Human Rights Convention Case (Case No 22/94)

• Jurisdiction: Lituania
• Date: 05 January 1995
• Court: Constitutional Court (Lithuania)

Lithuania, Constitutional Court.

(Algirdas Gailinas, Kstutis Lapinskas, Zigmas Levickis, Vladas Pavilonis, Pranas Vytautas Rasimaviius, Stasys Staiokas, Teodora Staugaitien, Stasys edbaras and Juozas ilys JJ)

Human Rights Convention Case

Relationship of international law and municipal law Treaties Human rights European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 Protocols Nos 1, 4 and 7 Republic of Lithuania ratifying Convention and Protocols International obligations of Republic of Lithuania Requirement effectively to implement Convention Constitution of Republic of Lithuania Defining rights and freedoms to be guaranteed for individuals within jurisdiction of the Republic of Lithuania Article 7 of Constitution rendering any law or legal act contradicting Constitution invalid Whether Articles 4, 5, 9 and 14 of Convention contradicting Articles 48, 20, 26 and 29 of the Constitution Whether Article 2 of Protocol No 4, 1963 contradicting Article 32 of Constitution The law of the Republic of Lithuania

Summary: The facts:In May 1993 the Minister of Foreign Affairs of the Republic of Lithuania signed the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (the Convention) and its Protocols Nos 1, 4 and 7. Article 1 of the Convention1 obliged the Republic of Lithuania (Lithuania) to ensure that its human rights legislation complied with the requirements of the Convention.

In February 1994 a working group convened by the President of the Republic under Decree No 233 concluded that certain articles of the Constitution of the Republic of Lithuania (the Constitution) might not comply with the Convention. In that event Lithuania would have been unable to fulfil its international obligations as Article 7 of the Constitution deemed any law or other legal act which contradicted the Constitution to be invalid.

The petitioner, the President of Lithuania, inquired of the Court as to whether Articles 4,2 5,3 9 4 and 145 of the Convention and Article 2 of Protocol

No 46 were consistent with Articles 48, 20, 26, 29 and 32 of the Constitution respectively

Held:Articles 4, 5, 9 and 14 of the Convention and Article 2 of Protocol No 4 were consistent with Articles 48, 20, 26, 29 and 32 of the Constitution respectively.

(1) By reason of the rule, prevalent in Europe, that international treaties be transformed into the municipal legal system of a State, every State ratifying the Convention was under a duty to implement its provisions effectively in order to fulfil its international obligations under the Convention. Such incorporation was established in the Constitution of Lithuania (p. 641).

(2) As a peculiar source of international law whose purpose was universal, the Convention was distinct from many other acts of international law. It acted as a constitutional guarantee for human rights and fundamental freedoms on an international level in the same way as the Constitution of Lithuania did on a national level. As such it was important to evaluate the relationship between the Convention and the Constitution (pp. 6412).

(3) According to the legal system of Lithuania no law or legal act, including the Convention, could contradict its Constitution. In the event of a contradiction the Republic could not ensure the legal protection of Convention rights and freedoms in an effective remedy before a national authority provided for in Article 13 of the Convention. In order to avoid any legal obstacles, it was necessary for provisions of the Convention to become the constituent part of the domestic law of a State and thus to comply with the Constitution (p. 642).

(4) It was not possible, and nor did the Convention require, that domestic law norms comply literally with the contents and norms of the Convention.

The Convention did not lay down specific means to be employed by a State to secure Convention rights (p. 642).

(5) The national authority of a State was empowered by the Constitution to determine the level of protection necessary to safeguard Convention rights by the laws of a State. National laws were not to be used as an excuse for the non-implementation and violation of Convention rights and freedoms as the State Party was under a duty to apply Convention norms in the domestic legal system. Exactly how the Convention was to be applied in municipal law depended upon the particular sphere of legal activity involved. Only domestic law could secure Convention rights in that it alone could provide the legal remedy within domestic as opposed to international jurisdiction (pp. 6424).

(6) Although Article 138(3) of the Constitution provided that international agreements duly ratified were to be applied in the same way as domestic law, Article 7 of the Constitution provided that the Constitution prevailed in the event of any inconsistency with another law. As neither the Constitution nor the Convention contained a complete and final list of human rights and freedoms and as there was no action forbidden by the Constitution which was defined as a right or freedom by the Convention, it could not be said that Convention provisions contradicted the Constitution (pp. 6446).

(7) It was necessary to examine concrete provisions in order to determine whether there were any Convention provisions which could not be applied in the legal system of Lithuania because they were not consistent with the Constitution. Article 4 of the Convention did not contradict Article 48 of the Constitution. As there was no provision in the Constitution for correctional labour as a criminal penalty, the Convention rule that there was a duty to work only for a person imprisoned or released from detention was not narrower in its scope (pp. 6468).

(8) Article 5 of the Convention was in conformity with Article 20 of the Constitution. The requirement of the Convention to bring the detainee promptly before a judge did not differ in essence from the requirement of the Constitution to bring him within forty-eight hours to court. Even if the guarantee of the Convention was more extensive in that it encompassed everyone as opposed to the person in flagrante delicto in the Constitution, it was possible for the provisions to complement one another. The assessment of the lawfulness of the detention by a judge in the Convention, if evaluated nationally and not literally, did not contradict that of the validity of detention by the court in the Constitution (pp. 64850).

(9) Article 9 of the Convention was in compliance with Article 26 of the Constitution. Although Article 9 of the Convention did not explicitly refer to a person's freedom to profess and propagate his beliefs as Article 26 of the Constitution did, it still secured freedom of religion albeit defined in different terms. Neither could it be said that the Constitution of Lithuania, with respect to freedom of faith or religion, restricted the right to profess religion or faith (pp. 6501).

(10) Article 14 of the Convention did not contradict Article 29 of the Constitution. Although the Convention and the Constitution used different words with regard to discrimination, the norms were essentially the same (pp. 6513).

(11) Article 2 of Protocol No 4 of the Convention was in compliance with Article 32 of the Constitution. Although Article 32 of the Constitution concerned citizens as opposed to the more general everyone lawfully within the territory of a State of the Protocol, the provisions encompassed each other. Article 2 of Protocol No 4 consisted of two interdependent parts, one implying freedom of movement and freedom to choose one's residence and the other referring only to persons lawfully within a State being entitled to such a right. According to domestic law, non-citizens lawfully within Lithuania had the same rights and freedoms as citizens unless the Constitution, other domestic laws or international agreements provided otherwise (pp. 6534).

The following is the text of the judgment of the Court:

The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention) was concluded in Rome on 4 November 1950 and entered into force on 3 September 1953. According to the first part of Article 66 of the Convention, it must be ratified. Protocol 4 of the Convention was concluded in Strasbourg on 16 September 1963 and came into force on 2 May 1968. On 14 May 1993, the Minister of Foreign Affairs of the Republic of Lithuania signed the Convention and its Protocols No 1, No 4 and No 7. These Protocols must also be ratified.

Section 1 of the Convention defines human rights and freedoms that, according to Articles 1 and 57 thereof, shall be secured by every State which has ratified the Convention to everyone within its jurisdiction. In Article 1 of the Convention it is established that: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention. Thus, every State which has ratified the Convention must effectively implement the provisions of the Convention (or its Protocols that have been signed by this State) in order to fully carry out all the obligations under it.

This general requirement is directly connected with the relation between the international law and domestic (national) laws of the States in general and with respect to separate problems, specificallyto the problem of human rights and freedoms. Nowadays, the system of-so-called parallel adjustment of international and domestic law is perhaps the most widely spread in Europe; it is based on the rule that international treaties are transformed in the legal system of a State (i.e. are incorporated in it). Such way of realization of international agreements, the Convention among them, is established in the Constitution of the Republic of Lithuania.

The European Convention for the Protection of Human Rights and Fundamental Freedoms is a peculiar source of international law...