ReLex Law Firm has submitted an individual constitutional complaint on behalf of a client challenging the constitutionality of legal provisions that allow authorities to decline requests to investigate international crimes even when the suspected perpetrator is present in Lithuania.
Universal jurisdiction is an international law principle allowing and requiring a state to bring criminal proceedings in respect of certain crimes irrespective of the location of the crime and the nationality of the perpetrator or the victim. It exists notably to ensure accountability and prevent perpetrators from seeking safe havens.
The Preamble to ICC Statute reflects the principle of aut dedere aut judicare. It affirms that “the most serious crimes of concern to the international community as a whole must not go unpunished” and that their effective prosecution must be ensured through measures taken at the national level and enhanced international cooperation (para. 4). It further recalls that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes” (para. 6), and emphasizes that the International Criminal Court “shall be complementary to national criminal jurisdictions” (para. 10).
Lithuania has incorporated the provisions of the Rome Statute into its domestic legal framework. Article 7 of the Criminal Code establishes criminal liability for offenses defined in international treaties and provides that individuals may be prosecuted under Lithuanian law regardless of their citizenship, place of residence, the location where the crime was committed, or whether the conduct is punishable under the laws of the place where it occurred. Lithuania regards universal jurisdiction as an important instrument in combating impunity for international crimes. Accordingly, national legislation provides for the exercise of universal jurisdiction over such offenses irrespective of the nationality or residence of the alleged perpetrator and regardless of the territory in which the crime was committed. According to the Lithuanian mission to UN, Lithuanian prosecutors continue to initiate new cases on the basis of the provisions on universal jurisdiction.
The law also provides for particular scrutiny of persons under Lithuanian jurisdiction suspected of involvement into international crimes and requires their criminal prosecution. In Criminal Case No. 2K-229/2002, the Supreme Court of Lithuania has clarified that the elements of the offenses in question are not blanket provisions, i.e., in Lithuanian judicial practice, they are generally applied under the Criminal Code without reference to specific international legal instruments whose requirements are violated by the specific crime under consideration.
On behalf of the Hind Rajab Foundation, ReLex submitted a request for the initiation of a pre-trial investigation concerning an Israeli armed forces conscript currently residing in Lithuania as a student. The request was supported by evidence allegedly demonstrating his participation, as a member of the Vampire Empire Company of the 52nd Battalion, 401st Brigade, in operations involving the destruction of civilian infrastructure in Gaza, including the UNRWA Headquarters and the attack on Al-Shifa Medical Complex during March and April 2024. The applicant further alleged that the same military unit was involved in the killing of Hind Rajab, her family members, and two paramedics in Gaza City on 29 January 2024.
The prosecution refused to initiate an investigation, stating that: ‘An important feature of universal jurisdiction is that, under the legal framework governing it in both international and national criminal law, the meaning of this legal concept, its objectives, and its purpose are not understood or interpreted as an imperative obligation on the part of the state that has established this legal concept to apply it without any reservations. Rather, it is an exceptional right of a state, subject to certain exceptional circumstances and legal conditions, to contribute to the criminal prosecution of the most serious violations of international law and of the persons who committed them, when the state where the offenses were committed or international judicial bodies are unable, within their jurisdiction, to carry out such criminal prosecution or refuse to do so for certain political or other reasons. Lithuania, in fulfilling its international obligations and implementing the provisions of Article 7 of the Criminal Code, may initiate criminal prosecution for crimes of an international nature; however, priority should be given to the state in whose territory the crime was committed, as well as to the state of which the alleged perpetrator is a national, and to the state of which the victim is a national. Furthermore, when deciding whether to initiate a pretrial investigation, it is necessary to take into account the rationality of conducting criminal proceedings initiated in this manner, and cost-effectiveness, including all objective institutional and procedural capabilities of the state’s law enforcement agencies to collect data in the territory of another state or in a territory not subject to the legal jurisdiction of any state and/or in a territory where an armed conflict is taking place, or in a territory where an armed conflict is taking place, to gather evidence regarding a criminal offense potentially committed as defined in international treaties. The present petition requests the initiation of a pre-trial investigation against Israeli citizen (…) regarding his possible involvement in acts committed abroad—in the Palestinian Autonomous Territory, the Gaza Strip, the city of Gaza, and in a territory where military operations are taking place.’ This decision was subsequently upheld by the domestic courts.
A refusal to open investigation into international crimes documented by the applicant underlines the conditions for the pretrial investigation authorities of the Republic of Lithuania to refuse to initiate a pretrial investigation into international crimes specified in Article 7 of the Criminal Code in cases where the person suspected of committing them is within the jurisdiction of the Republic of Lithuania, but the acts were committed outside the territory of the Republic of Lithuania. The Code of Criminal Procedure does not establish any special procedural guarantees or a mandatory procedural mechanism ensuring the initiation and conduct of investigations into such acts, notwithstanding the obligations incumbent upon the Republic of Lithuania under international law. Consequently, this creates conditions for treating the obligation to investigate crimes under international law as discretionary rather than mandatory, thereby failing to ensure the effective implementation of the international obligations assumed by the Republic of Lithuania. Such regulation (or the lack thereof) is inconsistent with the imperative to comply with universally recognized principles of international law enshrined in Article 135(1) of the Constitution, the principle of the binding nature of the state’s international obligations enshrined in Article 138 of the Constitution, and the constitutional principle of the rule of law. We are further asking to assess whether the provisions of the law (or their omission) are consistent with the principle of equality of persons enshrined in Article 29 of the Constitution and the right to access the courts enshrined in Article 30 of the Constitution.
Individual constitutional complaint enables natural and legal persons to apply directly to the Constitutional Court of the Republic of Lithuania when they believe that a law or other legal act applied in their case has violated their constitutional rights or freedoms, provided that all available domestic remedies have first been exhausted.
