Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the law of 2 July 1996 and
that of 9 January 1997 whereby amendments of and
supplements to Article 310 of the Criminal Code of
the Republic of Lithuania were made with the
Constitution of the Republic of Lithuania
Vilnius, 9 July 1998
The Constitutional Court of the Republic of Lithuania,
composed of the Judges 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 party concerned-Stasys Šedbaras, the minister of
internal affairs, and Alfonsas Čepas, an assistant to the Legal
Committee of the Seimas, both are representatives 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, on 18
June 1998 in its public hearing conducted the investigation of
Case No. 10/97-3/98-10/98 subsequent to the petition submitted
to the Court by the petitioners-the Kėdainiai Regional District
Court, the Trakai Regional District Court, the Tauragė Regional
District Court-requesting to investigate if the amendments of
and supplements to Article 310 of the Criminal Code of the
Republic of Lithuania made by the laws of 2 June 1996 and 9
January 1997 were in compliance with the Constitution of the
Republic of Lithuania.
The Constitutional Court
has established:
I
On 6 May 1997, the petitioner-the Kėdainiai Regional
District Court-was investigating a criminal case wherein Ms. R.
K. was charged with the offence specified by Part 2 of Article
310 of the Criminal Code (hereinafter referred to as the CC).
By its ruling the court suspended the investigation of the case
and appealed to the Constitutional Court with the petition
requesting to investigate whether the 2 July 1996 Republic of
Lithuania Law on Amending and Supplementing of Articles 35,
283, 284, 289, 290 and 310 of the Criminal Code (Official
Gazette Valstybės žinios, No. 67-1159, 1996), by Article 6
whereof Parts 2, 3 and 4 of Article 310 of the CC were amended,
was in compliance with Article 23 of the Constitution.
On 23 December 1997, the petitioner-the Trakai Regional
District Court-was investigating a criminal case wherein Ms. I.
D. was charged with the offence specified by Part 2 of Article
310 of the CC. By its ruling the court suspended the
investigation of the case and appealed to the Constitutional
Court with the petition requesting to investigate the
conformity with the Constitution of Part 2 of Article 310 of
the CC which provides for criminal responsibility for keeping 5
or more litres of non-denatured ethyl alcohol providing the
said alcohol had been lawfully acquired before the 2 July 1996
Republic of Lithuania Law on Amending and Supplementing of
Articles 35, 283, 284, 289, 290 and 310 of the Criminal Code,
and the 9 January 1997 Republic of Lithuania Law on Amending
and Supplementing Article 310 of the Criminal Code (Official
Gazette Valstybės žinios, No. 5-71, 1997) went into effect.
On 17 March 1998, the petitioner-the Tauragė Regional
District Court-was investigating a criminal case wherein Mr. J.
J. was charged with the offences specified by Part 2 of Article
310 and Part 1 of Article 207 of the CC. By its ruling the
court suspended the investigation of the case and appealed to
the Constitutional Court with the petition requesting to
investigate whether the 2 July 1996 Republic of Lithuania Law
on Amending and Supplementing of Articles 35, 283, 284, 289,
290 and 310 of the Criminal Code, Article 6 whereof provides
for criminal responsibility for keeping non-denatured ethyl
alcohol, denatured ethyl alcohol, ethyl alcohol for technical
use, as well as solutions (mixtures) thereof without a permit,
and without establishment of the legalisation procedure,
conditions, ways and time limits of these products acquired
prior to the adoption of the said law was in compliance with
the Constitution.
The Constitutional Court, taking account of the fact that
all 3 requests concern the compliance of the same norms with
the Constitution, by the decision of 9 June 1998 joined them
into one case.
II
The petitioners ground their requests on the following
arguments.
1. The Kėdainiai Regional District Court points out that
in amending Part 2 of Article 310 of the CC by the disputed law
which was adopted on 2 July 1996, a new norm was set down which
not only established new relations between the State and
citizens concerning manufacture, storage, transporting, sale
and other realisation of ethyl alcohol of various kinds but
also affected the former social relations, especially those of
ownership, in this sphere. By at once recognising almost all
circumstances of storage and circulation of the aforesaid
objects as criminal ones, this law not only did not regulate
the established social relations at all but, in essence, the
said law contradicts the main provisions of the Constitution
and violates the constitutional rights and freedoms of part of
the citizens of this country.
Adopting the disputed legal norm, the legislator did not
take into consideration several important circumstances.
1.1. The legal regulation of the aforesaid relations in
the past.
Prior to going into effect of the law of 2 July 1996, the
circulation of ethyl alcohol and its products was not
restricted, as they were ordinary objects of the ownership
right the management, use and disposal of which were regulated
by the valid laws of this country which did not provide for any
special restrictions or limitations. Then part of the
residents, the accused among them, acquired and managed ethyl
alcohol and its products lawfully (Article 109 of the Civil
Code (hereinafter referred to as the CivC)). The disputed law
did not single it out.
1.2. The property status according to present-day
conception.
Recognising the inborn nature of human rights and
freedoms, the Constitution emphasises that property shall be
inviolable. This is an imperative provision, thus other laws,
substatutory acts and the practice of their application must be
harmonised with it. The disputed law encroaches upon private
property of citizens and contradicts the requirements of Part 1
of Article 23 of the Constitution.
1.3. The scope of the ownership rights.
When property is understood in its subjective sense as the
rights of the owner to manage, use and dispose of his property
(Article 96 of the CivC), the principle of inviolability of
property directly ensures all the elements of this entirety of
rights. The provision of Part 2 of Article 23 of the
Constitution that the rights of ownership are protected by law
does not mean that there is an opportunity to restrict one or
another right of the owner in the case that the legal treatment
of the managed item has already been established.
1.4. The possibilities of legal restriction of the rights
of ownership.
Part 3 of Article 23 of the Constitution provides for an
opportunity to change the legal treatment, against the will of
the owner, of the item of property under these circumstances:
when this is done for the needs of society; by one way only-it
seizure from the owner; by compensating it adequately.
Adopting the said law, the latter 2 conditions were
ignored: the legal treatment of lawfully acquired property was
changed with neither seizing it from the owner nor compensating
for it. Nor was this question solved by a special normative act
which had to provide for the procedure of coming into force of
the disputed law.
By the amendment of the disputed law, at the moment of
going into effect of the law the legislator indirectly
recognised part of the population of this country as persons
who have committed criminal deeds, as storing this alcohol and
its products in itself is assessed as an offence. One did not
decide as to how the persons who possessed them had to behave.
2. The Trakai Regional District Court points out that
under the norms of Article 310 of the CC (the wording of 2 July
1996 and 9 January 1997), storing of non-denatured ethyl
alcohol without a permit provided 5 or more litres of such
alcohol is kept is considered an offence. The amendments of
Article 310 of the CC dot not regulate at all whether the
persons who had lawfully acquired such a quantity of ethyl
alcohol prior to coming into force of the new wording of the
said article and who continue storing it are criminally liable.
Therefore, it is not clear to the court whether now in force
Article 310 of the CC or its individual parts or certain badges
of the deeds indicated therein are in compliance with the
Constitution.
3. The Tauragė Regional District Court points out that the
legislator, by establishing criminal responsibility for deeds
for which no one was being penalised prior to the establishment
of such responsibility, should decide the question of the
procedure, conditions, ways and time limits of legalisation of
the property which becomes the object of prosecution of the
penal law. These questions have not been settled, therefore
there exist grounds to maintain that Part 2 of Article 310 of
the CC may contradict Article 23 of the Constitution.
III
In the course of preparation of the case for the
Constitutional Court hearing, the representative of the party
concerned A. Čepas pointed out that by the law of 2 July 1996 a
new norm of Article 310 of the CC was set down which changed
the relations between the State and the natural person
concerning manufacture, storage, transporting and realisation
of ethyl alcohol of various sorts. This law changed the content
of the rights of ownership to the possessed goods-various sorts
of ethyl alcohol substances-of many residents of Lithuania as
it provided for criminal responsibility not only for
manufacture or realisation of these substances but also for
their transporting or storing without a permit.
The representative noted that Article 4 of the Republic of
Lithuania Law on Alcohol Control of 18 April 1995 provides that
alcohol products are attributed to special products to which,
under the laws, a special state regulatory regime is to be
applied, while Chapter 3 of this law regulates in detail
manufacture of alcohol products, their realisation, as well as
prohibitions and permits of the use of alcohol. After the
restrictions of the rights of ownership to alcohol products had
been established in the laws, one was given an opportunity to
choose: either to acquire a permit to use them, or realise
them, or destroy them.
The violations of restrictions established in laws of
manufacture and realisation of ethyl alcohol of various sorts
as alcohol products induced the legislator to set down
amendments to Parts 2, 3, and 4 of Article 310 of the CC. These
amendments are not new. Actually, they merely recapitulate the
former restrictions made by various governmental resolutions.
The representative emphasised that by the amendments and
supplements of Article 310 of the CC which were made by the law
of 2 July 1996 one did not encroach on the lawfully acquired
property, therefore they do not contradict the provisions of
property inviolability as established by Article 23 of the
Constitution.
IV
In the court hearing the representative of the party
concerned A. Čepas virtually reiterated the arguments set forth
in his paper and additionally explained that the law of 2 July
1996 went into effect from the day of its promulgation. Thus
part of the population storing alcohol products became persons
who had committed criminal deeds. In the opinion of the
representative, the circumstances of the enforcement of the
said law were not regulated, i.e. one did not indicate any
conditions under which one could evade responsibility for
storing or transporting of lawfully acquired alcohol products.
Therefore, on 26 March 1998 the Law "On Exemption from Criminal
Responsibility and Punishment Which are Established by Article
310 of the Criminal Code for Storing and Transporting Spirit
and Its Solutions (Mixtures)" was passed wherein opportunities
for realisation of the possessed alcohol products were provided
for. Even though this law was valid for 5 days only, it was
enough time to inform the police about the possessed alcohol.
The representative of the party concerned S. Šedbaras
pointed out that in many states there is the monopoly of spirit
and liquor trade. This also was in Lithuania in 1923-1940.
After Lithuania had been occupied by the Soviet Union, the
monopoly of liquor and spirit trade which was valid in the
Soviet Union was introduced. The Law on the Procedure for the
Enforcement of the Constitution of the Republic of Lithuania
and the Basic Provisional Law of the Republic of Lithuania
contain provisions that legal acts shall be effective not only
till 11 March 1990 but also after adoption of the Constitution
provided that they do not contradict either the Basic
Provisional Law or the Constitution. Legal acts remain
effective until they are either harmonised, amended or declared
null and void. There are no legal acts that abolish the
monopoly of spirit manufacture and trade. After the
independence of Lithuania had been restored, one attempted to
regulate this issue. On 7 May 1991 the Ministry of Health Care
issued the Decree "On the Procedure of Prescribing Medicines
and Giving Out Medicines in Pharmacies" wherein it was
indicated that irrespective of the concentration of pure
alcohol or its being a component of a medicine, the doctor may
prescribe no more than 100 grams of spirit in one prescription
form. By the Government resolution of 20 November 1992, from 1
December of the same year, enterprises of all ownership forms,
except pharmacies, were banned to sell spirit to the
population. By the Government resolution of 26 January 1993,
the right to import ethyl spirit was granted to 7 enterprises.
The said resolution also pointed out that ethyl spirit was
allowed to be sold to the population only in pharmacies while
trade enterprises and those of public catering were prohibited
to sell it. On 19 March 1993, 23 enterprises were allowed to
import food ethyl spirit, however, as early as 21 March 1994,
it was altogether prohibited to import it into Lithuania.
The representative noted that spirit may be lawfully
acquired only by means of purchase and sale. Due to the
prohibitions provided for by the legal acts, individuals, by
lawfully buying 100 grams of spirit each time, may not
accumulate more than 10 litres of it. Thus an item which has
been unlawfully acquired never becomes property in the sense
which is protected by Article 23 of the Constitution.
Alongside, the representative mentioned the fact that this
year Article 310 of the CC has not been amended. The 26 March
1998 Law "On Exemption from Criminal Responsibility and
Punishment Which are Established by Article 310 of the Criminal
Code for Storing and Transporting Spirit and Its Solutions
(Mixtures)" attempted to regulate the procedure of its
application. On 7 April 1998, a new Law "On Recognising the Law
'On Exemption from Criminal Responsibility and Punishment Which
are Established by Article 310 of the Criminal Code for Storing
and Transporting Spirit and Its Solutions (Mixtures)' as Null
and Void" was passed.
V
In the course of preparation of the case for the judicial
investigation, explanations of the specialists-Assoc. Prof. Dr.
A. Vileita who works at the Chair of Civil Law and Procedure of
the Law Faculty at Vilnius University, Assoc. Prof. Dr. A.
Vaišvila, Head of the Chair of Philosophy of Law at the Law
Academy, and G. Švedas, a vice-minister of justice-were
received.
A. Vileita, on the grounds of Article 23 of the
Constitution, as well as an analysis of the articles of the
CivC and CC, drew a conclusion that both prohibition of
acquiring of non-denatured ethyl alcohol, denatured ethyl
alcohol and ethyl alcohol for technical use without a permit
and criminal responsibility may be applied only to those
persons who acquired the said alcohol after the new wording of
Article 310 of the CC had gone into effect. Until that date
persons had the right to acquire, store or transfer to other
persons the aforesaid sorts of alcohol, i.e. they were able to
realise the rights of the owner to the property which belonged
to him. All lawfully acquired items are property of the person
who acquired them, and this property shall be inviolable
(Article 23 of the Constitution). The legislator is entitled to
change the legal treatment of respective items of the right of
ownership, i.e., to impose restriction on their acquiring,
storing, use or sale, but he may not deprive the owner of the
rights of ownership, nor penalise the owner for storing, using
and disposing of lawfully acquired items.
It is emphasised in the explanation that the legislator,
assuming that the aforementioned alcohol is harmful to society,
may have adopted a decision to requisition the alcohol which
persons had lawfully acquired, i.e. to buy it out by a coercive
way by establishing the procedure and time limits of such
buying out. Upon expiration of such time limits of buying out,
further storing of the said alcohol would become unlawful and
one would be able to bring the guilty persons to criminal
responsibility and confiscate the unlawfully stored alcohol.
The legislator did nothing of this.
A. Vaišvila maintained in his explanation that Parts 2, 3,
and 4 of Article 310 of the CC, by establishing criminal
responsibility for storing and transporting spirit without a
permit, pre-supposes an assumption that there must be another
(civil) regulatory law which stipulates that the spirit which
was lawfully acquired may further be stored and transported
provided there is a permit for it. If a penal law, along with
the function of punishment, begins to accomplish a function of
prohibition (which pertains to the general legal regulation)
uncharacteristic of it, then it must reckon with other elements
characteristic of regulatory laws, i.e. to give time to carry
out these orders. In the case of Article 310 of the CC, the
prohibition and punishment occur at the same time (the date of
the promulgation and that of coming into force of the law of 2
July 1996 are the same, i.e. 17 July 1996). Moreover, A.
Vaišvila noted that Article 310 of the CC, establishing that
spirit may be stored or transported only with a permit,
however, not providing for any time limit to acquire such a
permit, creates a situation when storing or transporting of
spirit becomes as if unlawful from the very moment of its
acquiring. Meanwhile, this means that it also includes those
deeds which had occurred before the amendments of the said
article were adopted, which burdens the legal situation of the
person who had lawfully acquired a certain amount of ethyl
alcohol.
G. Švedas explained that criminal responsibility for
manufacture, storage, transporting, sale or any other
realisation of non-denatured or denatured ethyl alcohol or that
for technical use without a permit was established only after
the Seimas had passed the Law on Amending and Supplementing of
Articles 35, 283, 284, 289, 290 and 310 of the Criminal Code.
However, upon adoption of the said law, one did not decide the
issue of lawfully acquired alcohol products. It is pointed out
in the explanation that the right of ownership is the right of
a person which is the broadest one in its content, however, its
restriction is also possible, as, otherwise, there would occur
pre-conditions to violate the rights of other persons. The fact
that alcohol products are attributed to special products for
the manufacture, import, trade and consumption whereof a
special state regulatory regime is applied was also established
by Article 4 of the Law on Alcohol Control. Thus, the
restriction of the rights of ownership should be established by
the law.
The Constitutional Court
holds that:
1. On 2 July 1996 the Seimas passed the Law on Amending
and Supplementing of Articles 35, 283, 284, 289, 290 and 310 of
the Criminal Code. By Article 6 of the said law, Article 310 of
the CC was set forth as follows:
“Article 310. Manufacture, storage, transporting and
realisation of home-distilled liquor, brew, other home-made
strong alcoholic beverages, non-denatured ethyl alcohol,
denatured ethyl alcohol, ethyl alcohol for technical use and
their solutions, as well as devices for their manufacture.
Manufacture, storage, transporting, sale or any other
realisation of home-distilled liquor, brew, other home-made
strong alcoholic beverages, as well as devices for their
manufacture-
shall be punished by up to 3 years of imprisonment and a
fine or a fine only.
Manufacture, storage, transporting, sale or any other
realisation of non-denatured ethyl alcohol, denatured ethyl
alcohol, ethyl alcohol for technical use and solutions
(mixtures) thereof, as well as devices for their manufacture
without a permit-
shall be punished by up to 4 years of imprisonment and a
fine or a fine only.
In case the same deeds which are provided for in Parts 1
and 2 of this Article are accomplished in big amounts, they
shall be punishable up to 5 years of imprisonment.
There appears criminal liability for the deeds provided in
Parts 1 and 2 of this Article in the case that one has
manufactured, or stored, transported, sold or realised
otherwise of 10 or more litres of home-distilled liquor, brew
or other home-made strong alcohol beverages, non-denatured
ethyl alcohol, denatured ethyl alcohol and ethyl alcohol for
technical use or solutions (mixtures) thereof.
The big amount shall be held by this Article as 500 or
more litres of home-distilled liquor, brew or other home-made
strong alcohol beverages, non-denatured ethyl alcohol,
denatured ethyl alcohol and ethyl alcohol for technical use or
solutions (mixtures) thereof."
By the law of 9 January 1997 the Seimas amended Article
310 of the CC once again by partly broadening and making
stricter responsibility for the aforementioned deeds.
In the new wording of the article, such deeds were singled
out as being more dangerous ones when one manufactures, stores,
transports, sells or realises otherwise solutions (mixtures) of
non-denatured ethyl alcohol, denatured ethyl alcohol and ethyl
alcohol for technical use, which contain dangerous for human
life or health substances or the like additives.
Such cases were recognised as especially qualified deeds
when sold or realised otherwise solutions (mixtures) of
non-denatured ethyl alcohol, denatured ethyl alcohol, and ethyl
alcohol for technical use, which had been manufactured by
making use of dangerous for human life or health substances or
like additives, caused the death of an individual or other dire
consequences.
By this law, the criminal responsibility was also
broadened in that it appears when one manufactures, stores,
transports, sells or realises otherwise 5 or more litres of
non-denatured ethyl alcohol, denatured ethyl alcohol or ethyl
alcohol for technical use (under the wording of Article 310 of
the CC which had been in force before, the minimal limit when a
possibility to bring a person to criminal responsibility was
provided for was 10 litres).
2. The petitioners doubted: the Kėdainiai Regional
District Court-whether the amendment of Article 310 of the CC
made by the law of 2 July 1996 establishing criminal
responsibility by Parts 2, 3 and 4 of the said article for
manufacture, storage, transporting, sale or any other
realisation of non-denatured ethyl alcohol, denatured ethyl
alcohol, ethyl alcohol for technical use, as well as solutions
(mixtures) thereof was in compliance with Article 23 of the
Constitution; the Tauragė Regional District Court-whether the
amendment of Article 310 of the CC made by the said law of 2
July 1996 establishing criminal responsibility by Part 2 of the
said article for storage of the same alcohol products was in
compliance of Article 23 of the Constitution; the Trakai
Regional District Court-whether the fact that the amendment of
Part 4 of Article 310 of the CC made by the said law of 2 July
1996, and the amendment of Article 310 of the CC made by the
law of 9 January 1997 whereby criminal responsibility is
established for storing of 5 or more litres of lawfully
acquired non-denatured ethyl alcohol was in compliance with the
Constitution.
It is to be noted that the Kėdainiai and Tauragė courts
had doubts if the norms of Part 2 of Article 310 of the CC as
established by the law of 2 July 1996 were in compliance with
Article 23 of the Constitution. Even though the said norms were
later amended by the law of 9 January 1997, however, the
request of the petitioners to investigate the compliance of the
norms of Article 310 of the CC (the wording of 1996) with the
Constitution is to be investigated. Such a request is linked
with the future investigation of suspended cases as by the
subsequent law the criminal responsibility for respective deeds
has been broadened and made stricter.
The petitioners essentially doubt whether the norms of
Article 310 providing for criminal responsibility for
manufacture, storage, sale or other realisation of
non-denatured ethyl alcohol, denatured ethyl alcohol, ethyl
alcohol for technical use and solutions (mixtures) thereof
without a permit violate the constitutional personal ownership
rights. Taking account of the nature of the prohibited deeds,
one is to single out the compliance of establishing penalty
for, first, storing the said products without a permit, and,
second, sale or other realisation of the said products without
a permit, with Article 23 of the Constitution.
Defining the notions employed therein, the Law on Alcohol
Control indicates that: alcohol products are non-denatured
ethyl alcohol, denatured ethyl alcohol, ethyl alcohol for
technical use, alcoholic beverages, ingredients and raw
materials that contain ethyl alcohol; alcoholic beverages are
beverages which contain from 1 to 50 per cent of ethyl alcohol
by volume etc. Hereinafter in this ruling of the Constitutional
Court the modified notion alcohol products will be used which
covers non-denatured ethyl alcohol, denatured ethyl alcohol,
ethyl alcohol for technical use as well as solutions (mixtures)
thereof.
3. On the compliance of the criminal responsibility for
storing of alcohol products without a permit as established by
Article 310 of the CC with Article 23 of the Constitution.
3.1. When one assesses the compliance of the establishment
of the criminal responsibility for storing alcohol products
without a permit with Article 23 of the Constitution,
historical aspects of the legal regulation of manufacture,
storage and sale of these products are of importance.
In Lithuania, under the 1934 Law on Excises and Financial
Monopolies, the spirit monopoly constituted the exclusive right
of the State: (1) to buy up manufactured raw spirit; (2) to
manufacture drinkable spirit, liquor and denatured spirit from
raw spirit; (3) to import spirit and liquor from abroad. Under
this law, retail shops of alcoholic beverages which had
acquired excise patents for selling alcoholic beverages were
entitled to sell liquor and spirit.
During the period of the Soviet occupation, the state
monopoly was stricter. Only enterprises of food industry were
permitted to distil ethyl spirit from food raw-materials. State
and co-operative trade enterprises were prohibited to sell
spirit at all. After the independence of Lithuania had been
restored, these prohibitions were not officially abolished.
On 20 November 1992, the Government of the Republic of
Lithuania adopted Resolution No. 871 "On the Trade of Alcoholic
Beverages". As early as 1 December of the same year,
enterprises of all ownership forms, except pharmacies, were
banned to sell ethyl spirit imported into Lithuania to the
population. "The Rules for the Trade of Alcoholic Beverages"
(Items 7.3 and 8) which were confirmed by the same resolution
also prohibited to sell faked alcoholic drinks and ethyl spirit
imported into Lithuania.
Taking into consideration the fact that a large number of
alcoholic beverages that are officially registered as export
goods reach the Lithuanian market by evading taxes, by its
Resolution No. 1094 of 8 November 1994, the Government
prohibited enterprises from exporting ethyl spirit and selling
it to private entities of economy and natural persons without a
permit of the Ministry of Finance and the Ministry of
Agriculture.
On 18 April 1995 the Law on Alcohol control was passed. It
has regulated the relations linked with manufacture, internal
trade, storage, transporting, import, export, and use of
alcohol products, food products with alcohol additives, as well
as that of those containing ethyl alcohol, and established in
Lithuania the fundamentals of alcohol control. The said law
also established the legal grounds of introduction of the
monopoly of manufacture and trade of alcohol products, as well
as granting of the monopolistic right of the State to
manufacture alcohol products to economic entities. Item 12 of
Article 20 of the said law contains a prohibition to sell to
the population non-denatured or denatured ethyl alcohol as well
as ethyl alcohol for technical use with the exception of
non-denatured ethyl alcohol sold to the population by
pharmacies in accordance with the procedure established by the
Ministry of Health Care.
Thus it is possible to hold that after 11 March 1990, no
legal acts were adopted which directly consolidated a
permission to sell ethyl spirit to the population except
pharmacies. Meanwhile, from 1 December 1992, special
governmental acts prohibited to sell imported ethyl spirit,
while since 8 November 1994 the sale of ethyl spirit has been
prohibited altogether. Later this prohibition was confirmed by
the Law on Alcohol Control.
3.2. Assessing the legal regulation of acquiring alcohol
products by the population, the Constitutional Court draws
one's attention to other circumstances as well.
On 21 December 1991, the Government adopted Resolution No.
578 "On the Taxation of Publications Which are of Erotic Nature
and the Procedure of Alcoholic Beverages Trade". Item 3 of the
said resolution provided that every trade or public catering
enterprise which sells alcoholic beverages must have a special
permit issued by the board of a town or district.
Actually, the boards of towns or districts used to issue
permits to trade or public catering enterprises not only for
selling of traditional alcoholic beverages but also that of
spirit. For instance, the Vilnius City Board during
July-November 1992 issued more than 50 permits to various
enterprises in which one particularly indicated, along with
other alcoholic beverages, the right to sell spirit, too.
It is to be noted that for some time there was no special
legal regulation of import of ethyl alcohol. The Government
regulated these questions by Resolution No. 26 "On the Trade of
Alcohol Beverages" of 26 January 1993. Item 2.1 of this
resolution permitted seven enterprises of this country to
import, along with alcohol beverages, ethyl spirit as well
which could only be sold to enterprises.
Item 2.7 of Government Resolution No. 187 "On Partial
Amendment and Supplement of Government of the Republic of
Lithuania Resolution No. 26 of 26 January 1993" provided that
the procedure shall be established, and permits and quotas for
importing of ethyl spirit for technical use into the Republic
of Lithuania which is necessary for manufacture process shall
be issued by the Ministry of Economy and Trade.
3.3. After the prohibitions to sell ethyl spirit to the
population had been consolidated by legal acts, sanctions for
their violation were established for the seller only. Until the
adoption of the 2 July 1996 amendments of Article 310 of the
CC, criminal responsibility for acquiring of alcohol products
was not established. It was possible to bring a person to
criminal responsibility and penalise him only in the case that
the said alcohol products had been acquired by illicit means
(e.g. contraband). Likewise, until the 2 July 1996 amendments
and supplements of Article 310 of the CC, criminal
responsibility for storing of alcohol products was not
established.
The Law "On Exemption from Criminal Responsibility and
Punishment Which are Established by Article 310 of the Criminal
Code for Storing and Transporting Spirit and Its Solutions
(Mixtures)" which was enacted by the Seimas on 26 March 1998
and which on 4 April of the same year was recognised as null
and void also indicates the inconsistency and even certain
discrepancy of the legal regulation of acquiring and storing of
alcohol products by the population.
Taking account of the above analysis of the earlier valid
legal norms, one cannot deny an assumption that there may exist
persons who, without violating the former order, had acquired
and stored alcohol products.
3.4. From the standpoint of property law, the norms of
Article 23 of the Constitution, which constitute an indivisible
whole, reveal the essence of the protection of the ownership
rights, and emphasise the constitutional protection of
property. Alongside, the Constitutional Court notes that the
rights of ownership are protected only when property has been
acquired and stored lawfully.
An analysis of the Constitution, other laws, as well as
the norms of international law, permits to conclude that the
rights of ownership may be restricted so that violations of the
rights of other persons might be evaded. The subjective rights
of the owner to manage, use and dispose of his property may be
restricted by the law in the interest necessary to society
(problems of ecology, etc.), due to the nature of the property
(arms, narcotic substances, etc.) etc. Alcohol products are
attributed to special products for the manufacture, import,
trade or any other realisation of which a special state
regulatory regime is needed. It is linked with the fact that
due to the uncontrolled or insufficiently controlled sale of
alcohol products to the population phenomena of social
pathology are increasing (murders or bodily injuries in private
life, suicides, intoxication and death in the cases of alcohol
consumption etc.).
On having assessed various social factors which, in his
opinion, were essential, the legislator had the reasons to
establish restrictions of storing of alcohol products and,
thus, to limit the implementation of the ownership rights. In
order to implement such restrictions, various legal means were
possible. The fact that the means of penal law were opted is
the prerogative of the legislator. The establishment of
criminal responsibility for storing alcohol products does not,
in itself, violate the ownership rights of persons, however,
the establishment of implementation of such responsibility is
linked with certain requirements.
Prohibitions in criminal laws are always directed to the
future. Paragraph 1 of Article 7 of the European Convention for
the Protection of Human Rights and Fundamental Freedoms
provides: "No one shall be held guilty of any criminal offence
on account of any act or omission which did not constitute a
criminal offence under national or international law at the
time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the
criminal offence was committed."
The norm of Part 3 of Article 7 of the CC also
consolidates the prohibition of retroactive validity of penal
laws: "A law which establishes criminality for a deed, or makes
a penalty stricter, or burdens the legal situation of the
person who has committed a deed, shall not be retroactively
valid." Thus, in all these norms 2 chief principles of criminal
law have been set down: nullum crimen sine lege and nullum
poena sine lege which mean that a person may be brought to
criminal responsibility only for such a deed which at the time
when it was committed was qualified by a penal law as an
offence, and that it is prohibited to apply a stricter penalty
to a person than that established by a penal law at the time
when the deed was committed. Only in exceptional cases, after
specially deliberating on it, the legislator may establish a
retroactive validity of a penal law.
3.5. By the disputed laws criminal responsibility was
established in Article 310 of the CC for the continuing
deed-storing of alcohol products without a permit. Meanwhile,
as noted above, the assumptions cannot be denied that there may
exist individuals who had acquired alcohol products lawfully
and stored them until adoption and coming into force of the
disputed law.
In this case at law, an analysis of the norms of the
contested Article 310 of the CC which provide for criminal
responsibility for storing of alcohol products without a permit
permits to assert that these are prohibitions of general
nature. The establishment of the said prohibitions is the
prerogative of the legislator. Thus, in themselves, these norms
are not unlawful. The problems as raised by the petitioners are
virtually linked with the deficiencies of legal regulation due
to which there occurs indistinctness as to how one is to apply
these norms. Therefore a conclusion is to be drawn that the
question of the lawfulness of alcohol products storage without
a permit, in fact, is the problem of not the essence, i.e. the
content, of these norms, but the one of their practical
application.
In the law-making of penal laws, especially when
continuing deeds are criminalised, as a rule, the legal rules
for the implementation procedure of these norms are set down.
This is done in attempt to solve problematic issues which might
occur in the course of implementation of new legal norms.
The questions of application of legal norms that have not
been decided by the legislator are the matter of judicial
practice. It means that they may be decided by a court of
general jurisdiction when it adopts a respective judicial act
in a particular case at law. In such instances one follows
common principles of law, as well as the principle that without
a special indication a penal law may not be retroactively
valid.
One should note that the legislator 2 times amended the
norms which provide for criminal responsibility for storing of
alcohol products, however, he decided the question of
application of these norms in neither of them. Therefore, it is
to be concluded that these norms are applicable to the deeds
which were committed after coming into force of these laws.
3.6. Assessing the established criminal responsibility for
storing of alcohol products, one cannot fail to notice that in
Lithuania there is a widespread dangerous crime, i.e.
contraband of ethyl alcohol, as well as sale of solutions
(mixtures) manufactured from it. For instance, in 1997 alone
the Customs Department at the Ministry of Finance registered 10
cases of spirit contraband when more than 600 thousand litres
of ethyl spirit were being transported.
The contraband of ethyl spirit and sale of solutions
(mixtures) of such spirit are recognised as offences by penal
laws and incur criminal liability. Other illicit ways of
acquiring of alcohol products (e.g. theft) may be offences as
well. Storing of alcohol products acquired by illicit means is
either continuation of a previous crime, e.g. contraband, or
corresponds with badges of another crime which is provided for
in Article 310 of the CC, and it may concur with other crimes
as well. Thus, in these cases alcohol products are the target
of crime, there never appears any right of ownership to them,
therefore they may not be protected by legal means on the
grounds of Article 23 of the Constitution.
4. On the compliance of the criminal responsibility for
manufacture, sale or any other realisation of alcohol products
without a permit as established by the amendments of Article
310 of the CC with Article 23 of the Constitution.
Raising the question whether the amendment of Article 310
of the CC as made by the law of 2 July 1996 is in compliance
with Article 23 of the Constitution, the petitioner-the
Kėdainiai Regional District Court-also points out other deeds,
i.e. manufacture, sale or any other realisation of alcohol
products, for the prohibition of which one may raise the
lawfulness question.
As mentioned, alcohol products are attributed to special
products to the manufacture, import, sale and use whereof a
special state regulatory regime is applied. The Law on Alcohol
Control provides that only such enterprises shall be permitted
to produce alcohol products which have been granted a permit by
the Government or, upon its authorisation, by the State Tobacco
and Alcohol Control Service. It means that individuals did not
have the right to manufacture in any way alcohol products under
the Law on Alcohol Control. The prohibition to manufacture
alcohol products as established by Article 310 of the CC
virtually does not provide for new restrictions. Essentially,
the said article merely makes the sanctions for these deeds
stricter.
It is altogether prohibited for the population to engage
in selling or any other realisation of alcohol products. The
legislator merely made this prohibition stricter by
establishing criminal responsibility for manufacture, sale or
any other realisation of alcohol products without a permit.
Thus the amendments of Article 310 of the CC made by the
disputed law, the norms of which established criminal
responsibility for manufacture, sale or any other realisation
of alcohol products, are in compliance with the Constitution.
Taking account of the arguments set forth above and
conforming to Article 102 of the Constitution of the Republic
of Lithuania and Articles 53, 54, and 56 of the Law of the
Republic of Lithuania on the Constitutional Court, the
Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
To recognise that the norms of Article 6 of the 2 July
1996 Republic of Lithuania Law on Amending and Supplementing of
Articles 35, 283, 284, 289, 290 and 310 of the Criminal Code
and those of the 9 January 1997 Republic of Lithuania Law on
Amending and Supplementing Article 310 of the Criminal Code
which establish criminal responsibility for manufacture,
storage, transporting, sale or any other realisation of ethyl
alcohol, denatured ethyl alcohol, ethyl alcohol for technical
use and solutions (mixtures) thereof are in compliance with the
Constitution of the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.