Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Part 5 of Article 195 and
Article 242 of the Code of Criminal Proceedings
with the Constitution of the Republic of Lithuania
Vilnius, 1 October 1997
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Kęstutis
Lapinskas, Zigmas Levickis, Augustinas Normantas, Vladas
Pavilonis, Jonas Prapiestis, Pranas Vytautas Rasimavičius,
Teodora Staugaitienė, and Juozas Žilys,
the secretary of the hearing - Daiva Pitrėnaitė,
the party concerned - Petras Ancelis, a consultant at the
Legal Division of the Seimas, the representative of the
Chancellery of the Seimas of the Republic of Lithuania.
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 9 September 1997 conducted the investigation
of Case No. 7/97 subsequent to the petition submitted to the
Court by the petitioner - the College of Civil Cases of the
Vilnius County Court - requesting to investigate whether the
procedure of appealing against a decision of the investigator
to sequestrate property as established in Part 5 of Article 195
and Article 242 of the Code of Criminal Proceedings was in
compliance with the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
On 18 February 1997, the petitioner - the College of Civil
Cases of the Vilnius County Court - was investigating a civil
case pursuant to a special appeal of the plaintiff V.Vasauskas
regarding the 23 December 1996 ruling of the Vilnius Regional
District Court to dismiss the case. By its interlocutory ruling
the College of Civil Cases of the Vilnius County Court
suspended the investigation of the civil case and appealed to
the Constitutional Court with a request to investigate whether
the procedure of appealing against a decision of the
investigator to sequestrate property as established in Part 5
of Article 195 and Article 242 of the Code of Criminal
Proceedings was in compliance with the Constitution.
In his petition the petitioner points out that, under Part
1 of Article 30 of the Constitution, any person whose
constitutional rights or freedoms are violated shall have the
right to appeal to court. After a certain property has been
sequestrated in pursuance of the procedure established by the
Code of Civil Proceedings, its owner is entitled to implement
the aforesaid right without delay and, under the procedure
established by Article 472 of the said code, to appeal to court
either under common procedure by filing a special complaint or
by appealing against the ruling of the judge of the first
instance by filing a special complaint (Article 162 of the Code
of Civil Proceedings). Thus the court investigates all
questions concerning substantiation of property sequestration,
and thereby the human right to inviolability of property is
guaranteed (Article 23 of the Constitution).
The property of the plaintiff had been sequestrated under
procedure of criminal prosecution. Under Part 5 of Article 195
of the Code of Criminal Proceedings, sequestration imposed on
property shall be repealed by a decision of the investigator in
the case that the said measure becomes unnecessary, while under
Article 242 of the said code, actions of the investigator shall
be appealed against with the procurator. Solving of property
sequestration issue during investigation of a criminal case in
court is not provided for (Article 333 of the Code of Criminal
Proceedings). Then a question arises, whether a person,
according to the Constitution, when criminal proceedings have
been instituted not against him and criminal prosecution is not
enforced as to him, has no right to appeal to court with a
request to decide if his property has been sequestrated on
substantial grounds. In other words, a question arises if
Article 195 of the Code of Civil Proceedings which does not
provide for a possibility to appeal to court against the
actions of the investigator is in compliance with the
Constitution.
The petitioner points out that his doubts as to the
procedure of repeal of sequestrated property as established in
Part 5 of Article 195 and Article 242 of the Code of Criminal
Proceedings are confirmed by an action brought by a deputy
Procurator General in another case at law. Thence the
petitioner concludes that such an action concerning a conflict
as to recognizing of purchase and sale of buildings agreements
as null and void under civil pleadings may be instituted and
investigated in court, however, an opposing demand to repeal
the property sequestration would not be possible and even in
case of nonsuit the property would remain sequestrated, while
the question of repeal of property sequestration would be
decided by the investigator but never by the court. The
petitioner is of the opinion that thereby people's right to
judicial defence is restricted.
II
In the course of preparation of the case for the court
hearing the representative of the party concerned explained in
writing that in the Lithuanian legal system there exists a
principle of formality as for criminal prosecution. From the
wording of Article 3 of the Code of Criminal Proceedings it is
clear that criminal cases may be instituted either against a
concrete person or when elements of crime come to light.
The aforesaid representative noted that Article 195 of the
Code of Criminal Proceedings provides for sequestration of
property belonging not only to the suspect, the accused or
other natural persons materially responsible for their actions
under the law but also to such natural persons who possess
property which has been unlawfully gained or acquired. The
circle of such persons was widened in 1995 after
supplementation of the Code of Criminal Proceedings with
Articles 1941 and 1942 dealing with temporary restriction of
property rights.
In the opinion of the representative, the Code of Criminal
Proceedings, unlike the Code of Civil Proceedings, provides for
a different mechanism of guaranteeing the rights and freedoms
of participants in the proceedings, as during the initial stage
of investigation of cases at law most of the complaints, those
concerning the property sequestration among them, too, are more
promptly and even with greater competence decided by the
procurator. The court thereby is not burdened with the work of
justice implementation prior to completion of the investigation
of the case at law and its complete preparation for judicial
investigation. Under Articles 1941 and 1942 of the Code of
Criminal Proceedings, upon temporary limitation of property
rights, an additional guarantee of securing of rights occurred,
as any person is entitled to file a complaint with a procurator
superior in rank against the decision of the procurator, while
the decision of the former may be appealed against to court.
The representative assumes that this is in conformity to the
manner of appealing provided for in Articles 195 and 242 of the
Code of Criminal Proceedings, as upon temporary limitation of
property rights there is always a case of either institution of
a criminal case or repeal of the said measure.
The representative also noted that Article 118 of the
Constitution mentions procurators and investigators. When one
has in mind the fact that this article is included in Chapter 9
of the Constitution which regulates competence of the judicial
power, one can assert that from this viewpoint also the
disputed procedure of appealing against the property
sequestration as provided for in the Code of Criminal
Proceedings is in compliance with the Constitution.
The representative maintained that a criminal case may be
dismissed prior to referring it to court, and in such a case
the decision regarding the property sequestration would be
adopted by the investigator and the procurator.
On the grounds of these arguments and motives, the
representative of the party concerned concludes that the
procedure of property sequestration repeal and that of
investigation of complaints as established by Articles 195 and
242 of the Code of Criminal Proceedings is in compliance with
the Constitution.
During the process of judicial investigation, the
representative of the party concerned reiterated the statements
set forth in his paper and additionally explained that on the
grounds of the existing norms of the Code of Criminal
Proceedings, it is possible to investigate a criminal case
rationally and speedily. In case of granting the right to the
third party to appeal to court with a civil suit as to the
repeal of property sequestrated in the civil case, the
investigation of such a case would be more difficult. Thereby
the interests of society would be violated. Moreover, one
cannot base oneself on a mere declarative protection of rights
to property. Interests of society require that now and then
rights to property be restricted, all the more that after the
pre-trial interrogation the case at law is investigated in the
court which reviews all actions of the investigator. In the
opinion of the representative, taking account of the specific
character and importance of the right to property, as one of
the fundamental human rights, the disputed issue must be more
particularized.
III
In the course of preparation of the case for the court
hearing explanations of A.Galinis, a deputy Procurator General
of the Republic of Lithuania, S.Karvelis, Director of the
Investigation Department at the Ministry of Internal Affairs,
E.Palskis, Head of the Criminal Proceedings Department at the
Lithuanian Law Academy, and J.Rinkevičius, acting deputy
director of the Lithuanian Court Expertise Institute, were
received.
The Constitutional Court
holds that:
1. Article 195 entitled "Sequestration of Property" of the
Code of Criminal Proceedings stipulates:
"In attempt to secure a civil action, as well as possible
confiscation of property, the investigator must sequestrate the
property or the means of transport or other possessions
belonging to the suspect, the accused or the natural person who
is materially responsible under the law for the actions of the
mentioned above, as well as the property of the persons who
appear to hold the property or the means of transport which has
been acquired in unlawful manner. The property may be
sequestrated either together with seizure or search or
separately.
Property of the natural person may be sequestrated:
(1) in attempt to secure possible confiscation of property
in the cases provided for by Article 35 of the Criminal Code;
(2) in attempt to secure a civil action when there are
substantial grounds to make a legal person a civil respondent
at a criminal case.
The investigator shall draw up a motivated decision as
regards the property sequestration. The property subject to
sequestration shall be listed under the rules provided for by
Articles 189 and 191 of this code. All the property subject to
listing must be shown to invited witnesses and other persons
who are present. In the property list the number of listed
items as well as their individual properties shall be
indicated. Items which are necessary for the suspect or the
accused, as well as for the members of their families and the
persons who are supported by them, shall not be subject to
sequestration according to the list established by the laws of
the Republic of Lithuania.
At the discretion of the investigator the sequestered
property shall be passed for preservation to either an
apartment maintenance organization or the representative of a
governing body of the local government, or the owner of the
said property or his relative, or another person after
explaining about their responsibility under Article 304 of the
Criminal Code of the Republic of Lithuania for embezzlement,
transfer or concealment of the said property. For this purpose
a written pledge shall be taken from them. When necessary, the
sequestrated property may be seized. Upon sequestration of
monetary deposits, all operations as to these deposits shall be
suspended.
The property sequestration is repealed upon the decision
of the investigator provided the said measure becomes
unnecessary."
Article 242 entitled "Procedure of Appealing against the
Actions of the Investigator" of the same code stipulates:
"The suspect, the accused, their legal representatives,
the defender, as well as the victim and his representative, the
civil plaintiff, the civil respondent or their representatives,
the bailor, the witness, the invited witness, the expert, the
specialist, the translator as well as other persons may file
complaints with the procurator against the actions of the
investigator. The complaints shall be filed with the procurator
either directly or through the investigator against actions of
whom the complaint is lodged. The complaints may be either in
written or oral form. The procurator or the investigator shall
enter oral complaints into the protocol which shall be signed
by both the declarant and the person who has received the
complaint.
The investigator must within 24 hours refer the received
complaint together with his explanations to the procurator.
The filing of the complaint until the decision concerning
the said complaint shall not suspend the implementation of the
action complained against, unless to do so the investigator or
the procurator regards as being necessary."
The College of Civil Cases of the Vilnius County Court had
doubts whether the procedure of appealing against the decision
of the investigator to sequestrate property as established in
Part 5 of Article 195 and Article 242 of the Code of Criminal
Proceedings was in compliance with the Constitution.
2. In case of clash of different rights or different
interests of persons various ways of their co-ordination or
protection are possible. One of the most important ways of
protection of violated rights or freedoms is their protection
in court. Such a protection of rights is consolidated in
Article 30 of the Constitution Part 1 whereof provides: "Any
person whose constitutional rights or freedoms are violated
shall have the right to appeal to court." Such a possibility of
protection of violated rights and freedoms is pointed out in
Article 8 of the Universal Declaration of Human Rights adopted
on 10 December 1948 by the General Assembly of the United
Nations ("Everyone has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental
rights granted him by the constitution or by law"), as well as
in Paragraph 1 of Article 14 of the International Covenant on
Civil and Political Rights of 16 December 1966 ("In the
determination of any criminal charge against him, or his rights
and obligations in a suit at law, everyone shall be entitled to
a fair and public hearing by a competent, independent and
impartial tribunal established by law [...]"). It is noted in
Paragraph 1 of Article 6 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms of 4
November 1950 that in the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law.
Under Part 1 of Article 5 of the Constitution, in
Lithuania, the powers of the state shall be exercised by the
Seimas, the President of the Republic and the Government, and
the Judiciary. The purpose of judicial power is to implement
justice. The Constitution consolidates the independence of the
judiciary as a power of the state. While administering justice,
judges and courts shall be independent (Part 2 of Article 109
of the Constitution). The independence of judges and courts is
also conditioned by everyone's right to an impartial arbiter of
the conflict. Such a right means that in a law-governed state a
possibility is ensured for everyone to protect his rights in
court from other persons, as well as unlawful actions of state
institutions or officials. To guarantee this is of much
importance when conflict as to the inborn rights and freedoms
occurs.
Judicial protection of rights and freedoms, unlike other
ways of their protection, has such universally recognized
democratic principles (those of equality before the court,
openness, contest, the right to hearing in court, etc.) which
are characteristic of it only. The court shall obey only the
law and, in particular cases, shall adopt decisions on behalf
of the Republic of Lithuania (Part 4 of Article 109 of the
Constitution). The state guarantees carrying out of the adopted
court decision concerning a concrete person.
While settling a conflict, the court, as an institution of
state power, adopts an act of justice. When adopting it, the
court bases itself on special procedural rules. One of them
prescribes that, in determining anyone's rights and
obligations, the court must point out evident and convincing
motives of the adopted decision. In the case that a person does
not agree with the court decision adopted regarding him, the
law guarantees a possibility to him to appeal against the said
decision following the hierarchical line, i.e. examination of
the lawfulness and validity of the adopted decision at the
court of higher instance.
3. The petitioner doubts whether the procedure of
appealing against a decision of the investigator to sequestrate
property as established in the norms of the Code of Criminal
Proceedings does not restrict people's right to appeal to
court.
Part 1 of Article 118 of Chapter 9 entitled "The Court" of
the Constitution provides: "Procurators shall prosecute
criminal cases on behalf of the State, shall carry out criminal
prosecutions, and shall supervise the activities of the
interrogative bodies." Functions of procurators are
particularized in Article 25 of the Law on the Procurator's
Office: "The procurator shall commence criminal prosecution in
the manner prescribed by the law on criminal procedure, in the
course of criminal investigation he shall conduct acts of
prosecution and, if there is sufficient grounds, shall refer
the case to court." The competence of procurators, as well as
their rights and duties, are also defined in other articles of
the said law. Even though under the Constitution procurators
are a constituent part of the judicial power, one cannot,
however, identify them with the court. The fundamental
difference between the constitutional status of the procurator
and that of the court is the fact that the procurator may not
accomplish functions of justice administration which are
attributed to the court. Such a difference was also held in the
14 February 1994 ruling of the Constitutional Court.
In order to implement the functions of the investigator
and the procurator, respective rules have been established in
the Code of Criminal Proceedings. Under these rules the
procurator and the investigator enjoy the independence and
liberty as established by laws. However, one may not treat them
unreservedly, especially when the actions or inaction of the
aforesaid officials are linked with fundamental human rights
and freedoms. The Constitution binds directly certain
accomplishment of procedural actions with the decision of the
court. For example, Part 3 of Article 20 of the Constitution
provides that a person detained in flagrante delicto must,
within 48 hours, be brought to court for the purpose of
determining, in the presence of the detainee, the validity of
the detention. In the event that the court does not pass a
decision to arrest the person, the detained individual shall be
released immediately. A court order is necessary as regards
collection of information concerning the private life of an
individual (Part 3 of Article 22 of the Constitution), as well
as the inviolability of a person's dwelling (Article 24 of the
Constitution). It is obvious that it is impossible to list in
the Constitution all cases when a court decision (order) is
necessary. However, when one addresses fundamental human rights
or freedoms, one may not forget people's right to appeal to
court which is consolidated in Part 1 of Article 30 of the
Constitution. It is to be concluded from this norm that when
checking the lawfulness of the actions performed by the
investigator, the procurator should not become the final
arbiter as concerns human rights and freedoms.
Part 1 of Article 195 of the Code of Criminal Proceedings
provides for a duty of the investigator to sequestrate property
in certain cases. Part 5 of the same article provides that the
investigator may repeal the property sequestration in the event
that he considers that the measure of property sequestration
becomes unnecessary. The investigator is entitled to adopt a
decision as to this question irrespective of any request of any
person. The investigator does so on the basis of assessment of
circumstances of the criminal case, and he may do so at any
time when the case is at his disposal. Thus in the disputed
norm of Part 5 of Article 195 a rule of general character is
established which is applied to the actions of the investigator
when criminal prosecution is being implemented. He is entitled
to perform these actions prior to reference of the case to the
court or dismissal of the case. This norm neither regulates nor
restricts people's right to judicial protection, therefore one
should conclude that it is in compliance with the Constitution.
One should note that Article 2 of the Republic of
Lithuania Law on the Procedure for the Enforcement of the
Constitution of the Republic of Lithuania insists on
co-ordination of laws and other legal acts which were in effect
on the territory of the Republic of Lithuania prior to the
adoption of the Constitution with the provisions of the
Constitution. Doubts have been expressed in the case at issue
if the disputed norms are in compliance with the provision
consolidated in Part 1 of Article 30 of the Constitution which
stipulates that any person whose constitutional rights or
freedoms are violated shall have the right to appeal to court.
Besides, upon supplementation of the Code of Criminal
Proceedings with Articles 1941 and 1942 on 20 December 1995,
which provide for merely temporary restrictions of the right to
property in attempt to secure a civil action, as well as
possible confiscation of property or exaction of a fine, Parts
6 of the aforesaid articles provide for the right of persons
whose rights have been temporarily restricted to appeal to
court against the decision of the procurator. Meanwhile, when
the Code of Criminal Proceedings was being amended and
supplemented, the procedure of appealing against actions of the
investigator as prescribed in Article 242 of the said code,
which had been confirmed prior to the adoption of the
Constitution, remained unchanged, i.e. this norm remained
uncoordinated with the Constitution.
4. It is stipulated in Article 23 of the Constitution:
"Property shall be inviolable." Part 2 of the same article
provides: "The rights of ownership shall be protected by law."
Thus this article of the Constitution obligates the state to
protect the rights of ownership by laws.
The Constitutional Court has noted for several times that
inviolability of property may not be treated unreservedly:
"[...] neither the Constitution nor valid system of other laws,
nor universally recognized norms of international law deny the
opportunity under conditions and procedure prescribed by the
law to alienate the property or restrict its possession, use or
disposal" (the 13 December 1993 and 10 July 1997 rulings of the
Constitutional Court).
Under Part 1 of Article 195 of the Code of Criminal
Proceedings, in securing a civil action, as well as possible
confiscation of property, the preventive measure of property
sequestration shall be applied. Property is sequestrated so
that it could not be hidden, used up or destroyed. For this
reason property sequestration must be applied promptly. Such a
procedural action must be performed first of all by the
investigator. The decision of the investigator to sequestrate
property is characteristic of the fact that it is adopted when
criminal prosecution is being accomplished. When such a
prosecution is being accomplished, the interests of a
particular individual who has suffered damages because of the
crime, as well as those of society, are protected by property
sequestration.
On sequestration of property, its owner is not deprived of
the ownership rights to his property. As a preventive measure,
property sequestration merely restricts subjective rights of
the owner. As a rule, it is restriction on disposal of
property, whereas in the case that diminishing of the property
value or destruction of the property is under threat,
restrictions on use and management of the property are applied.
Justice demands that a person who has committed a crime be
justly punished, his property be confiscated in the cases
established by the law, and the one who has suffered losses be
compensated damages. Compensation of material damage is
guaranteed by Part 2 of Article 30 of the Constitution: "The
law shall establish the procedure for compensating material and
moral damage inflicted on a person."
However, by establishing restrictions on the right to
property one may not at the same time deny the right of a
private owner to defend his property rights at a competent and
independent judicial institution. By giving an emphasis to the
public interest in criminal proceedings in the case of property
sequestration, along with restricting judicial protection of
the right to property, the right of the owner to protect his
interests would be limited.
5. Unprotected human rights and freedoms would become
meaningless if one did not take account of the universal rule
ubi jus ibi remedium: if the law grants a right, it also
provides for means of protection of this right. In the legal
system of a state such means are established by laws of this
state. As it was mentioned, one of the main guarantees of
protection of any person's rights is his right to appeal to
court. The implementation of this right is conditioned by
realisation of the person himself that his rights or freedoms
are violated. No one may hinder his appealing to court.
Appellation to court is a subjective procedural personal right
guaranteed by the Constitution, as Part 1 of Article 30 of the
Constitution provides: "Any person whose constitutional rights
or freedoms are violated shall have the right to appeal to
court."
Under Article 242 of the Code of Criminal Proceedings,
actions of the investigator may be appealed against by the
suspect, the accused, their legal representatives, the
defender, as well as the victim and his representative, the
civil plaintiff, the civil respondent or their representatives,
the bailor, the witness, the invited witness, the expert, the
specialist, the translator as well as other persons. Complaints
of the said persons are examined by the procurator. Thus the
analysis of the disputed norm permits to draw a conclusion that
in such a case the right of the aforesaid persons to appeal to
court against actions of the investigator is restricted.
In the case that the procurator rejects a complaint
requesting to repeal the decision of the investigator whereby
property has been sequestrated, the person should not be
prevented from appealing to court. As the ownership rights are
attributed to fundamental constitutional rights of people, only
the court should be the final arbiter who decides the
lawfulness of the decision to sequestrate property.
On the grounds of the arguments set forth, a conclusion is
to be made that the norm of Article 242 of the Code of Criminal
Proceedings in the volume whereby a person's right to appeal to
court against the decision to sequestrate property is
restricted contradicts Parts 1 and 2 of Article 23, as well as
Part 1 of Article 30 of 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:
1. To recognise that Part 5 of Article 195 of the Code of
Criminal Proceedings is in compliance with the Constitution.
2. To recognise that the norm of Article 242 of the Code
of Criminal Proceedings in the volume whereby a person's right
to appeal to court against the decision to sequestrate property
is restricted contradicts Parts 1 and 2 of Article 23, as well
as Part 1 of Article 30 of the Constitution.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.