Case no 3/2018 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA IN THE NAME OF THE REPUBLIC OF LITHUANIA RULING ON THE COMPLIANCE OF THE RESOLUTION (NO XIII-1022) OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA OF 12 JANUARY 2018 ON FORMING AN AD HOC INVESTIGATION COMMISSION OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA AND MANDATING IT TO CONDUCT A PARLIAMENTARY INVESTIGATION INTO THE MANAGEMENT OF THE LITHUANIAN NATIONAL RADIO AND TELEVISION AND ITS FINANCIAL AND ECONOMIC ACTIVITIES (AS AMENDED ON 20 SEPTEMBER 2018) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA 16 May 2019, no KT14-N6/2019 Vilnius The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Gintaras Goda, Vytautas Greičius, Danutė Jočienė, Gediminas Mesonis, Vytas Milius, Daiva Petrylaitė, Janina Stripeikienė, and Dainius Žalimas The court reporter – Daiva Pitrėnaitė Andrius Kubilius and Mykolas Majauskas, members of the Seimas of the Republic of Lithuania, acting as representatives of a group of members of the Seimas, the petitioner Agnė Širinskienė, the Chair of the Committee on Legal Affairs of the Seimas of the Republic of Lithuania, acting as the representative of the Seimas, the party concerned The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, at the hearing of the Court on 16 April 2019, considered, under oral procedure, constitutional justice case no 3/2018 subsequent to the petition (no 1B-3/2018) of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether the resolution (No XIII-1022) of the Seimas of the Republic of Lithuania of 12 January 2018 on forming an ad hoc investigation commission of the Seimas of the Republic of Lithuania and 2 mandating it to conduct a parliamentary investigation into the management of the Lithuanian National Radio and Television and its financial and economic activities is in conflict with Article 25 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law. The Constitutional Court has established: I The arguments of the petitioner 1. The petition of the group of members of the Seimas, the petitioner, is based on these main arguments. According to Article 1 of the resolution (No XIII-1022) of the Seimas of 12 January 2018 on forming an ad hoc investigation commission of the Seimas and mandating it to conduct a parliamentary investigation into the management of the Lithuanian National Radio and Television and its financial and economic activities (as amended on 20 September 2018) (hereinafter also referred to as the resolution of the Seimas of 12 January 2018), an ad hoc investigation commission of the Seimas was established, which had to perform an important function of exercising control over the activity of the national public broadcaster, i.e. to conduct an investigation into its management and its financial and economic activities. The exclusive constitutional mission of the Lithuanian National Radio and Television (hereinafter referred to as the LRT) is defined in a number of articles of the Constitution, in particular in Article 25 thereof, which guarantees the human right to have one’s own convictions and freely express them and the right to seek, receive, or impart information and ideas unhindered, as well as in the preamble to the Constitution, which enshrines the striving for an open, just, and harmonious civil society and a state under the rule of law. The constitutional mission of the public broadcaster presupposes, among other things, its independence from interference with its activity by public authorities, officials, and other persons. Thus, the independence of the LRT can be guaranteed only by ensuring that public authorities and officials do not interfere with the activities of the LRT. The activity of the national public broadcaster must be controlled in accordance with the model of control over its activity, where that model must be established by means of the law defining the activity of the national public broadcaster. The official constitutional doctrine states who is not allowed to exercise control over the activity of the national public broadcaster: persons who themselves are related to the national public broadcaster by official, property, or financial links or are dependent on it in one way or another, or who themselves have interests related to the activity of the national public broadcaster, or who belong to the interest groups (also institutionalised ones) that have precisely such interests. 3 According to the petitioner, the setting up of the Commission is a way of controlling the activity of the national public broadcaster and such control must not violate the independence of the national public broadcaster, which would be violated if such control were carried out by the persons who themselves have their own interests related to the activity of the national public broadcaster, or who belong to the interest groups (also institutionalised ones) that have precisely such interests. As one of the important tasks of the national public broadcaster is to provide objective coverage of the major events in the state, to provide information on the activities of the most important public authorities (the President of the Republic of Lithuania, the Government of the Republic of Lithuania, the Seimas, the political parties, the courts, other most important institutions), it is clear that the members of the Seimas and representatives of political parties fall into the category of persons who are not allowed to exercise control over the activities of the national public broadcaster, otherwise, the independence of the national public broadcaster would be violated. Consequently, according to the provisions of the official constitutional doctrine, the Commission, which was mandated to exercise control over the activity of the national public broadcaster, could not be formed from members of the Seimas, and the resolution of the Seimas of 12 January 2018, which formed such a Commission, is in conflict with Article 25 of the Constitution and the constitutional principle of the rule of law. II The arguments of the representatives of the party concerned 2. In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations by Agnė Širinskienė, the Chair of the Committee of the Seimas on Legal Affairs, and Ona Buišienė, a senior adviser at the Legal Department of the Office of the Seimas, were received, in which they maintain that the impugned resolution of the Seimas of 12 January 2018 is not in conflict with the Constitution. 2.1. The position of Agnė Širinskienė, the Chair of the Committee of the Seimas on Legal Affairs, a representative of the Seimas, the party concerned, regarding the constitutionality of the resolution of the Seimas of 12 January 2018, is based on the following main arguments. 2.1.1. According to the provisions of the Republic of Lithuania’s Law on the National Radio and Television, the Seimas considers the annual report of the LRT Council. The annual activity report for 2016, submitted by the LRT Council, to the extent that it related to the use of the LRT budget funds and the LRT management, was incomplete and sketchy: it was unclear to the members of the Seimas how the LRT uses the funds allocated to it by the state and how the management of the LRT is organised. Therefore, a group of members of the Seimas twice approached the LRT with a request for certain information, but the LRT refused to provide some of the requested information due to confidentiality and some of the information provided was incomplete. 4 Precisely because the members of the Seimas had not received detailed information and explanations from the LRT regarding the LRT activity and how it used its budget funds, the Seimas was not able to fulfil its duty, when considering the annual report submitted by the LRT Council, to carry out parliamentary control, among other things, the Seimas was unable to properly assess the execution of the LRT budget, the use of the LRT funds, the application of the Law on the LRT and other legal acts governing the LRT management, and its financial and economic activities. For these reasons, a decision was made to set up an ad hoc investigation commission of the Seimas for conducting a parliamentary investigation into the management of the LRT and its financial and economic activities, which, under the Republic of Lithuania’s Law on Ad Hoc Investigation Commissions of the Seimas, has wider powers than a group of members of the Seimas. 2.1.2. The LRT is a state-owned public establishment. The LRT is provided funding from the state budget – funds allocated to the LRT are indicated in a separate line of the state budget. Item 14 of Article 67 of the Constitution consolidates the constitutional function of the Seimas to approve the state budget and supervise its execution. This function of the Seimas is imperative. There are no provided exceptions when the Seimas may refuse to carry it out, nor are there any specified circumstances under which the Seimas has no right to perform parliamentary control actions regarding specific legal entities financed from the state budget funds, where those actions are related to the use of the allocated budget funds. Thus, the way the LRT, a state-owned public establishment, to which the state has ensured financing from the state budget funds, uses these funds, as well as the way it carries out economic and financial activities, and organises the related management of the establishment, is subject to parliamentary control, which is in line with the powers of the Seimas defined in Item 14 of Article 67 of the Constitution.