Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Part 1 of Article 26 of the
Republic of Lithuania Code of Administrative
Transgressions of Law with the Constitution of the
Republic of Lithuania
8 April 1997, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Egidijus
Jarašiūnas, Zigmas Levickis, Augustinas Normantas, Vladas
Pavilonis, Jonas Prapiestis, Pranas Vytautas Rasimavičius, and
Juozas Žilys,
the secretary of the hearing - Sigutė Brusovienė,
the representative of the Seimas - the associate professor
Dr. Pranas Petkevičius, a consultant at the Legal Division of
the Seimas,
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 of the Republic of Lithuania, in its
public hearing on 12 March 1997 conducted the investigation of
Case No. 12/96-5/97 subsequent to the petition submitted to the
Court by the petitioners - the Lazdijai Regional District Court
and the Alytus Regional District Court - requesting to
investigate if Part 1 of Article 26 of the Republic of
Lithuania Code of Administrative Transgressions of Law was in
compliance with the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
On 28 June 1996, the petitioner - the Lazdijai Regional
District Court - was investigating a civil case pursuant to the
complaint of R. Beczkowski who sought to repeal the decision of
the head of the Lazdijai Custom-House whereby an administrative
penalty had been imposed. By its interlocutory ruling the said
court suspended the investigation of the case and appealed to
the Constitutional Court with the request to investigate if
Article 1 of the 23 April 1996 Law "On Amending and
Supplementing Articles 26, 35, 208, 209, 210, 211, 237, 292 and
320 of the Republic of Lithuania Code of Administrative
Transgressions of Law" (Official Gazette "Valstybės Žinios" No.
41-990, 1996) whereby the second clause of Part 1 of Article 26
of the Code of Administrative Transgressions of Law
(hereinafter in the ruling referred to as the CATL) was in
compliance with Article 23 of the Constitution.
On 14 January 1997, the petitioner - the Alytus Regional
District Court - was investigating a civil case pursuant to the
complaint of J. Kazakevičius who sought to repeal the decision
of the head of the Alytus Territorial Custom-House whereby an
administrative penalty had been imposed. By its interlocutory
ruling the said court suspended the investigation of the case
an appealed to the Constitutional Court with the request to
investigate if the provision contained by the second clause of
Part 1 of Article 26 of the CATL was in compliance with the
Constitution.
Taking account of the fact that the both petitions concern
the question of compliance of the same legal act and the same
norm with the Constitution, the Constitutional Court by its 3
March 1997 decision joined them into one case.
II
The petitioners ground their requests with the following
arguments:
1. The second clause of Part 1 of disputed Article 26 of
the CATL stipulates: "Only the item which is property of the
transgressor shall be subject to confiscation with the
exception of the item which was either an immediate instrument
or an immediate object of the administrative transgression of
law pertaining to legal cases of administrative transgressions
of law as provided for by Article 210 of this Code." In the
opinion of the petitioners, this violates the norm of Part 1 of
Article 23 of the Constitution that "property shall be
inviolable", as well as that of Part 2 of the same article that
"the rights of ownership shall be protected by law", as well as
that of Part 3 of the same article that "property may only be
seized for the needs of society according to the procedure
established by law and must be adequately compensated for".
Such an amendment of the law violates the ownership rights of
other persons who have not committed administrative
transgressions of law. The disputed provision contradicts the
objectives of administrative penalty defined in Article 20 of
the CATL, too.
2. The petitioners are of the opinion that the CATL
consolidates the requirement that only such a person be
penalised who is guilty of having (on purpose or through
negligence) performed an act whereby interests protected by law
were violated. Meanwhile, Part 1 of Article 26 of the CATL
provides with grounds to penalise another person who is
innocent but not the one who performed a transgression of law.
III
In the course of preparation of the case for judicial
investigation an explanation of 31 October 1996 of the Customs
Department at the Ministry of Finance of the Republic of
Lithuania was received. It was indicated therein that
confiscation of an item is one of the types of penalties listed
in Article 21 of the CATL. When a transgressor makes use of his
or someone else's property as means to violate proprietary or
personal rights of other persons, or interests of the state or
those of society, then such property may be confiscated under
procedure and conditions provided for by laws. Not any property
is subject to confiscation but only which is linked with the
performed transgression. The instrument of administrative
transgression of law is confiscated from the transgressor who
with the help of this item (no matter if it belongs to him or
whether it was transferred to him on trust) transgressed legal
norms. Providing a person, by realising his proprietary and
other rights, acts contrary to rights and freedoms of other
persons, he may be called to account and punished (Articles 30
and 31 of the Constitution). The punishment of such a person,
or application of one or other restrictions to him or his
property, are determined by laws of different branches of law
pursuant to general requirements of the Constitution, as well
as principles of forming sanctions pertaining to this branch of
law while taking account of the objectives of penalties.
Provided the owner transfers an item to another person for use
by warrant, or by agreement or arrangement, and if the latter
uses it for criminal deeds and loses it, then, under the norms
of the Civil Code of the Republic of Lithuania (hereinafter in
the ruling referred to as the CC), the owner of the item may
recover damages inflicted on him from the debtor (transgressor
of administrative law). Inviolability of property means that
the owner as the possessor of subjective rights to property is
entitled to demand that other persons should not violate his
rights, as well as that the state has the duty to safeguard and
protect property from illegal encroachment upon it. Handling
the property which has been trusted to him in unfair and
unlawful manner, and knowing that this property may be
confiscated under procedure determined by law, the person
violates the rights to property of the owner.
Part 2 of Article 23 of the Constitution stipulates that
the rights of ownership shall be protected by law. It is stated
in the explanation of the Customs Department that for this
purpose an entire system of norms of civil and other branches
of law has been created. However, from the standpoint of legal
theory, protection of ownership rights by legal means also
predetermines respective limits of such protection. On the
other hand, subjective rights, i.e. the rights of the owner to
manage, use and dispose of his property, may be restricted by
laws due to the nature of property possessed (arms, narcotic
substance etc.), due to urgent interests of society (problems
of ecology etc.) or due to performed acts contrary to the law.
Laws provide that claims may be directed at the property of the
owner under obligations which occur from agreement, delictual,
family, or other relations. The fact that property may be
seized is also confirmed by Part 3 of Article 23 of the
Constitution which stipulates: "Property may only be seized for
the needs of society according to the procedure established by
law and must be adequately compensated for."
The provision that under certain conditions ownership
rights may be restricted is provided for in Item 2 of Article
17 of the Universal Declaration of Human Rights which
stipulates: "No one shall be arbitrarily deprived of his
property." It means that property may be seized but this must
be performed under procedure established by laws, and this must
be done by an authorised state body.
The explanation of the Customs Department states that
neither the Constitution nor valid system of other laws nor
universally recognised norms of international law deny the
opportunity to seize property or to restrict its managing, use
or disposal of under conditions and procedure established by
law. The Lazdijai District Court, which states that "the
amendment of Part 1 of Article 26 of the Republic of Lithuania
Code of Administrative Transgressions of Law contradicts the
very purpose of administrative penalty as established by law",
does not assess the fact that smuggling is a dangerous
transgression and mere educative means applied to transgressors
are not enough. One also has to exert a corresponding influence
upon them and ensure protection of needs of society, as well as
to accomplish prevention of transgressions.
IV
During the Constitutional Court hearing, the
representative of the Seimas pointed out that the legislator
amended disputed Article 26 of the CATL by the law of 23 April
1996 because of 2 reasons:
1. Article 26 of the CATL which had been in force earlier
was not completely in line with Article 210 of the same code
which stipulated that transgressions shall "incur a fine from
1,000 to 10,000 Lt together with the confiscation of smuggling
items, as well as other means designated for transporting
smuggling items across the border of the Republic of Lithuania
or hide them". Whereas Article 26 of the said code had
prescribed that only "the item which is property of the
transgressor shall be subject to confiscation". Thus these two
provisions had not been coordinated. On of them stated that a
smuggling item, as well as the means of its transportation, may
be subject to confiscation while general provisions of the code
(Article 26) emphasised that only such an item may be
confiscated which is property. Therefore, in attempt to
eliminate these contradictions, the legislator passed a new law
and thereby coordinated these two provisions.
2. Lately there has been an increase of such smuggling
cases when persons, in order to transport smuggling items,
began to employ deliberately means of transport which belong to
other persons by the right of ownership. In such cases it was
impossible to apply to transgressors the administrative penalty
of confiscation of the means of transport. Seeking to put an
end to smuggling, the legislator in Article 210 of the CATL
provided, as an exception, for a case when an item may be
confiscated (including the means of transport) which was either
an instrument or item of transgression of law of smuggling,
even though the said item is not property of the guilty person.
In the opinion of the representative of the party
concerned, the disputed norm established by Article 26 of the
CATL reflects a certain peculiarity of responsibility. An
exception is made from the general rule whereby confiscation of
the item which is not property of the transgressor is provided
for. Such a peculiarity was determined by the circumstances
that transgression of law of smuggling is widespread, it
inflicts much harm on the state and is ruinous to its economy.
In both legal theory and valid laws, one may detect more of
such peculiarities of responsibility. For instance, the CC also
provides for responsibility in such cases when there is no
guilt in actions of the person. Therefore the legislator,
providing for exceptions, takes account of certain
circumstances. However, such adopted norms are in compliance
with the Constitution.
The representative of the party concerned is of the
opinion that on the grounds of such arguments a conclusion may
be drawn that valid Article 26 of the CATL is in compliance
with Article 23 of the Constitution. This conclusion may also
be based on the norm of Article 31 of the Constitution which
prescribes that "punishments may only be administered or
applied on the basis of law". Likewise, it is possible to
assert that administrative penalty may be established and
applied only on the grounds of law and taking account of
certain conditions. The CATL determines that not each and every
item may be confiscated but which was an instrument of
transgression or its immediate object.
In the opinion of the representative of the party
concerned, in assessing the disputed norm one must take into
consideration the circumstances which prompted the legislator
to establish amendments of Part 1 of Article 26 of the CATL.
The subjects of transgressions of law of smuggling were, by
special powers of warrant, using means of transport which
belonged to other persons. Under these powers of warrant they
had very broad rights. They provided that the persons were
granted the right to thoroughly use these means and even to
sell them. Under these powers the principal would grant the
right to the commissioner to perform various actions at any
place, including custom-houses, while the latter was using the
car. Thus, the persons who permitted transgressors to use their
cars by power of warrant must have known in advance that the
said vehicles might be used when crossing the state border,
managing affairs at custom-houses, etc. The representative of
the party concerned also based his opinion on Item 7 of the 16
February 1997 decision No. 1 "On Judicial Practice in Cases
Connected with Smuggling" passed by the Senate of the Supreme
Court of Lithuania.
There also exist laws in other states, e.g., Poland,
Germany, wherein it is established that the property of the
third party may be confiscated which has been used as the
object or instrument of a crime.
Upon assessment of all the circumstances, the
representative of the party concerned has concluded that Part 1
of Article 26 of the CATL is in compliance with the
constitution.
A specialist - Z. Bereišienė, a lawyer at the Legal
Division of the Customs Department at the Ministry of Finance -
presented her explanations in the hearing.
The Constitutional Court
holds that:
1. On 23 June 1996 the Seimas adopted the Law "On Amending
and Supplementing Articles 26, 35, 208, 209, 210, 211, 237, 292
and 320 of the Republic of Lithuania Code of Administrative
Transgressions of Law" whereby Part 1 of Article 26 of the CATL
was amended. It was set forth as follows: "Confiscation of the
item which was an instrument or immediate object of
transgression of administrative law shall be a coercive,
gratuitous conversion of this item into state property. Only
the item which is property of the transgressor shall be subject
to confiscation with the exception of the item which was either
an immediate instrument or an immediate object of
administrative transgression of law pertaining to legal cases
of administrative transgressions of law as provided for by
Article 210 of this Code." In the new wording of Part 1 of
Article 26 of the CATL an exceptional rule is established that
an instrument or immediate object of transgression of
administrative law which belonged to the transgressor of law by
the right of ownership shall be confiscated including the items
belonging to other persons by the same right which were
temporarily used or managed by the transgressor at the time
when he was performing the said transgression.
The petitioner had doubts as to the compliance of the said
norm of Part 1 of Article 26 of the CATL with Article 23 of the
Constitution. This norm provided that in the cases of
administrative transgression of law of smuggling the items
which were either an instrument or immediate object of
performing the said transgression shall be subject to
confiscation irrespective of the fact whether these items
belonged by the right of ownership to the transgressor or other
persons who had temporarily transferred the said item to the
transgressor of law.
2. Article 23 of the Constitution stipulates:
"Property shall be inviolable.
The rights of ownership shall be protected by law.
Property may only be seized for the needs of society
according to the procedure established by law and must be
adequately compensated for."
From the standpoint of protection of property, the norms
of Article 23 of the Constitution wherein the essence of
protection of the ownership rights is revealed constitute an
indivisible whole.
The norm "Property shall be inviolable" of Part 1 of the
said article of the Constitution consolidates the right of the
owner as the possessor of subjective rights to property to
demand that other persons, as well as the state, should not
violate his ownership rights. In addition, this norm
consolidates the duty of the state to safeguard and protect
property from unlawful encroachment upon it. Such a conception
of the norm of Part 1 of Article 23 of the Constitution means
that this norm consolidates intensive protection of property
which ensures that the property belonging to the owner will be
protected by legal means. At the same time it is possible to
notice that this norm does not give grounds to maintain that
the Constitution establishes absolute protection of property.
Making the ownership rights absolute, preconditions may appear
to violate property interests of other persons and also to
cause conflicts. One of the ways to solve them is to impose
respective restrictions or restraints on the ownership rights
in legal norms.
The norm "The rights of ownership shall be protected by
law" of Part 2 of Article 23 of the Constitution means that
property relations are the matter of legal regulation. This
constitutional norm also conditions the fact that to protect
property a system of laws is created which ensures protection
of various and dynamic property relations and the possibility
to efficiently utilise property in one's interests as well as
those of society. The main principle of creating such a system
of laws is coordination of its elements - legal norms aimed at
protection of property - as well as elimination of existing and
possible contradictions in the protection of ownership rights.
Bearing in mind the fact that a legal system is constantly
evolving, coordination of its elements is a permanent task the
solution of which is not always unequivocal. From the
standpoint of compatibility of the system it is also possible
to notice quite a few evident inadequacies connected with legal
regulation of property confiscation ensuing from violation of
law. For instance, Article 1421 of the CC provides that
property may be seized against the will of the owner only by a
decision, judgement or special requisition act of the court,
meanwhile Article 237 of the CATL determines that in the case
of transgression of law of smuggling an administrative penalty
(as well as confiscation of property) shall be imposed by the
Director and assistant directors of the Customs Department at
the Ministry of Finance of the Republic of Lithuania, as well
as heads and deputy heads of custom-houses. Article 163 of the
CC once again in a different way consolidates a provision that
the state shall be permitted to gratuitously seize property
only in cases and under procedure established by laws of the
Republic of Lithuania. Article 26 of the CATL provides that an
object or instrument of administrative transgression of law of
smuggling may be confiscated irrespective of the fact to whom
it belongs by the right of ownership, meanwhile Item 1 of
Article 93 of the Republic of Lithuania Code of Criminal
Proceedings provides that the instruments and means of crime
(including smuggling) which belong to the committer of the
crime shall be confiscated, transferred to other organisations
or destroyed.
Creation of the system of laws protecting the ownership
rights also means that respective boundaries of ownership
rights protection are determined. The Constitutional Court held
in its 13 December 1993 ruling: "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". Moreover, for many a time the
Constitutional Court has noted that there exist no subjective
rights which had no protection boundaries, as law is one of the
ways to coordinate public interests whereby balance is found
between different, sometimes even contradictory needs. One of
essential peculiarities of modern law is that the legal
mechanism of ownership rights protection is intensively
developed with which it is sought to ensure as much as possible
the rights and legitimate interests of the owner. However, this
does not mean that the legislator, by attempting to coordinate
reciprocal interests of people, as well as those of people and
society, may not, in general, restrict the rights of the owner
when he is managing, using or disposing of his property.
The norm "Property may only be seized for the needs of
society according to the procedure established by law and must
be adequately compensated for" of Part 3 of Article 23 of the
Constitution determines conditions and procedure of protection
of the ownership rights. It means that under the Constitution
property may be seized from the owner or restrictions of the
ownership rights may be established only when such seizure or
restriction is provided for by law. Besides, property may be
seized from the owner only for public needs and this must be
adequately compensated for. Such a norm reveals a specific
aspect of social purpose of property when possibilities not
only to protect his rights and accomplish interests but also,
when realising them, to take account of public needs are
acknowledged for the owner.
Possibilities of restriction the ownership rights are also
discussed in the decisions of the European Court of Human
Rights while deciding cases pertaining to accomplishment of the
norms set forth in Article 1 of Protocol No. 1 of the European
Convention of Human Rights. It was noted in these decisions
that the notion "in the public interest" is inevitably broad.
The Court, bearing in mind that the opportunity of choice
granted to the legislator who implements social and economic
policy must be broad enough, will take into consideration the
decisions of the legislator in defining "public interests" save
the said decisions were unsubstantially grounded. Seizure of
property, when implemented for the success of legal-social and
economic policy, may be justified by "public interests" even
when the whole society does not make direct use of the seized
property (the cases James and others against the United Kingdom
(1986), Lithgow and others against the United Kingdom (1987)).
Thus legal norms which regulate protection of the
ownership rights, on the one hand, constitute the property law
institute which determines the opportunity of the owner to
manage, use and dispose of his property at his discretion (the
right to property in its objective sense), on the other hand,
the aforesaid norms consolidate his opportunities to accomplish
the ownership rights to a particular item (the right to
property in its subjective sense). It means that on the grounds
of these norms the owner of the item is entitled to demand that
his ownership rights should not be violated. Alongside, the
owner is guaranteed the right to handle his item at his
discretion so, however, that they did not contradict the law.
Therefore the owner, while accomplishing his ownership rights,
must abstain from acts whereby rights of other persons, or
public interests might be violated.
3. The subjects of property relations regulated by legal
norms possess, as a rule, not only certain rights but also
respective duties. Coordination of rights and duties directly
ensues from the norms provided for by Article 28 of the
Constitution which stipulates: "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".
Such a coordination of rights and freedoms manifests
itself in laws by consolidating not only the rights of the
owner but also imposing respective prohibitions to other
persons, as well as the owner himself. The practice of
application of legal norms indicates that the laws regulating
the ownership rights are often violated not only by encroaching
upon the rights of the owner but also, for the owner's part, by
not keeping to the limits of managing, use and disposal of
property as defined by the law.
It is the result of historical development that
implementation of requirements established in the norms of
objective law is based on not only the utility but also
coercion which is set in sanctions of legal norms. The purpose
of a sanction is to define the content of responsibility which
may occur after a person has violated the order regulated by
legal norms. The essence of responsibility is a purposeful
impairment of the person which is specified in respective legal
norms because of his reprehensible performance or
non-performance which is prohibited by the said norms. As to
its content, this impairment may be of either personal or
proprietary character. Besides, it should be emphasised that in
attempt to stop violations of law, the established sanctions
are only one of the elements that may be used along with other
measures of socio-economic character.
Various sanctions, including proprietary ones, are imposed
for performed transgressions of law: fine, confiscation of
property, etc. Fine, as well as confiscation of property, is
seizure of property from the transgressor and its conversion
into state property due to his transgression of law. It means
that protection of property for the person who has transgressed
law narrows to the limits as specified by the sanction. Such a
provision may be derived from the Constitution, as well as
international legal acts which have been ratified by Lithuania
and which are a constituent part of the system of law of
Lithuania. Such a standpoint regarding restriction of the
ownership rights is considered acceptable also under Article 1
of Protocol No. 1 of the European Convention of Human Rights.
It is established therein that states shall have the right to
enforce such laws as they deem necessary to control the use of
property in accordance with the general interest or to secure
the payment of taxes or other contributions or penalties.
Alongside, one should bear in mind in all cases that the
right to possess property is one of inborn human rights.
Restriction of the ownership rights, along with establishing of
sanctions prescribed by legal norms, must be precise and, if
necessary, particularised enough. Laws must ensure that
ungrounded impairment of the right to property is evaded, and
that one is always entitled to protect these rights in court,
as Article 30 of the Constitution prescribes that any person
whose constitutional rights and freedoms are violated shall
have the right to appeal to court.
A conclusion is to be drawn from the analysis of the
content of Articles 23 and 28 of the Constitution that it is
possible to establish by law restriction of the ownership
rights, as well as property sanctions for violations of law.
However, this must not deny the essence of the right to
property.
4. An administrative violation of law is considered a
culpable deed (performance or non-performance) which is
contrary to law whereby human rights and freedoms, as well as
public interests protected by the state are encroached.
Therefore it should be noted that guilt is one of the main
elements indicating that a person has transgressed law and may
be brought to justice for this. If the law prescribed an
administrative responsibility without there being any guilt, as
well as if a person were punished without being guilty, this
would mean an objective charge incompatible with either
fundamentals of the state under the rule of law or universally
recognised principles of human rights' protection.
Article 21 of the CATL provides that the following
administrative penalties may be imposed for transgressions of
law: (1) warning; (2) fine; (3) seizure with compensation of
the instrument or immediate object of administrative
transgression of law; (4) confiscation of the instrument or
immediate object of administrative transgression of law; (5)
deprivation of a special right (to drive a vehicle, to hunt or
to fish) granted for the citizen; (6) correctional labour; (7)
administrative arrest; (8) removal from work duties (office).
Thus, depending on the danger of administrative transgression
to society, as well as the damage caused or threatened by it,
as well as other circumstances, administrative penalties of
various stringency are set.
The norm of Article 210 of the CATL which provides for
responsibility for smuggling establishes a cumulative sanction:
the main penalty - a fine from 1,000 to 10,000 Lt, and a
complementary penalty - confiscation of smuggling items, as
well as that of transportation and other means designated for
transportation or hiding smuggling items when crossing the
state border of the Republic of Lithuania. Part 1 of Article 26
of the CATL prescribes that while imposing a penalty for
administrative transgression of smuggling, unlike than in other
cases provided for in this code, an item or instrument of
smuggling shall be confiscated irrespective of the fact whether
it belongs by the right of ownership to the transgressor or
other person.
5. Assessing the content of Part 1 of Article 26 of the
CATL, one should, first of all, discuss the immediate object of
the said transgression of law, as well as the danger which
arises from such a transgression of law to the interests of
people, society and the state.
Article 210 of the CATL stipulates that an immediate item
of smuggling shall be:
(1) illegal transportation across the state border of the
Republic of Lithuania of goods (wares, valuable and other
items) with the exception of firearms, ammunition, poisonous,
radioactive, virulent or narcotic substances providing the
value of illegally transported goods (wares, valuable or other
items) does not exceed 100 minimal subsistence levels (MSL);
(2) importing or obtaining goods from abroad,
notwithstanding the set permission is possessed or duty paid,
providing importing or obtaining of the said goods is linked
with illegal export, remittance or sending of currency or
currency values, pay-documents expressed in litas or other
monetary units, jewellery and other common articles made of
precious metals and jewels, as well as breakage of such
articles;
(3) illegal export, import, sending or remittance abroad
or from abroad of currency, pay-documents of currency values
expressed in litas or other monetary units, jewellery and other
common articles made of precious metals and jewels, as well as
breakage of such articles;
(4) import of goods having no special stamps trading of
which in the Republic of Lithuania is prohibited without
special stamps or other marks;
(5) transportation of items of personal use and of other
items across the state border of the Republic of Lithuania
through the green corridor by exceeding the norm set in
normative acts.
The imported and exported smuggling goods, values and
other items inflict great damage on the system of Lithuanian
economy and finance as smugglers attempt to evade duty taxes by
illegally imported and exported goods. Because of unpaid
duties, as well as unchecked quality etc. of imported goods or
other items, smuggling goods have, as a rule, lower price and
thus they illegally compete with respective goods which are
manufactured in this country or those legally imported from
abroad. In view of illegally imported non-firearms, gas
pistols, psychotropic substances, goods of poor quality, etc.,
danger may arise for the health of people of this country.
Illegal export of national values may also be associated to
irreparable harm to national culture or economy. Thus smuggling
is one of the most dangerous transgressions of administrative
law. This transgression causes damage not only to economic
interests of the country where the goods are imported but also
often to those of the country from which they are exported.
Thus virtually all states concern themselves in stopping
smuggling in the most efficient way. Due to this reason states,
as a rule, impose stringent property sanctions for smuggling
transgressions, as well as take other financial and economic
measures to stop them.
Transporting smuggling goods which belong to either him or
another person, a transgressor of law deliberately transgresses
Lithuanian duty laws and thereby causes danger to the system of
economy and finances of Lithuania, or to the health or even
life of its people, i.e. he utilises them as the object of
transgression of law as provided for by Article 210 of the
CATL. Illegally imported goods are seriously dangerous to
public and state interests irrespective of the fact whether
they belonged to the person who was transporting them or to
other persons. Therefore a conclusion is to be drawn that the
legislator established an essentially adequate complementary
penalty - confiscation of the object of smuggling - for the
said transgression of administrative law.
6. In assessing whether the norm of Part 1 of Article 26
of the CATL which provides for a supplementary penalty -
confiscation of the items of administrative transgression of
law of smuggling belonging to either the transgressor of law or
other persons - is in compliance with the norm of Article 23 of
the Constitution, first of all one must take account of causing
of great damage to society by the said transgression of law
which has been discussed.
The Constitutional Court notes that laws have been passed
in foreign countries, too, permitting to confiscate property
which belongs to the third party in cases when it has been used
during a commitment of crime or transgression of law. There
also are countries the laws of which provide for an opportunity
to confiscate not the item itself but a corresponding its value
sum of money from the immediate transgressor of law. Alongside,
it is attempted that laws providing for confiscation of
property in connection with a transgression of law performed by
the transgressor would not groundlessly violate his rights to
property or those of the third party. Provided a question of
application of such a sanction for the transgressor occurs,
laws permit to take into consideration the danger of the
performed transgression of law, as well as indirect culpability
of the third party in the complicity of performing of the
transgression of law. In exceptional cases, they provide for an
opportunity to confiscate only part of the property, or not to
confiscate it at all, etc.
One of the elements restricting the rights to property is
prohibition to use property in a way inflicting harm on other
persons or society. This prohibition remains irrespective of
the fact whether the owner himself manages, uses and disposes
of his property, or whether it has been transferred to other
persons for management or use. Article 305 of the CC directly
stipulates that the tenant must use the property taken on lease
according to the agreement and its purpose. It is evident from
Article 366 of the CC that the receiver of the item of use must
keep to the same management as the tenant and is liable to the
person who has transferred the use. This means that after
granting on lease or transferring an item for use the owner
still has an interest in the future of the said item.
By making agreements of temporary transfer of property for
management and use, various conditions and diverse procedure of
management and use of property may be established in them.
Providing the parties do not establish such conditions in the
agreement, it is universally recognised in civil law, that the
creditor is entitled to require that the temporary manager or
user of his property treat it as a clever and careful person.
It goes without saying, the temporary manager of property must
act in no case on purpose so that the property of the other
person which is run by him be endangered.
One should note that Article 143 of the CC specifies
different protection of the ownership rights when: (a) the
owner has by himself transferred his property to someone else
for management or use; (b) such property has been lost, or
seized, or ceased to be managed by the owner irrespective of
his will.
An item (a car, motorcycle, etc.) which has been
temporarily transferred by his owner to the transgressor of law
for management or use could be used as an instrument of
transgression of law of smuggling. At the present time the
owners of means of transport usually transfer them for
temporary use to other persons by power of warrant (Articles
397-405 of the CC). Similarly, the means of transport which
have been used as an instrument of transgression of law of
smuggling may be transferred for temporary management or use by
agreements of use (Articles 366-373 of the CC), or lease
(Articles 297-317) or other agreements.
The owner, by transferring a car by power of warrant for
performance of legal acts, thereby grants the right to the
commissioner to manage and use the car, to take care of its
technical condition, to be the representative of the owner at
the police, insurance and other offices, to sign and perform
for the owner all acts linked with the said power of warrant.
The analysis of such an agreement permits to discern in it not
only authorisation but also use or lease, and, to a certain
degree, disposal of the said item.
Administrative transgression of law of smuggling may be
performed only by deliberate actions. The transgressor of law
understands that he is transporting goods in violation of laws,
and he wishes to do so. Performing this transgression, he
deliberately makes use of the item (a car, etc.) which belongs
to the other person by the ownership right. It means that the
transgressor of law creates such a situation with his
deliberate illegal actions in which other person's property
temporarily managed or used by him may be lost, as it is
established by the law that the instrument of smuggling shall
be confiscated irrespective of the fact who is its owner. The
transgressor of law deliberately ignores such a threatening of
the law. Therefore legal effects occur which are provided for
by the law: confiscation of the property (the car, etc.) which
has been an instrument of smuggling.
Part 1 of Article 26 of the CATL establishes that
confiscation shall be a coercive, gratuitous conversion of this
item into state property. It means that on the grounds of the
law the item which has been the instrument of administrative
transgression of law is no longer managed and used either by
its temporary user or the owner as this instrument of
transgression of law becomes state property. In other words,
the state becomes a legitimate gainer of the said property.
Alongside, one should note that, by transferring his
property to other persons for management or use, the owner of
property always runs the risk to a certain degree. The
temporary user or manager of property, contrary to the
agreement made, or the purpose of the item, or the interests of
the owner, can damage, ruin or otherwise lose the said item
with his deliberate or negligent actions. Article 152 of the CC
prescribes that the owner shall hold the risk of accidental
destruction of the item. By transferring his property to other
persons for temporary management or use, the owner remains the
owner of the transferred property, therefore the risk of
accidental destruction of the said item falls on him. In the
case of administrative transgression of law of smuggling, the
temporary manager or user of property has received the
instrument (the car, etc.) of this transgression from the owner
by the consent of the latter. As the owner has transferred his
property to another person by agreement having power of
warrant, or that of use, lease, etc., and the latter lost it
while performing administrative transgression of law of
smuggling, the right of the owner to exact it from its honest
gainer (the state) is restricted. Confiscation of the item
which belongs to the third party and which was an instrument of
administrative transgression of law of smuggling as provided
for by Part 1 of Article 26 of the CATL is to be compared to
factual destruction of the item, therefore the owner is
deprived of the opportunity to retrieve it in kind. However, he
may claim to pay damages from the manager or the user of the
item who has performed such a transgression of law. Such a
regulation of legal relations by the disputed law is designated
for imposing stricter responsibility of the transgressor of law
for his actions and may not be regarded as punishment of the
third party.
The rights of the owner are protected differently in the
case when, for the purpose of smuggling, the transgressor of
law has used an item (a car, etc.) which has been managed or
used illegally. In such a case the law protects the rights of
the owner also from the honest gainer of the said property.
Article 143 of the CC prescribes that the owner has the right
to exact the property from its honest gainer providing the
owner or another person to whom the owner has transferred it
for management has been lost or seized from either of them or
seized to be managed irrespective of their will. This is a
universally recognised rule of protection of the right to
property.
Taking account of the motives set forth, a conclusion is
to be drawn that the norm of Part 1 of Article 26 of the CATL
stipulating that "only the item which is property of the
transgressor shall be subject to confiscation with the
exception of the item which was either an immediate instrument
or an immediate object of administrative transgression of law
pertaining to legal cases of administrative transgressions of
law as provided for by Article 210 of this Code" is in
compliance with the Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law
of the Republic of Lithuania on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
To recognise that the norm of Part 1 of Article 26 of the
CATL stipulating that "only the item which is property of the
transgressor shall be subject to confiscation with the
exception of the item which was either an immediate instrument
or an immediate object of administrative transgression of law
pertaining to legal cases of administrative transgressions of
law as provided for by Article 210 of this Code" is 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.