La Cour constitutionnelle de la République de Lituanie-1
Teismo sudėtis
La Cour constitutionnelle de la République de Lituanie-3
La Cour constitutionnelle de la République de Lituanie-4
Lt En

Sur lʼimmunité des juges

Case no 16/2019 

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

RULING
ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 47 (WORDING OF 23 DECEMBER 2013) OF THE REPUBLIC OF LITHUANIA’S LAW ON COURTS AND OF PARAGRAPH 4 OF ARTICLE 8 (WORDING OF 11 NOVEMBER 2008) OF THE LAW ON THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

9 March 2020, no KT41-N4/2020
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

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, at the hearing of the Constitutional Court on 26 February 2020, considered, under written procedure, constitutional justice case no 16/2019 subsequent to the petition (no 1B-26/2019) of the Seimas of the Republic of Lithuania, the petitioner, set out in the resolution (No XIII-2768) of the Seimas of the Republic of Lithuania of 20 December 2019 on applying to the Constitutional Court of the Republic of Lithuania for an investigation into whether Paragraph 2 of Article 47 of the Republic of Lithuania’s Law on Courts is in conflict with the Constitution of the Republic of Lithuania, requesting an investigation into whether Paragraph 2 of Article 47 (wording of 23 December 2013) of the Republic of Lithuania’s Law on Courts is in conflict with Paragraph 2 of Article 109 and Paragraph 2 of Article 114 of the Constitution of the Republic of Lithuania, as well as with 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 Seimas, the petitioner, is based on the following arguments.

1.1. Under Paragraph 1 of Article 47 (wording of 23 December 2013) (which, according to the petitioner, defines the immunity of judges and details the constitutional provisions related thereto) of the Law on Courts, a judge may be held criminally responsible, he/she may be detained or his/her liberty may be restricted otherwise only with the consent of the Seimas, or, in the period between the sessions of the Seimas, with the consent of the President of the Republic, with the exception of cases when the judge is found in the act of committing a criminal offence (in flagranti), and, under Paragraph 2 of the same paragraph, the entry into the residential or office premises of a judge, an inspection or search of or making a seizure in such premises, an inspection or search of or making a seizure in a personal or service car or other personal means of transport of a judge, an inspection or search of a judge, or an inspection or making a seizure of the items or documents of a judge is prohibited, except in cases provided for by law.

1.2. Article 114 of the Constitution, which, according to the petitioner, establishes the grounds for the immunity of judges, provides that judges may not be held criminally responsible or be detained, or have their liberty restricted otherwise, without the consent of the Seimas or, in the period between the sessions of the Seimas, without the consent of the President of the Republic.

The petitioner points out that, in its ruling of 8 May 2000, the Constitutional Court stated that, in general, immunity means additional guarantees for a person’s inviolability, which are necessary and indispensable for the proper performance of the duties of that person. The Constitutional Court has consistently held that the independence of judges and courts, which is consolidated in Paragraph 2 of Article 109 of the Constitution, is one of the essential principles of a democratic state under the rule of law and a necessary condition for the protection of human rights and freedoms. According to the petitioner, the official constitutional doctrine stresses that the fact that independence is not a privilege but one of the most important duties of judges and courts, which stems from the human right guaranteed in the Constitution to have an impartial arbiter of a dispute and which is a necessary condition for an impartial and fair consideration of a case, is the most important criterion that must be followed when assessing the independence of judges and courts. The constitutional principle of the independence of judges and courts means that the legislature is under the duty to provide for such guarantees of the independence of judges and courts that would ensure the impartiality of courts in adopting decisions and that would not permit anyone to interfere with activities of judges or courts when they administer justice.

According to the petitioner, the totality of the constitutional norms implies that the immunity of judges, which is one of the guarantees of their independence, is not absolute; it must be linked only to ensuring the independence of judges while they are in office, i.e. judges must be guaranteed functional immunity, whose purpose is to protect them from interference with their activities by state and administration authorities, members of the Seimas, as well as by other officials, political parties, political and public organisations, or citizens. The system of guarantees of the independence of judges, as consolidated by law, must not create any preconditions for privileges under the guise of which a judge could avoid liability or otherwise impede the disclosure of criminal acts, i.e. that system must not provide an opportunity to deny the constitutional principle of a state under the rule of law.

1.3. Nor, as stated by the petitioner, can laws establish guarantees that could not be derived from the provisions of the Constitution and their official interpretation, since the constitutional principle of a state under the rule of law presupposes a hierarchy of legal acts in which the Constitution occupies an exclusive place, and a state under the rule of law prohibits the introduction of such a legal regulation that would compete with that laid down in higher-ranking legal acts, inter alia, in the Constitution itself.

The impugned Paragraph 2 of Article 47 of the Law on Courts expands the cases of the application of immunity that are established in the Constitution, since, under the Constitution, immunity for judges applies only in two cases, namely, due to prosecution or due to detention or other restriction of liberty. The legal regulation established in Paragraph 2 of Article 47 of the Law on Courts guarantees protection to judges even in cases where carrying out respective procedural actions applicable to them is in no way related to their status as judges and/or to the administration of justice. Thus, such a legal regulation does not comply with the constitutional concept and scope of the independence and immunity of judges.

1.4. The petitioner refers to the provisions of the official constitutional doctrine, according to which the immunity of judges from administrative liability is not established in the Constitution, except in cases when the administrative liability is linked to the restriction of the liberty of a judge; under the Constitution, judges have partial immunity from certain administrative measures.

As stated by the petitioner, since in the official constitutional doctrine the notion of the deprivation of liberty is related, among others, to partial immunity from administrative liability, i.e. immunity from the application of certain administrative measures, this notion should be understood, within the meaning of the Constitution, not as any measure affecting a particular official, but as the application of such measures that specifically restrict his/her physical liberty. Thus, Paragraph 2 of Article 114 of the Constitution should be interpreted as meaning that judges enjoy immunity from criminal responsibility or from the restriction of their liberty, where this restriction is linked with the application of measures that restrict their physical liberty.

1.5. The prohibition, enshrined in the Constitution, to otherwise restrict the liberty of a judge without the consent of the Seimas or of the President of the Republic should not be regarded as a prohibition, without the consent of the said entities, provided that there is a legal basis, on searches in the residential or other premises of a judge, or in a means of transport of a judge, or on the application of other procedural coercive measures that do not restrict the liberty of a natural person.

According to the petitioner, the norms of the Constitution prohibit, without the consent of the Seimas or of the President of the Republic, the application of actions that would specifically restrict the physical liberty or freedom of movement of a judge, i.e. actions that would prevent him/her from performing his/her duties as a judge or restrict his/her ability to perform such duties. Meanwhile, Paragraph 2 of Article 47 of the Law on Courts also prohibits the application of coercive procedural measures that do not restrict the liberty of a natural person, such as an inspection of a person, search, search of a person, or seizure, whose purpose is not to restrict the freedom of the physical movement of a judge or substantially impede his/her professional activities, but to collect the data necessary for the investigation and trial of a case. In addition, the petitioner emphasises that, before applying to the relevant entities for consent to hold a judge criminally responsible, arrest him/her or otherwise restrict his/her liberty, law enforcement authorities have an obligation under the Constitution to gather evidence confirming that the judge may have committed a criminal act.

Taking this into account, the petitioner does not agree with the interpretation, given by the Supreme Court of Lithuania to Paragraphs 1 and 2 of Article 47 of the Law on Courts, Article 32, Paragraph 4 of Article 20, Articles 145 and 146 of the Code of Criminal Procedure of the Republic of Lithuania (wording of 14 March 2002), that, in a pretrial investigation, the application to a judge of the coercive procedural measure of a search, as well as a search of a person, requires the consent of the competent authority (with the exception of cases when the judge is found in the act of committing a criminal offence), because a search, as well as a search of a person, restricts the liberty of the person against whom such actions are performed (the Supreme Court of Lithuania, the order of 25 November 2019 in criminal case no 2K-7-174-303/2019).

1.6. Based on the fact that the Constitution establishes the same scope of the immunity of judges, members of the Seimas, and those of the Government, the petitioner concludes that the immunity of judges, laid down in the impugned Paragraph 2 of Article 47 of the Law on Courts, is unjustifiably broader and can be regarded as an unjustified privilege compared to the immunity of members of the Seimas or those of the Government, which is consolidated in the laws that regulate their activity and that do not contain prohibitions such as those found in the impugned provision of the Law on Courts.

1.7. Referring to Opinion on draft constitutional amendments on the immunity of Members of Parliament and judges of Ukraine, adopted by the European Commission for Democracy through Law (Venice Commission) at its 103rd plenary session on 19–20 June 2015, the petitioner states, among other things, that “the Venice Commission has consistently drawn attention to the fact that judges should not enjoy general immunity, but should enjoy functional immunity, i.e. immunity for acts performed in the exercise of judicial functions”, and “although functional safeguards are necessary to ensure judicial independence from the unlawful influence of outsiders, broad immunity is not required”.

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 were received from Viktorija Staugaitytė, a senior adviser at the Legal Department of the Office of the Seimas, and Svetlana Zamara, an adviser at the Public Law Unit of the same Department, in which it is maintained that Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts is not in conflict with the Constitution. The position of the representatives of the Seimas is substantiated by the following arguments.

2.1. Based on the official constitutional doctrine, according to which the immunity of judges is one of the guarantees, enshrined in the Constitution, of the independence of judges and, at the same time, a certain additional guarantee of a person’s inviolability, necessary for the performance of his/her duties, the representatives of the Seimas, the party concerned, claim that the immunity of judges is not an objective in itself, but is established with a view to ensuring the independence of judges in the administration of justice. According to the representatives of the Seimas, the party concerned, the Venice Commission’s documents referred to by them distinguish two types of immunity, namely “non-liability immunity”, which refers to non-liability for judgments handed down by judges, and “inviolability immunity” or “procedural immunity”, which protects an official from prosecution. They argue that, according to the Venice Commission, procedural immunity is intended to provide the means of maintaining the substantive “non-liability immunity”; only following a special procedure during which the essence of the accusations against a judge is examined, can procedural immunity be lifted and prosecution take place; it is important that when immunity is granted to officials, it should be functional immunity and not general immunity, as immunity should always be connected to the role and activities carried out by the institution for which the individual is working, is a member of or represents; a person should not be exempted personally from criminal and other liabilities that are not connected with his/her role and professional activity; procedural immunity is intended to protect a judge from possible unfounded or false accusations that could put pressure on him/her; in all other cases, the competent authority must lift the procedural immunity.

Thus, according to the representatives of the Seimas, the party concerned, the inviolability of the person of a judge, laid down in Paragraph 2 of Article 114 of the Constitution, is procedural immunity, which is designed to ensure that the activities of a judge are not affected by the interference prohibited in Paragraph 1 of Article 114 of the Constitution; the said immunity is not meant to create the preconditions for a judge to escape criminal responsibility for a committed crime.

2.2. The expressions “held criminally responsible” and “have their liberty restricted otherwise” in Paragraph 2, which enshrines the immunity of judges, of Article 114 of the Constitution are rather abstract and general in nature; therefore, their content must be specified in laws by precisely defining the scope of that immunity. When laying down specific rules for the application of the immunity of judges, the legislature is bound not by the literal concept of Paragraph 2 of Article 114 of the Constitution, but rather by the purpose and substance of the constitutional guarantee of the inviolability of the person of a judge as a certain mandatory constitutional minimum. In the opinion of the representatives of the Seimas, the party concerned, in order to ensure the independence of judges and courts as one of the most important principles of a democratic state under the rule of law, and to protect judges and courts from interference, prohibited under the Constitution, in their activities, the legislature has the discretion to establish, in certain respects, broader protection of the inviolability of the person of a judge than that secured in Paragraph 2 of Article 114 of the Constitution, without, however, denying or distorting the constitutional purpose and substance of the immunity of a judge, so that it does not become a constitutionally unjustified privilege.

2.3. The representatives of the Seimas, the party concerned, when assessing the constitutionality of the impugned legal regulation, laid down in Paragraph 2 of Article 47 of the Law on Courts, according to which a judge may not be subject to certain procedural coercive measures provided for in the law on criminal procedure, point out that the immunity enjoyed by a person from holding him/her criminally responsible entails not only a prohibition on initiating his/her prosecution, but also a prohibition on the application to him/her of the procedural coercive measures that, by law, may be applicable in the event of the prosecution of a person; this means that the specific content of immunity from holding a person criminally responsible depends to a large extent on the legal regulation governing criminal procedure, which is established by the legislature. In this context, the representatives of the Seimas, the party concerned note that bringing a person to criminal responsibility under the criminal procedure law currently in force must be understood as the service of a notice of suspicion on that person or as naming him/her as a suspect.

Under the Code of Criminal Procedure, remand measures may be imposed only on a person who has the procedural status of a suspect, or of an accused or convicted person. Some other procedural coercive measures, such as placement in a healthcare institution (Article 141), temporary suspension of duties or temporary suspension of the right to engage in certain activities (Article 157), can also be applied only when the person becomes a suspect. However, most of the other coercive measures provided for in the Code of Criminal Procedure, including those referred to in the impugned Paragraph 2 of Article 47 of the Law on Courts (an inspection of a person, search, search of a person, or seizure), may also be applied under the Code of Criminal Procedure to other persons who are not suspects.

Thus, according to the representatives of the Seimas, the party concerned, the immunity of a judge from holding him/her criminally responsible means that, without the consent of the Seimas or of the President of the Republic, a judge may not become a suspect and may not be subject to the procedural coercive measures that, according to the legal regulation, laid down by the legislature, of criminal procedure, apply only to suspects, regardless of whether or not such measures restrict a person’s liberty. By means of the impugned provision of the Law on Courts, the legislature extended the scope (determined by the legal regulation of the application of coercive procedural measures, as established by the legislature) of the immunity of judges from holding them criminally responsible, by including the protection against an inspection of a person, search, search of a person, or seizure, i.e., according its assessment, against the procedural coercive measures that are the most restrictive for the right to the inviolability of a person and that, according to the Code of Criminal Procedure, may also be imposed on persons who are not suspects.

2.4. In view of the fact that the immunity of judges from holding them criminally responsible implies protection against all possible coercive procedural measures that may be imposed after a person has been brought to criminal responsibility, it must be held that the legislature, which has the constitutional power to regulate criminal procedure and lay down various procedural coercive measures, by thus determining in part the specific content of the immunity of judges guaranteed by the Constitution, may decide that, in order to ensure the independence of judges and courts, the immunity of judges must also extend to the protection against the application of certain procedural coercive measures that can be imposed on persons who have not been held criminally responsible, even though such measures do not restrict a person’s liberty.

Since, in the opinion of the representatives of the Seimas, the party concerned, the constitutional basis of the impugned legal regulation, laid down in Paragraph 2 of Article 47 of the Law on Courts, is a certain amount of discretion of the legislature to extend the scope of the immunity of judges from holding them criminally responsible, and not the constitutional prohibition on restricting the liberty of a judge without the consent of the Seimas or of the President of the Republic, it is not relevant in this context to assess whether the procedural coercive measures specified in the impugned provision restrict a person’s liberty.

2.5. The representatives of the Seimas, the party concerned, disagree with the petitioner’s argument that, although the Constitution lays down the same scope of immunity for judges, members of the Seimas, and members of the Government, it is regulated differently in laws, which, purportedly, presupposes the conclusion that the immunity provided for by law is unjustifiably broader and should thus be regarded as an unjustified privilege. In this context, they note that the way in which the legal status of members of the Seimas and of members of the Government is regulated in laws has no impact on the content of the constitutional institution of the immunity of judges, as the official constitutional doctrine does not allow the norms and principles of the Constitution to be interpreted on the basis of acts adopted by the legislature or other law-making entities; otherwise, the supremacy of the Constitution in the legal system would be denied.

At the same time, attention has been drawn to the fact that the legal regulation laid down in Paragraph 4 of Article 8 of the Law on the Constitutional Court is analogous to the impugned one. In addition, other laws enshrine certain guarantees of the inviolability of prosecutors and lawyers, although the Constitution does not provide for their inviolability.

The Constitutional Court

holds that:

I

The impugned and related legal regulation

3. In the constitutional justice case at issue, the petitioner impugns the compliance of Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts with Paragraph 2 of Article 109 and Paragraph 2 of Article 114 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

4. On 31 May 1994, the Seimas adopted the Republic of Lithuania’s Law on Courts, which was amended and set out in its new wording by means of the Republic of Lithuania’s Law Amending the Law on Courts, adopted by the Seimas on 24 January 2002. The Law on Courts (wording of 24 January 2002) has been amended and/or supplemented on more than one occasion, inter alia, by means of the Republic of Lithuania’s Law Amending Article 47 of the Law on Courts, adopted by the Seimas on 23 December 2013.

Article 47 (wording of 23 December 2013), titled “The Immunity of Judges”, of the Law on Courts, Paragraph 2 of which is impugned by the petitioner, provides:

1. A judge may be held criminally responsible, he/she may be detained or his/her liberty may be restricted otherwise only with the consent of the Seimas, or, in the period between the sessions of the Seimas, with the consent of the President of the Republic, with the exception of cases when the judge is found in the act of committing a criminal offence (in flagranti).

2. The entry into the residential or office premises of a judge, an inspection or a search of or making a seizure in such premises, an inspection or a search of or making a seizure in a personal or service car or other personal means of transport of a judge, an inspection or a search of a judge, or an inspection or making a seizure of the items or documents of a judge is prohibited, except in cases provided for by law.

…”

4.1. Thus, Paragraph 1 of Article 47 (wording of 23 December 2013) of the Law on Courts consolidates the immunity of judges from holding them criminally responsible, their detention, or other restriction of their liberty: judges may not be held criminally responsible, be detained, or have their liberty restricted otherwise without the consent of the Seimas or, in the period between the sessions of the Seimas, without the consent of the President of the Republic. Paragraph 1 of Article 47 (wording of 23 December 2013) of the Law on Courts also lays down an exception to that rule: such consent is not required in the case where the judge is found in the act of committing a criminal offence (in flagranti).

4.2. The impugned Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts lays down other aspects of the immunity of judges, namely the prohibition on carrying out the following actions:

the entry into the residential or office premises of a judge;

an inspection or a search of or making a seizure in the residential or office premises of a judge, an inspection or a search of or making a seizure in a personal or service car or other personal means of transport of a judge;

an inspection or a search of a judge;

an inspection or making a seizure of the items or documents of a judge.

Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts also lays down an exception to the said prohibition – these actions are allowed in cases provided for by law.

5. The legal regulation laid down in Paragraphs 1 and 2 of Article 47 (wording of 23 December 2013) of the Law on Courts should be interpreted in the context of the provisions of the Code of Criminal Procedure.

5.1. Paragraph 1 of Article 32 (wording of 21 June 2011), titled “Particularities of Criminal Proceedings against Persons Who Have Immunity from Criminal Liability under the Laws of the Republic of Lithuania or Norms of International Law”, of the Code of Criminal Procedure provides, inter alia, that criminal proceedings against a person who has committed a crime but may be held criminally responsible only with the consent of a competent institution may be instituted, but such a person must not be issued a notice of suspicion, must not be questioned as a suspect, must not be declared a suspect, and must not be detained or have his/her liberty restricted otherwise; such a person may be subject to other procedural coercive measures insofar as this is not prohibited under the laws of the Republic of Lithuania. Under Paragraph 2 of the said article, if, upon the completion of all permissible procedural actions, there is no consent of the competent authority to hold the person criminally responsible, the criminal proceedings must be discontinued.

5.1.1. Thus, Article 32 (wording of 21 June 2011) of the Code of Criminal Procedure lays down, among other things, the particularities of criminal proceedings applicable to persons who have immunity from criminal responsibility under the laws of the Republic of Lithuania: criminal proceedings may be instituted against these persons; however, they must not be considered suspects, be detained, or have their liberty restricted otherwise, unless the authorisation of the competent institution for doing so is given; other procedural coercive measures may be applied against these persons, insofar as such application is not prohibited under the laws of the Republic of Lithuania; before such authorisation is received from the competent authority, all non-prohibited procedural actions may be carried out.

In this context, it should be mentioned that, according to Article 21 (wording of 10 April 2003) of the Code of Criminal Procedure, the suspect is a participant in pretrial investigation (Paragraph 1); a suspect is a person apprehended on suspicion of having committed a criminal act, or a person questioned about an act for the commission of which he/she is suspected, or a person summoned to interrogation to whom a notice of suspicion has been issued pursuant to Article 187 of the Code of Criminal Procedure (Paragraph 2); when a person is in hiding or his/her whereabouts are unknown, he/she is recognised as a suspect by an order of the prosecutor or by an order of the investigating judge, and, in urgent cases, by a ruling of the pretrial investigation official (Paragraph 3) (wording of 21 September 2010).

5.1.2. It should be noted that, according to the Code of Criminal Procedure, inter alia, Paragraph 1 (wording of 15 January 2019) of Article 120 and Articles 122–127 thereof, detention is one of the types of procedural coercive measures (a remand measure), which restricts a person’s liberty. It should also be noted that the Code of Criminal Procedure also provides for other procedural coercive measures, which must also be regarded as restricting a person’s liberty, such as: house arrest (Article 132 (as amended on 2 July 2013)), provisional detention (Article 140 (as amended on 11 May 2017)), placing in a health care institution (Article 141 (as amended on 28 June 2007)), forced appearance (Article 142 (as amended on 21 September 2010)).

5.1.3. It has been mentioned that, according to Paragraph 1 of Article 47 (wording of 23 December 2013) of the Law on Courts, the consent of the Seimas or, in the period between the sessions of the Seimas, the consent of the President of the Republic is not required to restrict the liberty of a judge if he/she is found in the act of committing a criminal offence (in flagranti). In this context, it should be noted that, under Paragraph 1 of Article 140 (wording of 28 June 2007), titled “Provisional Detention”, of the Code of Criminal Procedure, a prosecutor, pretrial investigation official, or any person may detain anyone caught in the act of committing or immediately following the commission of a crime, whereas, under Paragraph 2 of that article, provisional detention without having caught the person at the place where the crime has been committed or immediately following the commission of the crime is possible by a decision of the prosecutor or pretrial investigation official only in exceptional cases when all the conditions listed in this paragraph are met: it becomes evident that there are grounds and conditions, envisaged in the Code of Criminal Procedure, for the imposition of detention; it is immediately necessary to restrict a person’s liberty in order to achieve the objectives of the remand measures provided for in the Code of Criminal Procedure; there is no possibility of applying to the court in a very urgent manner in accordance with the procedure established by the Code of Criminal Procedure for a detention order.

5.1.4. In the light of the above-mentioned provisions of the Code of Criminal Procedure, Paragraph 1 of Article 47 (wording of 23 December 2013) of the Law on Courts must therefore be interpreted as meaning that:

a judge may be a suspect, he/she may be detained or may be subject to other procedural coercive measures restricting a person’s liberty, such as house arrest, provisional detention when he/she has not been found in the act of committing a criminal offence, placement in a health care institution, forced appearance, only upon receiving the consent of the Seimas or, in the period between the sessions of the Seimas, the consent of the President of the Republic;

if a judge is found in the act of committing a criminal offence (in flagranti), he/she may be temporarily detained without the consent of the Seimas or, in the period between the sessions of the Seimas, without the consent of the President of the Republic.

5.2. As mentioned above, Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts provides for the following actions prohibited against a judge: The entry into the residential or office premises of a judge, an inspection or a search of or making a seizure in such premises, an inspection or a search of or making a seizure in a personal or service car or other personal means of transport of a judge, an inspection or a search of a judge, or an inspection or making a seizure of the items or documents of a judge.

5.2.1. In this context, the following provisions, consolidated in Chapter XII, titled “Other Procedural Coercive Measures”, of Part III, titled “Procedural Coercive Measures”, of the Code of Criminal Procedure, should be mentioned:

Article 143 (as amended on 10 April 2003), titled “Inspection of a Person”, of the Code of Criminal Procedure, according to which a pretrial investigation official or prosecutor has the right to inspect the body of a suspect, victim, or other person, to determine, if necessary, whether on his/her body there are any traces of a criminal act or special marks (Paragraph 1); if a person does not consent to his/her body inspection, the pretrial investigation official or prosecutor issues a decision that is binding on that person (Paragraph 2);

Article 145 (as amended on 21 June 2011), titled “Search”, of the Code of Criminal Procedure, which stipulates that where there are grounds to believe that on some premises or in another place there are tools of a criminal act, items and valuables obtained or acquired in a criminal manner, as well as items or documents that may be relevant to the investigation of a criminal act, or that a certain person has them, a pretrial investigation official or prosecutor may carry out a search to locate and seize them (Paragraph 1); the search is carried out on the basis of a reasoned order of the investigating judge (Paragraph 3);

Article 146, titled “The Search of a Person”, of the Code of Criminal Procedure, according to which a search of a person is carried out in accordance with the same rules as a search of a flat, house, or other premises (Paragraph 1); in the absence of a separate order, a person may be searched: (1) during his/her apprehension or when detaining him/her, (2) where there are reasonable grounds to believe that a person who is on the premises or in the place where the search or seizure is being carried out conceals on himself/herself items or documents that may be relevant to the investigation of a criminal act (Paragraph 2);

Article 147 (as amended on 21 June 2011), titled “Seizure”, of the Code of Criminal Procedure, which stipulates that if it is necessary to take items or documents relevant to the investigation of a criminal act and it is precisely known where they are or who is in possession of them, a pretrial investigation official or prosecutor can make a seizure; the seizure is made on the basis of a reasoned order of the investigating judge (Paragraph 1); if the persons in possession of the items or documents to be seized do not surrender them, the items or documents may be seized by force (Paragraph 4);

Article 149 (as amended on 25 June 2015), titled “The Procedure of Search and Seizure”, of the Code of Criminal Procedure, which prescribes: when an official begins a search or seizure, he/she must announce the order or ruling of a search or seizure and give one copy of the order or ruling of a search or seizure to the person whose place is to be searched; the official must then request the surrender of the items or documents specified in the order or ruling or the indication of the whereabouts of the fugitive person (Paragraph 1); when carrying out a search or making a seizure, the official has the right to open the locked premises or containers if the opening is refused (Paragraph 2); the official has the right to prohibit persons present on the premises or in the place where the search is carried out or the seizure is made, as well as persons coming to those premises or that place, from leaving those premises or that place, from communicating with one another or with others until the search or seizure ends (Paragraph 3); the premises or place where the search is carried out or seizure is made may be surrounded by officials (Paragraph 4);

Article 1601 (wording of 21 June 2011), titled “The Application of Procedural Coercive Measures in Urgent Cases”, of the Code of Criminal Procedure, which provides that, in urgent cases, the procedural coercive measures provided for in Articles 145 and 147 of the Code of Criminal Procedure may be applied by a decision of the prosecutor or pretrial investigation official, but in all these cases an order of the investigating judge confirming the legality of the application of the procedural coercive measure must be received within three days of the adoption of the decision (Paragraph 1).

Thus, according to the legal regulation established in Articles 143 and 145–147 of the Code of Criminal Procedure, the procedural coercive measures – search, search of a person, seizure – are applied not only to a suspect, but also to another person by an order of the investigating judge, and the procedural coercive measure – an inspection of a person – is carried out by a decision of the pretrial investigation official or prosecutor in cases where the person does not consent to his/her body inspection.

5.2.2. Under Paragraph 1 of Article 207, titled “Inspection”, of Chapter XIV, titled “Actions in Pretrial Investigation”, of the Code of Criminal Procedure, the prosecutor, pretrial investigation official, or specialist inspect items or other objects that are relevant to the investigation of a criminal act where those items or objects do not need to be investigated in accordance with Article 205, titled “Procedure for the Investigation of Objects”, of the Code of Criminal Procedure. Thus, Article 207 of the Code of Criminal Procedure establishes the pretrial investigation action – the inspection of items or other objects that are relevant to the investigation of a criminal act, where those items or other objects may include, among others, premises, a car, or documents.

5.2.3. It should be noted that the entry into the residential or office premises may be a constituent part of the above-mentioned procedural coercive measures (search, seizure), of the pretrial investigation action – inspection – as well as of other procedural actions, inter alia, the on-the-spot verification of testimony (Article 196 (as amended on 11 May 2017) of the Code of Criminal Procedure), or the investigation of objects (Articles 205 and 206 of the Code of Criminal Procedure).

5.2.4. The said provisions of the Code of Criminal Procedure, inter alia, of Articles 143, 145–147, and 205–207 thereof, consolidate procedural coercive measures and pretrial investigation actions that may be applied (performed) not only (with respect) to suspects but also (with respect) to other persons, where those measures and actions serve the purpose of the collection of data or of the taking of items or documents that may be relevant to the investigation of a criminal act. Having regard to the purpose and content of the said measures and actions, it should be noted that they do not in themselves restrict a person’s liberty, i.e. their purpose is different from the above-mentioned procedural coercive measures restricting a person’s liberty (detention, house arrest, provisional detention, placement in a health care institution, forced appearance).

5.2.5. Thus, under Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts as interpreted in conjunction with the said provisions of the Code of Criminal Procedure and Paragraph 1 of Article 47 (wording of 23 December 2013) of the Law on Courts, it is prohibited, without the consent of the Seimas or, in the period between the sessions of the Seimas, without the consent of the President of the Republic, that a judge be subject to procedural coercive measures that, in themselves, do not restrict his/her liberty (inspection or a search of a person; a seizure of the items or documents of a judge; a search of or a seizure in the residential or office premises of a judge or in a personal or service means of transport of a judge); nor is it allowed to carry out an inspection of the items or documents of a judge or other pretrial investigation actions, among them those that include as a constituent part the entry into the residential or office premises of a judge. Consequently, under Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts, read in conjunction with Paragraph 1 of that article and Paragraph 1 of Article 32 (wording of 21 June 2011) of the Code of Criminal Procedure, in order to apply to a judge the above-mentioned procedural coercive measures that, in themselves, do not restrict his/her liberty and to perform the specified actions of pretrial investigation, it is necessary to receive the consent of the Seimas, or, in the period between the sessions of the Seimas, the consent of the President of the Republic to hold the judge criminally responsible (i.e. consider him/her a suspect), detain him/her, or otherwise restrict his/her liberty.

It should be noted that, according to Paragraph 1 of Article 47 (wording of 23 December 2013) of the Law on Courts, after receiving the consent of the Seimas, or, in the period between the sessions of the Seimas, the consent of the President of the Republic to hold a judge criminally responsible, detain him/her, or otherwise restrict his/her liberty, all actions laid down in the Code of Criminal Procedure, inter alia, those specified in Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts, may be carried out against the judge.

6. In this context, it should be mentioned that the actions specified in Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts are regulated not only by the Code of Criminal Procedure, but also by other laws, including the Code of Administrative Offences of the Republic of Lithuania (wording of 25 June 2015, as subsequently amended and/or supplemented), which lays down coercive measures that ensure the proceedings of administrative offences, such as: the inspection of a person and examination of items (Item 4 of Article 595, Article 598), the seizure of items and documents (Item 5 of Article 595, Article 599 (as amended on 20 December 2018)), seizure (Item 6 of Article 595, Article 600). It also needs to be mentioned that these coercive measures that ensure the proceedings of administrative offences, like the above-mentioned procedural coercive measures and pretrial investigation actions established in the Code of Criminal Procedure, do not, in themselves, restrict a person’s physical liberty, i.e. their purpose is to collect data, to seize items or documents that are relevant to the investigation of an administrative offence.

Paragraph 4 of Article 4 of the Code of Administrative Offences stipulates, inter alia, that, in applying this code and other legal acts, the liberty of a judge must not be restricted without the consent of the Seimas or, in the period between the sessions of the Seimas, without the consent of the President of the Republic.

Thus, Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts, read in conjunction with the provisions of the Code of Administrative Offences, inter alia, those of Paragraph 4 of Article 4 thereof, and with Paragraph 1 of Article 47 (wording of 23 December 2013) of the Law on Courts, prohibits, without the consent of the Seimas or, in the period between the sessions of the Seimas, without the consent of the President of the Republic, the application to a judge of the coercive measures – the inspection of a person and examination of items, the seizure of items and documents, seizure – that ensure the proceedings of administrative offences and that, in themselves, do not restrict the liberty of the judge. Consequently, according to this legal regulation, in order to apply to a judge the above-mentioned coercive measures that ensure the proceedings of administrative offences and that, in themselves, do not restrict the liberty of the judge, it is necessary to receive the consent of the Seimas or, in the period between the sessions of the Seimas, the consent of the President of the Republic to restrict the liberty of the judge.

7. As mentioned above, Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts provides for an exception to the prohibition on applying to a judge of procedural measures (inspection, search, seizure, inspection of a person, search of a person, other procedural actions, among them those that include as a constituent part the entry into the residential or office premises of a judge) that do not, in themselves, restrict the liberty of a judge – the application of the said measures is allowed, in cases established in laws, without the consent of the Seimas (in the period between the sessions of the Seimas, without the consent of the President of the Republic) referred to in Paragraph 1 of Article 47 (wording of 23 December 2013) of the said law.

7.1. In this context, it should be noted that Paragraph 3 of Article 47 (wording of 23 December 2013) of the Law on Courts provides, inter alia, that the beginning of the use of the methods and means of collecting criminal intelligence information against a judge on the grounds and in accordance with the procedure established in laws is allowed only by a decision of the head of the principal criminal intelligence institution or his/her authorised officials, with the consent of the Prosecutor General or a prosecutor of the Office of the Prosecutor General or of a regional prosecutor’s office who is authorised by the Prosecutor General and who controls the lawfulness of criminal intelligence actions and coordinates their execution.

The Republic of Lithuania’s Law on Criminal Intelligence (wording of 2 October 2012, as subsequently amended) regulates the methods and means of collecting criminal intelligence information, inter alia: (1) inspection, which is a method of collecting criminal intelligence information, where the information is obtained and recorded by public, encrypted, or covert viewing of items, documents, premises, vehicles, location, persons, or other objects (Paragraph 3 of Article 2); (2) secret access to a person’s home, official and other premises, closed territories, vehicles (Article 11).

7.2. Thus, when interpreting the legal regulation laid down in Paragraphs 1–3 of Article 47 (wording of 23 December 2013) of the Law on Courts in conjunction with the specified provisions of the Law on Criminal Intelligence, it should be noted that, under this legal regulation, the application to a judge of the methods and actions of gathering criminal intelligence information, inter alia, inspection, secret access to a person’s home, official and other premises, or vehicles, as established in the Law on Criminal Intelligence, is possible without the consent of the Seimas or of the President of the Republic.

8. In the context of the constitutional justice case at issue, it should be noted that the relationships connected with the immunity of justices of the Constitutional Court are regulated by the Law on the Constitutional Court (wording of 3 February 1993, as subsequently amended and/or supplemented).

8.1. Article 8 (wording of 11 November 2008), titled “The Inviolability of a Justice of the Constitutional Court”, of the Law on the Constitutional Court provides:

a justice of the Constitutional Court may not be held criminally responsible or be detained, or have his/her liberty restricted otherwise, without the consent of the Seimas, except in cases where he/she is found in the act of committing a crime (in flagranti) (Paragraph 2);

the entry into the residential or office premises of a justice of the Constitutional Court, an inspection or a search of or making a seizure in such premises, an inspection or a search of or making a seizure in a personal or service car or other personal means of transport of a justice, an inspection or a search of a justice of the Constitutional Court, or an inspection or making a seizure of the items or documents of a justice is prohibited unless a criminal case has been instituted against the justice of the Constitutional Court according to the established procedure (Paragraph 4).

8.2. Thus, Paragraph 2 of Article 8 (wording of 11 December 2008) of the Law on the Constitutional Court consolidates the immunity of justices of the Constitutional Court from holding them criminally responsible, their detention, or other restriction of their liberty: justices of the Constitutional Court must not be held criminally responsible or be detained, or have their liberty restricted otherwise, without the consent of the Seimas, and an exception to this rule is also established: such consent is not required in the case where a justice of the Constitutional Court is found in the act of committing a crime (in flagranti).

In interpreting this legal regulation in the context of the above-mentioned Paragraph 1 of Article 32, Paragraph 1 (wording of 15 January 2019) of Article 120, Articles 122–127, 132, and 140–142 of the Code of Criminal Procedure, it should be noted that, according to Paragraph 2 of Article 8 (wording of 11 November 2008) of the Law on the Constitutional Court, a justice of the Constitutional Court may, only with the consent of the Seimas, be a suspect, he/she may be subject to detention or other procedural coercive measures restricting a person’s liberty, such as house arrest, provisional detention when he/she is not found in the act of committing a crime, placement in a healthcare institution, forced appearance; such consent is not required if a justice of the Constitutional Court is provisionally detained after he/she is found in the act of committing a crime (in flagranti).

8.3. Paragraph 4 of Article 8 (wording of 11 November 2008) of the Law on the Constitutional Court provides that, only where a criminal case has been instituted against a justice of the Constitutional Court according to the established procedure, the performance of the following actions is permitted: the entry into the residential or office premises of a justice of the Constitutional Court; an inspection or a search of or making a seizure in the residential or office premises of a justice of the Constitutional Court, an inspection or a search of or making a seizure in a personal or service car or other personal means of transport of a justice of the Constitutional Court; an inspection or a search of a justice of the Constitutional Court; an inspection or making a seizure of the items or documents of a justice of the Constitutional Court.

When interpreting Paragraph 4 of Article 8 (wording of 11 November 2008) of the Law on the Constitutional Court, it is important to disclose the content of the provision “a criminal case has been instituted against the justice of the Constitutional Court” entrenched therein. It is apparent from a comparison of the legal regulation (in force until 1 May 2003), established in Article 125 (wording of 26 June 1961, as subsequently amended and/or supplemented), titled “Causes and Grounds for Instituting Criminal Cases”, of the Code of Criminal Procedure with the legal regulation laid down in Article 166 (wording of 28 June 2007), titled “Commencement of Pretrial Investigation”, of the Code of Criminal Procedure that the commencement of a pretrial investigation was envisaged instead of the institution of a criminal case. Consequently, the said provision “a criminal case has been instituted against the justice of the Constitutional Court” must be interpreted as meaning that a pretrial investigation has been launched and that a justice of the Constitutional Court is a suspect in it. As mentioned above, according to Paragraph 2 of Article 8 (wording of 11 November 2008) of the Law on the Constitutional Court, a justice of the Constitutional Court may be a suspect only with the consent of the Seimas.

8.4. When interpreting Paragraph 4 (wording of 11 November 2008) of Article 8 of the Law on the Constitutional Court in conjunction with Paragraph 2 of that article, it should be noted that, without the consent of the Seimas, the performance of the following actions is prohibited: the entry into the residential or office premises of a justice of the Constitutional Court, an inspection or a search of or making a seizure in such premises, an inspection or a search of or making a seizure in a personal or service car or other personal means of transport of a justice of the Constitutional Court, an inspection or a search of a justice of the Constitutional Court, or an inspection or making a seizure of the items or documents belonging to him/her. Consequently, under Paragraph 4 of Article 8 (wording of 11 November 2008) of the Law on the Constitutional Court, read in conjunction with Paragraph 2 of that article and Paragraph 1 of Article 32 (wording of 21 June 2011) of the Code of Criminal Procedure, in order to carry out such actions against a justice of Constitutional Court, it is necessary to receive the consent of the Seimas to hold the justice of the Constitutional Court criminally responsible (i.e. consider him/her a suspect), detain him/her, or otherwise restrict his/her liberty.

In this context, it should be noted that the actions indicated in Paragraph 4 of Article 8 (wording of 11 November 2008) of the Law on the Constitutional Court are identical to those referred to in Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts.

II

The European standards on the immunity of judges

9. In the context of this constitutional justice case, mention should be made of the provisions of the documents adopted by the institutions of the Council of Europe, which reveal aspects of the independence and immunity of judges.

10. Recommendation CM/Rec(2010)12 of 17 November 2010 of the Committee of Ministers of the Council of Europe to member states on judges: independence, efficiency and responsibilities, which is, inter alia, intended for strengthening measures to ensure the independence of judges, the effectiveness of their activities, as well as their guarantees and responsibilities, consolidates the principle of the independence of courts and judges, noting that the independence of individual judges is safeguarded by the independence of the judiciary as a whole; as such, the said independence is a fundamental aspect of the rule of law (point 4).

At the same time, it is also noted that the interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to criminal liability, except in cases of malice (point 68); however, when not exercising judicial functions, judges are liable under civil, criminal, and administrative law in the same way as any other citizen (point 71).

11. The Consultative Council of European Judges (CCJE), which is an advisory body of the Council of Europe on issues relating to the independence, impartiality, and competence of judges, has on more than one occasion examined the question of the scope of the immunity of judges.

11.1. The Magna Charta of Judges (Fundamental Principles), adopted on 17 November 2010, noted that judicial independence must be guaranteed in respect of judicial activities and, among other things, in particular in respect of judicial immunity (point 4).

11.2. Opinion No 3 of the Consultative Council of European Judges of 19 November 2002 on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality notes that judges who in the conduct of their office commit what would in any circumstances be regarded as crimes cannot claim immunity from ordinary criminal process (point 52); judges should be held criminally liable in ordinary law for offences committed outside their judicial office; however, criminal liability should not be imposed on judges for unintentional failings in the exercise of their functions (point 75).

11.3. Opinion No 18 (2015) of the Consultative Council of European Judges of 16 October 2015, titled “The position of the judiciary and its relation with the other powers of state in a modern democracy”, noted that the independence of judges is not a prerogative or privilege granted in their own interest, but in the interest of the rule of law and of all those who seek and expect justice (point 10); all judicial actions must be in accordance with the applicable principles of professional conduct, established disciplinary rules, and the criminal law; given the importance of ethics and integrity for the public’s confidence in the judiciary, judges must behave with integrity both in their official functions and in their private lives and will be accountable for their conduct if it is outside accepted norms; the corollary of society granting such extensive powers and trust to judges is that there must be some means of holding judges responsible, and even removing them from office; this is particularly so in cases of judicial corruption, which fundamentally undermine public confidence in judicial impartiality and independence (point 33).

12. In the constitutional justice case at issue, mention should be made of the provisions of the relevant documents of the European Commission for Democracy through Law (Venice Commission), acting as an advisory body to the Council of Europe.

12.1. On 12–13 March 2010, at its 82nd plenary session, the Venice Commission adopted Part I, titled “The Independence of Judges”, of the Report on the Independence of the Judicial System. That report notes that it is indisputable that judges have to be protected against undue external influence; to this end they should enjoy functional – but only functional – immunity (immunity from prosecution for acts performed in the exercise of their functions, with the exception of intentional crimes (points 61 and 82(10)).

12.2. Opinion No 246/2003 on the reform of the judicial system in Bulgaria, adopted by the Venice Commission at its 55th plenary session on 13–14 June 2003, states that the high degree of immunity given, inter alia, to judges is one of the reasons for insufficient results in the combat of crime and corruption, including corruption in the judiciary itself; therefore, judges should not benefit from a general immunity, which protects them against prosecution for criminal acts committed by them for which they should be answerable before the courts (points 13 and 15(a)).

12.3. Opinion No 610/2011 on the Draft Law on Judges and Prosecutors of Turkey, adopted by the Venice Commission at its 86th plenary session on 25–26 March 2011, critically assesses the legal regulation according to which judges suspected of the commission of an offence cannot, inter alia, be searched or interrogated, nor can their houses be searched except in cases where an offender is found committing an offence (in flagranti); the Venice Commission criticises the exclusion of judges and prosecutors from provisions relating, inter alia, to search or interrogation, except in cases where such procedures would interfere directly with the operation of a court of law (point 88).

12.4. Opinion No 698/2012 (Amicus Curiae Brief) for the Constitutional Court of Moldova on the immunity of judges, adopted by the Venice Commission at its 94th plenary session on 8–9 March 2013, points out that the Venice Commission has consistently argued in favour of a limited functional immunity of judges (point 16), i.e. immunity from prosecution only for lawful acts performed in carrying out their functions (point 19).

This opinion also stresses that the notion of judicial immunity is part of the wider concept of judicial independence; judicial immunity is not an end in itself, but serves the independence of the judge who should be able to decide cases without fearing civil or criminal liability for judicial adjudication done in good faith (point 20). According to the Council of Europe’s Group of States against Corruption (GRECO), one type of the immunity of judges is procedural immunity (point 21). Judges – like any other person – should be punished for any crimes they commit; no criminal act should be covered by non-liability immunity; judges should obviously be prosecuted for all crimes (point 22). The justification for procedural immunity for judges – where it exists – cannot be to protect the judge from criminal prosecution, but only from false accusations that are levelled against a judge in order to exert pressure on him/her (point 23).

This opinion of the Venice Commission also stresses that, while some states, particularly in Eastern Europe, where the risk of illegal accusations to influence judges is higher, confer a criminal inviolability on judges as an additional guarantee for judges, there is no internationally recognised norm requiring such inviolability; on the contrary, according to international standards, when not exercising judicial functions, judges are liable under civil, criminal, and administrative law in the same way as any other citizen (point 53). Indeed criminal judicial inviolability does not exist in the majority of European states, all of which nevertheless place a high value on judicial independence (point 53). While functional safeguards are needed to guarantee judicial independence against undue external influence, broad immunity is not; judicial independence does not depend on wide immunity and judges should answer for any alleged crimes on the presumption that normal procedures of defence, appeal, and other elements of the rule of law are at their full disposal (point 54).

12.5. Opinion No 802/2015 on draft constitutional amendments on the immunity of members of parliament and judges of Ukraine, adopted by the Venice Commission at its 103rd plenary session on 19–20 June 2015, notes that there are no rigid European standards on judicial immunity; this leaves the state concerned a large margin of appreciation (point 23); at the same time, it is pointed out that judges should not benefit from a general immunity, but that they should only have functional immunity, i.e. immunity for acts committed in the course of their judicial function; while functional safeguards are needed to guarantee judicial independence against undue external influence, broad immunity is not (point 25); judges should not be treated in a privileged way for criminal offences not related to judicial decision making for which they are held responsible like any other person, i.e. on a common basis (point 26).

12.6. Opinion No 880/2017 (Amicus Curiae Brief) for the Constitutional Court of Moldova on the criminal liability of judges, adopted by the Venice Commission at its 110th plenary session on 10–11 March 2017 recalled that judicial immunity – that is, immunity from prosecution for acts performed in the exercise of a judge’s function, with the exception of intentional crimes (i.e. functional immunity) – forms an integral part of the wider concept of judicial independence (point 9). This opinion states that a balance needs to be struck between immunity as a means to protect the judge against undue pressure and abuse from state powers or individuals, on the one hand, and the fact that a judge is not above the law, on the other (point 17).

12.7. Opinion No 967/2019 (Amicus Curiae Brief) for the Constitutional Court of Moldova on the criminal liability of Constitutional Court judges, adopted by the Venice Commission at its 121st plenary session on 6–7 December 2019, notes that immunity granted, inter alia, to judges is an exception to the principle of non-discrimination and equality before the law (point 8). It is therefore important that, when immunity is granted to judges, it should be functional immunity and not general immunity, as immunity should always be connected to the role and activities carried out by the institution for which the individual is working or represents; a person should not be exempted personally from criminal and possibly other liabilities that are not connected with his/her role and professional activity (point 9). In the opinion of the Venice Commission, functional immunity does not exclude criminal prosecution in cases not related to adjudication, because criminal offences may be committed by anyone, including Constitutional Court judges (point 24).

13. In the context of this constitutional justice case, some provisions of the legal acts governing the immunity of judges of international courts should be mentioned.

13.1. Under Article 51 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the judges of the European Court of Human Rights are entitled, during the exercise of their functions, to the privileges and immunities provided for in the Statute of the Council of Europe and in the agreements made thereunder. The immunities granted to the judges of the European Court of Human Rights are governed by the 1996 Sixth Protocol to the General Agreement on Privileges and Immunities of the Council of Europe, whose Article 4 prescribes that privileges and immunities are accorded to judges not for the personal benefit of the individuals themselves but in order to safeguard the independent exercise of their functions; the immunity of a judge must be lifted in any case where the immunity would impede the course of justice, and where it can be lifted without prejudice to the purpose for which the immunity is accorded.

13.2. The immunity of the judges of the Court of Justice of the European Union is regulated by the provisions of Protocol (No 3) on the Statute of the Court of Justice of the European Union, annexed to the Treaty on the Functioning of the European Union; according to those provisions, the judges shall be immune from legal proceedings (Article 3). The judges of the Court of Justice of the European Union are also subject to the provisions of Protocol (No 7) on the privileges and immunities of the European Union, annexed to the Treaty on the Functioning of the European Union, under which each institution of the Union shall be required to waive the immunity accorded to an official or other servant wherever that institution considers that the waiver of such immunity is not contrary to the interests of the Union (Article 17).

14. In the context of this constitutional justice case, mention should be made of the judgment of the Constitutional Court of the Republic of Moldova of 5 September 2013, delivered in case no 33a/2012. It was noted therein that the independence of judges is not an objective in itself, it is not a privilege of judges, but a guarantee that protects against external pressure on decision making and ensures that judges are able to carry out the functions assigned to them, including the protection of human rights and freedoms.

The aforementioned judgment of the Constitutional Court of the Republic of Moldova also states that the immunity of judges is not absolute. The constitutional principle of the independence of courts is inseparable from the principle of the liability of judges. The legislature is obliged to provide by law for guarantees of the independence of courts and judges in such a way as to strike a balance between the independence of judges and their responsibility, on the one hand, and the public confidence in the decisions taken by the courts, on the other. Immunity should not be an obstacle to implementing the fundamental functions and tasks of justice, as well as to implementing democratic principles of a state under the rule of law. Thus, the immunity of a judge cannot be interpreted as an obstacle to the imposition of the criminal and disciplinary liability on the judge.

III

The provisions of the Constitution and the official constitutional doctrine

15. In the constitutional justice case at issue, the Constitutional Court is investigating the compliance of the legal regulation relating to the immunity of judges with Paragraph 2 of Article 109 and Paragraph 2 of Article 114 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

16. The Constitutional Court has consistently held that the constitutional principle of a state under the rule of law is especially broad and comprises a wide range of interrelated imperatives (inter alia, the Constitutional Court’s decision of 20 April 2010, as well as its rulings of 26 June 2017 and 6 February 2020); this constitutional principle also embodies the striving for an open, just, and harmonious civil society and a state under the rule of law, as consolidated in the Preamble to the Constitution (inter alia, the Constitutional Court’s rulings of 19 September 2002, 13 December 2004, and 26 June 2017). The constitutional principle of a state under the rule of law is also inseparable from the principle of the equality of the rights of persons, which is consolidated in the Constitution, inter alia, in Article 29 thereof (inter alia, the Constitutional Court’s rulings of 6 February 2012, 14 April 2014, and 19 September 2019).

16.1. The striving for an open, just, and harmonious civil society and a state under the rule of law, as established in the Preamble to the Constitution, implies that it is obligatory to try to ensure the security of each person and all society against criminal attempts (inter alia, the Constitutional Court’s rulings of 16 January 2006, 4 June 2012, and 15 March 2017). It is one of the duties of the state and one of its priority tasks to ensure such safety (inter alia, the Constitutional Court’s rulings of 8 May 2000, 29 December 2004, and 15 March 2017). The Constitution consolidates such a concept of a democratic state under the rule of law whereby the state not only seeks to protect and defend a person and society from crimes and other dangerous violations of law, but also is able to do this effectively (inter alia, the Constitutional Court’s rulings of 29 December 2004, 16 January 2006, and 26 June 2017).

The obligation of the state, which stems from the Constitution, to ensure the security of each person and all society against criminal attempts implies not only the right and duty of the legislature to define criminal acts and establish criminal responsibility for them by means of laws, but also its right and duty to regulate the relationships linked with the detection of, and an investigation into, criminal acts and with the consideration of criminal cases, i.e. its right and duty to regulate criminal procedure relationships; criminal procedure relationships must be regulated by law in a way that would create the legal preconditions for detecting speedily and investigating thoroughly criminal acts, for punishing justly persons who committed the criminal acts (or for deciding the issue of their criminal responsibility by law otherwise), as well as the legal preconditions for ensuring that no one who is innocent would be punished; it is necessary to seek to ensure the protection of the rights of persons who suffered from criminal acts and to avoid any unreasonable restriction of the rights of persons who committed criminal acts; the legal regulation of criminal procedure should not create any preconditions for delaying the investigation of criminal acts or the consideration of criminal cases, nor should it create any preconditions for participants in criminal proceedings to abuse their procedural or other rights; otherwise, it would be more difficult to implement the constitutional obligation of the state to ensure by means of legal measures the security of each person and of all society, as well as the legal order based on the constitutional values (inter alia, the Constitutional Court’s rulings of 16 January 2006, 15 November 2013, and 26 June 2017).

16.2. Paragraph 2 of Article 29 of the Constitution lays down the principle prohibiting the discrimination of persons and the granting of privileges (inter alia, the Constitutional Court’s rulings of 28 May 2010 and 30 October 2014). The Constitution does not protect and does not defend any such rights acquired by a person that are privileges in terms of their content; the defence and protection of privileges would mean the violation of the constitutional principles of the equality of the rights of persons and justice, as well as the imperative of harmonious society, consolidated in the Constitution, and, thus, also the constitutional principle of a state under the rule of law (inter alia, the Constitutional Court’s rulings of 13 December 2004, 5 July 2007, and 3 July 2014).

17. Paragraph 2 of Article 109 of the Constitution prescribes: “When administering justice, judges and courts shall be independent.”

Thus, the independence of judges and courts, which is consolidated in Paragraph 2 of Article 109 of the Constitution, is designed for ensuring the administration of justice, which is an exceptional function of the judicial branch of power (under Paragraph 1 of Article 109 of the Constitution, only courts administer justice in the Republic of Lithuania). The Constitutional Court has noted that the function of the administration of justice determines the independence of judges and courts; a judge can administer justice only while being independent of the parties to the case, state institutions, officials, political and public associations, natural and legal persons (inter alia, the Constitutional Court’s rulings of 12 July 2001, 13 May 2004, and 8 May 2014).

The Constitutional Court has noted on more than one occasion that the independence of judges and courts is not an objective in itself, but one of the essential principles of a democratic state under the rule of law and a necessary condition for the protection of human rights and freedoms. The independence of judges and courts is not a privilege, but one of the most important obligations of judges and courts, which stems from the constitutionally guaranteed right of a person who believes that his/her rights or freedoms are violated to have an impartial arbiter of the dispute, who would decide under the Constitution and laws the emerged legal dispute on its merits (inter alia, the Constitutional Court’s rulings of 6 December 1995, 9 May 2006, and 29 June 2010).

The principle of the independence of judges and courts, which is enshrined in the Constitution, obliges the legislature to establish such guarantees of the independence of judges and courts that would ensure the impartiality of courts in adopting a decision and would not permit any interference with the activities of judges and courts in administering justice (the Constitutional Court’s rulings of 12 July 2001 and 28 March 2006, and its decision of 10 March 2014). In the jurisprudence of the Constitutional Court, it has been held that the independence of judges and courts, as well as their impartiality, may be ensured by means of various measures, inter alia, by laying down in laws, among others, their procedural independence and the status of judges (inter alia, the Constitutional Court’s rulings of 21 December 1999 and 12 February 2001, and its decision of 10 March 2014); the independence of judges is ensured, inter alia, by establishing guarantees for the inviolability of the person of a judge (inter alia, the Constitutional Court’s rulings of 22 October 2007, 14 February 2011, and 8 May 2014).

18. As the Constitutional Court held in its ruling of 30 May 2003, one of the constitutionally consolidated guarantees of the independence of judges is the immunity of judges, which is enshrined, inter alia, in Paragraph 2 of Article 114 of the Constitution, under which judges may not be held criminally responsible or be detained, or have their liberty restricted otherwise, without the consent of the Seimas or, in the period between the sessions of the Seimas, without the consent of the President of the Republic. The Constitutional Court has held that immunity means additional guarantees for a person’s inviolability, which are necessary and indispensable for the proper performance of the duties of that person (the Constitutional Court’s ruling of 8 May 2000).

18.1. It should be noted that, under the Constitution, inter alia, Paragraph 2 of Article 114 thereof, read in conjunction with Paragraph 2 of Article 109 of the Constitution, the immunity of judges is not an objective in itself. It needs to be emphasised that the constitutional immunity of judges is functional in nature: its purpose is to guarantee the independence of judges, so that the administration of justice is ensured. Only such a concept of the immunity of judges is compatible with the obligation, stemming from the Constitution, for a democratic state under the rule of law to ensure the security of each person and all society against criminal attempts, inter alia, the duty of the legislature to create, by means of legal regulation, the preconditions for the speedy disclosure and thorough investigation of criminal acts and other violations of law, as well as the preconditions for the fair solving of the question concerning the legal responsibility of persons having committed these criminal acts or other violations of law. Thus, the immunity of judges, entrenched in Paragraph 2 of Article 114 of the Constitution, is not meant to create the preconditions for judges to avoid criminal or other legal responsibility for criminal acts or other violations of law. A different interpretation of the immunity of judges, including that, purportedly, the legislature may provide for the broader immunity of judges than that entrenched in Paragraph 2 of Article 114 of the Constitution, would be incompatible with the constitutionally consolidated concept of a democratic state under the rule of law, inter alia, it would be incompatible with the constitutional obligation of the state to ensure the security of each person and all society against criminal attempts; the said different interpretation of the immunity of judges would also unreasonably single out judges from society and would imply a privilege, prohibited under Paragraph 2 of Article 29 of the Constitution.

It should also be noted that the requirement, under Paragraph 2 of Article 114 of the Constitution, that judges may not be held criminally responsible or be detained, or have their liberty restricted otherwise, without the consent of the Seimas or of the President of the Republic, is consolidated for the purpose of enabling the maximum protection of judges against unfoundedly being held criminally responsible, being detained, or having their liberty restricted otherwise in cases where it would thereby be sought to influence the decisions of judges.

18.2. Interpreting Paragraph 2 of Article 114 of the Constitution, under which a judge, inter alia, may not be held criminally responsible without the consent of the Seimas or, in the period between the sessions of the Seimas, without the consent of the President of the Republic, it should be noted that such consent of the Seimas or of the President of the Republic may be given only in cases where, in accordance with the procedure prescribed by law, sufficient data are collected to suspect the judge concerned of having committed a criminal act.

18.3. It should also be noted that Paragraph 2 of Article 114 of the Constitution, under which a judge, inter alia, may not be held criminally responsible without the consent of the Seimas or, in the period between the sessions of the Seimas, without the consent of the President of the Republic, should be interpreted in conjunction with Paragraph 1 of Article 20 of the Constitution, according to which human liberty is inviolable, as well as in conjunction with Paragraph 2 of the said article, under which no one may be arbitrarily apprehended or detained; no one may be deprived of his/her liberty otherwise than on the grounds and according to the procedures established by law. The Constitutional Court has held that Paragraph 1 of Article 20 of the Constitution lays down the human right to physical liberty (the Constitutional Court’s ruling of 8 May 2000), and that this liberty means, first of all, the protection of an individual against arbitrary apprehension or detention (the Constitutional Court’s ruling of 5 February 1999). Paragraph 2 of Article 20 of the Constitution enshrines the principle of the lawfulness of the apprehension of a person: a person must not be deprived of liberty otherwise than on such grounds and in accordance with such procedures as are established by law (the Constitutional Court’s ruling of 5 February 1999).

Thus, under Paragraph 2 of Article 114 of the Constitution, which enshrines a judge’s functional immunity, intended to guarantee a judge’s independence in order to ensure the administration of justice, the consent of the Seimas or of the President of the Republic is required only for such restriction of the physical liberty of a judge that is aimed at providing the preconditions for holding the judge criminally or otherwise legally responsible for having committed criminal acts or other violations of law; inter alia, this consent is required for his/her apprehension, detention, or the deprivation of liberty otherwise. However, under Paragraph 2 of Article 114 of the Constitution, no consent of the Seimas or of the President of the Republic is required for such procedural measures provided for by law that, in themselves, do not restrict a person’s physical liberty and are necessary for the speedy disclosure and thorough investigation of criminal acts and other violations of law, inter alia, for collecting evidence and identifying persons having committed criminal acts or other violations of law (inter alia, for carrying out a search, seizure, or inspection).

A different interpretation of Paragraph 2 of Article 114 of the Constitution, including that, purportedly, the consent of the Seimas or of the President of the Republic is necessary for any procedural measures that, in themselves, do not restrict a person’s physical liberty, but are related to performing the duties of the person prescribed by law in applying these measures, would create the preconditions for persons, inter alia, judges, having committed criminal acts or other violations of law to avoid criminal or other legal responsibility. The requirement to receive the consent of the Seimas or of the President of the Republic in order for the said procedural measures to be applied to judges would be incompatible with the obligation, stemming from the Constitution, for a democratic state under the rule of law to ensure the security of each person and all society against criminal attempts, inter alia, with the duty of the legislature to create, by means of legal regulation, the preconditions for the speedy disclosure and thorough investigation of criminal acts and other violations of law, as well as the preconditions for the fair solving of the question concerning the legal responsibility of persons, inter alia, judges, having committed these criminal acts or other violations of law.

18.4. It should be noted that the requirement, consolidated under Paragraph 2 of Article 114 of the Constitution, to receive the consent of the Seimas or of the President of the Republic in order to hold a judge criminally responsible or detain him/her, or have his/her liberty restricted otherwise must not be interpreted as precluding the apprehension of a judge, in accordance with the procedure prescribed by law and if necessary, where the judge is found in the act of committing a criminal offence or another violation of law. A different interpretation, including that, purportedly, the absence of the consent in question would preclude the restriction of the liberty of a judge where the judge is found in the act of committing a criminal offence or another violation of law would be incompatible with the obligation, stemming from the Constitution, for a democratic state under the rule of law to ensure the security of each person and all society against criminal attempts, since it would create the preconditions for the judge to avoid legal responsibility for the committed criminal act or another violation of law.

It should also be noted that, in cases where a judge is found in the act of committing a criminal offence, under Paragraph 2 of Article 114 of the Constitution, it is necessary, without undue delay, to receive the consent of the Seimas or, in the period between the sessions of the Seimas, the consent of the President of the Republic for holding the judge criminally responsible.

19. It should be noted that, as held by the Constitutional Court, the mere fact there are separate Chapters “Courts” and “The Constitutional Court” in the Constitution is not and may not be grounds for providing such interpretation that the Constitutional Court is not a court as a part of the judicial power (the Constitutional Court’s ruling of 6 June 2006). As it has been held by the Constitutional Court on more than one occasion, it exercises constitutional judicial review; the Constitutional Court is an institution of constitutional justice; while deciding, within its competence, on the compliance of lower-ranking legal acts (parts thereof) with higher-ranking legal acts, inter alia (and, first of all), with the Constitution, and exercising its other constitutional powers, the Constitutional Court – an autonomous and independent court – administers constitutional justice and guarantees the supremacy of the Constitution in the legal system, as well as constitutional lawfulness.

19.1. The immunity of the justices of the Constitutional Court is consolidated in Paragraph 4 of Article 104 of the Constitution, which is in Chapter VIII thereof, titled “The Constitutional Court”, under which the justices of the Constitutional Court have the same rights concerning the inviolability of their person as the members of the Seimas. In this context, it should be noted that, according to Paragraph 1 of Article 104 of the Constitution, while in office, the justices of the Constitutional Court are independent of any other state institution, person, or organisation and follow only the Constitution of the Republic of Lithuania. Thus, the immunity of the justices of the Constitutional Court, as consolidated in Paragraph 4 of Article 104 of the Constitution, is the guarantee of their independence while they are in office.

In this context, it should be noted that Paragraph 1 of Article 62 of the Constitution provides that the person of a member of the Seimas is inviolable. The Constitutional Court has held that Paragraph 1 of Article 62 of the Constitution is related to Paragraph 2 of that article, under which the members of the Seimas may not be held criminally responsible or be detained, or have their liberty restricted otherwise, without the consent of the Seimas (the Constitutional Court’s ruling of 8 May 2000). The Constitutional Court has also held that, although the Constitution provides for additional guarantees of the inviolability of a member of the Seimas compared to the guarantees of the inviolability of an individual, the scope of the immunity of a member of the Seimas is nevertheless narrower than that of the President of the Republic, i.e. the right of a member of the Seimas to liberty and the inviolability of his/her person during his/her term of office may be limited; as mentioned above, according to Paragraph 2 of Article 62 of the Constitution, this can only be done with the consent of the Seimas (the Constitutional Court’s ruling of 8 May 2000).

The Constitutional Court has also held that Paragraph 2 of Article 62 of the Constitution enshrines additional guarantees of the inviolability of the person of a member of the Seimas that are necessary for the proper performance of his/her duties (inter alia, the Constitutional Court’s rulings of 8 May 2000, 25 January 2001, and 27 April 2016).

19.2. In view of this, it should be noted that, under Paragraph 4 of Article 104 of the Constitution, a justice of the Constitutional Court may not be held criminally responsible or be detained, or have his/her liberty restricted otherwise, without the consent of the Seimas.

It should also be noted that, under Paragraph 4 of Article 104 of the Constitution as interpreted in conjunction with Paragraph 1 of Article 104 of the Constitution, the immunity of the justices of the Constitutional Court, in the same way as the immunity of judges as entrenched in Paragraph 2 of Article 114 of the Constitution, is functional in nature: its purpose is to guarantee the independence of the justices of the Constitutional Court, so that the administration of constitutional justice is ensured and the supremacy of the Constitution in the legal system, as well as constitutional lawfulness, is guaranteed. Thus, there are no constitutional grounds for the scope of the immunity of the justices of the Constitutional Court, which is consolidated in Paragraph 4 of Article 104 of the Constitution, to be interpreted differently from the scope of the immunity of judges, which is entrenched in Paragraph 2 of Article 114 of the Constitution. However, differently from Paragraph 2 of Article 114 of the Constitution, Paragraph 4 of Article 104 of the Constitution does not provide for the possibility for holding a justice of the Constitutional Court criminally responsible, detaining him/her, or restricting his/her liberty otherwise with the consent of the President of the Republic in the period between the sessions of the Seimas. It should also be noted that the requirement, under Paragraph 4 of Article 104 of the Constitution, that the justices of the Constitutional Court may not be held criminally responsible or be detained, or have their liberty restricted otherwise, without the consent of the Seimas is consolidated for the purpose of enabling the maximum protection of the justices of the Constitutional Court against unfoundedly being held criminally responsible, being detained, or having their liberty restricted otherwise in cases where it would thereby be sought to influence the decisions of the justices.

IV

The assessment of the constitutionality of Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts

20. It has been mentioned that the Seimas, the petitioner, requests an investigation into the compliance of Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts with Paragraph 2 of Article 109 and Paragraph 2 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law.

21. As can be seen from the petition of the petitioner, it bases its doubts regarding the constitutionality of the impugned legal regulation on the fact that the immunity of judges, which is one of the guarantees of the independence of judges, is not absolute – it must be linked only to ensuring the independence of judges while they are in office. According to the petitioner, it is prohibited under the Constitution, without the consent of the Seimas or of the President of the Republic, to carry out only those actions against judges that restrict their physical liberty; however, the impugned legal regulation prohibits the application to judges of those procedural coercive measures (such as an inspection of a person, search, search of a person, seizure) that do not restrict the physical liberty of judges. In the opinion of the petitioner, the impugned legal regulation guarantees protection to judges even in cases where carrying out certain procedural actions applied to them is in no way related to their status as judges and/or the administration of justice. According to the petitioner, the immunity of judges cannot create any preconditions for privileges under the guise of which a judge could avoid responsibility or otherwise hinder the disclosure of criminal acts. Therefore, in the opinion of the petitioner, the impugned legal regulation is not in line with the constitutional concept and scope of the independence of judges and the immunity of judges, nor with the constitutional principle of a state under the rule of law.

22. In deciding whether Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts is in conflict with Constitution, it should be noted that, as mentioned above:

under the Constitution, inter alia, Paragraph 2 of Article 109 and Paragraph 2 of Article 114 thereof, the immunity of judges is not an objective in itself; the constitutional immunity of judges is functional in nature: its purpose is to guarantee the independence of judges, so that the administration of justice is ensured;

the immunity of judges, entrenched in Paragraph 2 of Article 114 of the Constitution, is not meant to create the preconditions for judges to avoid criminal or other legal responsibility for criminal acts or other violations of law; a different interpretation of the immunity of judges, including that, purportedly, the legislature may provide for the broader immunity of judges than that entrenched in Paragraph 2 of Article 114 of the Constitution, would be incompatible with the constitutionally consolidated concept of a democratic state under the rule of law, inter alia, it would be incompatible with the constitutional obligation of the state to ensure the security of each person and all society against criminal attempts;

under Paragraph 2 of Article 114 of the Constitution, the consent of the Seimas or, in the period between the sessions of the Seimas, the consent of the President of the Republic for holding a judge criminally responsible may be given only in cases where, in accordance with the procedure prescribed by law, sufficient data are collected to suspect the judge concerned of having committed a criminal act; in addition, the consent of the Seimas or of the President of the Republic may be given only for such restriction of the physical liberty of a judge that is aimed at providing the preconditions for holding the judge criminally or otherwise legally responsible for criminal acts or other violations of law; inter alia, the said consent is required for apprehension, detention, or deprivation of liberty otherwise;

under Paragraph 2 of Article 114 of the Constitution, no consent of the Seimas or of the President of the Republic is required for such procedural measures provided for by law that, in themselves, do not restrict the physical liberty of a person and are necessary for the speedy disclosure and thorough investigation of criminal acts and other violations of law, inter alia, for collecting evidence and identifying persons having committed criminal acts or other violations of law (inter alia, for carrying out a search, seizure, or inspection);

a different interpretation of Paragraph 2 of Article 114 of the Constitution, including that, purportedly, the consent of the Seimas or of the President of the Republic is necessary for any procedural measures that, in themselves, do not restrict the physical liberty of the person, but are related to performing the duties of the person prescribed by law in applying these measures, would create the preconditions for persons, inter alia, judges, having committed criminal acts or other violations of law to avoid criminal or other legal responsibility; the requirement to receive the consent of the Seimas or of the President of the Republic in order for the said procedural measures to be applied to judges would be incompatible with the obligation, stemming from the Constitution, for a democratic state under the rule of law to ensure the security of each person and all society against criminal attempts, inter alia, with the duty of the legislature to create, by means of legal regulation, the preconditions for the speedy disclosure and thorough investigation of criminal acts and other violations of law, as well as the preconditions for the fair solving of the question concerning the legal responsibility of persons, inter alia, judges, having committed these criminal acts or other violations of law.

23. As mentioned above, Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts lays down the prohibition on carrying out the following actions: the entry into the residential or office premises of a judge; an inspection or a search of or making a seizure in the residential or office premises of a judge, an inspection or a search of or making a seizure in a personal or service car or other personal means of transport of a judge; an inspection or a search of a judge; an inspection or making a seizure of the items or documents of a judge.

It has also been mentioned that, under Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts as interpreted in conjunction with the provisions of the Code of Criminal Procedure and Paragraph 1 of Article 47 (wording of 23 December 2013) of the Law on Courts, it is prohibited, without the consent of the Seimas or, in the period between the sessions of the Seimas, without the consent of the President of the Republic, that a judge be subject to procedural coercive measures that, in themselves, do not restrict the liberty of a judge (inspection or a search of a person; a seizure of the items or documents of a judge; a search of or a seizure in the residential or office premises of a judge or in a personal or service means of transport of a judge); nor is it allowed to carry out an inspection of the items or documents of a judge or other pretrial investigation actions, among them those that include as a constituent part the entry into the residential or office premises of a judge. It should be noted that, as mentioned above, under the legal regulation laid down in Articles 145–147 of the Code of Criminal Procedure, in the same way as other persons, judges may be subject to procedural coercive measures – such as a search, a search of a person, or a seizure – by an order of the investigating judge.

Thus, although these procedural coercive measures and the indicated pretrial investigation actions, in themselves, do not restrict the liberty of a judge, under the impugned legal regulation, in order to apply the said measures and carry out the indicated actions, it is necessary to receive the consent of the Seimas or, in the period between the sessions of the Seimas, the consent of the President of the Republic for holding a judge criminally responsible, i.e. considering the judge a suspect, detaining him/her, or restricting his/her liberty otherwise. It has been mentioned that the consent of the Seimas or of the President of the Republic for restricting the liberty of a judge is also required in order to apply to a judge those coercive measures that ensure the proceedings of administrative offences and are not restrictive in themselves with regard to the liberty of a judge (inspection of the judge; checking his/her items; taking his/her items and documents; or a seizure of his/her items and documents). It has also been mentioned that the purpose of all these measures is not to restrict the physical liberty of judges, but to collect data, or to take items or documents that can be relevant in the course of investigating a criminal act or other violations of law.

It follows that, by laying down, in Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts, the impugned legal regulation, prohibiting, without the consent of the Seimas or, in the period between the sessions of the Seimas, without the consent of the President of the Republic, the application to a judge those coercive measures that are not restrictive in themselves with regard to the liberty of a judge, the legislature established, in Paragraph 2 of Article 47 of the Law on Courts, the broader immunity of judges than that entrenched in Paragraph 2 of Article 114 of the Constitution, under which the consent of the Seimas or of the President of the Republic may be given only for such restriction of the physical liberty of a judge that is aimed at providing the preconditions for holding the judge criminally or otherwise legally responsible for criminal acts or other violations of law. Having established the legal regulation under which the consent of the Seimas or of the President of the Republic is required for the application of such procedural measures provided for by law that, in themselves, do not restrict the physical liberty of a person and are necessary for the speedy disclosure and thorough investigation of criminal acts and other violations of law, inter alia, for collecting evidence and identifying persons having committed criminal acts or other violations of law, the legislature did not observe the requirement, stemming from Paragraph 2 of Article 109 and Paragraph 2 of Article 114 of the Constitution, that a legal regulation may not create the preconditions for judges to avoid criminal or other legal responsibility for criminal acts or other violations of law; in addition, the legislature did not observe the obligation, stemming from the constitutional principle of a state under the rule of law, for the state to ensure the security of each person and all society against criminal attempts; thus, the legislature disregarded the constitutional concept of the immunity of judges.

24. In the light of the foregoing arguments, the conclusion should be drawn that Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts is in conflict with Paragraph 2 of Article 109 and Paragraph 2 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law.

25. In the context of this constitutional justice case, it needs to be mentioned that the Supreme Court of Lithuania, which develops the case law of the courts of general jurisdiction, in its order of 25 November 2019, adopted in criminal case no 2K-7-174-303/2019, among other things, interpreted that Articles 145, 146, and 149 of the Code of Criminal Procedure lay down the general rules of the procedural coercive measures – a search, as well as a search of a person – while Article 32 of the Code of Criminal Procedure and Paragraphs 1 and 2 of Article 47 of the Law on Courts regulate the special conditions for the application of criminal procedure, inter alia, procedural coercive measures, to judges; the Supreme Court of Lithuania provided such an interpretation of the legal regulation laid down in Articles 145, 146, and 149 of the Code of Criminal Procedure according to which a search, as well as a search of a person, restricts (limits) the liberty (possibility) of the person of choosing a desired behaviour, as well as his/her freedom to act (or not to act) in a particular way, and this, according to the Supreme Court of Lithuania, in principle, means the restriction of the liberty of such a person.

The Constitutional Court has held that the already existing precedents in cases of certain categories that were created by the courts of general jurisdiction of higher instance are not only binding on the courts of general jurisdiction of lower instance that adopt decisions in analogous cases, but also on the courts of general jurisdiction of higher instance that created those precedents (inter alia, the Court of Appeal of Lithuania and the Supreme Court of Lithuania) (the Constitutional Court’s rulings of 28 March 2006 and 24 October 2007, and its decision of 5 September 2019); court precedents are sources of law – auctoritate rationis; the reference to the precedents is a condition for the implementation of uniform (coherent, consistent) case law, as well as a condition for the implementation of the justice principle, which is consolidated in the Constitution; therefore, it is not permitted to unreasonably ignore court precedents; in order to perform this function properly, precedents themselves should be clear (the Constitutional Court’s ruling of 24 October 2007). It needs to be emphasised that, as held in the Constitutional Court’s ruling of 24 October 2007, court precedents must also not contradict the official constitutional doctrine.

It has been held in this ruling of the Constitutional Court that, among other things, the procedural coercive measures – a search, as well as a search of a person – laid down in Articles 145 and 146 of the Code of Criminal Procedure, in themselves, do not restrict a person’s liberty and that Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts, insofar as under this paragraph, among other things, a search in the residential or office premises of a judge, or a search in a personal or service car of a judge, as well as a search of a judge, is prohibited, is in conflict with Paragraph 2 of Article 109 and Paragraph 2 of Article 114 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

In view of this, it should be held that the above-mentioned order of the Supreme Court of Lithuania of 25 November 2019 should not be considered a court precedent to the extent that this order provided the interpretation of Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts, which was found to be in conflict with the Constitution by this ruling of the Constitutional Court.

V

The assessment of the constitutionality of Paragraph 4 of Article 8 (wording of 11 November 2008) of the Law on the Constitutional Court

26. The Constitutional Court has held that, if it finds the unconstitutionality of provisions that are not impugned by a petitioner but are consolidated in the same legal act whose other provisions are impugned by the petitioner in terms of their constitutionality, the Constitutional Court must state that the said provisions that have not been impugned by the petitioner have been found to be unconstitutional (inter alia, the Constitutional Court’s rulings of 11 June 2015, 2 March 2018, and 18 February 2020). The same should also be applied to provisions that have not been impugned by the petitioner but regulate essentially the identical relationships and are consolidated in another legal act. The implementation of constitutional justice implies that a legal act (part thereof) that conflicts with the Constitution must be removed from the legal system (inter alia, the Constitutional Court’s rulings of 29 November 2001, 2 March 2018, and 18 February 2015).

27. As mentioned above, Paragraph 4 of Article 8 (wording of 11 November 2008), titled “The Inviolability of a Justice of the Constitutional Court”, of the Law on the Constitutional Court provides that the entry into the residential or office premises of a justice of the Constitutional Court, an inspection or a search of or making a seizure in such premises, an inspection or a search of or making a seizure in a personal or service car or other personal means of transport of a justice, an inspection or a search of a justice of the Constitutional Court, or an inspection or making a seizure of the items or documents of a justice is prohibited unless a criminal case has been instituted against the justice of the Constitutional Court according to the established procedure. It has been mentioned that it is prohibited to perform these actions without receiving the consent of the Seimas to hold the justice of the Constitutional Court criminally responsible (i.e. consider him/her a suspect), detain him/her, or otherwise restrict his/her liberty.

It has also been mentioned that the actions indicated in Paragraph 4 of Article 8 (wording of 11 November 2008) of the Law on the Constitutional Court are identical to those referred to in Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts.

28. In deciding whether Paragraph 4 of Article 8 (wording of 11 November 2008) of the Law on the Constitutional Court is in conflict with Constitution, it should be noted that, as mentioned above:

the immunity of the justices of the Constitutional Court is consolidated in Paragraph 4 of Article 104 of the Constitution, under which the justices of the Constitutional Court have the same rights concerning the inviolability of their person as the members of the Seimas, i.e. a justice of the Constitutional Court may not be held criminally responsible or be detained, or have his/her liberty restricted otherwise, without the consent of the Seimas;

under Paragraph 4 of Article 104 of the Constitution as interpreted in conjunction with Paragraph 1 of Article 104 of the Constitution, the immunity of the justices of the Constitutional Court, in the same way as the immunity of judges as entrenched in Paragraph 2 of Article 114 of the Constitution, is functional in nature: its purpose is to guarantee the independence of the justices of the Constitutional Court, so that the administration of constitutional justice is ensured and the supremacy of the Constitution in the legal system, as well as constitutional lawfulness, is guaranteed;

there are no constitutional grounds for the scope of the immunity of the justices of the Constitutional Court, which is consolidated in Paragraph 4 of Article 104 of the Constitution, to be interpreted differently from the scope of the immunity of judges, which is entrenched in Paragraph 2 of Article 114 of the Constitution.

29. Thus, having stated in this ruling of the Constitutional Court that Paragraph 2 of Article 47 (wording of 23 December 2013) of the Law on Courts is in conflict with Paragraph 2 of Article 109, Paragraph 2 of Article 114 of the Constitution and the constitutional principle of a state under the rule of law, it must also be held that Paragraph 4 of Article 8 (wording of 11 November 2008) of the Law on the Constitutional Court is in conflict with Paragraphs 1 and 4 of Article 104 of the Constitution and the constitutional principle of a state under the rule of law.

30. In the light of the foregoing arguments, the conclusion should be drawn that Paragraph 4 of Article 8 (wording of 11 November 2008) of the Law on the Constitutional Court is in conflict with Paragraphs 1 and 4 of Article 104 of the Constitution and the constitutional principle of 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, 531, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that Paragraph 2 of Article 47 (wording of 23 December 2013; Register of Legal Acts, 07-01-2014, No 63) of the Republic of Lithuania’s Law on Courts is in conflict with Paragraph 2 of Article 109 and Paragraph 2 of Article 114 of the Constitution of the Republic of Lithuania, as well as with the constitutional principle of a state under the rule of law.

2. To recognise that Paragraph 4 of Article 8 (wording of 11 November 2008; Official Gazette Valstybės žinios, 2008, No 134-5179) of the Law on the Constitutional Court of the Republic of Lithuania is in conflict with Paragraphs 1 and 4 of Article 104 of the Constitution of the Republic of Lithuania, as well as with the constitutional principle of 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
                                                                      Dainius Žalimas