations, provided that the aims and activities thereof are not contrary to the Constitution and laws. 8

9 No one may be compelled to belong to any society, political party, or association. The founding and activities of political parties and other political and public organisations shall be regulated by law. Article 36 Citizens may not be prohibited or hindered from assembling unarmed in peaceful meetings. This right may not be limited otherwise than by law and only when it is necessary to protect the security of the State or society, public order, people s health or morals, or the rights and freedoms of other persons. 9