Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
RULING
On the compliance of the second part of Article
148 of the Criminal Code of the Republic of
Lithuania as well as items 1 and 2, Article 93 of
the
Code of Criminal Procedure of the Republic of
Lithuania
with the Constitution of the Republic of Lithuania
13 December 1993, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed from the Justices of the Constitutional Court Algirdas
Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Vladas
Pavilonis, Pranas Vytautas Rasimavičius, Stasys Stačiokas,
Teodora Staugaitienė, Stasys Šedbaras and Juozas Žilys,
the secretary of the hearing - Rolanda Stimbirytė,
pursuant to part 1 of Article 102 of the Constitution of
the Republic of Lithuania and part 1 of Article 1 of the Law on
the Constitutional Court, in its public court hearing conducted
the investigation of Case No 7, subsequent to the petition
submitted to the Court by the Criminal College of the Supreme
Court of the Republic of Lithuania to investigate the
conformity of the norms of the Criminal Code providing for the
confiscation of property and items 1 and 2 of Article 93 of the
Code of Criminal Procedure, with the Constitution of the
Republic of Lithuania.
The Constitutional Court
established:
On 31 March 1993, Criminal College of the Supreme Court,
conducted the investigation of the criminal case concerning the
writ of appeal, submitted by convict A.Vorobjovas, against the
sentence of Šiauliai District Court, adopted on 18 January
1993, in compliance with which he was sentenced according to
Part 2, Article 250, Parts 2 and 3, Article 146, Part 2,
Article 90, Part 2, Article 148 and Part 1, Article 153 of the
Criminal Code. By summing up the sentences, the final sentence
- imprisonment for the term of six years along with the
confiscation of property - has been ordered. Together with the
remaining unserved prison term upon the earlier sentence, the
final punishment - imprisonment for the term of seven years in
the Strict Regime Correctional Labour Colony, along with the
confiscation of property - has been ordered. By the same
decision other persons were convicted but no complaints or
protests against it with respect to them have been lodged.
The Criminal College of the Supreme Court, upon
investigation of the lawfulness and the validity of said
judgement, by its own decision suspended the investigation of
said criminal case and addressed the Constitutional Court with
the request to investigate the compliance of the norms of the
Criminal Code providing for the confiscation of property, as
well as items 1 and 2, Article 93 of the Code of Criminal
Procedure with Article 23 of the Constitution of the Republic
of Lithuania.
In the decision, the Criminal College of the Supreme Court
grounds their request on the fact that A.Vorobjovas by the
ruling of Šiauliai District Court, in conformity with the
second part of Article 148 of the Criminal Code, besides the
main punishment - imprisonment, has been subjected to a
supplementary penalty - confiscation of property. It is
established in Article 23 of the Constitution of the Republic
of Lithuania that: "Property shall be inviolable", thus, the
Court of Cassation has doubts whether the norms of Criminal
Code providing for the confiscation of property are in
compliance with said Article of the Constitution.
In the opinion of the Criminal College of the Supreme
Court, if the confiscation of property is not in compliance
with the Criminal Code, it should be recognized in that case,
that actions of Courts and other state agencies (e.g. customs
offices) carrying out confiscation of property conforming to
items 1 and 2, Article 93 of the Code of Criminal Procedure,
the Code of Administrative Offences, and other acts of
Administrative Law, are also unlawful.
During the preliminary investigation of the case, the
petitioner's representative explained, that the Criminal
College of the Supreme Court, upon the adoption of the ruling
on this case, has provided such a wording for it that the
Constitutional Court should answer the question whether
confiscation of property is allowed in general and not only
referring to the Articles of the Criminal Code and the Code of
Criminal Procedure, that have been applied in this case.
The representative of the party concerned, in the
preliminary investigation of said case, explained that in the
event of illegal acquisition of property, the rights of other
people are violated. Therefore, in case when illegal capital is
later on invested into legal business, it, nevertheless can be
maintained that the entire capital is illegal. However, if the
property is in no way related to the committed crime, doubts
arise, whether such property may be confiscated. Thus,
confiscation of property set forth in the Criminal Code, should
be carried out only in those cases when the connection between
the property possessed and the crime committed is possible to
establish.
The Constitutional Court
holds that:
The Criminal College of the Supreme Court, in the process
of investigation of said criminal law, had doubts as to the
possibility of inflicting a supplementary penalty -
confiscation of property in conformity with the second part of
Article 148 of Criminal Code, and confiscating instruments of
crime in compliance with items 1 and 2 of Article 93 of the
Code of Criminal Procedure. In the decision of the Court of
Cassation the issue of seizure of property is raised on a
broader scale- whether this sanction of a criminal law and
measures applied with respect to material evidence according to
criminal procedure are on the whole in compliance with the
provision of Article 23 of the Constitution of the Republic of
Lithuania which establishes: "Property shall be inviolable".
It is established in Article 67 of the Law on the
Constitutional Court that, the Constitutional Court shall
investigate only the compliance of laws and other legal acts,
which shall be applicable in a concrete case, with the
Constitution. Therefore, the Constitutional Court in this case
conducts the investigation only of the conformity of the second
part of Article 148 of Criminal Code as well as items 1 and 2
of Article 93 of the Code of Criminal Procedure with the
Constitution. On the same grounds, the Constitutional Court
does not investigate the compliance of the norms established in
the Code of Administrative Offences with the Constitution.
On the compliance of the second part of Article 148 of the
Criminal Code providing for supplementary penalty -
confiscation of property, with the Constitution of the Republic
of Lithuania.
The second part of Article 148 of Criminal Code, along
with the main punishment - imprisonment - provides for a
supplementary penalty - confiscation of property. In deciding
whether the norms of Criminal Code providing for a
supplementary penalty - confiscation of property, are in
compliance with the Constitution, firstly, it should be
clarified whether seizure of property against the owner's will
is possible at all, as in the first part of Article 23 of the
Constitution of the Republic of Lithuania it is established
that: "Property shall be inviolable".
Inviolability of property means, on the one hand, the
right of the owner as the possessor of subjective rights to
property, to require from other individuals not to violate his
own rights as well as the duty of the state, on the other hand,
to defend and protect property against illegal encroaching upon
it.
It is set fort in the second part of Article 23 of the
Constitution that the property rights shall be protected by
law. For this purpose, a body of norms of civil and other laws
is established. However, as far as the theory of law is
concerned, the protection of property rights by legal means
presuppose, in turn, appropriate limits to such protection, as
law in all cases of the regulation of public relations is valid
only within certain limits. On the other hand, subjective
rights i.e. the owner's rights to possess, use and dispose of
property can be restricted by laws due to the nature of
property possessed (e.g. weapons, narcotics, etc.) or due to
obligatory public interest (ecological issues, etc.), or due to
the owner's committed acts. It is prescribed by laws that
actions for recovery of damages under liability arising from
treaty, delictual and family relations, may be brought against
property. The fact that property can be seized is also
confirmed in the third part of Article 23 of the Constitution
which establishes: "Property may only be seized for the needs
of society according to the procedure established by law and
must be adequately compensated for".
Restrictions of property rights may also arise from
international treaties because international agreements which
are ratified in compliance with the third part of Article 138
of the Constitution shall be the constituent part of the legal
system of the Republic of Lithuania.
The provision specifying that, under certain conditions,
property rights may be restricted, is also established in item
2 of Article 17 of the Universal Declaration of Human Rights.
It is set forth in this article: "No one shall be subjected to
arbitrary deprivation of property". This means, that property
can be seized but this must be done only according to the
procedure established by law and by competent state body.
Thus, neither Constitution nor valid system of other laws,
nor universally recognized norms of international law denies
the opportunity under conditions and procedure prescribed by
the law to alienate the property or restrict its possession,
use or disposal.
Insuring inviolability of property, as well as all other
constitutional safeguards, may not be interpreted without
taking the entire text of the Constitution into consideration,
the more so, as it is established in Article 6 of the
Constitution that the Constitution shall be an integral
statute.
A universal requirement is set forth in Article 28 of the
Constitution of the Republic of Lithuania: "While exercising
their rights and freedoms, persons must observe the
Constitution and the laws of the Republic of Lithuania and must
not impair the rights and interests of other people". If a
person, while exercising property or other rights impairs the
rights and freedoms of other people, he may be held liable
under law and punished (Articles 30 and 31 of the
Constitution). The ways of punishing such a person and applying
restrictions of one or another kind on him or his property are
prescribed by laws of specific branches of law in compliance
with general requirements set forth in the Constitution,
principles of forming sanctions of that branch of law regarding
purposes of punishment.
Rights and freedoms of the people as well as the most
significant goods protected by law are grossly violated by
committed crimes. Therefore, criminal laws while establishing
rigid and differentiated system of punishments, have the aim
not only to make an appropriate influence upon the convict (by
restricting his individual, property or other rights) but also
to ensure the protection of the interests of victims and
society as well as to carry out prevention of crimes.
In the preamble to the Constitution, striving for an open,
just, and harmonious civil society and law-governed State is
written among other aspirations of Lithuania. From the point of
view of Criminal Law, this means, that it is aimed at
establishing a State which would be free enough and protected
from criminal acts. It cannot be stated, however, that society
is just and human, if criminals may act more freely than people
who abide by laws. Criminality data of recent years show that
threat to society is growing not only due to the rate of crimes
but also due to its structure. The property of residents is
threatened with growing frequency, more than two-thirds of
crimes are of such type. The structure and dynamics of
criminality may not influence resolving of an issue whether
some punishment is in conformity with the provisions
established in the Constitution, though it is not permissible,
however, not to assess the situation and indirect influence
made on this phenomenon by established punishments.
Many crimes are committed when the culprit makes use of
his property to ensure his criminal actions, for example, to
store his means of crime, to hide the stolen property, to do it
over, to change its appearance, to legalize "dirty" money, etc.
In these cases, a culprit uses his property as a means for the
violation of property and personal rights of other persons.
Therefore, such property may be alienated according to the
procedure and conditions prescribed by law.
In turn, by confiscation of property, as supplementary
criminal penalty, is sought to make influence upon that
motivation of behaviour which conditions the commitment of
selfish crimes. The purpose of supplementary penalty is to make
the punishment more individual taking into consideration the
nature and degree of the committed crime, the personality of
the culprit. Thus, combining criminal legal measures in such a
way, their efficiency can be increased as well as presumptions
for maximum striving towards the purposes of punishment can be
established.
Arguments, by which supplementary penalty - confiscation
of property - is denied, are not grounded enough. It is
maintained that, upon confiscation of property, a person is
left without any property at all. In compliance with valid laws
not all the property is confiscated. It is established in
Article 36 of the Criminal Code which property may not be
confiscated. Furthermore, the Court individualizing the penalty
inflicted on the convict, in every criminal case takes into
consideration the nature of the crime, the degree of its
threat, the personality of the culprit and other circumstances
pertaining to the case. The Court has also a possibility to
heed the property status of the accused, the sources of the
acquired property, to evaluate whether the convict's property
was connected with the committed crime, etc. On the basis of
the aforesaid, the Court may impose a confiscation of some part
of the property or of separate articles.
In denying confiscation of property, an argument that the
confiscation of the convict's property can have influence on
property interests of his family or other persons, is used. It
must be noted, however, that only the property belonging to the
very convict is confiscated. Furthermore, in the existing
system of punishments, the majority of punishments consider not
only the convict's interests as, upon imposition of a severe
penalty or a long - term imprisonment on him, his family
(relatives) can have not less difficulties of property nature
than upon confiscation of a part of his property or separate
articles.
While evaluating the confiscation of property as a
supplementary penalty it should be noted that UN by its
Resolution have confirmed Standard Minimum Rules for the
Measures Unrelated with Imprisonment (Tokyo Rules
A/RES/45/110), in item 8.2 of which it is recommended, besides
other punishments, to apply confiscation of property or
deprivation of the property rights.
By way of summarizing what has been said above, it can be
stated that confiscation of property is one of legal means with
the help of which attempts are made to put a stop to selfish
crimes that threaten other persons' property which is protected
by the Constitution. A criminal act provided for by the second
part of Article 148 of the Criminal Code (burglary) is of the
aforementioned kind.
On the basis of the above mentioned motives, the
Constitutional Court draws the conclusion that a supplementary
penalty - seizure of property, established in the second part
of Article 148 of the Criminal Code does not contradict the
Constitution of the Republic of Lithuania.
On the compliance of items 1 and 2 of Article 93 of the
Code of Criminal Procedure with the Constitution of the
Republic of Lithuania.
It is set forth in item 1 of Article 93 of the Code of
Criminal Procedure, that instruments of crime must be
confiscated and handed over to appropriate organizations or
destroyed. It is established in item 2 of this Article, that
money and other values obtained or acquired in criminal way, if
their owners are not identified, go over to state revenue upon
the judgement of the Court. Other articles are returned to
their legal owners, and, in case they are not identified,
become state property. A dispute over the ownership of these
articles is resolved according to the civil procedure of law.
In case when a person uses a property belonging to him by
property right for committing a crime, legal means with regard
to the property he used must be established for him. In
opposite case, the culprit after serving his term of
imprisonment, in some cases can use the property he possesses
(e.g. money forgery equipment, weapons) for committing new
crimes, therefore, the seizure of property of such a culprit,
established in the laws of Criminal Procedure, is grounded.
The impact upon the interests of people, society or state
is made when the property is used not only as a means of
committing a crime but also as an object of crime in illegal
transportation of materials, items, currency, etc. across the
border). Furthermore, some materials and items pose a direct
threat to people's life, health and security. Smuggling of
property does harm to economic interests of people and society.
Thus, the establishment of confiscation of said property in
laws is grounded.
On the basis of aforesaid motives, the Constitutional
Court draws the conclusion, that items 1 and 2 of Article 93 of
the Code of Criminal Procedure do not contradict the
Constitution of the Republic of Lithuania.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania as well as Articles 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following ruling:
to recognize that the second part of Article 148 of the
Criminal Code of the Republic of Lithuania and items 1 and 2,
Article 93 of the Code of Criminal Procedure of Republic of
Lithuania are in compliance with the Constitution of the
Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.