Appeal by the Public Commission Formed to Investigate an Act of Violence on May 17, 2012

Tiesos.lt redakcija   2013 m. vasario 22 d. 14:06

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Vilnius, 20th of February, 2013

APPEAL
to the President of the Republic of Lithuania, Parliament, and the Government

 

by the Public Commission Formed to Investigate an Act of Violence
on May 17, 2012


The Public Commission formed to investigate the act of violence committed on May 17, 2012 concluded: last year on May 17, during the enforcement of the court order issued by the Kėdainiai District Court there was a forcible encroachment on the Constitutional order of the Republic of Lithuania, brutal infringement on eleven articles of the Constitution of the Republic of Lithuania, four articles of the United Nations Rights of the Child Convention and the national acts that guarantee their provisions.  The Commission determined that there were extensive in advance preparations to use force on behalf of the state, which was carried out.

Eight months after the announcement of these conclusions the Commission declares:

First. Before May 17, 2012 and after that date, the highest officials of the state publically emphasized their exceptional concern for the child’s rights and her well-being.  However, for nine months the responsible officials have not provided the nation with official information confirming that the forcible transfer of the child and her later life, that is restricted by the Witness and Victim Protection Program, have guaranteed better living conditions for her as well as her legitimate rights and interests. The child who was taken from her birth home is being kept in social isolation; her close relatives and childhood friends are not allowed to communicate with her.  Not only human rights organizations, but even the child’s family are not being provided with reliable information about how the use of force and social isolation have affected the status of the child’s health. 

Second. The President of the Republic of Lithuania publicly addressed the nation on May 17, 2012 requesting to investigate whether “there was the use of coercion during the Garliava events that aroused all,” and stated that “no use of coercion is allowed against the child.”  However, within nine months the institutions accountable to the president and the Parliament have not provided any supported and clear answer as to the legality of the use of force in Garliava.

On November 21, 2012 the prosecutor of the Klaipėda District, Aidas Giniotis, who decided to discontinue a pretrial investigation regarding the alleged misuse of power by government officials during the enforcement of the Kėdainiai District Court ruling, in his decision he admitted that the child could not be persuaded and stated that force was used against the girl: “force was used against D.K. only to the extent that it was needed to separate D.K. from N. Venckienė.”

The Commission believes that the use of force in this context means coercion.  The Commission also reminds that neither the use of force nor coercion could be administered in any degree for any reason during the enforcement of the court ruling.  The United Nations Convention on the Rights of the Child, Constitution of Lithuania, Lithuanian Civil Code, and Code of Civil Procedure require unconditional respect for the dignity of the child in all circumstances - including the enforcement of the court ruling.  Respect for the child’s dignity means the child’s wishes had to be heard during the enforcement of the court ruling, grounds of her motives had to be evaluated, and the child would leave her life-long home exclusively by her own will – not be carried away as an object by force.  The use of force against the girl was also banned by the Kėdainiai District Court.

The conclusion of the prosecutor, A. Giniotis, that the attorney, G. Černiauskas, did not engage in any actions, “which would violate any kind of order, but was just walking near L. Stankūnaitė, who was carrying her daughter, D.K., so he would be able to support the girl, if necessary,” contradicts the testimonies of the people who were in the yard as well as to the video footage that was shown many times publically about how G. Černiauskas and L. Stankūnaitė were carrying the screaming child.  It should be noted that the prosecution did not question the eyewitnesses who were in the yard at that time about the actions of G. Černiauskas. 

Third. The act of violence in Garliava was made possible because the government institutions began to follow the doctrine, which stresses the principle that the decisions of the courts must be enacted unconditionally, by any means including the use of force against the child.  The principle of unconditional enforcement of the court ruling was raised above the dignity of the child, her physical and mental integrity, above the principles of democracy and humane treatment, and even above the court’s ruling itself.  The following of this principle resulted in gross violation of the Constitution of the Republic of Lithuania, national laws, and international conventions defending the dignity of children.  Furthermore, the Kėdainiai District Court’s judgment prohibiting the use of coercion during the child’s transfer was also violated.  The imperative of enforcing the court judgment is one of the most important principles of the legal state, but its unconditional execution resulting in violation of the essential provisions of the Constitution is a sign of a police state and is not consistent with the principles of the democratic and humane state.

The citizens of the Republic of Lithuania adopted the Constitution by the way of plebiscite on February 9, 1991 and via referendum on October 25, 1992, which established that public administration in the state of Lithuania can only be democratic – thus emphasizing the precedent of democracy over any other governing forms of the rule of law.  The rule of law in itself is not a value, if it disregards the enactment of the democratic laws and their enforcement process, and such cases should not be tolerated according to the expressed will of the Lithuanian people. 

The main requirement of democracy is respect for universally accepted human rights and human dignity.  Thus, there cannot be a state institution, official or individual that would be exempt from the obligation to respect human dignity unconditionally.  The practice of bringing the principle of the rule of law above human dignity that is being formed by the highest legal and judicial institutions today pushes Lithuania toward the undemocratic, police state.  History has witnessed more than one rule of law that engaged in the gravest violations of human rights and human dignity during the enforcement of the law and court judgments in such a way that provides conditions for the legal system itself to become criminal.

Fourth.  The laws granted the right to resist any possible coercion against the child to the child’s family and to the monitors who came to ensure that the court’s ruling would be enforced without the use of violence.  Article 3 of the Constitution of the Republic of Lithuania and Article 10 of the European Union Charter of Fundamental Rights provide such a right and duty to a citizen to act according to his/her conscience.

On May 17, 2012 the people in Garliava acted on the basis of conscience and belief; they had a legitimate goal to monitor and ensure that no coercion was used.  Video footage and testimonies of eye-witnesses confirm that the citizens did not resist the officers.  They were singing the national anthem and praying.  Despite the aforementioned rights of the citizens to protest against the unlawful actions of the authorities, the victims of violence and abuse in Garliava as well as the eye-witnesses of the coercion are harassed by law enforcement agencies and pre-trial investigations are started against them.  Participants of the peaceful demonstrations are also being persecuted by the law enforcement agencies, among them are children and their parents who wrote the word “truth” with crayons.  This suggests that human rights violations in Lithuania are taking on a greater scale.

Fifth.  The context of the Garliava events demonstrated a threat to another important democratic principle, which is the right to freedom of expression.  Some participants in the Garliava events have been indicted are being held legally responsible for expressing their opinion regarding the bailiff’s actions, and parliamentarian N. Venckienė has been indicted for criticizing the courts.  Such accusations by the Lithuanian law enforcement agencies are contrary to the judicial practice of the civilized countries, since the decisions of the European Court of Human Rights (in cases such as Lingens vs. Austria and Otegi Mondragon vs. Spain) show that one’s honest critical opinion expressed about government officials and institutions for a legitimate purpose cannot be regarded as a crime even when it is not based on sufficient facts.

Sixth.  G. Kryževičius, the president of the Supreme Court and the president of the Judicial Council, publicly declared a very negative opinion of N. Venckienė, calling her “an abscess not only in the legal, but also the political system.”  Such a public statement by the president of the Judicial Council about N. Venckienė, who was still a judge at that time, is not practiced in a democratic state and provides for conditions to violate Article 31 of the Constitution guaranteeing her right to a “public and fair hearing by an independent and impartial court.” 

In the judgment of the Commission, publicly available materials suffice to undeniably state the fact that unlawful coercion took place in Garliava; however, the prosecution must submit video footage of the girl’s removal, which is being concealed by the judiciary.  Without the footage, members of Parliament will not be able to honestly decide the legal validity of the charges brought by the prosecution against N. Venckienė.

The Commission invites the Lithuanian president, members of Parliament, and other government officials to thoroughly investigate whether there are any legal Acts of Lithuanian legislation that would allow enacting the ruling of the Kėdainiai District Court by using violence against the child.  The Commission is not aware of any such Acts.

The Lithuanian nation faces the real threat of exiting the democratic and humane path of development, if the major question regarding its priorities and the state’s unconditional commitment to protect its citizens’ rights and freedoms and dignity of children are not resolved at the highest political level in the Republic of Lithuania.

Since after the girl’s forcible removal from her life-long home on May 17, 2012, her living conditions have not been guaranteed by her mother, but by the Witness and Victim Protection Board – that is, the state and its officials; therefore, the Commission is urging Lithuanian politicians at the highest levels to personally take care of the girl who is currently in social isolation.  She should be allowed to interact with her grandparents, other relatives, and peers and should be provided with high-quality psychological and medical assistance.

Dr. Zita Šličytė, member of the group responsible for the development of the Constitution of the Republic of Lithuania, Deputy of the Restoration Parliament, a lawyer

Liudvikas Narcizas Rasimas, member of the group responsible for the development of the Constitution of the Republic of Lithuania, signatory of the March 11th Act, a lawyer

Dr. Saulius Arlauskas, professor at Mykolas Riomeris University

Kęstutis Milkeraitis, former General Prosecutor’s Office investigator of particularly important cases, former Ombudsmen for the Parliament

Dr. Romualdas Povilaitis, Chairman, Lithuanian Human Rights Protection Association, associate professor

 

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