Lietuviškai Case No. 45/03-36/04 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

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1 Lietuviškai Case No. 45/03-36/04 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA RULING ON THE COMPLIANCE OF THE PROVISIONS OF LEGAL ACTS REGULATING THE CITIZENSHIP RELATIONS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA 13 November 2006 Vilnius The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Armanas Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis, with the secretary of the hearing Daiva Pitrėnaitė, in the presence of the representatives of the Seimas of the Republic of Lithuania, the party concerned, who were Arminas Lydeka, a Member of the Seimas, and Kristina Pažusytė, chief specialist of the Law Department of the Office of the Seimas, 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, in its public hearing on 11 October 2006 heard case No. 45/03-36/04 subsequent to the following petitions: - the petition of a group of Members of the Seimas of the Republic of Lithuania, consisting of Aleksander Poplavski, Saulius Lapėnas, Jonas Jučas, Audrius Klišonis, Juozas Matulevičius, Raimondas Šukys, Eligijus Masiulis, Romanas Algimantas Sedlickas, Domininkas Velička, Virginijus Martišauskas, Raimundas Palaitis, Algirdas Gricius, Dalia Teišerskytė, Gintautas Babravičius, Gintaras Šileikis, Valdemar Tomaševski, Valerijus Simulik, Vasilij Fiodorov, Algimantas Valentinas Indriūnas, Kęstutis Skamarakas, Rimas Valčiukas, Alfonsas Macaitis, Irena Šiaulienė, Jurgis Utovka, Antanas Baura, Viktoras Rinkevičius, Kazimira Danutė Prunskienė, Sergej Dmitrijev, Vydas Baravykas, Jonas Lionginas, Pranas Vilkas, Henrikas Žukauskas, Vladas Žalnerauskas and Vaclav Stankevič, the petitioner, requesting to investigate whether Article 18 of the Republic of Lithuania Law on Citizenship is not in conflict with Articles 29 and 12 of the Constitution of the Republic of Lithuania; - the petition of the Vilnius Regional Administrative Court, the petitioner, requesting to investigate whether Item 1 of Paragraph 1 of Article 1 and Item 1 of Paragraph 1 of Article 17 of the Republic of Lithuania Law on Citizenship to the extent that it provides that the persons who held citizenship of the Republic of Lithuania prior to 15 June 1940, their children, grandchildren and great-grandchildren (provided that said persons, their children, grandchildren or great-grandchildren have not repatriated), who are residing in other states, shall retain the right to citizenship of the Republic of Lithuania for an indefinite period of time, and whether Paragraph 2 of Article 2 of the Republic of Lithuania Law on the Implementation of the Law on Citizenship are not in conflict with Paragraphs 1 and 2 of Article 29 and Paragraphs 1 and 3 of Article 12 of the Constitution of the Republic of Lithuania, and with the constitutional principles of justice and a state under the rule

2 of law. By the Constitutional Court decision of 10 May 2006 the aforementioned petitions were joined into one case and it was given reference number 45/03-36/04. The Constitutional Court has established: I 1. The group of Members of the Seimas, the petitioner, applied to the Constitutional Court with a petition requesting to investigate whether Article 18 of the Law on Citizenship is not in conflict with Articles 29 and 12 of the Constitution. 2. The Vilnius Regional Administrative Court, the petitioner, was considering an administrative case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Item 1 of Paragraph 1 of Article 1 and Item 1 of Paragraph 1 of Article 17 of the Law on Citizenship to the extent that it provides that the persons who held citizenship of the Republic of Lithuania prior to 15 June 1940, their children, grandchildren and great-grandchildren (provided that said persons, their children, grandchildren and great-grandchildren have not repatriated), who are residing in other states, shall retain the right to citizenship of the Republic of Lithuania for an indefinite period of time, and whether Paragraph 2 of Article 2 of the Law on the Implementation of the Law on Citizenship are not in conflict with Paragraphs 1 and 2 of Article 29 and Paragraphs 1 and 3 of Article 12 of the Constitution, and with the constitutional principles of justice and a state under the rule of law. II 1. The petition of the group of Members of the Seimas, the petitioner, is based on the following arguments Paragraph 1 of Article 18 of the Law on Citizenship establishes the grounds for loss of citizenship, while Paragraph 2 establishes the application exceptions of one of the grounds for loss of citizenship upon acquisition of citizenship of another state: Item 2 of Paragraph 1 of Article 18 of the Law on Citizenship inter alia is not applied to the persons of Lithuanian origin whose parents or grandparents or one of the parents or grandparents is or was Lithuanian and the person considers himself Lithuanian. The petitioner states that under this provision, each Lithuanian, who acquired the citizenship of another state, will also be able to hold citizenship of the Republic of Lithuania, while the Poles, Russians, Jews and other citizens of the Republic of Lithuania of other nationalities are not provided with a possibility to have double citizenship. Thus, in the opinion of the petitioner, linking the loss of citizenship with the nationality of a person is in conflict with Article 29 of the Constitution, wherein it is entrenched that all persons shall be equal before the law, the court, and other state institutions and officials and that the rights of the human being may not be restricted, nor may he be granted any privileges on the ground of gender, race, nationality, language, origin or on other ground In the opinion of the petitioner, the disputed provision of Paragraph 2 of Article 18 of the Law on Citizenship which grants the right to double citizenship to all the persons of Lithuanian origin does not comply with Paragraph 2 of Article

3 12 of the Constitution either, wherein it is established that with the exception of individual cases provided for by law, no one may be a citizen of both the Republic of Lithuania and another state at the same time. 2. The petition of the Vilnius Regional Administrative Court, the petitioner, is based on the following arguments Under the provisions of Item 1 of Paragraph 1 of Article 1 and Item 1 of Paragraph 1 of Article 17 of the Law on Citizenship and Paragraph 2 of Article 2 of the Law on the Implementation of the Law on Citizenship, the persons who held citizenship of the Republic of Lithuania prior to 15 June 1940, their children, grandchildren and great-grandchildren, from the standpoint of being citizens of the Republic of Lithuania and from the standpoint of the right to retention of citizenship of the Republic of Lithuania, are divided into a few groups: (1) the persons of Lithuanian origin are considered as Lithuanian citizens and/or retain the right to citizenship of the Republic of Lithuania irrespective of where they reside; (2) the persons of other ethnical origin (other nationality) are divided into two groups: first, those who departed to reside to any foreign state but not to their ethnical homeland; in such case they are considered as citizens of Lithuania and/or retain the right to citizenship of the Republic of Lithuania, and, second, those who departed for their ethnical homeland and resided there (i.e. those who repatriated) such persons are not considered as citizens of the Republic of Lithuania and they do not retain the right to citizenship of the Republic of Lithuania. The given definition of the notion of repatriation is a disputable one, while the establishment of the legal status of a person (recognition of citizenship or retention of the right to citizenship), relating it to the ethnical origin or nationality of the person, violates the equality of persons and is discriminatory, thus, according to the petitioner, such content of the disputed provisions of the Law on Citizenship and the Law on the Implementation of the Law on Citizenship is in conflict with Article 29, Paragraphs 1 and 3 of Article 12 of the Constitution, and with the constitutional principles of justice and a state under the rule of law In the opinion of the petitioner, the definition of the notion "repatriation" established in Paragraph 2 of Article 2 of the Law on the Implementation of the Law on Citizenship does not comply with the universally recognised definition of this notion, since, as a rule, while construing this notion, the legal link of the person with a certain state, and not with his ethnical origin, is specified. III In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from A. Lydeka, the representative of the Seimas, the party concerned, as well as from K. Pažusytė, the representative of the Seimas, chief specialist of the Law Department of the Office of the Seimas (representing the Seimas, the party concerned, in the part of the case subsequent to the petition of the Vilnius Regional Administrative Court, the petitioner), wherein it is stated that the disputed provisions of the laws are not in conflict with the Constitution. The position of the representatives of the party concerned is based on the following arguments. 1. A. Lydeka notes that the adoption of the said provision of the Law on Citizenship was conditioned by the requests from many Lithuanian communities abroad to create a

4 possibility for the citizens of the Republic of Lithuania of Lithuanian origin, who have departed from Lithuania after 11 March 1990 and reside in other foreign countries at present, not to lose citizenship of the Republic of Lithuania even after one has acquired citizenship of the said another country. 2. According to the representative of the Seimas, historically, the appearance of a double citizenship is linked to the territorial changes of states, migration of inhabitants, collision of the laws of the states regulating the procedure for acquisition and loss of citizenship and other reasons. Thus, appearance of double citizenship is related to the discretion of the state to establish the criteria necessary for acquisition of citizenship of that state. 3. In the opinion of the representative of the party concerned, the provision of Paragraph 2 of Article 12 of the Constitution that with the exception of individual cases provided for by law, no one may be a citizen of both the Republic of Lithuania and another state at the same time, means that the prohibition of double citizenship is not absolute the legislator may establish the cases when a Lithuanian citizen may at the same time be a citizen of another state. Such case is first of all entrenched in Article 16 of the Law on Citizenship, wherein granting of citizenship by way of exception is provided for. In the Law on Citizenship the second case, when a person may hold double citizenship, is also provided, i.e. when a person departed from Lithuania and acquired citizenship of another state, however, there are very few such persons. Thus, in the opinion of A. Lydeka, the disputed provisions of the Law on Citizenship are not in conflict with Article 12 of the Constitution. 4. While assessing the compliance of Article 18 of the Law on Citizenship with Article 29 of the Constitution, the representative of the Seimas notes that the right to retain citizenship of the Republic of Lithuania for the persons of Lithuanian origin may be based on the distinction of the Lithuanian Nation in the Preamble to the Constitution: the Lithuanian Nation embodies "the innate right of the human being and the Nation to live and create freely in the land of their fathers and forefathers" in the independent State of Lithuania. A. Lydeka draws one's attention to Paragraph 4 of Article 32 of the Constitution, wherein it is established that everyone who is Lithuanian may settle himself in Lithuania, as well as to the fact that the status of persons of Lithuanian origin was also regulated a bit differently in former laws than the status of persons of other ethnical origin. Thus, in the opinion of the representative of the party concerned, the disputed provisions of the Law on Citizenship are not in conflict with Article 29 of the Constitution, too. 5. While assessing the notion "repatriation" defined in Paragraph 2 of Article 2 of the Law on the Implementation of the Law on Citizenship, A. Lydeka and K. Pažusytė note that it is recognized in the theory of law that a word of a common language, which is used in the text of a law, usually, along with the general meaning, acquires also a special legal meaning, as well as that the legal meaning of any word may be broader or narrower than the general meaning. Thus, the notion "repatriation" is formed more narrowly in the Law on Implementation of the Law on Citizenship than in dictionaries: it is to be construed in the context of the Law on Citizenship and in the system of other provisions of the Constitution and this law. 6. The representatives of the Seimas think that by establishing the condition in Item 1 of Paragraph 1 of Article 17

5 of the Law on Citizenship that the right to citizenship of the Republic of Lithuania shall be retained only to the persons who have not repatriated and by defining repatriation as a departure for one's ethnical homeland and settlement there, one aimed to restrict the circle of persons who may hold double citizenship. 7. According to A. Lydeka and K. Pažusytė, in the Law on Citizenship the legislator established a simpler procedure for acquisition of citizenship of the Republic of Lithuania for persons of Lithuanian nationality and persons of other nationalities who did not repatriate, thus, as if compensating in such way for these persons, who lost the possibility to live together with the community having the acceptable traditions, customs and language, i.e. for the supposed more difficult social adaptation in a non-ethnical homeland. In the opinion of the representatives of the Seimas, the position of the legislator, while establishing different conditions for acquisition of citizenship of the Republic of Lithuania in the Law on Citizenship, was implied by the links of groups of different persons with the Republic of Lithuania. 8. In the opinion of the representatives of the Seimas, the notion "repatriation", which is defined in the Law on the Implementation of the Law on Citizenship, reflects the will of a person to attribute himself to a concrete ethnical community (nation), which lives in the place of his origin and the will to seek for the links with members of the ethnical community living in that place, to integrate into the life of that ethnical community in the cultural, economic, and, as a rule, political and legal sense, thus his refusal to relate himself by the duties with the Republic of Lithuania and the links to faithfulness and trust which arise from them. As a rule, such persons try to bind themselves in their ethnical homeland and/or bind themselves with the permanent legal link with the state, i.e. they acquire its citizenship. In such case the State of Lithuanian no longer has any reason to retain the right to the citizenship of the Republic of Lithuania for the person, who used to be a citizen of the Republic of Lithuania, but who settled himself in his ethnical homeland and entered into legal political relations with that state. IV In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from V. Bulovas and G. J. Furmanavičius, Ministers of the Interior of the Republic of Lithuania, G. Švedas, Vice-Minister of Justice of the Republic of Lithuania, P. Koverovas, State Secretary of the Ministry of Justice of the Republic of Lithuania, A. Petrauskas, Director General of the Department of National Minorities and Lithuanians Living Abroad under the Government of the Republic of Lithuania, A. Gavėnas, Director of the Migration Department under the Ministry of the Interior of the Republic of Lithuania, A. Čepas, Director of the Institute of Law and V. Valeckaitė, Deputy Director of the same institute. V 1. At the hearing of the Constitutional Court, the representatives of the Seimas, the party concerned, who were A. Lydeka and K. Pažusytė, virtually repeated the arguments set forth in their written explanations. 2. The opinions of A. Lydeka and K. Pažusytė concerning the notion "repatriation" were different: A. Lydeka asserted that while repatriating, the person chooses in which states that can provide him with citizenship he will settle himself: in

6 Lithuania, or in the state, with which he has social, linguistic and other relations, i.e. the person may be considered as a repatriated one only if his ethnical homeland has statehood and may provide the person with citizenship of this state. According to K. Pažusytė, the person's repatriation must be interpreted as the person's departure to the territory of his ethnical homeland, irrespective of the fact, whether this ethnical homeland is an independent state, or not; while deciding, if the person has repatriated, the circumstance of whether he had (has) the possibility to acquire citizenship in his ethnical homeland and/ or acquired it, does not have essential significance. 3. At the Constitutional Court hearing, a specialist D. Vežikauskaitė, Head of the Citizenship Section of the Migration Department under the Ministry of the Interior of the Republic of Lithuania, took the floor. The Constitutional Court holds that: I 1. The group of Members of the Seimas, the petitioner, requests to investigate whether Article 18 of the Law on Citizenship is not in conflict with Articles 12 and 29 of the Constitution. 2. The Vilnius Regional Administrative Court, the petitioner, requests to investigate, whether Item 1 of Paragraph 1 of Article 1 and Item 1 of Paragraph 1 of Article 17 of the Law on Citizenship, to the extent that it provides that the persons who held citizenship of the Republic of Lithuania prior to 15 June 1940, their children, grandchildren and great-grandchildren (provided that said persons, their children, grandchildren or great-grandchildren have not repatriated), who are residing in other states, shall retain the right to citizenship of the Republic of Lithuania for an indefinite period of time, and whether Paragraph 2 of Article 2 of the Law on the Implementation of the Law on Citizenship are not in conflict with Paragraphs 1 and 2 of Article 29 and Paragraphs 1 and 3 of Article 12 of the Constitution, and with the constitutional principles of justice and a state under the rule of law. 3. On 17 September 2002, the Seimas adopted the Law on Citizenship. Paragraph 1 of Article 34 of this law establishes that the new Law on Citizenship "shall come into force as from 1 January 2003." Under Paragraph 2 of this article, upon entry into force of the Law on Citizenship (wording of 17 September 2002), the validity of the until then valid Law on Citizenship (wording of 5 December 1991 with subsequent amendments and supplements) expired. 4. The Law on Citizenship (wording of 17 September 2002) has been amended and/or supplemented by the Republic of Lithuania Law on Amending Articles 13, 19 and 21 of Law on Citizenship, which was adopted by the Seimas on 3 April 2003, the Republic of Lithuania Law on Amending and Supplementing Articles 12, 13, 14, 15, 16, 18, 20, 21, 26, 27, 28, 30, 31 and 32 of the Law on Citizenship, which was adopted by the Seimas on 9 December 2004, the Republic of Lithuania Law on Amending and Supplementing Articles 12, 18, 20, 26, 28 and 30 of the Law on Citizenship, which was adopted by the Seimas on 6 April 2006, and the Republic of Lithuania Law Supplementing Article 16 of the Law on Citizenship, which was adopted by the Seimas on 18 July The Law on Citizenship (wording of 17 September 2002 with subsequent amendments and supplements) establishes as to what persons are citizens of the Republic of Lithuania, regulates

7 the relations of the acquisition of citizenship of the Republic of Lithuania, of the right to retain the citizenship of the Republic of Lithuania, of loss and restoration of citizenship of the Republic of Lithuania and establishes the procedure for resolving issues related to citizenship of the Republic of Lithuania and regulates other relations related to citizenship of the Republic of Lithuania. 6. On 17 September 2002, the Seimas adopted the Republic of Lithuania Law on the Implementation of the Law on Citizenship, Paragraph 1 of Article 6 whereof establishes that it "shall come into force as from 1 January 2003." Under Paragraph 2 of this article, upon entry into force of the Law on the Implementation of the Law on Citizenship, the validity of the until then valid Law "On the Procedure for Implementation of the Republic of Lithuania Law on Citizenship" (wording of 19 October 1995 with subsequent amendments) expired. 7. The Law on the Implementation of the Law on Citizenship (wording of 17 September 2002) has been amended and/ or supplemented by the Republic of Lithuania Law on Amending and Supplementing the Law on the Implementation of the Law on Citizenship, the Law on State Social Insurance Pensions, the Law on Benefit (Social) Pensions, the Provisional Law on the State Pensions of Scientists, and the Law on State Pensions, which was adopted by the Seimas on 21 January 2003, the Republic of Lithuania Law on Amending and Supplementing Articles 2, 3 and 4 of the Law on the Implementation of the Law on Citizenship, which was adopted by the Seimas on 11 November 2004 and the Republic of Lithuania Law on Amending Article 5 of the Law on the Implementation of the Law on Citizenship, which was adopted by the Seimas on 6 April The Law on the Implementation of the Law on Citizenship defines the content of the notion "repatriation" used in the Law on Citizenship (wording of 17 September 2002) and regulates the relations related to the application of some provisions of the Law on Citizenship (wording of 17 September 2002). 9. In Article 1 titled "Citizens of the Republic of Lithuania" of the Law on Citizenship (wording of 17 September 2002) it is inter alia established: "The following persons shall be citizens of the Republic of Lithuania: 1) Persons who held citizenship of the Republic of Lithuania prior to 15 June 1940, their children, grandchildren and great-grandchildren (provided that said persons, their children, grandchildren or great-grandchildren have not repatriated) < >." In the opinion of the Vilnius Regional Administrative Court, the petitioner, such legal regulation means that the persons who held citizenship of the Republic of Lithuania prior to 15 June 1940, their children, grandchildren and greatgrandchildren, provided that said persons, their children, grandchildren or great-grandchildren have repatriated, are not considered as citizens of the Republic of Lithuania. 10. Paragraph 1 of Article 17 titled "Retention of the Right to Citizenship of the Republic of Lithuania" of the Law on Citizenship (wording of 17 September 2002) inter alia established: "The following persons shall retain the right to citizenship of the Republic of Lithuania for an indefinite period of time: (1) persons who held citizenship of the Republic of

8 Lithuania prior to 15 June 1940, their children, grandchildren and great-grandchildren (provided that said persons, their children, grandchildren or great-grandchildren have not repatriated), who are residing in other states < >." In the opinion of the Vilnius Regional Administrative Court, the petitioner, such legal regulation means that the right to citizenship of the Republic of Lithuania is not retained to the persons who held citizenship of the Republic of Lithuania prior to 15 June 1940, their children, grandchildren and greatgrandchildren, provided that said persons, their children, grandchildren or great-grandchildren have repatriated and who are residing in other states. 11. Article 18 titled "Loss of Citizenship of the Republic of Lithuania" of the Law on Citizenship (wording of 17 September 2002) established: "1. Citizenship of the Republic of Lithuania shall be lost: 1) upon renunciation of citizenship of the Republic of Lithuania; 2) upon acquisition of citizenship of another state; 3) on the grounds provided for by international treaties of the Republic of Lithuania. 2. Item 2 of Paragraph 1 of this Article shall not apply to: 1) persons who held citizenship of the Republic of Lithuania prior to 15 June 1940, their children, grandchildren and great-grandchildren (provided that said persons, their children, grandchildren or great-grandchildren have not repatriated); 2) persons of Lithuanian origin whose parents or grandparents are or were or one of parents or grandparents is or was Lithuanian and the person considers himself Lithuanian. 3. A person may be recognised as having lost citizenship of the Republic of Lithuania if he is in the military service of another state or is employed in the civil service of another state without having been granted authorisation by relevant institutions of the Republic of Lithuania." In the opinion of the group of Members of the Seimas, the petitioner, such legal regulation inter alia means that every Lithuanian, who has acquired citizenship of another state, may also be a citizen of the Republic of Lithuania at the same time, while citizens of other nationalities of the Republic of Lithuania do not have a possibility in addition to hold citizenship of another state. In this context it is to be noted that Article 6 of the Law on Amending and Supplementing Articles 12, 13, 14, 15, 16, 18, 20, 21, 26, 27, 28, 30, 31 and 32 of the Law on Citizenship, which was adopted by the Seimas on 9 December 2004, amended Paragraph 3 (wording of 17 September 2002) of Article 18 of the Law on Citizenship. It is also to be noted that Article 2 of the Law on Amending and Supplementing Articles 12, 18, 20, 26, 28 and 30 of the Law on Citizenship, which was adopted by the Seimas on 6 April 2006, also amended Paragraph 2 (wording of 17 September 2002) of Article 18 (wording of 9 December 2004) of the Law on Citizenship; this article was also supplemented with new Paragraph Paragraph 2 (wording of 17 September 2002) of Article 2 of the Law on the Implementation of the Law on Citizenship provides: "Departure for one's ethnical homeland and residence in the ethnical homeland shall be considered repatriation". In the opinion of the Vilnius Regional Administrative

9 Court, the petitioner, such definition of the notion "repatriation" is not in line with the universally recognised definition of this notion, as the ethnical origin (nationality) of the person is emphasized and not his legal link with the corresponding state. 13. It is obvious from the arguments of the group of Members of the Seimas and the Vilnius Regional Administrative Court, the petitioners, that they doubts whether: - the provision "the following persons shall be citizens of the Republic of Lithuania: (1) persons who held citizenship of the Republic of Lithuania prior to 15 June 1940, their children, grandchildren and great-grandchildren (provided that said persons, their children, grandchildren or great-grandchildren have not repatriated)" of Article 1 (wording of 17 September 2002) of the Law on Citizenship, to the extent that, according to the Vilnius Regional Administrative Court, the petitioner, it entrenches that the persons who held citizenship of the Republic of Lithuania prior to 15 June 1940, their children, grandchildren and great-grandchildren, provided that said persons, their children, grandchildren or great-grandchildren have repatriated, are not considered as citizens of the Republic of Lithuania, is not in conflict with Article 29 and Paragraphs 1 and 3 of Article 12 of the Constitution and with the constitutional principles of justice and a state under the rule of law; - the provision "the following persons shall retain the right to citizenship of the Republic of Lithuania for an indefinite period of time: (1) persons who held citizenship of the Republic of Lithuania prior to 15 June 1940, their children, grandchildren and great-grandchildren (provided that said persons, their children, grandchildren or great-grandchildren have not repatriated), who are residing in other states" of Paragraph 1 (wording of 17 September 2002) of Article 17 of the Law on Citizenship, to the extent that, according to the Vilnius Regional Administrative Court, the petitioner, it entrenches that the right to citizenship of the Republic of Lithuania shall not be retained to the persons who held citizenship of the Republic of Lithuania prior to 15 June 1940, their children, grandchildren and great-grandchildren, provided that said persons, their children, grandchildren or great-grandchildren have repatriated, and who are residing in other states, is not in conflict with Article 29 and Paragraphs 1 and 3 of Article 12 of the Constitution and with the constitutional principles of justice and a state under the rule of law; - the provision "Item 2 of Paragraph 1 of this Article shall not apply to: < > (2) person of Lithuanian origin whose parents or grandparents are or were or one of parents or grandparents is or was Lithuanian and the person considers himself Lithuanian" of Paragraph 2 (wording of 17 September 2002) of Article 18 of the Law on Citizenship to the extent that it provides that Item 2 (wording of 17 September 2002) of Paragraph 1 of Article 18 of the Law on Citizenship shall not apply only to the persons of Lithuanian origin, while it shall apply to the persons who are of non-lithuanian origin, was not in conflict with Articles 29 and 12 of the Constitution; - Paragraph 2 (wording of 17 September 2002) of Article 2 of the Law on the Implementation of the Law on Citizenship is not in conflict with Article 29 and Paragraphs 1 and 3 of Article 12 of the Constitution and with the constitutional principles of justice and a state under the rule of law. 14. The doubts concerning the compliance of the disputed legal act with the Constitution raised in the petitions of the

10 group of Members of the Seimas and the Vilnius Regional Administrative Court, the petitioners, are related to the fact as to how one defines who are citizens of the Republic of Lithuania, what legislative possibilities for citizens of the Republic of Lithuania also to hold citizenship of another state there are, how the relations of loss of citizenship of the Republic of Lithuania are regulated (in particular, upon acquisition of citizenship of another state), as well as to the fact how the content of the notion "repatriation" is defined (inter alia to the fact that, under the laws, whose compliance with the Constitution is disputed in the constitutional justice case at issue, repatriation is a circumstance, which determines whether the person is a citizen of the Republic of Lithuania, whether the right to citizenship of the Republic of Lithuania is retained to him, etc.). While deciding according to the petitions of the petitioners whether the disputed provisions of the laws are not in conflict with the Constitution, the legal regulation of the relations of citizenship of the Republic of Lithuania (related to the fact how one defines who citizens of the Republic of Lithuania are, how the retention of the right to citizenship of the Republic of Lithuania is regulated, what legislative possibilities for citizens of the Republic of Lithuania also to hold citizenship of another state there are, how the relations of loss of citizenship of the Republic of Lithuania are regulated (in particular, upon acquisition of the citizenship of another state), as well as to the fact how the content of the notion "repatriation" is defined) is to be assessed systemically and historically revealing (in the corresponding aspects) inter alia the tradition and development of the legal regulation of the relations of citizenship of the Republic of Lithuania, as well as the aspects of the institute of citizenship entrenched in the international legal acts which are significant for this constitutional justice case. II 1. The citizenship of the Republic of Lithuania is a constitutional institute. 2. The citizenship relations are regulated by Article 12 of the Constitution, wherein it is established that citizenship of the Republic of Lithuania shall be acquired by birth and on other grounds established by law (Paragraph 1), that with the exception of individual cases provided for by law, no one may be a citizen of both the Republic of Lithuania and another state at the same time (Paragraph 2) and that the procedure for the acquisition and loss of citizenship shall be established by law (Paragraph 3); by Item 21 of Article 84, under which the President of the Republic shall grant citizenship of the Republic of Lithuania according to the procedure established by law; Article 85 of the Constitution, under which the President of the Republic shall grant citizenship of the Republic of Lithuania by issuing a decree, which, in order to be valid, must be countersigned signed by the Prime Minister or an appropriate Minister. Other provisions, which determine the legal status of citizens of the Republic of Lithuania (as well as establish the rights, freedoms and duties enjoyed only by citizens of the Republic of Lithuania), are also entrenched in the Constitution, inter alia: the Nation and each citizen shall have the right to resist anyone who encroaches on the independence, territorial integrity, and constitutional order of the State of Lithuania by

11 force (Paragraph 2 of Article 3), the most significant issues concerning the life of the State and the Nation shall be decided by referendum, which shall inter alia be announced if not less than 300,000 citizens with the electoral right so request (Paragraphs 1 and 3 of Article 9); the State of Lithuania shall protect its citizens abroad (Paragraph 1 of Article 13); it shall be prohibited to extradite a citizen of the Republic of Lithuania to another state unless an international treaty of the Republic of Lithuania establishes otherwise (Paragraph 2 of Article 13); a citizen of the Republic of Lithuania may move and choose his place of residence in Lithuania freely and may leave Lithuania freely (Paragraph 1 of Article 32); a citizen may not be prohibited from returning to Lithuania (Paragraph 2 of Article 32); citizens shall have the right to participate in the governance of their state both directly and through their democratically elected representatives as well as the right to enter on equal terms in the State service of the Republic of Lithuania (Paragraph 1 of Article 33); citizens who, on the day of election, have reached 18 years of age, shall have the electoral right (Paragraph 1 of Article 34); inter alia citizens of the Republic of Lithuania shall have the right of legislative initiative: 50,000 citizens of the Republic of Lithuania who have the electoral right may submit a draft law to the Seimas and the Seimas must consider it (Paragraph 2 of Article 68); the defence of the State of Lithuania against a foreign armed attack shall be the right and duty of each citizen of the Republic of Lithuania (Paragraph 1 of Article 139); citizens of the Republic of Lithuania must perform military or alternative national defence service according to the procedure established by law (Paragraph 2 of Article 139); a motion to alter or supplement the Constitution of the Republic of Lithuania may be submitted to the Seimas inter alia by not less than by 300,000 voters (Paragraph 1 of Article 147), etc. It needs to be noted (it is entrenched in the jurisprudence of the Constitutional Court) that not all the provisions of the Constitution, in the text of which the notion "citizen" is used, may be construed adequately, i.e. as including only the citizens of the Republic of Lithuania and excluding foreigners and stateless persons. 3. While construing the constitutional institute of citizenship of the Republic of Lithuania, the Constitutional Court has held: citizenship is a permanent, discontinued legal link between the person and the state; citizenship appears when the person becomes a citizen, and continues until the death of the person or until his loss of citizenship; the legal link of the citizen with the state persists no matter where the citizen might be: whether in the state a citizen of which he is, or outside its borders, i.e. in another state; after the citizen has departed for another state, his legal link with the state, a citizen of which he is, persists; it is the permanent (discontinued) legal link between the citizen and the state that permits to distinguish this special legal link from the legal link which appears between the state and a foreigner or a stateless person, who resides in it either permanently or temporarily: when the foreigner or the stateless person leaves the state, his legal link with the state discontinues. When the citizen leaves for another state, his legal link with the state whose citizen he is persists (Constitutional Court ruling of 30 December 2003). Citizenship of the Republic of Lithuania expresses legal membership of the person in the State of Lithuania, reflects

12 legal belongingness of the person to the Nation as a state community. The link between citizens and the state is mutual: citizenship provides the person with and guarantees him the civil (political) rights and establishes his certain duties to the state; certain duties of the state to its citizens arise from the citizenship relations. Citizenship, as a particular legal link with the State of Lithuania, is necessary to citizens so that all their rights and freedoms, which are enjoyed by citizens, might be guaranteed in order that the person could enjoy the protection of his state within his country as well as abroad. 4. Paragraph 1 of Article 12 of the Constitution specifies the main way of acquisition of citizenship of the Republic of Lithuania: citizenship of the Republic of Lithuania shall be acquired by birth. Under Article 12 of the Constitution, citizenship may be acquired not only by birth (filiation) but also by other grounds established by law. Paragraph 2 of Article 12 of the Constitution provides that with the exception of individual cases provided for by law, no one may be a citizen of both the Republic of Lithuania and another state at the same time. Thus, a citizen of the Republic of Lithuania may not be a citizen of another state at the same time, and a citizen of another state may not be a citizen of the Republic of Lithuania at the same time, however, this prohibition of double citizenship entrenched in the Constitution is not absolute under Paragraph 2 of Article 12 of the Constitution, the law may and must provide individual cases, when a person may be a citizen of both the Republic of Lithuania and another state. Thus, from Article 12 of the Constitution a duty arises to the legislator not only to establish by law the grounds for acquisition of citizenship of the Republic of Lithuania and to regulate the procedure for acquisition and loss of citizenship of the Republic of Lithuania, but also to provide for individual cases, when a person may at the same time be both a citizen of the Republic of Lithuania and another state. 5. The Constitutional Court has noted in its ruling of 30 December 2003 that "an absolute majority of persons are citizens not because they have expressed their wish to be citizens of the state but because they are linked with the state by means of a certain objective relation: their parents (one of parents) were citizens of that state. Acquisition of citizenship by birth (filiation) is the main way of acquisition of citizenship; by acquisition of citizenship by birth, continuance of citizenship is ensured and continuance of the state community, the legal Nation, is ensured as well. It is possible to acquire citizenship by way of naturalisation, i.e. citizenship is granted to a person who meets the conditions established in the law. As a rule, such conditions are requirements of permanent residence in the state for a certain time period established in the law, and of knowledge of the state language. These requirements are based on the provision that the person whishing to acquire citizenship and the state must be connected by a permanent factual link before citizenship is granted, that permanent residence in the state during a certain time period established in the law and knowledge of the state language are necessary pre-conditions for a foreigner or a stateless person to integrate himself into the society, to perceive the mentality of the Nation and its strivings, the constitutional order of the state, to get acquainted with the history, culture, customs and traditions of the Nation and the state, to be prepared to take responsibility for the present and the future of the state. It is due to this that it is not sufficient for a citizen of a foreign state or a

13 stateless person who wishes to acquire citizenship merely to settle in this country-for this reason one has to reside permanently in the state for a longer time period, which is established in the law, and to know the state language. Thus, acquisition of citizenship is always to be related with a certain objective link between the person with the state: this link is most often determined by the fact that that children of citizens become citizens by birth (jus sanguini), in certain states a person who was born within its territory is considered its citizen (jus soli), or when the permanent factual link of a foreigner or a stateless person with the state, if this foreigner or stateless person meets the conditions established in the law and he is granted citizenship (naturalisation), becomes a permanent legal link with the state." 6. The institute of citizenship entrenched in the Constitution is inseparable from the State of Lithuania and from the constitutional concept of the civil Nation state community. The State of Lithuania came into being on the basis of the ethnical nation Lithuanian Nation. It is reflected in the Preamble to the Constitution, wherein it is entrenched that namely the Lithuanian Nation (i.e. ethnical nation) created the State of Lithuania many centuries ago, for centuries staunchly defended its freedom and independence, preserved its spirit, native language, writing, and customs, embodied the innate right of the human being and the Nation to live and create freely in the land of their fathers and forefathers and preserved the striving and the right to reside in the independent State of Lithuania. The states created on the basis of ethnical nations are national states. Namely, the national state is a political form of the common life of the ethnical nation, which ensures the possibility to foster the identity, culture, mentality, language, traditions and customs of the corresponding ethnical nation, which helps to accumulate the experience of statehood and to pass it on to the posterity as well as to gain maturity, and which guarantees the necessary historical survival. The full-fledged life of the ethnical nation would be particularly burdened or even impossible without a national state. 7. The fact that the State of Lithuania came into being on the basis of the ethnical nation is reflected not only in the Preamble to the Constitution, but also in other provisions of the Constitution Lithuanian shall be the state language (Article 14); everyone who is Lithuanian may settle in Lithuania (Paragraph 4 of Article 32). The provision of Paragraph 4 of Article 32 of the Constitution that everyone who is Lithuanian may settle in Lithuania, means that all Lithuanians who reside abroad, wherever their permanent residence, have the right to come back to Lithuania, their ethnical homeland, at any time. Under the Constitution, it is impossible to establish any such legal regulation, which would sever the Lithuanians living abroad from the Lithuanian Nation. The Lithuanians who reside abroad cannot be deprived of the possibility to participate in the life of the Lithuanian Nation, if they seek so. Lithuanians residing abroad are an inseparable component of the Lithuanian Nation. It is a constitutional basis to establish by law such legal regulation that Lithuanians residing abroad would have the right to become citizens of the Republic of Lithuania under different (easier) conditions than other persons who seek for citizenship of the Republic of Lithuania (inter alia that Lithuanians residing abroad, who seek citizenship of the Republic of Lithuania, be not applied the usual naturalisation

14 conditions). This is also a constitutional basis to entrench in laws the institute of retention of citizenship of the Republic of Lithuania, which is to be applied to the Lithuanians residing abroad who seek for citizenship of the Republic of Lithuania, particularly if they, their parents, grandparents or greatgrandparents were linked to Lithuania by citizenship relations. 8. The persons who attribute themselves to the Lithuanian Nation as an ethnical nation compose the absolute majority of population of the today's State of Lithuania. In this respect, as well as by the name of the state, by recognition of the status of Lithuanian as the state language, the Lithuanian Nation corresponds to the generally recognized definition of a nominal nation. On the other hand, also non-lithuanians people of other ethnical nations have resided in the lands of Lithuania for ages. Together with the Lithuanians they created and defended the State of Lithuania, cared about its future. Thus, since ages the pattern of life of the Lithuanian Nation has been based on the peaceful concord between the Lithuanian Nation, as the nominal nation, and other national communities living in the territory of Lithuania and on the forbearance and tolerance of people of various nations in respect of each other. Fostering national concord in the land of Lithuania is a historical tradition of the State of Lithuania. This tradition was violated only in such periods of the history of Lithuania, when the State of Lithuania itself was occupied by foreign states, when the Nation of Lithuania could not authentically create its political life by itself. The Lithuanian Nation shall foster national concord in the land of Lithuania (Preamble to the Constitution). In this context, it needs to be emphasized that, under the Constitution, the whole of the citizens of the State of Lithuania composes the civil Nation state community. In Article 2 of the Constitution, wherein it is established that the State of Lithuania shall be created by the Nation and sovereignty shall belong to the Nation, and Article 4, wherein it is established that the Nation shall execute its supreme sovereign power either directly or through its democratically elected representatives, the notion "Nation" is used precisely in this sense. In this context, it is to be emphasized that the notions "Lithuanian Nation" and "Nation" used in the Constitution may not be opposed. The Lithuanian Nation is the basis and the necessary precondition of the existence of the civil Nation the state community. It was mentioned that citizenship of the Republic of Lithuania expresses legal membership of a person in the State of Lithuania, reflects legal belongingness of the person to the Nation as a state community. The Lithuanian civil Nation is a state community which unites the citizens of the corresponding state (irrespective of their ethnical origin) and the whole of citizens composes the Lithuanian civil Nation. The Lithuanian civil Nation includes all citizens of the Republic of Lithuania, regardless of whether they belong to the nominal nation (they are Lithuanians), or to national minorities (Constitutional Court ruling of 10 May 2006). All citizen of the Republic of Lithuania, irrespective of their ethnical origin, under the Constitution shall be equal; they may not be discriminated or granted any privileges on the grounds of their ethnical origin and nationality. On the other hand, as the Constitutional Court has held, integration into the society of Lithuania, becoming a fullfledged member of the state community the civil Nation is related

15 to respective efforts, including learning the state language (Constitutional Court ruling of 10 May 2006). 9. Namely the Lithuanian civil Nation, the citizens of the reborn State of Lithuania, adopted and announced the Constitution of the Republic of Lithuania in the referendum of 25 October It is the Lithuanian civil Nation that is the source of the Constitution. The Constitutional Court has held that "having adopted the Constitution, the Lithuanian Nation formed the standardised basis for the common life of its own, as the state community the civil Nation, and consolidated the state as the common good of the entire society" (Constitutional Court rulings of 25 May 2004 and 19 August 2006). The Constitutional Court has also held that "only citizens of the Republic of Lithuania, i.e. the state community the civil Nation have the right to create the State of Lithuania, i.e. only citizens have the right to decide as to what State of Lithuania there must be, to establish the constitutional order of the State of Lithuania, the organisation of institutions implementing state power, the basics of relations between the person and the state, the system of the country's economy, etc. While implementing the rights and freedoms of citizens, citizens participate in executing the sovereignty of the Nation" (Constitutional Court rulings of 30 December 2003 and 10 May 2006). 10. In the course of establishment of the grounds of acquisition of citizenship of the Republic of Lithuania and regulation of the procedure for acquisition and loss of citizenship, the legislator enjoys discretion. However, while doing this, the legislator cannot deny the nature and meaning of the institute of citizenship, he must pay heed to the constitutional requirement that a citizen of the Republic of Lithuania may also be a citizen of another state only in individual cases established by law. It should be underlined that the provision of Article 12 of the Constitution that a person may be a citizen of the Republic of Lithuania and, at the same time, a citizen of another state only in individual cases established by law, means that such cases established by law can be very rare (individual), that cases of double citizenship must be extraordinarily rare, exceptional, that under the Constitution it is not permitted to establish any such legal regulation under which cases of double citizenship would be not extraordinarily rare exceptions, but a widespread phenomenon. Under the Constitution, expansive construction of the provisions of the Law on Citizenship consolidating an opportunity to be a citizen of the Republic of Lithuania and a citizen of another state at the same time is impermissible, under which double citizenship would be not individual, extraordinarily rare exceptions, but a widespread phenomenon (Constitutional Court ruling of 30 December 2003). 11. When regulating citizenship relations, one must also follow the principle of equal rights of persons. As the Constitutional Court has held in its acts more than once, this constitutional principle means the innate human right to be treated equally with others and it consolidates formal equality of all persons, obliges to legally assess the same facts in the same manner and prohibits from arbitrary assessment of the facts that are essentially the same in a varied manner, it does not allow to discriminate persons, nor grant them any privileges. The Constitutional Court has also held that the constitutional principle of equal rights of persons does not deny a possibility to establish different (differentiated) legal regulation in the