Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Article 50 of the Republic of
Lithuania Code of Administrative Transgressions of
Law with the Constitution of the Republic of
Lithuania
Vilnius, 13 November 1997
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Egidijus
Jarašiūnas, 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 petitioner - Vytautas Masiokas, a judge at the Kaunas
City District Court,
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 22 October 1997 conducted the investigation
of Case No. 4/97 subsequent to the petition submitted to the
Court by the petitioner - the Kaunas City District Court -
requesting to investigate if Article 1 of Part IV of the Law
"On Amendment and Supplementation of the Republic of Lithuania
Criminal Code, the Code of Criminal Proceedings, the Code of
Civil Proceedings and the Code of Administrative Transgressions
of Law" whereby Article 50 of the Republic of Lithuania Code of
Administrative Transgressions of Law had been amended were in
compliance with Part 1 of Article 29 of the Constitution of the
Republic of Lithuania.
The Constitutional Court
has established:
I
On 5 February 1997 in its procedural sitting, the
petitioner - the Kaunas City District Court - was investigating
a criminal case wherein two juveniles were being charged with
an attempt on 30 July 1996 to steal secretly the coin
collecting container (the value whereof was 34.2 Lt) of a
public telephone, as well as the committed crimes provided for
in Part 2 of Article 16, Part 2 of Article 271 and Part 2 of
Article 278 of the Republic of Lithuania Criminal Code
(hereinafter in the ruling referred to as the CC).
The court suspended the investigation of the criminal case
by its interlocutory ruling and appealed to the Constitutional
Court with a request to investigate whether Article 1 of Part
IV of the Law "On Amendment and Supplementation of the Republic
of Lithuania Criminal Code, the Code of Criminal Proceedings,
the Code of Civil Proceedings and the Code of Administrative
Transgressions of Law" (Official Gazette "Valstybės Žinios",
No. 104-2325, 1995) whereby Article 50 of the Republic of
Lithuania Code of Administrative Transgressions of Law had been
amended (hereinafter in the ruling referred to as the CATL)
were in compliance with Part 1 of Article 29 of the
Constitution.
II
The petitioner bases his request on the following
arguments.
The former dispositive wording of Article 50 of the CATL
had been as follows: "Minor seizure of other persons' property
by theft, fraud, misappropriation or embezzlement". Under such
a dispositive wording of the said article, provided the target
of theft did not exceed the sum of then existing one minimal
subsistence level (hereinafter in the ruling referred to as the
MSL) the punishment provided for by Article 50 of the CATL was
to be applied.
The now in force disposition of Article 50 of the CATL
provides: "Minor seizure of other persons' property by theft,
fraud, misappropriation or embezzlement providing there are no
aggravating circumstances provided for in Articles 271, 274 and
275 of the Republic of Lithuania Criminal Code." According to
this wording, persons shall be brought to criminal
responsibility for a theft the target whereof does not exceed
the sum of one MSL providing it has been committed by a group
of persons or repeatedly.
The petitioner notes:
1. Corpus delicti is the essential basis in deciding
whether to bring a person to criminal responsibility. This is
also indicated in Item 2 of Part 1 of Article 5 of the Code of
Criminal Proceedings: "The criminal case may not be instituted,
and the instituted case must be dismissed: [...] in the case
that there is no corpus delicti in the deed". The elements of
corpus delicti are the target of crime, the objective side, the
subject and the subjective side. The elements of corpus delicti
must be reflected in the criminal deed itself, too. In the
absence of at least one of the elements of corpus delicti, the
deed may not be recognised as a crime.
In this particular case at issue the target of crime is
property, while its item is 34.2 Lt. Thus there is the body of
petty theft only in the deed of the accused as the value of the
stolen property does not exceed the sum of one MSL.
2. Providing in the aforesaid case one person would have
attempted to commit the same theft, he would not be criminally
liable as in his deed there would be no aggravating
circumstances indicated in the disposition of Article 50 of the
CATL and provided for in Article 271 of the CC.
3. Under the same circumstances, provided only when theft
is committed by two persons, they already are criminally liable
(in the case that one follows Article 50 of the new wording of
the CATL).
Therefore in such a case the constitutional principle
stipulating that all people shall be equal before the law is
being violated.
In addition, the petitioner is of the opinion that there
is no precision in Article 50 of the CATL when it stipulates
"in the case that there are no aggravating circumstances". It
would be more precise to indicate "qualifying factors" as
aggravating circumstances are provided for by Article 41 of the
CC which in its special section articles does not generally
point out qualifying factors.
III
In the course of the preparation of the case for the
Constitutional Court hearing, the representative of the party
concerned - Pranas Petkevičius, a consultant at the Seimas
Legal Division - pointed out that Article 50 of the CATL had
been amended by the 20 December 1995 Law of the Republic of
Lithuania in attempt to define more precisely the notion of
minor seizure of other persons' property as a transgression of
administrative law, and thereby to dissociate it from the
criminal crime provided for in Article 271 of the CC. The
disposition of Article 50 of the CATL provides that minor
seizure of other persons' property by theft, fraud,
misappropriation or embezzlement shall be such a deed when
there are no aggravating circumstances provided for in Articles
271, 274 and 275 of the CC and providing the value of the
stolen property does not exceed the sum of one MSL.
The law indicates the following aggravating circumstances:
"theft committed by a person who has a previous conviction for
crimes against property", "by a group of persons with an
afore-planned intention", "by braking into a dwelling-place"
etc. Here they are treated by the legislator as deed qualifying
factors indicating that such a deed is more dangerous to
society therefore such a deed is to be qualified as a criminal
crime. Besides, in this case the said circumstances are not
regarded as aggravating circumstances indicated in Article 41
of the CC which are taken account of when the punishment is
given to the guilty person.
Thus the now in force disposition of Article 50 of the
CATL by defining the notion of minor seizure of other persons'
property as an administrative transgression of law is in
compliance with Part 1 of Article 29 of the Constitution.
IV
During the hearing at the Constitutional Court the
petitioner virtually confirmed his arguments set forth in the 5
February 1997 interlocutory ruling of the Kaunas City District
Court. Moreover, the petitioner noted that the said amendment
of the CATL does not always reasonably aggravate the
responsibility of juveniles. Juvenile delinquents commit minor
thefts, however, they do this in groups, therefore under the
law they are criminally but not administratively liable.
Meanwhile all people shall be equal before the law and for the
same deed there may not exist administrative responsibility for
one group of people and criminal responsibility for another
group of people.
The Constitutional Court
holds that:
1. One of characteristic peculiarities of the legal system
is constant evolution of legal regulation. It depends on
changes taking place in the society, and thus on the appearing
necessity to regulate the new, as well as the old and changed
public relations. Taking account of such a necessity of legal
regulation by means of laws and other legal acts new legal
norms are being consolidated, the valid ones are being
perfected or the dated legal norms are being eliminated.
When new legal norms are being adopted or the valid ones
are being improved there exist no restrictions as to what
public relations must be regulated and by what order it must be
done. Through law-making initiative it becomes most often clear
which spheres of public life need be regulated first of all or
the regulation of which wants more precision. However, there
exists no unrestricted freedom as regards the content and form
of the laws undergoing the process of adoption. All legal acts
are subject to one fundamental requirement: they must not
contradict the Constitution.
The preamble of the Constitution proclaims an aspiration
for an open, just, and harmonious civil society and
law-governed state. One of the ways of realisation of such an
aim is improvement of the legal system basing oneself on
constitutional and general legal principles.
When one establishes responsibility for committing an
unlawful deed, the principles of equality before the law, those
of justice and humanity consolidated in the Constitution and
directly deriving from it are of crucial importance. The
assessment of the law undergoing the process of adoption on the
grounds of these principles may be of help to express the
content of a legal norm appropriately, to assess legal effects
which are being established adequately, to evade possible
contradictions with respect to the legal branch, as well as the
legal system.
These principles are also of much importance when legal
norms are being applied, accomplished or otherwise realised,
however, legal principles manifest themselves differently in
the process of lawmaking and that of implementation of law.
Taking account of the changes taking place in society, the
evolution of legal regulation in the sphere of criminal law
first of all is manifested by criminalisation or
decriminalisation of deeds, i.e. certain deeds are either
recognised as unlawful or the responsibility for them is
removed from criminal laws. The process of criminalisation of
deeds is linked with social phenomena taking place in society,
however, when deeds are being criminalised, one does not always
assess actual possibilities of other legal branches to regulate
and protect certain public relations. In comparative criminal
law there are examples when by criminalisation of deeds, and
notably by making stricter punishments for unlawful deeds one
virtually attempts to intimidate a potential criminal so that
he would not commit the crime. However, this aim is not always
achieved by such means.
To recognise a deed as a crime, one has to assess all
aspects linked with the performing of such a deed. In attempt
to put a stop to unlawful deeds it is not always expedient to
recognise such deeds as crime, and to apply the strictest
measure - criminal punishment. Therefore every time when one
has to decide whether the deed is to be recognised either as a
crime or another transgression of law, it is very important to
assess what results may be achieved by other means
(administrative, disciplinary, civil sanctions or measures of
public influence etc.) which are not linked with application of
criminal punishments.
2. When the expediency question of criminalisation of
deeds is decided one particularly has to pay his attention to
the reciprocity between criminal and administrative law. In
deciding whether the responsibility for an unlawful deed is to
be attributed to the sphere of either administrative or
criminal law, one should emphasise that both criminal and
administrative law belong to public law and according to their
content of regulation as well as methods have much in common,
however, alongside one may perceive their important differences
too.
The conception of the administrative transgression of law
and that of the crime are similar, however they differ in: (a)
the danger of deeds performed; (b) contradiction to law; (c)
legal effects.
The administrative transgression of law and the crime are
defined as dangerous deeds as on their performance certain
values are disturbed. The legal doctrine commonly recognises
that the danger of the transgression of administrative law and
that of the crime are not analogous. The greater danger of the
crime is determined not only by the target of crime but also
the entirety of other objective and subjective elements.
One of the differences between the transgression of
administrative law and the crime is also the legal effects
affecting the subject. After one has committed a crime, the
strictest coercive measure - the punishment provided for in
criminal laws - may be given to him. When applying
administrative responsibility, administrative penalties (a
fine, an administrative arrest not exceeding 30 days,
correctional labour not exceeding the period of 2 months, etc.)
similar to criminal punishments may be imposed. Administrative
penalties are virtually more lenient and they do not incur a
criminal conviction. However, when one compares certain
sanctions of the norms of administrative and criminal law, it
is possible to perceive a certain incompatibility between
different branches of law, which gives trouble to
implementation of the justice principle.
3. On 20 December 1995 the Seimas passed the Law "On
Amendment and Supplementation of the Republic of Lithuania
Criminal Code, the Code of Criminal Proceedings, the Code of
Civil Proceedings and the Code of Administrative Transgressions
of Law" whereby Article 50 of the CATL was amended. The
disposition of the new wording of the said article provides
that minor seizure of property by theft, fraud,
misappropriation or embezzlement shall be an administrative
transgression of law providing there are no aggravating
circumstances provided for in Articles 271, 274 and 275 of the
CC.
In the note of Article 50 of the CATL it is stipulated
that seizure of property shall be regarded as minor one
providing the value of seized property does not exceed the sum
of one MSL. Along with the value of seized property, one also
takes into consideration the natural amount (weight, size) of
stolen items.
Article 271 of the CC provides for the following
qualifying factors of theft: (a) theft committed repeatedly or
by a group of persons with an afore-planned intention, or by
breaking into uninhabited premises; (b) theft committed by
breaking into a dwelling place; (c) theft committed on a large
scale.
Article 274 of the CC provides for the following
qualifying factors of fraud: (a) fraud perpetrated repeatedly
or by a group of persons with an afore-planned intention, or by
intentionally designing a faulty computer programme, or by
entering erroneous data into computer memory, or by otherwise
affecting computer information or its processing; (b) fraud
perpetrated on a large scale.
Article 275 of the CC provides for the following
qualifying factors of misappropriation or embezzlement: (a) the
deed performed repeatedly or by a group of persons with an
afore-planned intention; (b) misappropriation or embezzlement
of other persons' property which has been entrusted to or which
is at the command of the culprit on a large scale.
Thus under presently in force disposition of Article 50 of
the CATL, for theft of other persons' property, fraud,
misappropriation, or embezzlement providing there exist the
said qualifying factors, even though the value of seized
property is less than the sum of one MSL, the punishment shall
be applied as for the crime and not as for the administrative
transgression of law. A person who has performed any of the
aforementioned deeds having these factors is brought to
criminal responsibility respectively under either Article 271
or 274 or 275 of the CC.
4. In the opinion of the petitioner, the disputed law does
not precisely use the definition "in the case that there are no
aggravating circumstances", as the doctrine of criminal law
makes distinction between aggravating circumstances and
qualifying factors.
It should be noted that aggravating circumstances are
provided for by Article 41 of the CC (the crime has been
committed by a person who has a previous conviction; the crime
has been committed by an organised group; the crime has
incurred dire consequences etc.). The main peculiarity of the
aggravating circumstances enumerated in the law is the fact
that they are possible in any crimes committed provided for in
the CC. On establishment of their existence in a concrete deed,
by deciding the punishment the court takes account of this and
may give a stricter punishment to the culprit.
Part of aggravating circumstances mentioned in Article 41
of the CC are indicated by defining the crimes provided for in
the special part of the CC. In such a case the doctrine of
criminal law, as a rule, designates them as crime qualifying
factors. Other circumstances which are not indicated in Article
41 of the CC are also rated as qualifying factors. Generally,
the establishment of a qualifying factor also determines a
respectively stricter sanction. The notion "aggravating
circumstance" used in the disputed law and indicated in
Articles 271, 274 and 275 of the CC does not create a
possibility to treat it otherwise but a qualifying factor. Such
use of the notion may be assessed as a mere linguistic
inexactitude, even though in other cases (e.g. Article 105 of
the CC), too, the notion "under aggravating circumstances" is
used but not "providing there exist qualifying factors".
5. When the case was being investigated in the hearing at
the Constitutional Court, the petitioner noted that the
amendments of Article 50 of the CATL relate to a great number
of juveniles. In such cases when juveniles commit minor
seizures of other person's property by acting in groups of
persons with an afore-planned intention, under valid laws their
deeds must be qualified as crimes and not as administrative
transgressions of law.
Article 1 of the Republic of Lithuania Law on Fundamentals
of Protection of the Rights of the Child defines the child as a
human being below the age of 18 years unless otherwise
established by laws. Similarly this norm is consolidated in
Article 1 of the Convention on the Rights of the Child adopted
by the United Nations wherein it is noted that a child means
every human being below the age of 18 years unless, under the
law applicable to the child, majority is attained earlier.
Paragraph 1 of Article 40 of the said convention provides
that every child alleged as, accused of, or recognised as
having infringed the penal law has the right that one took
account of the child's age; alongside there must be apparent
the desirability of promoting the child's reintegration and the
child's assuming a constructive role in society. Article 37 of
the same convention obligates the State Parties to ensure that
the arrest, detention or imprisonment of a child shall be used
only as a measure of last resort and for the shortest
appropriate period of time.
Taking account of social peculiarities and those of
psychological structure of the juvenile, the general part of
the CC limits the number of crimes for which juveniles of the
age of 14-16 years may be brought to criminal responsibility.
Alongside, limitations on imposing the maximum confinement time
period (which must not exceed 10 years), certain mitigating
conditions acquitting a juvenile from criminal responsibility,
as well as releasing from punishment by putting one on
probation before the expiration of punishment term, are
established. On the other hand, provisions for stricter
responsibility and punishment in the special part of the CC
have limited the possibilities to take account of established
peculiarities of criminal responsibility for juveniles.
Actually, the punishment of confinement for juveniles as
provided for in sanctions of the CC has become a rule but not
an exception.
The Constitutional Court holds that by amendment of the
disputed law the circle of deeds for which juveniles may be
brought to criminal responsibility has essentially been
widened. As a rule, juveniles commit minor thefts which, if one
considers the value of seized property, may be assessed as
administrative transgressions of law. However, juveniles very
often perform such transgressions of law in groups of persons
with an afore-planned intention or repeatedly, therefore under
valid laws such deeds must be qualified as crimes. Besides, for
the seizures of property which have been qualified the
sanctions of the CC provide for punishments which, taking
account of the value of seized property, may be overly strict
or not applicable at all for juveniles.
All this permits to assume that one should more
differentiate responsibility for juveniles, as well as better
regulate peculiarities of their administrative and criminal
responsibility, and these peculiarities should be in keeping
with not only the danger of the deed performed but also social
and psychological characteristics of children of respective
age.
6. The petitioner had doubts as to the conformity of the
amendment of Article 50 of the CATL to Part 1 of Article 29 of
the Constitution which provides that "all people shall be equal
before the law". The petitioner contends that under Article 50
of the CATL responsibility occurs provided one person steals
property the value whereof does not exceed one MSL, however if
this has been committed by a group of persons with an
afore-planned intention, these persons shall be brought to a
much stricter - criminal responsibility.
In assessing the arguments of the petitioner one should
note that in deciding the issue of equality before the law one
has to distinguish between, first, establishment of such
equality in the law, and, second, implementation of equality in
application of laws.
6.1. The problem of equality of persons in the laws cannot
be adequately decided without assessment of the fact in each
case whether peculiarities of legal regulation are reasonably
established in respect to these persons.
In its 28 February 1996 ruling the Constitutional Court
noted that the constitutional principle of equality of people
of its own accord does not deny the fact that law may establish
different legal regulation concerning certain categories of
people who are in a different situation. Assessing the fact
whether different legal regulation has been reasonably
established one should take into account particular
circumstances. First of all differences of legal situation of
respective entities and items to which different legal
regulation is being applied must be assessed; secondly, one
must take into consideration the compatibility of legal acts as
to their hierarchy, scope of regulation, etc.; thirdly, one
must assess whether the legal norms establishing special
conditions correspond the destination and purpose of a legal
act. The cogency of particular legal norms may be convincing in
such cases when all indicated circumstances have been taken
account of.
The disputed law establishes different responsibility for
persons who have committed a minor seizure of other persons'
property by theft, fraud, misappropriation or embezzlement when
there are no qualifying factors provided for in Articles 271,
274 and 275 of the CC (administrative transgression of law) and
when the deed has been performed when there are the qualifying
factors provided for in Articles 271, 274 and 275 (crime).
In the opinion of the petitioner, the danger of a deed
depends on the value of an attempted item, and on the grounds
of this it is expedient to distinguish the crime from the
administrative transgression of law.
Thus one has to answer the question whether upon amendment
of Article 50 of the CATL whereby it was recognised that in the
case of theft of other persons' property, fraud,
misappropriation or embezzlement providing there are the
qualifying factors provided for in Articles 271, 274 and 275 of
the CC, the deeds become more dangerous. On such grounds one
may assess whether criminalisation of the said deeds and
removal of responsibility for them from the sphere of
administrative law into that of criminal law violates justice
and, therefore, if this creates any inequality before the law
of persons who have committed the said deeds.
It should be noted that the danger of a deed, in fact,
very often is determined by the target and item of attempt (for
instance, a deed which causes danger to human life is more
dangerous than an attempt on one's property). However, the
assessment of dangerousness of a deed is determined not only by
the value of the target or that of the item. The manner of its
performance (for instance, an open seizure of property with
violence is more dangerous than a secret seizure of the same
property), its form (for instance, deliberate destruction of
property is more dangerous than the same destruction of
property through negligence), as well as peculiarities of the
subject of crime may also be of significance for dangerousness
of a deed.
In assessing dangerousness of the crime committed, the
doctrine of criminal law takes heed of the fact that a crime
committed by several persons is potentially more dangerous than
an analogous one committed by one person. Dangerousness of
crime may be greater because of the fact that several persons
co-ordinate their efforts, it is easier for them to commit many
crimes, to cover either traces of their crimes or people who
have committed them etc. When actions are performed jointly,
there exists a more solid psychological background and
determination to either commit or continue a crime, methods of
committing a crime are better considered, more effective
instruments and means of committing a crime are chosen.
The qualifying circumstance of an afore-planned intention
of a group to seize property as provided in Articles 271, 274
and 275 of the CC means that prior to committing a crime two or
more persons decide to act jointly. Acting thus, one is able to
plan beforehand as to what property will be attempted on, the
roles to be taken during a perpetration of crime are divided,
one plans as to where the stolen property will be hidden or
utilised otherwise etc. Taking account of the fact that several
persons acting jointly are capable of inflicting more harm,
therefore, objectively, their actions are more dangerous.
Differentiation of responsibility may be accomplished only
after one takes into consideration not only the harm and its
amount inflicted by unlawful deeds but also the manner of
performance of such deeds, as well as other circumstances along
with the measures of coercion which have already been provided
for. Thus establishment of administrative and criminal
responsibility for deeds of different degree of danger violates
neither the constitutional principle of equality nor that of
justice.
6.2. Another issue relates to equality of persons in
respect to application of laws.
Part 1 of Article 29 of the Constitution provides: "All
people shall be equal before the law, the court, and other
State institutions and officers." In law the principle of
equality before the law means an "equal measure" when one has
to apply the same norm for different persons. In criminal law
the principle of equality means that the same basis of
responsibility is established for the committed crime.
According to criminal law, the equality before the law
principle is realised by recognising that corpus delicti is the
only basis on which persons may be brought to criminal
responsibility. The entirety of signs of corpus delicti as it
is described in the law defines a deed as crime and in this
respect corpus delicti becomes an "equal measure" for all
persons who have performed a certain deed. In other words,
providing a single sign of corpus delicti described in the law
is missing, then a person may not be brought to criminal
responsibility. On the other hand, providing the deed of a
person corresponds to the signs of crime described in the law,
then neither any properties of the person, nor his social
status etc. may influence his bringing to criminal
responsibility. This determines a special significance of
precise formulation of signs of crime.
However, an equal basis for bringing anyone to criminal
responsibility does not mean that all persons who have
committed the same crime must be given the same punishment. The
laws provide that when giving a punishment, one takes account
of the character of the committed crime, the person of the
culprit, the degree of the guilt, the circumstances which
either mitigate or aggravate the responsibility, and on the
grounds of all this the punishment must be particularised.
Particularisation of punishment does not violate the principle
of all people's equality before the law. This should also be
applied when persons are brought to administrative
responsibility.
The Constitutional Court holds that the administrative
responsibility for minor unlawful seizure by theft, fraud,
misappropriation or embezzlement as provided for by the
disputed law providing there are no qualifying factors
indicated in Articles 271, 274 and 275 of the CC assigns deeds
of different dangerousness for respective administrative
transgressions of law and crimes, therefore it does not violate
the equality before the law principle.
On the basis of the set forth above, it is to be concluded
that the disposition of Article 50 of the CATL 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 disposition "minor unlawful seizure
of property by theft, fraud, misappropriation or embezzlement
providing there are no aggravating circumstances provided for
in Articles 271, 274 and 275 of the Republic of Lithuania
Criminal Code" of Article 50 of the Republic of Lithuania Code
of Administrative Transgressions of Law 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.