Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the death penalty provided
for by the sanction of Article 105 of the Republic
of Lithuania Criminal Code with the Constitution
of the Republic of Lithuania
Vilnius, 9 December 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,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representatives of the petitioner-a group of members
of the Seimas of the Republic of Lithuania-Dr. Stasys
Stačiokas, Chairman of the Seimas Legal Committee, and Egidijus
Bičkauskas, a Seimas member,
the representative of the party concerned-the Seimas of
the Republic of Lithuania-Juozas Nocius, a consultant to the
Legal Department of the Seimas Chancery,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the
Republic of Lithuania Law on the Constitutional Court, on 16
November 1998 in its public hearing conducted the investigation
of Case No. 2/98 subsequent to the petition submitted to the
Court by the petitioner-a group of Seimas members-requesting to
investigate if the death penalty which is provided for by the
sanction of Article 105 of the Republic of Lithuania Criminal
Code was in compliance with Articles 18, 19 and Part 3 of
Article 21 of the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
The petitioner-a group of Seimas members-requests to
investigate if the sanction of Article 105 of the Republic of
Lithuania Criminal Code (hereinafter in the ruling referred to
as the CC) which provides that an individual may be sentenced
to death is in compliance with Articles 18, 19 and Part 3 of
Article 21 of the Constitution.
The request of the petitioner is based on the following
arguments.
Now in force Article 105 of the CC (the wording of the
Republic of Lithuania law of 3 December 1991, the law of 8 June
1995 and the law of 30 April 1997) provides that for murder
with aggravating circumstances an individual may be sentenced
to death.
Article 18 of the Constitution indicates that the rights
and freedoms of individuals shall be inborn. The most important
human right is the right to life. Under Article 19 of the
Constitution, the right to life of individuals shall be
protected by law. Thus, there should exist no laws permitting
to deny an individual's right to life.
Part 3 of Article 21 of the Constitution provides that it
shall be prohibited to torture, injure, degrade, or maltreat a
person, as well as to establish such punishments. Even though
under Article 105 of the CC the death penalty may only be
imposed on persons who have committed a grave crime, i.e.
murder with aggravating circumstances, however, the gravity or
cruelty of crime may hardly be deemed to be the basis for the
cruelty of the punishment. In the course of carrying out of the
death sentence sufferings are caused which may be assessed as a
form of torture of a person.
II
In the course of the preparation of the case for the court
hearing, the representative of the party concerned J. Nocius
agreed with the opinion of the petitioner in that the death
penalty is not in line with the provisions of the Constitution.
The most evident contradiction is that between the
disputed criminal law and Part 3 of Article 21 of the
Constitution. Articles 22, 24 and 105 of the CC provide for a
possibility of imposition of the death penalty for murder with
aggravating circumstances, i.e. of deprivation of the life of
the offender, by shooting him. Meanwhile Part 3 of Article 21
of the Constitution stipulates that it shall be prohibited to
torture, injure, degrade, or maltreat a person, as well as to
establish such punishments. It is not directly stated in the
Constitution that it shall be prohibited to establish
punishments whereby an individual is deprived of his life, but
this is evident by itself from the context as the Constitution
prohibits to establish punishments which may injure an
individual. An individual is injured not only by flogging,
torture, cutting off a part of the body and like punishments,
which are not provided for by our criminal law, but also by
shooting, which is provided by the law. The discrepancy between
the criminal law and the Constitution would not be removed even
if this way of execution were changed to a more humane way of
execution. It is impossible to carry out the death penalty
without terminating the physiological functions of the body of
the sentenced individual, without influencing his organism so
that he would die, i.e. without injuring him in one or another
way.
III
In the course of the preparation of the case for the court
hearing, the explanations of A. J. Bačkis, the Archbishop
Metropolitan of Vilnius, E. Zingeris, Chairman of the Seimas
Human and Citizens' Rights and Nationalities Affairs Committee,
K. Pėdnyčia, Prosecutor General of the Republic of Lithuania,
Dr. T. Birmontienė, Director of the Lithuanian Centre for Human
Rights, Dr. A. Dobryninas, Head of the Social Theory Department
of the Faculty of Philosophy of Vilnius University, Dr. L.
Labanauskas, President of the Union of Physicians of the
Republic of Lithuania, Habil. Dr. V. Vadapalas, Director
General of the Department of European Law, A. Dapšys, Director
of the Law Institute, Dr. K. Stungys, Dean of the Law Academy
of Lithuania, and Dr. M. Bloznelis, Chairman of the Kolyma
Association of Political Prisoners of Lithuania, were received.
In the opinion of A. J. Bačkis, it is not allowed to
resort to the strictest means and sentence an individual to
death without a necessity. Society may be protected by other
ways. Today, upon consequent improvement of the organisation of
the penal system, the necessity to punish by death is very
rare, and in practice, perhaps, not necessary. At present in
Lithuania it is possible to protect society against offenders
by other ways, by trying to avoid to impose the death penalty.
By abolishing the death penalty, one would express esteem to
every individual's life. Besides, the abolition of the death
penalty would be a sign that one is not willing to deprive life
for life, and that it is possible to introduce more humane ways
in order to prevent crime.
E. Zingeris, on the grounds of not only legal but other
motives as well, drew a conclusion that it is necessary to
abolish the death penalty and ratify Protocol No. 6 to the
European Convention for the Protection of Human Rights and
Fundamental Freedoms.
K. Pėdnyčia pointed out in his explanation that taking
account of the complicated criminogenic situation as well as
the interests of society and the state, the death penalty may
be left in the list of punishments for a limited period of
time, while later it would be possible to refuse it, as, by the
way, is provided for by a new draft Criminal Code. The best
possible decision regarding expediency of the death penalty
could be adopted by a referendum.
In her explanation T. Birmontienė draws one's attention to
the fact that after the end of World War II during which many
lives were taken, catalogues of human rights were introduced in
various national and international documents. All they began
with an individual's right to life. This is so in one of the
most important documents on human rights issues, too, i.e. the
Universal Declaration of Human Rights adopted by the United
Nations (UN) in 1948, and which has served as the basis for
many conventions on human rights.
Taking account of the 50-year evolution of the
interpretation of the right to life as provided for by the
Universal Declaration of Human Rights, the provision of Article
19 of the Constitution whereby the right to life of individuals
shall be protected by law should be interpreted as prohibiting
not to protect by law the right to life of any individual,
including one who has committed a grave crime.
According to A. Dobryninas, the death penalty would not
contradict the right to life only in case it is proved that it
protects the life of other people. The criminological research,
however, shows that no correlation as a causal link has been
found between the death penalty and the protection of human
life. The capital punishment issue is not only a logical or
legal problem but also a political one. Both social and
political theories link the death penalty with the problem of
legitimation of power. It is through punishments that power
reveals its capacities to control society. Every punishment,
including capital punishment, reflects certain cultural and
historical aspects, and it is due to this that the public
opinion regarding the death penalty issue may change so
radically. Public opinion is a quite serious and important
element of legitimation of power, and especially in a
democratic society. Public opinion and public standpoint
concerning the death penalty largely depend on the social
safety of the public and on whether public authority is capable
of ensuring social order. This is clear from the conducted
research. The respondents were asked if they approved of the
death penalty having in mind that a dangerous criminal is
properly isolated or socially reintegrated. Most of the
respondents acknowledged that in such a case the death penalty
is not necessary. Thus, even though in general 70-80 per cent
of the respondents speak for the death penalty, but when they
are ensured that the criminal will be isolated, they change
their view. This shows that public opinion supports justice and
order.
L. Labanauskas noted that due to a very bad criminogenic
situation in Lithuania, the criminal laws of this country
should provide for capital punishment for grave crimes.
It is maintained in the explanation of V. Vadapalas that
at the present time there is an evident tendency in the world
to abolish the death penalty.
An analysis of the documents of the Council of Europe and
the European Union shows that the abolition of the death
penalty becomes a compulsory norm in Europe.
The Parliamentary Assembly of the Council of Europe
pointed out in its Recommendation 1246 (1994):
"The Assembly considers that the death penalty has no
legitimate place in the penal systems of modern civilised
societies, and that its application may well be compared with
torture and be seen as inhuman and degrading punishment within
the meaning of Article 3 of the European Convention on Human
Rights.
It recalls, furthermore, that the imposition of the death
penalty has proved ineffective as a deterrent, and, owing to
the possible fallibility of human justice, also tragic through
the execution of innocent people."
In 1994 the Council of Europe established a condition for
each state which wants to become a member of the Council of
Europe to burden itself with an obligation to abolish the death
penalty. Resolution 1044 (1994) of the Parliamentary Assembly
of the Council of Europe provides that the willingness to sign
and ratify Protocol No. 6 to the European Convention on Human
Rights and to impose a moratorium on the death penalty upon
becoming a member of the European Union should be made a
prerequisite for membership of the Council of Europe. Due to
this all new members of the Council of Europe stated that they
will meet this prerequisite. The 1997 summit of member states
of the Council of Europe urged that the death penalty be
abolished universally and that until then the current
moratorium on executions be retained.
The abolition of the death penalty is also a condition for
membership of the European Union although no legal act of the
European Union has established such a formal condition yet.
In the 10 November 1997 Conference of the Representatives
of the Governments of the Member States of the European Union
in which the Treaty of Amsterdam Amending the Treaty on the
European Union, the Treaties Establishing the European
Communities and Certain Related Acts was adopted, the
Declaration on the Abolition of the Death Penalty was adopted
also.
In the jurisprudence of the institutions of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms an apparent tendency to recognise that the application
of the death penalty may be qualified as an inhuman and
degrading punishment becomes discernible.
V. Vadapalas noted that the Republic of Lithuania has
joined certain international agreements which establish certain
limitations on the application of the death penalty, viz., the
International Covenant on Civil and Political Rights, the 1949
Geneva Convention Relative to the Treatment of Prisoners of War
and the 1949 Geneva Convention Relative to the Protection of
Civilian Persons in Time of War. Paragraph 2 of Article 6 of
the International Covenant on Civil and Political Rights
provides that "in countries which have not abolished the death
penalty, sentence of death may be imposed only for the most
serious crimes in accordance with the law in force at the time
of the commission of the crime and not contrary to the present
Covenant and to the Convention on the Prevention and Punishment
of the Crime of Genocide. This penalty can only be carried out
pursuant to a final judgement rendered by a competent court."
Paragraph 5 of the said article stipulates that "sentence of
death shall not be imposed for crimes committed by persons
below eighteen years of age and shall not be carried out on
pregnant women."
V. Vadapalas is of the opinion that the Republic of
Lithuania, which is a member of the Council of Europe and
signatory to the European Convention on Human Rights, must
abolish the death penalty in time of peace at least. Carrying
out of the death penalty in the Republic of Lithuania may be
assessed as contradicting the provisions of Part 3 of Article
21 of the Constitution and Article 3 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms.
A. Dapšys indicated in his explanation that the CC
provides for the purpose of punishment. The death penalty is
hardly compatible with the provisions of Article 21 of the CC
as the convict is ultimately deprived of an opportunity to
commit new crimes. Therefore capital punishment is not a
punishment. It is just another legalised way of deprivation of
life or physical destruction of the criminal which, in this
case, is carried out by the state.
The criminological research shows that the presence or
absence of the death penalty has little influence on the crime
rate in this country. The culprit rarely considers the
punishment at the time of the commission of the crime. Part of
murders are committed in a fit of passion. Therefore it is
impossible to maintain that the presence of the death penalty
serves as a deterrent from crimes. Part of murderers after the
commission of murder become not dangerous to society as the
actual reason of the crime (e.g. revenge) has disappeared.
The conducted research shows that part of murders for
commission of which with aggravating circumstances the CC
provides for the death penalty are committed by individuals are
partially insane or those who are on the verge of it. It means
that at present in Lithuania there is a danger that individuals
who are mentally deranged may be sentenced to death. Upon
sentencing an individual to death and carrying out this
punishment, the mistakes, which, as history shows, occur,
become irremediable. An innocent individual may become a victim
of such a mistake.
K. Stungys explained that, along with the said articles of
the Constitution, there are other normative acts which ensure
the right of an individual to life. All these acts establish
the obligation of society and its particular individuals to
respect and protect human life. The people who commit grave
crimes and consciously and maliciously murder other people are
not protected by the said legal norms which regulate normal
relations. To speak categorically against the death penalty
means to give a privilege to the murderer in respect to the
victim.
M. Bloznelis drew a conclusion that the criminal laws
should refuse the death penalty. It may only be applied in time
of war or in extreme cases.
IV
In the Constitutional Court hearing the representatives of
the petitioner virtually reiterated the arguments set forth in
the petition.
According to S. Stačiokas, the right to life is the basis
of all human rights. Without it there are no other human
rights. If the right of an individual to life is not ensured
and realised, the subject of human rights disappears after
deprivation of his life.
The preamble of the 1992 Constitution which has been
approved by the citizens of the State of Lithuania, on the
basis of the traditions of its People and that of modern
civilisation expresses an essential value of human mode of
living, i.e. to embody the inborn right of each person and the
People to live and create freely in the land of their fathers
and forefathers. Article 18 of the Constitution specifies: "The
rights and freedoms of individuals shall be inborn." Thus the
Constitution secures the inborn human rights for all and
everyone. This is a fundamental constitutionality principle of
the Constitution as well as the constitutional order which is
built on the grounds whereof: the state is obligated to protect
and safeguard the inborn human rights.
However, in the course of the drafting of the text of the
Constitution, the right of an individual to life was formulated
only by a general statement (Article 19): "The right to life of
individuals shall be protected by law." The text of the
Constitution does not say anything as for the prohibition of
the death penalty or its permissibility under certain
exceptional circumstances. This constitutional clause does not
permit to provide for any restrictions of or exceptions to this
right. The aforesaid provision is positive and not negative or
even not alternative. It is evident that it is impossible to
protect one's life by providing for an opportunity to deprive
one of his life by law. Besides, an individual's life, as a
category of subjective law, may not be differentiated. An
individual either is alive or is not alive. Life cannot be
temporarily restricted as in case of other types of punishment
(for instance, the term of imprisonment or temporary
restrictions of other rights of an individual).
S. Stačiokas emphasised that there are no reliable
scientific proofs which could justify the application of the
death penalty, and the death penalty often is a peculiar
calming of a certain part of the public that is not
sufficiently informed. It has been established, however, that
most of the criminals who commit grave crimes do not think
about the awaiting punishment at the time of crime. Thus the
death penalty, by its essence and "strictness", is not
justified as a deterrent from grave crimes.
In its essence, the death penalty is not a punishment. It
is a way of having done with individuals, which is, one way or
the other, not within the limits of law. There is always a
possibility that an innocent individual may be sentenced.
The presence of this punishment also has a direct impact
on the reform of the overall system of punishments in
Lithuania. The fact that the death penalty is still formally
lawful, supports in society a not overly positive stance in
respect to the policy of mitigation of punishments. The death
penalty only consolidates the idea that the state is a force
which, in order to protect certain public values, is capable of
making use of even the most inhuman means "in case of need."
This view is, however, not logical and it may never be true.
In its essence, the death penalty stands out in the system
of punishments, as well as the comprehension of legal
responsibility and the aims of punishment. A criminal
punishment as a means of accomplishment of criminal
responsibility has its specific objectives which are
differently emphasised in different states, however the
following points are commonly recognised: correction,
reeducation, isolation, public protection (characteristic of
the doctrine of normative law), attempt to reintegrate into
society (characteristic of social doctrines). All these matters
are linked with a concrete subject and restrictions applied to
him, which is the essence of legal responsibility (social,
material and other restrictions and limitations). The death
penalty does not correspond with the essence of the means of
accomplishment of responsibility as its implementation is
linked not with a restriction but with the "elimination" of the
subject from society.
In its essence the death penalty may not be a genuine
punishment also due to the fact that it is absolute or, in
other words, it is final and fatal. After it has been carried
out, it may not be changed. Meanwhile, justice may never be
fatal. Justice is a process but not a one-time act. In other
words, justice is implemented by always leaving an opportunity
to rectify a possible mistake or change the judgement in the
light of new circumstances. Sometimes motives are presented
that mistakes in cases wherein the death sentence is passed are
very uncommon. These motives are unacceptable as a possibility
of only one such erroneous sentence is dangerous to justice as
the most important value of people's mode of living. The
motives justifying the death penalty which are presented in
this case at law may not be held valid, either. Even in this
century in a number of states there have been cases when a
court made a fatal mistake in passing the death sentence.
Concerning the request of a group of Seimas members
whether the provisions of the CC on the death penalty are in
compliance with Part 3 of Article 21 of the Constitution, the
representative of the petitioner pointed out that from a
psychological standpoint one of the most touchy aspects of the
abolition of the death penalty is the relation between the
murderer and his victim. The criminal must receive a proper
punishment for the crime committed. A murderer must be punished
with the most severe punishment: an alternative to the death
penalty is life imprisonment. This is a permanent restriction
of all his human rights but his right to life is preserved.
However, the prevailing public view is that such a punishment
is not adequate to the crime committed and the grief of the
nearest and dearest of the victim. The constitutional problem
is whether the adequacy of the criminal action is the same
action in respect to the criminal. On the psychological basis
such a stance is understandable. However, if this logic is
applied to other categories of crimes, it becomes clear that
the principle that "a criminal action must be punished by the
same action" is unacceptable. The criminal who has maimed his
victim may not be maimed in like manner. This is unacceptable
to modern civilisation part whereof is our Constitution as
well.
The representative of the petitioner E. Bičkauskas
underlined that the death penalty issue is inseparable from the
general policy of punishments, as well as the issues of
punishments becoming more severe and more rational. Since 1990
till now in Lithuania the crime rate has more than doubled. The
number of individuals sentenced for imprisonment has increased
more than 3 times. If compared to European countries, these are
one of the biggest numbers. Today there are already 300,000
residents of Lithuania who have been sentenced for
imprisonment. The effective CC, even though virtually
completely amended after the Soviet times, is, perhaps, one of
the most severe in Europe and it is further being developed in
the direction of making it stricter. Thus the combat with crime
is often a mere appearance. For example, after the punishment
for thefts of vehicles had been made more severe, there were
not less thefts, but, on the contrary, there were more of them.
One of the most popular arguments justifying the death penalty
is that on its abolition crime would increase further, as well
as there would be more murders. It is maintained that the death
penalty is a deterrent. However, in reality making punishments
more severe has not any impact on the crime rate. Certain data
received after questioning individuals who committed crimes
punishable by death shows that even nine out of ten were not
thinking at the time of the commission of the crime about the
awaiting punishment. In the general conclusion of the results
of the investigation into possibilities of the abolition of the
death penalty conducted on the initiative of the United Nations
it is pointed out that no scientifically grounded data which
could confirm that the death penalty is a greater deterrent
than life imprisonment have been obtained. This is also shown
by the practice of the states which refused this punishment.
Since 1996 in Lithuania the death penalty has not been carried
out. This is known by the public, as well as the criminal
world, but during this time period there was a significant
decrease in murders. Thus, it is possible to assume that the
impact of the application of such a punishment in the combat
with crime is often overestimated. The death penalty as well as
limitless making other punishments more severe is not the key
to the solution of the problems of crime but it creates an
illusion that crime is fiercely fought against and it diverts
one's attention from much more complex solutions. It has been
established that most of the individuals who for murder have
been sentenced not to death behave in the place of their
confinement much better than those imprisoned for crimes of
different nature. Their rate of repeated crimes is, if compared
to the others, even less. In Lithuania there has been not any
analysis of death sentences. In 1987, after a similar
investigation into the subject had been conducted in the USA,
it was established that even 350 individuals from among those
who were executed in 1900-1985 were innocent. The death penalty
totally deprived of a possibility to rectify the mistake. It is
also possible to state that there were also such individuals
among those who had been sentenced to death who would not have
committed any crime in the future. Society has many
possibilities to show its negative attitude to the crime and
the criminal without the death penalty. The right to life is
the basis of all human rights, therefore the death penalty
issue is not only a legal problem or that of the combat with
crime. This is a moral problem which is common to all society
and due to the existence whereof the main human rights are
violated. Inborn human rights are granted not by the state,
therefore it has hardly any right to confer them for good
behaviour or to deny them for misbehaviour.
V
In the Constitutional Court hearing, the representative of
the party concerned additionally pointed out that the sanction
of the effective Article 105 of the CC providing for the death
penalty virtually has not been amended after the adoption of
the new Constitution. The Seimas did not abolish the death
penalty but it formulated new wordings of Articles 22 and 24 of
the CC which provide for the death penalty. On 21 April 1998
the CC was supplemented by Article 71 on genocide by the
sanction of Part 2 whereof the death penalty is provided for
also. It means that the Seimas actually is for the death
penalty.
The representative is of the opinion that the attitude of
the petitioner that the death penalty contradicts Article 18 of
the Constitution is subject to discussion. The Constitution
holds that freedom of individuals shall be protected by law.
The freedom of an individual is also an inborn right which is
protected by law. However, courts often give punishment of
imprisonment for commission of a crime. The effective CC even
provides for life imprisonment.
VI
In the Constitutional Court hearing the specialists-E.
Zingeris, Chairman of the Seimas Human and Citizens' Rights and
Nationalities Affairs Committee, T. Birmontienė, Director of
the Lithuanian Centre for Human Rights, A. Dobryninas, Head of
the Social Theory Department of the Faculty of Philosophy of
Vilnius University, V. Vadapalas, Director General of the
Department of European Law, spoke. They virtually reiterated
their arguments set forth in writing.
The Constitutional Court
holds that:
1. In the Criminal Code the death penalty is referred to
in four articles: Article 22 of the general part of the CC
which establishes the system of punishments; Article 24 which
defines the exclusive nature of the death penalty; as well as
Article 105 of the special part of the CC which provides for
the death penalty for murder with aggravating circumstances;
and Article 71 which provides for the death penalty for
genocide with aggravating circumstances.
Defining the system of punishments, Article 22 of the CC
exhaustively, in a certain order, sets forth all types of
punishments as an indivisible whole. This system establishes
punishments of different content and strictness, and which by
individual punishments or in combination with the others
permits to seek the ends raised to the punishment. In Article
22 of the CC all punishments are grouped into main and
complementary. One of the four main punishments is the death
penalty. Along with it, the said article provides for
imprisonment, correctional labour without imprisonment and a
fine. It is also established by the article that, in cases
provided for by the law, the convicts may be given
complementary punishments together with the main ones.
Defining the death penalty, Article 24 of the CC specifies
that it is an exclusive punishment. The exclusive nature of the
death penalty is determined by the following circumstances:
(1) This punishment may be given for two crimes only as
provided for by the CC, i.e. murder with aggravating
circumstances and genocide. (2) The death penalty may be
imposed only when the murder which is specified by Article 105
of the CC is completed. (3) The death penalty may not be
imposed, and, if imposed, carried out on women and persons who
at the time of the commission of the crime were under eighteen
years of age. Nor may the death penalty be imposed when the law
permits the court to decide whether to bring someone to
criminal responsibility and carry out the judgment in cases
when a crime punishable by death has been committed but the
prescription period has ended also. In case the court
recognises that it is impossible to apply prescription in a
concrete case, the death penalty is changed for imprisonment.
(4) A court, after it has imposed the death sentence on an
individual, may change it by life imprisonment. (5) The death
penalty may be changed for life imprisonment under the amnesty
or clemency procedure.
The common features of the crime of genocide are specified
in Part 1 of Article 71 of the special part of the CC. These
are actions by means of which one attempts to destroy all or
part of the population belonging to a certain national, ethnic,
racial, religious, social or political group, and which are
manifested by brutal torture, heavy bodily injuries, impediment
of the mental development of the members of the said groups; by
purposeful creation of such living conditions by means of which
one attempts to destroy all or part of such a group of people;
by coercive shift of children from these groups into the other
or by use of means by which one attempts to restrict birth.
Such actions are punishable by imprisonment from five to twenty
years.
Part 2 of the said article provides that the actions which
are specified by Part 1 thereof in case they manifest
themselves by murder of people, as well as by orchestrating and
directing the actions specified by Parts 1 and 2 of the said
article, shall be punishable by imprisonment for ten to twenty
years, or life imprisonment, or the death penalty.
Article 105 of the CC provides for the death penalty for
murder with aggravating circumstances: of one's father or
mother; of two or more individuals; of a pregnant woman; by a
way which is dangerous to the life of many people; in an
especially brutal manner; in the course of the commission of
another grave crime; for the purpose of hiding another grave
crime; on selfish motives; on hooligan motives; in connection
with exercising the state or citizen duty by the victim; in
case this was committed (save Articles 106 and 107) by an
especially dangerous recidivist; in case this has been
committed by a person who committed a murder before as provided
for by Articles 104 and 105 of this Code; of a child or an
individual in a helpless condition. The commission of these
deeds is punishable by imprisonment for ten to twenty years or
the death penalty.
2. The petitioner doubts whether the sanction of Article
105 of the CC which provides that an individual may be imposed
the death penalty for murder with aggravating circumstances is
in compliance with Articles 18, 19 and Part 3 of Article 21 of
the Constitution.
It is noteworthy that after the petitioner had filed his
petition to requesting to investigate the constitutionality of
the disputed norm, on 21 April 1998, the Seimas passed the
Republic of Lithuania Law on Supplementing the Criminal Code by
Articles 62 (1), 71 and Amending and Supplementing Articles 8
(1), 24, 25, 26, 35, 49, 54 (1), 89 Thereof (Official Gazette
Valstybės žinios, No. 42-1140, 1998) whereby the CC was
supplemented by Article 71 which provides for responsibility
for genocide.
As the petitioner does not raise the question of the
compliance of the death penalty specified by the sanction of
Article 71 of the CC with the Constitution, the Constitutional
Court will only investigate whether the death penalty as
established by the sanction of Article 105 of the CC is in
conformity with Articles 18, 19 and Part 3 of Article 21 of the
Constitution. Alongside, the Constitutional Court notes that
the sanction of Article 105 of the CC is directly linked with
the norms established by Articles 22 and 24 of the general part
of the said Code. Therefore the conformity of the death penalty
as established by the sanction of Article 105 of the CC with
the Constitution will be investigated by one taking account of
the said norms of the general part of the CC.
3. Deciding the issue whether this punishment as provided
in the sanction of Article 105 of the CC is in compliance with
the Constitution, one has to take account of the fact that the
Constitution is an integral act in various articles whereof the
protection of human life has been consolidated. It is also
important to assess corresponding trends of the attitude of the
international community regarding the death penalty, the
international obligations of the State of Lithuania, and the
experience of historical development of the State of Lithuania
in establishing this punishment in criminal laws. Thus the
problem of the lawfulness of the death penalty must be
investigated from various aspects.
3.1. The preamble of the Constitution promulgates that the
Lithuanian nation strives for an open, just, and harmonious
civil society and law-governed state. One of the most important
ways to implement this striving is consolidation of a
democratic, humanistic legal order on the basis of
constitutional provisions and principles.
A just and harmonious civil society and law-governed state
is decided, among other features, by security of every
individual and society on the whole from criminal attempts. To
ensure such security is one of the priority tasks of our modern
state. In order to implement it, measures are prepared which
help to create pre-conditions to restrain crime as a social
phenomenon.
It is unequivocally recognised by the doctrine of
criminology that any measure intended for crime restraint (a
criminal punishment, a moral or preventive measure, or that of
educating nature, activities of courts or other institutions of
law and order, etc.), if taken separately, does not produce the
intended effect, i.e. it does not ensure people's security.
Besides, it should be noted that even though it is attempted to
reduce crime by united measures, the visible changes become
evident not at once. Social upheavals, distortion of moral
values and other negative factors may continue to influence the
anti-social behaviour of people.
In attempt to bar the way to crimes, the most important is
an effectively implemented system of various preventive
measures. However, it is impossible to block all crimes. A
person who has committed a crime must be found and respectively
punished. Just and prompt punishment is of preventive
significance also. A criminal punishment, however, has its
specific features. A criminal punishment is a reaction of the
state to the crime which has already been committed. This is a
coercive measure by the state, which is imposed on a person who
has committed a crime by an incriminating sentence and which
restricts the rights and liberties of the convict. According to
the doctrine of criminal law, the essence of punishment is a
punishment of an individual who has committed a crime, while
its content is restriction of certain rights and liberties of
the convict. The restrictions and hindrances experienced by the
convict are objective features of punishment, or else they
would lose their meaning.
It is emphasised in criminal law that severity of
punishment (the degree of the punishment) must correspond with
the nature of the crime committed and the degree of its danger,
as well as the personality of the criminal and the
circumstances of the case which either extenuate or aggravate
the responsibility. In a certain respect, the restrictions and
hindrances which are established to the convicted person is a
retribution for the crime that he has committed. The modern
theory of criminal law, however, categorically dissociates
itself from the talion principle (an eye for an eye, a tooth
for a tooth) which existed in ancient societies and states.
By a criminal punishment it is attempted to influence an
individual who has committed a crime so that he would never
commit new crimes, i.e. to correct the criminal, as well as to
influence the other members of society so that they would not
commit crimes. Alongside, the violated law and order are
restored. To achieve these ends, a corresponding system of
punishments is established in criminal laws, and sometimes very
severe punishments dominate in this system. Among them the
death penalty takes an exceptional place which, by its cruelty,
should deter potential criminals from commission of crimes. The
death penalty is a physical termination of an individual, it is
deprivation of his life irrespective of the way this is done:
by shooting, hanging, lethal injection or any other way.
However, this punishment is more and more controversially
assessed in the modern society. The opinion that the
establishment of the death penalty in criminal laws virtually
means that the state devalues human life has a sufficiently
strong support. Meanwhile, such devaluation of life influences
the whole society, it makes it more brutal, while in morality
revenge is comprehended as an appropriate measure by which the
unlawful behaviour is responded. This is also manifested by a
constant dissatisfaction of people in cases when too mild
punishments are given and by the demand that punishments be
made more and more severe. However, as the experience of
foreign countries and Lithuania shows, the establishment of
severe punishments in itself does not block the way to crimes.
One of the results of the policy of making punishments more
severe of late years was that for more than 40 per cent of the
convicts the actual punishment of imprisonment has been given,
however this did not put a stop to the increase of crime (see
Crime and the Activity of the Institutions of Law and Order,
Vilnius, 1998, pp. 11-20, Lithuanian version). In this
connection one should recall the founder of the classical
criminal law C. Beccaria who more than 200 years ago maintained
that severe punishments make society itself more severe.
Finally, deciding the question of lawfulness of the death
penalty one has to take into consideration the fact that the CC
provides for other very severe punishments as well:
imprisonment for up to twenty five years or for life. These
punishments are provided for a much wider circle of crimes and,
in this respect, may make a greater impact on blocking the way
to crimes.
3.2. It is established in Part 1 of Article 135 of the
Constitution that in conducting foreign policy, the Republic of
Lithuania shall pursue the universally recognised principles
and norms of international law, shall strive to safeguard
national security and independence as well as the basic rights,
freedoms and welfare of its citizens, and shall take part in
the creation of order based on law and justice.
Part 3 of Article 138 of the Constitution provides that
international agreements which are ratified by the Seimas of
the Republic of Lithuania shall be the constituent part of the
legal system of the Republic of Lithuania.
Interpreting these articles of the Constitution, it needs
to be noted that the State of Lithuania, recognising the
principles and norms of international norms, may not apply
virtually different standards to the people of this country.
Holding that it is a member of the international community
possessing equal rights, the State of Lithuania, of its own
free will, adopts and recognises these principles and norms,
the customs of the international community, and naturally
integrates itself into the world culture and becomes its
natural part.
Deciding the issue of life protection and the question of
the death penalty linked with the latter, the international
community has had to go along a difficult and controversial
path.
Under the influence of humanistic ideas, some states began
to abolish the death penalty as early as the end of the 19th
and the beginning of the 20th century. International agreements
on restriction of the death penalty and its final abolition
were began to be prepared after World War II.
One of the first international documents which raised the
issue of the death penalty on the universal level was the
Universal Declaration of Human Rights which was adopted on 10
December 1948 at the General Assembly of the United Nations. It
is specified in Article 3 of the Declaration that everyone has
the right to life, liberty and security of person. Even though
this was not a direct indication to the restriction or
abolition of the death penalty, however it is evident that the
right to life is inseparably linked with the death penalty. In
other words, it is possible to assert that Article 3 of the
Declaration predicts a perspective of the refusal of the death
penalty. This is also confirmed by the account rendered by UN
Secretary General in 1973 wherein it was maintained that it is
from Article 3 of the Declaration that the restriction and,
finally, abolition of the death penalty are advanced. In the
18th UN General Assembly many states approved the thesis that
Article 3 of the Declaration and the abolition of the death
penalty were to be considered inseparable subjects. It is
noteworthy that at the time of the drafting of the Declaration,
attention was drawn to the fact that the death penalty
abolition issue may also be linked with its Article 5 which
prohibits torture and cruel, inhuman treatment or punishment.
In 1966 the UN General Assembly adopted the International
Covenant on Civil and Political Rights which was joined by
Lithuania on 20 November 1991. In Lithuania it came into force
on 20 February 1992. This Covenant is assessed as an
international agreement and attributed to the category of
agreements of action as it obligates the states which have
recognised it to take concrete actions to implement its
provisions. Article 6 of the Covenant includes more issues and,
furthermore, is directly devoted to the death penalty. It
provides:
1. Every human being has the inherent right to life. This
right shall be protected by law. No one shall be arbitrarily
deprived of his life.
2. In countries which have not abolished the death
penalty, sentence of death may be imposed only for most serious
crimes in accordance with law in force at the time of the
commission of the crime.
3. When deprivation of life constitutes the crime of
genocide, it is understood that nothing in this article shall
authorise any State Party to the present Covenant to derogate
in any way from any obligation assumed under the provisions of
the Convention on the Prevention and Punishment of the Crime of
Genocide.
4. Anyone sentenced to death shall have the right to seek
pardon or commutation of the sentence.
5. Sentence of death shall not be imposed for crimes
committed by persons below eighteen years of age and shall not
be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to
prevent the abolition of capital punishment by any State Party
to the present Covenant.
Thus the Covenant is oriented towards 2 essential
provisions: (1) the death penalty may only be applied for the
most serious crimes and by strict adherence to the procedure
established by law; (2) the abolition of the death penalty is
an objective of the international model of human rights.
In 1989 the UN General Assembly adopted the Second
Optional Protocol to the International Covenant on Civil and
Political Rights. Article 1 of the said Protocol provides: (1)
no one within the jurisdiction of a State Party to the present
Protocol shall be executed; (2) Each State Party shall take all
necessary measures to abolish the death penalty within its
jurisdiction.
The said Protocol permits no reservations for the states
in providing for the death penalty except for a most serious
crime committed in time of war. Besides, under the Protocol the
notion war must be construed in a more narrow sense, i.e. it
does not include conflicts of non-international nature.
The Second Optional Protocol to the Covenant finished a
certain stage of the evolutionary process regarding the issue
of the abolition of the death penalty on a world scale. Even
though the ratification process of the Second Optional Protocol
which became effective on 11 July 1991 is not very fast, it
reflects the principal attitude of the international community
towards the death penalty.
It is necessary to note that a similar process concerning
the abolition of the death penalty took place in Europe as
well. Since its establishment, the Council of Europe has held
that one of the most important directions of its activity is
ensuring the respect for human rights, as well as
particularisation and more resolute implementation of the
documents adopted by the UN.
On 4 November 1950, ten member states of the Council of
Europe signed the European Convention for the Protection of
Human Rights and Fundamental Freedoms which went into effect on
3 September 1953.
Article 2 of the Convention provides:
1. Everyone's right to life shall be protected by law. No
one shall be deprived of his life intentionally save in the
execution of a sentence of a court following his conviction of
a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted
in contravention of this article when it results from the use
of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the
escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a
riot or insurrection.
The Convention and its Article 2 was orienting the member
states of the Council of Europe to the abolition of the death
penalty, while Protocol No. 6 concerning the death penalty
which was adopted on 28 April 1983 already categorically
prescribed:
1. The death penalty shall be abolished. No one shall be
condemned to such penalty or executed.
2. A State may make provision in its law for the death
penalty in respect of acts committed in time of war or of
imminent threat of war; such penalty shall be applied only in
instances laid down in the law and in accordance with its
provisions. The State shall communicate to the Secretary
General of the Council of Europe the relevant provisions of
that law.
3. No derogation from the provisions of this Protocol
shall be made under Article 15 of the convention.
4. No reservation may be made under Article 64 of the
Convention in respect of the provisions of this Protocol.
Thus the Council of Europe unequivocally urges the member
states of this Council to abolish the death penalty.
It is noteworthy that on 27 April 1995 the Seimas of the
Republic of Lithuania ratified the European Convention for the
Protection of Human Rights and Fundamental Freedoms. Alongside,
it ratified the First Protocol, Protocols Nos. 4, 7 and 11 to
the Convention. However Protocol No. 6 to the Convention has
not been ratified which, as mentioned, demands that the death
penalty be abolished without reservations.
The Council of Europe has discussed the death penalty
issue for many a time, and every time it more vigorously
demanded that the death penalty should be abolished. On 4
October 1994 the Parliamentary Assembly of the Council of
Europe adopted Recommendation 1246 on the abolition of capital
punishment wherein it pointed out: the Assembly considers that
the death penalty has no legitimate place in the penal systems
of modern civilised societies, and that its application may
well be compared with torture and be seen as inhuman and
degrading punishment within the meaning of Article 3 of the
European Convention on Human Rights.
In addition, the Assembly recalled that the imposition of
the death penalty had proved ineffective as a deterrent, and,
owing to the possible fallibility of human justice, also tragic
through the execution of innocent people. The Assembly held
that there was no reason why capital punishment should be
inflicted in wartime, when it was not inflicted in peacetime.
On the contrary, the Assembly was of the opinion that there
were weighty reasons why the death penalty should never be
inflicted in wartime: wartime death sentences, meant to deter
others from committing similar crimes, are usually carried out
speedily so as not to lose their deterrent effect. The
consequence, in the emotionally charged atmosphere of war, is a
lack of legal safeguard and a high increase in the risk of
executing an innocent prisoner.
On 4 October 1994, the Parliamentary Assembly of the
Council of Europe adopted Resolution 1044 wherein the following
essential provisions were set down:
"[...]3. In view of the irrefutable arguments against the
imposition of capital punishment, it calls on the parliaments
of all member states of the Council of Europe, and of all
states whose legislative assemblies enjoy special guest status
at the Assembly, which retain capital punishment for crimes
committed in peacetime and/or in wartime, to strike it from
their statute books completely.
5. It invites all member states of the Council of Europe
who have not yet done so, to sign and ratify Protocol No. 6 to
the European Convention on Human Rights without delay. [...]
6. The adequate implementation of the additional protocol
to the European Convention on Human Rights should be a matter
of continuous concern to the Assembly and the willingness to
ratify the protocol be made a prerequisite for membership of
the Council of Europe."
The Parliamentary Assembly of the Council of Europe was
debating on the question of the abolition of the death penalty
once again in 1996 and adopted Resolution 1047 and
Recommendation 1302 wherein virtually analogous requirements
were set down.
On 13 June 1997, the European Parliament was deliberating
on the question of the abolition of the death penalty and
adopted a Resolution wherein it was pointed out:
"1. Reaffirms its strong opposition to use of the death
penalty anywhere in the world and calls on all countries to
adopt a moratorium on executions and abolish the death penalty.
[...]
3. Calls on those European states that retain the death
penalty, without having recourse to it, to abolish it
definitively for all crimes as rapidly as possible. [...]
8. Considers that the abolition of the death penalty must
be taken into account in all negotiations concerning
partnership and cooperation agreements."
An analysis of the documents of the Council of Europe and
the European Union shows that the abolition of the death
penalty is becoming a universally recognised norm, while
Protocol No. 6 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms is signed by all member
states of the Council of Europe except Albania, Bulgaria,
Cyprus, Lithuania and Turkey. It was signed but has not been
ratified by Belgium, Latvia, Russia and Ukraine. In reality,
the requirement to abolish the death penalty has been
implemented. At present the death penalty is not carried out in
any European state.
Thus there is an evident trend in contemporary criminal
law of European countries: a criminal punishment ought to
combine punishment with preservation of humaneness, respect
towards an individual and his dignity, while the aim of
punishment would be to restore the violated order and to ensure
security of people. Social reintegration of a person who has
committed a crime, his education to respect laws during the
service of the sentence, are of importance. The significant
principle of criminal laws is that the punishments provided for
therein should not be more severe than necessary for correction
of a person who has committed a crime so that he would not
commit another crime in the future.
3.3. Reviewing the historical practice of the legal
regulation of the death penalty in Lithuania it needs to be
noted that the most prominent monument of Lithuanian law-the
Statutes of the Great Duchy of Lithuania (the First Statute of
1529, the Second Statute of 1566 and the Third Statute of
1588)-provided for restrictions of application of the death
penalty. It could be imposed by a court only. The execution was
the concern of either the court or the aggrieved party.
Under the Statutes, the death penalty was not to be
imposed when the crime was committed in case of unavoidable
necessity or indispensable defence. This penalty was not
applied to servants who committed a crime following the order
of their master, as well as persons who killed a traitor or an
outlaw.
At that time minors, pregnant women or persons who had
committed crimes out of foolishness or madness were pardoned
from the application of the death penalty. In addition, the law
permitted the parties to the case to become reconciled at any
time: they could do so prior to a court decision or after it.
In the State of Lithuania, the death penalty abolition
issue was discussed at the beginning of the 20th century right
after the declaration of the independence of Lithuania in 1918.
On 16 January 1919, the Presidium of the State Council of
Lithuania adopted the Provisional Law on Courts of Lithuania
and Settling of Activities Thereof (Official Gazette
Vyriausybės žinios, Nos. 2-3, 1919) whereby the 1903 Criminal
Statute of Russia was transferred into the legal system of
Lithuania. Making it effective in Lithuania, virtually all
articles providing for the death penalty save Article 108
(treason) were abolished. However, the death penalty could not
be applied by this article either, as by the introduced
provisions of the law it was established that instead of the
death penalty an individual was to be sent to prison of hard
labour. Thus, in the absence of extreme circumstances in the
state, during the restoration period of the independence of
Lithuania, the death penalty was abolished de jure, and it
reflected its clear orientation to creation of a progressive
democratic state. Alongside, it should be noted that due to
certain historical circumstances this attempt was not
implemented entirely.
The Constituent Seimas deliberated on the death penalty
abolition issue in Lithuania once again. On 28 May 1920 it
passed the Law on the Moratorium on the Death Penalty whereby
suspended executions until the adoption of the amnesty law and
constitutional decision of this issue. On 10 June 1920, after
the Provisional Constitution of the State of Lithuania had been
adopted, its Article 16 provided: "The death penalty shall be
abolished." In the note to this article it was indicated that
"in time of war, as well in order to eliminate a threat to the
State, the constitutional guarantees may be suspended by law."
The 1922 Constitution of the State of Lithuania did not
regulate the death penalty issue. It was left to be decided by
ordinary laws. Taking account of the fact that in 1920-1940
during the independence period in the greater part of the
territory of the State of Lithuania there was the state of
emergency, the death penalty was provided for in laws and
actually applied.
After the Soviet Union had occupied Lithuania in 1940, in
its territory the Criminal Code of the Russian Soviet
Federative Socialist Republic was made effective which provided
for the death penalty for a great number of the so-called
counter-revolutionary, state and other crimes. After the
retroactive effect of the law of the foreign state had been
established, under the CC of the Russian Soviet Federative
Socialist Republic thousands of people of Lithuania were
punished by death.
3.4. On restoration of the independence of Lithuania on 11
March 1990, the Criminal Code which had been adopted during the
occupation time, was left to be in effect which provided for
the death penalty for eighteen state and criminal crimes and
sixteen military crimes. It is noteworthy that the Lithuanian
supreme institutions of power have considered the death penalty
issue for many a time and adopted essential decisions on
restrictions of its application.
As early as in the 3 December 1991 Law "On Amending and
Supplementing the Republic of Lithuania Criminal Code, the Code
of Criminal Proceedings and the Code of Correctional Labour",
the number of crimes for which the death penalty was provided
for was diminished to 1 which was for the finished purposeful
murder with aggravating circumstances which was provided for by
Article 105 of the CC.
The 19 July 1994 Law "On Amending and Supplementing the
Republic of Lithuania Criminal Code, the Code of Correctional
Labour, and the Code of Criminal Proceedings" provided that the
death penalty might not be imposed, and if imposed, it might
not be carried out for women, persons who were under the age of
eighteen at the time of the commission of the crime, as well as
persons who were recognised partially insane. Furthermore, it
was established that a court, sentencing a person to death, may
replace this punishment by life imprisonment. The death penalty
may also be replaced by life imprisonment under the clemency
procedure.
The President of the Republic, by his decree of 25 July
1996, submitted to the Seimas for debating a draft law on the
moratorium on carrying out the death penalty. In the opinion of
the President of the Republic, upon the adoption of such a law,
temporarily, until a new Republic of Lithuania Criminal Code is
approved wherein the necessity of the death penalty might be
decided finally, carrying out of this punishment would be
suspended. Although the draft law submitted by the President of
the Republic has not been passed, however, since 1996 the death
penalty which is imposed by courts has not been carried out as
the President of the Republic has not considered the appeals
for clemency of these persons. Without this procedure the death
penalty may not by carried out.
In 1996 the Government submitted to the Seimas for
debating a new draft Republic of Lithuania Criminal Code
wherein the death penalty is not provided for.
On 27 April 1997 the death penalty issue was discussed by
the Baltic Assembly. In the adopted resolution it recommended
that the parliaments of the three Baltic states and their
governments prepare to ratify Protocol No. 6 to the European
Convention for the Protection of Human Rights and Fundamental
Freedoms. Alongside the Baltic Assembly recognised that the
inevitable preconditions for the adoption of such a decision
are:
considerable decline in the crime rate as compared to the
present state, especially with respect to grievous crimes
against the person;
the introduction of life imprisonment into the legal acts
which at present allow to impose the death penalty;
essential reorganisation and reform of the prison system
by bringing it into line with standards accepted in Europe and
creating possibilities for separate detention of persons having
committed criminal offences of different degrees.
On 24 June 1997, the Seimas considered a draft resolution
of analogous content, and its subsequent adoption is on the
agenda of the Seimas. It is noteworthy that the 22 September
1997 Recommendation 1339 of the Parliamentary Assembly of the
Council of Europe assessed it as providing a legal basis for
the current moratorium and meeting a pre-condition for
ratification of Protocol No. 6 of the European Convention on
Human Rights.
4. On the compliance of the sanction provided for by
Article 105 of the CC with Article 18 of the Constitution.
Article 18 of the Constitution provides: "The rights and
freedoms of individuals shall be inborn." The inborn nature of
human rights means that they are inseparable of an individual,
that they are linked with neither a territory nor a nation. An
individual possesses his inborn rights regardless of whether
they are entrenched in legal acts of the state or not. These
rights are enjoyed by every individual, and it means that they
are enjoyed by the best and worst people alike.
The Constitutional Court notes that human life and dignity
are distinguished from among the inborn rights by the
international community. The International Covenant on Civil
and Political Rights recognises the inherent dignity of all
members of the human family and that the human dignity is the
main source of rights as the rights of an individual "derive
from the inherent dignity of the human person."
Human life and dignity constitute the integrity of a
personality and they denote the essence of an individual. Life
and dignity are inalienable properties of an individual,
therefore they may not be treated separately. The inborn human
rights are inborn opportunities of an individual which ensure
his human dignity in the spheres of social life. They
constitute that minimum, that starting point from which all the
other rights are developed and supplemented, and which
constitute the values which are unquestionably recognised by
the international community.
Thus human life and dignity, as expressing the integrity
and unique essence of the human being, are above law. Taking
account of this, human life and dignity are to be assessed as
exceptional values. In such a case, the aim of the Constitution
is to ensure the protection and respect of these values. These
requirements are, first of all, raised for the state in the
first place.
The Constitutional Court, treating the human rights and
freedoms which are entrenched in Chapter 2 of the Constitution
as an integral catalogue, draws one's attention to the
peculiarities of the wording of these rights and freedoms. As a
rule, the fundamental rights listed in this chapter of the
Constitution, are presented as a common norm. However, when
there are exceptions to this norm, they are pointed out. For
example, Article 20 of the Constitution provides: "Personal
freedom shall be inviolable." Part 2 thereof establishes a
prohibition arbitrarily to arrest or detain a person except on
the bases, and according to the procedures, which have been
established in laws. Article 23 of the Constitution provides:
"Property shall be inviolable," while Part 3 thereof stipulates
that property may only be seized for the needs of society
according to the procedure established by law and must be
adequately compensated for. Article 21 of the Constitution
establishing that "human dignity shall be protected by law,"
later in its Part 2 specifies that it shall be prohibited to
degrade, or maltreat a person, as well as to establish such
punishments. In like manner the constitutional articles on the
inviolability of the private life of an individual (Article
22), the inviolability of a person's dwelling place etc. are
formulated. Meanwhile, Article 19 of the Constitution contains
only one common norm: "The right to life of individuals shall
be protected by law." Thus it is to be assumed that the norm of
Article 19 provides for no exception permitting to deprive life
on behalf of the state.
Therefore it is possible to assert that the exceptional
protection of the inborn rights as provided for by Article 18
of the Constitution blocks the way to the establishment of the
death penalty in the sanction of Article 105 of the CC.
5. On the compliance of the sanction provided for by
Article 105 of the CC with Article 19 of the Constitution.
Article 19 of the Constitution provides: "The right to
life of individuals shall be protected by law." As mentioned,
human life is recognised as the highest value by law of
democratic countries. This is perceived from the notions which
are employed to denote it: "one of the main rights", "the main
of all rights", "the foundation and cornerstone of all the
other rights", "the necessary pre-condition of all the other
rights", "the most fundamental of all human rights" etc. Such a
legal assessment is absolutely understandable. The rights of a
particular individual exist as long as he is alive, as rights
in general are devoted for harmonisation of relations among
individuals. One has to draw attention to the fact that the
Constitution demands that the right to life but not life itself
be protected by laws.
The right to life of an individual is ensured by a rather
broad system of legal means which is established by the
Constitution itself as well as a number of other laws. The
legal regulation together with moral, religious and other
social norms is, first of all, devoted for the protection of
the right to life of an individual.
The norms of the criminal law which provide for a
responsibility for commission of unlawful actions by which
human life has been attempted at constitute a separate group.
These are, first of all, the legal norms which provide for a
responsibility for murder with aggravating circumstances.
Article 105 of the CC provides that murder with aggravating
circumstances shall be punished by life imprisonment or the
death penalty. Thus the law provides that human life is
protected by threatening that the culprit who has committed
such a murder may be deprived of his life as well. Therefore
the question arises whether such a protection of the right to
life by the criminal law is in compliance with the protection
of such a right which is established by the Constitution.
The Constitutional Court has noted that the protection of
common interests in a democratic state under the rule of law
may not deny a concrete human right in general. Such a solution
of the problem is linked by the doctrine of human rights and
freedoms, as well as by international and domestic law which
are based on it, with a rational proportion ensuring that the
restrictions will not violate the essence of a respective human
right. As noted above, the right to life is an inborn right of
every individual. It is indivisible. Either there is life, or
there is not life. Either the accused may be deprived of his
life or not by a court sentence. In the latter case another
punishment is given. After imposition of the death penalty and
upon the execution, a human life is ceased. Alongside, the
inborn right to life of that individual which is protected by
the norm of the Constitution is denied.
Article 105 of the CC establishes a sanction providing for
an alternative between the death penalty and imprisonment,
which also raises an additional constitutional problem deriving
from the said indivisible nature of the death penalty. It is
noteworthy that all the sanctions provided for by the CC have
been constructed in such a way that a court could choose its
appropriate interval and give a just punishment. Thus a court,
conforming to the basics of impositions of punishments which
are established by criminal laws, chooses an optimal punishment
provided for by the sanction and gives it to the prisoner at
the bar. There occurs an essential difference when the death
penalty is imposed. In such a case a court has only an option
that it may either impose it or not to impose it. However, the
law does not indicate unequivocally as to when the death
penalty must be imposed. Therefore it is possible to assert
that in such a case the final decision concerning the
imposition of the death penalty depends not on the law but on
the court as well. Thus, the decision whether to impose the
death penalty or not may depend on the psychological state of
the judges (compassion, or, on the contrary, strictness, fear
to adopt a wrong decision etc.), the professionalism and
activity of the defence or the prosecution, as well as a number
of other subjective circumstances.
Finally, attention should be drawn to the circumstance
that the court may face a difficulty to judge on the basis of
objective criteria as to what individual deserves to be
punished by death and what to be imprisoned for life. Besides,
no matter what guarantees are ensured in the criminal
proceedings of a state under the rule of law, one should not
reject a possibility of a mistake. As it is evident from the
judicial practice of various states, it is impossible to
protect courts from such mistakes, meanwhile, after the death
penalty has been carried out, there exist no opportunities to
rectify such a mistake. The possibility itself that a person
who does not deserve it or who is innocent may be sentenced to
death is not in line with the right to life which is guaranteed
by the Constitution.
6. On the compliance of the sanction provided for by
Article 105 of the CC with Part 3 of Article 21 of the
Constitution.
Part 3 of Article 21 of the Constitution provides: "It
shall be prohibited to torture, injure, degrade, or maltreat a
person, as well as to establish such punishments." The
prohibition to torture, injure, degrade or maltreat an
individual is also entrenched in a number of international
documents: the International Covenant on Civil and Political
Rights (1966), the Declaration on the Protection of All Persons
from Being Subjected to Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (1975), the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (1984), the European Convention for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (1987). The latter was ratified by the Seimas of the
Republic of Lithuania on 15 September 1998.
The European Court of Human Rights, investigating the Case
of Ireland v. the United Kingdom (1978), defined the types of
prohibited treatment as follows:
torture-deliberate inhuman treatment causing very serious
and cruel suffering;
inhuman treatment or punishment-infliction of severe
mental or physical suffering;
degrading treatment or punishment-treatment such as to
arouse in the victim a feeling of fear, anguish and inferiority
capable of humiliating and debasing him and possibly breaking
his physical or moral resistance. However, "degrading" may not
be interpreted only as disagreeable or unacceptable.
First of all, it should be noted that, like international
documents, Part 3 of Article 21 of the Constitution first of
all links the prohibition to torture, injure, degrade, maltreat
a person, as well as that to establish such punishments, with
the activities of the state and its respective institutions. It
means that such prohibitions are established in attempt to
protect an individual from unlawful actions of a state official
or any other person authorised by the state.
Analysing the treatment which is prohibited by the
Constitution, it needs to be noted that not every action of an
official which has unpleasant effects for an individual may be
recognised as unlawful. For instance, there are negative
consequences and, in certain respect, suffering after the
sanctions which are provided for in the criminal law and which
are recognised by the international community have been applied
(for example, imprisonment, a fine, restriction of rights,
etc.) and which determine a certain restriction for a person.
They constitute a compulsory element of punishment and there
never arise problems as to their lawfulness. It means that such
cases when, for instance, a suspect is detained or a person is
punished by imprisonment following a court decision, and due to
this the person suffers or experiences certain inconveniences,
may not be treated as punishments prohibited by the
Constitution.
The death penalty is to be assessed differently. It is
commonly recognised that it is cruel. However, it is impossible
not to mention this aspect: it is provided for murder committed
under aggravating circumstances. Thus, one is to hold that in
such a case two aspects of cruelty come into collision: the
cruelty of the crime and that of the punishment. Still, one has
to recognise that the cruelty of the crime by itself does not
counterbalance the cruelty of the death penalty. Meanwhile,
constantly repeated acts of cruelty cannot not exert influence
over the socio-psychological state of society and the tolerance
for constant promotion of cruelty.
Assessing the death penalty through the prism of the
treatment which is prohibited by the Constitution, its specific
aspect is revealed. Degradation of the dignity of the convict
derives essentially from the cruelty of the death penalty
itself. The cruelty manifests itself by the fact that after the
death sentence has been carried out, the human essence of the
criminal is negated as well, he is deprived of any human
dignity, as the state in that case treats the person as a mere
object to be eliminated from the human community.
7. Assessing the protection of human life which is
entrenched in the Constitution, it needs to be noted that a
comparatively great number of grave crimes committed are one of
the most important arguments of not only people but also
institutions that think that at present it is too early to
abolish the death penalty in the criminal laws of Lithuania.
One should not avoid assessing the criminogenic situation,
as it is complicated indeed. However, the death penalty can
influence only the dynamics of those crimes for which the death
penalty is provided for, i.e. murders with aggravating
circumstances, as it is known that such punishment is not
provided for for other criminal offences. The direct
correlative link between the death penalty and the number of
murders, however, has not been established anywhere. Besides,
in Lithuania, during the time period of 1996-1998 when the
death penalty was not carried out, there was no increase in the
number of registered murders.
On the other hand, people's security is reflected not only
by a greater or smaller number of murders, although it is these
crimes that cause people greatest fear. The growth of crime
rate and the increase of violent crimes of late years is not
only linked with the damage inflicted to the victims and their
violated dignity but also shows the actual degree of security.
This is to be assessed as one of the most important
preconditions why most people demand punishments of maximum
severity, and tend to approve of the death penalty which, in
their opinion, is a necessary means ensuring security.
It needs to be noted that in case people's security is not
sufficiently taken care of, even though the death penalty is
abolished, a psychological need may arise to reintroduce it.
This is confirmed by cases when in European countries the
criminal laws of which have not contained the death penalty for
a long time, the people who have experienced a stress due to a
very grave murder begin promptly to demand to reintroduce it.
It means that it is important not only to decide the issue of
whether it is or it is not possible to abolish the death
penalty but also actually to ensure people's security.
8. Taking account of the arguments set forth in the
stating part of the present Ruling, as well as the entirety of
the norms of the Constitution adopted by a referendum of the
People and which protects the right of individuals to life and
dignity, the Constitutional Court holds that the Constitution
does not contain any prerequisites permitting to establish the
death penalty in the norm of the law. Therefore a conclusion is
to be drawn that the death penalty for murder with aggravating
circumstances provided for by the sanction of Article 105 of
the Republic of Lithuania Criminal Code contradicts Articles
18, 19 and Part 3 of Article 21 of the Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
To recognise that the death penalty for murder with
aggravating circumstances provided for by the sanction of
Article 105 of the Republic of Lithuania Criminal Code
contradicts Articles 18, 19 and Part 3 of Article 21 of 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.