Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Parts 4 and 5 of Article 255,
Part 4 of Article 256, Part 4 of Article 260 and
Parts 1, 2 and 6 of Article 280 of the Republic of
Lithuania Code of Criminal Procedure with the
Constitution of the Republic of Lithuania
Vilnius, 5 February 1999
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 representative of the petitioner-the Vilnius Regional
Court-Kristina Paleckaitė, a judge,
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 19
January 1999 in its public hearing conducted the investigation
of Case No. 5/98 subsequent to the petition submitted to the
Court by the petitioner-the Vilnius Regional Court-requesting
to investigate if Parts 4 and 5 of Article 255, Part 4 of
Article 256, and Part 4 of Article 260 of the Republic of
Lithuania Code of Criminal Procedure were in compliance with
Parts 1 and 2 of Article 109, Parts 1 and 2 of Article 118,
Part 2 of Article 31, and Article 20 of the Constitution of the
Republic of Lithuania, as well as whether Parts 1, 2 and 6 of
Article 280 of the Code of Criminal Procedure were in
compliance with Parts 2 and 6 of Article 31, Part 1 of Article
109 and Part 1 of Article 118 of the Constitution.
The Constitutional Court
has established:
I
On 29 October 1997, in its procedural sitting the Vilnius
Regional Court was investigating a criminal case wherein two
persons were charged with crimes provided for by Parts 1 and 2
of Article 82, Part 2 of Article 207, Part 2 of Article 312 of
the Republic of Lithuania Criminal Code.
The Vilnius Regional Court suspended the case and appealed
to the Constitutional Court with the petition requesting to
investigate whether Parts 4 and 5 of Article 255, Part 4 of
Article 256, and Part 4 of Article 260 of the Code of Criminal
Procedure (hereinafter referred to as the CCP) were in
compliance with Parts 1 and 2 of Article 109, Parts 1 and 2 of
Article 118, Part 2 of Article 31, and Article 20 of the
Constitution, as well as whether Parts 1, 2 and 6 of Article
280 of the CCP were in compliance with Parts 2 and 6 of Article
31, Part 1 of Article 109 and Part 1 of Article 118 of the
Constitution.
II
The request of the petitioner is based on the following
arguments.
The data of the case permit to assert that the preliminary
investigation in the case was in essence incomplete, moreover,
it is impossible to complement it during the trial, therefore
the norms of Articles 255 and 260 of the CCP are to be applied.
However, it is clear from the content of Part 4 of Article 255
and Part 4 of Article 260 that the said norms create such a
procedural relation between the judge and either the
investigator or the interrogative body, that the judge has to
assess the quality of the work of the investigator or the
interrogative body. After it becomes clear that the work of the
investigator has been performed, in essence, in an
unsatisfactory manner, the court has the right to rectify it by
itself: by not referring the case back for completing the
investigation but suspending the case it obligates the
investigator or the interrogative body to present new evidence
and sets the term during which this work must be accomplished.
Such a practice of the court is not in line with the content of
justice implementation which is set down in Part 1 of Article
109 of the Constitution. The petitioner is of the opinion that
in cases when there is in essence incomplete preliminary
investigation, the disputed norms excuse public prosecutors
from the control over the activities of the interrogative and
investigative bodies, while their function is transferred to
the court even though the court must administer justice in
cases but never to exercise control over the activities of the
interrogative bodies and investigators.
In the opinion of the petitioner, there exist grounds to
assert that the disputed norms which unreasonably diminish the
scope of the constitutional duties and responsibilities of
public prosecutors in cases when the preliminary investigation
is in essence incomplete restrict the powers of the judiciary.
These norms do not permit the court to refer the case back in
order to complement the investigation, while the right of the
prosecutor to refer the case back in order to complement the
investigation as provided for by the norms of Article 238 of
the CCP is, in any case, unconditional. This virtually creates
supremacy of the prosecutor over the court and violates the
principle of the independence of judges and the court when
justice is administered. In this case, the court becomes
directly dependent on the prosecutor. In cases when the court
applies the norms of Part 4 of Article 255 and those of Part 4
of Article 260 it becomes dependent on the investigator or the
interrogative body which are obligated by the court to find new
evidence. Even though instructions of the court are mandatory
for the interrogative body or the investigator but the CCP does
not contain any norms which would compel the interrogator or
the investigator to carry out the instructions of the court.
The petitioner doubts whether the disputed norms of the
CCP are in compliance with the provision of impartiality of the
court which is contained by Part 2 of Article 31 of the
Constitution. After the judge has given instructions to the
investigator or the interrogative body, he maintains
organisational ties with the investigator or the interrogator
when they become acquainted with the material of the case that
they need. The case remains under the supervision of the court
therefore such ties inevitably acquire the nature of interest.
The constitutionality of the norm of Part 4 of Article 255
of the CCP is being disputed as the said norm provides for not
adequate means for removing the drawback which has been
indicated by the court. The effective wording of Article 255 of
the CCP provides for two insufficiencies of the preliminary
investigation: an essential violation of the law of criminal
procedure and an essential incompleteness of the investigation.
The law, however, provides for different removal of such
drawbacks. In the case that there was an essential violation of
the criminal law in the course of the preliminary
investigation, then the court adopts a ruling to refer the
criminal case back in order to complement the investigation. In
the case that the court has established an essential
incompleteness of the investigation, the court is not permitted
to refer the case back in order to complement the
investigation. Both said drawbacks are linked with each other
as a whole and its part, i.e. an essential incompleteness of
the investigation is, alongside, an essential violation of the
criminal law as well. In cases when the circumstances of a case
are in essence incompletely investigated, the court is
obstructed to investigate the case in full extent and
objectively, the rights of the parties to the proceedings are
violated, as well as conditions are created to influence the
judgement.
The petitioner is of the opinion that the norms of Part 4
of Article 255, Part 4 of Article 256 and Part 4 of Article 260
of the CCP which provide for the manner of evidence collection
when the case remains with the judge and upon its suspension,
violate the right of indicted persons to a fair trial which is
provided for by Part 2 of Article 31 of the Constitution.
Upon suspension of a case, there, as a rule, remain the
conditions and grounds for imposition of the pretrial detention
determined during the preliminary investigation. Then the
length of the pretrial detention depends on the length of the
suspension of the case. However, the disputed norms permit to
treat this length in an ambiguous way, and this creates
conditions to delay carrying out the instructions of the court.
The petitioner concludes that the provisions of Part 4 of
Article 255, Part 4 of Article 256 and Part 4 of Article 260 of
the CCP contradict Article 20 of the Constitution.
In the opinion of the petitioner, the norms of Parts 1, 2
and 6 of Article 280 of the CCP concerning the changing of the
accusation during the trial are doubtful as they violate the
right of persons to defence which is established by Part 6 of
Article 31 of the Constitution. According to the petitioner,
alleviating or escalating the accusation under Article 280 of
the CCP, the court undertakes the functions of the prosecutor.
This violates the limits of functions of courts and prosecutors
which are established by Part 1 of Article 109 and Part 1 of
Article 118 of the Constitution, as well as the right of
indicted persons to an impartial trial which is established by
Part 2 of Article 31 of the Constitution.
In the court hearing, the representative of the petitioner
virtually reiterated the arguments set forth in the petition to
the Constitutional Court and requested that the disputed norms
of the CCP be recognised to be contradicting the Constitution.
III
In the course of the preparation of the case for the
judicial investigation, an explanation of P. Ancelis, the
representative of the party concerned, a consultant to the
Legal Division of the Seimas, was received. Therein it is
maintained that Article 118 of the Constitution underlines the
institutions which operate alongside of the court and create
respective pre-conditions for lawful and just essential
decision of criminal cases rather than the separation of
functions in the judiciary. The provision "in the Republic of
Lithuania, the courts shall have the exclusive right to
administer justice" of Part 1 of Article 109 of the
Constitution expresses the right of a judicial institution to
implement justice but it does not mean that the court performs
only this function by ostensibly staying apart from performance
of other functions. The broader tasks of courts in the criminal
procedure are clearly indicated by the right of the court to
decide the question of detention of a person as provided for by
Part 2 of Article 20 of the Constitution, by the right to
collect information concerning the private life of an
individual by a court order as provided for by Part 3 of
Article 22 of the Constitution, by the right to enter a
person's dwelling place by a court order as provided for by
Part 2 of Article 24 of the Constitution. The legislator links
the activities of courts not only with administration of
justice upon investigation of a criminal case in a court
hearing but also with a possibility to block the way to
possible abuses of human rights and freedoms by applying
measures of detention as well as other measures of procedural
suppression, by procedural control of the interrogation in
cases investigated by summary proceedings etc.
In the opinion of the representative of the party
concerned, upon reference back of the case in order to
complement the investigation, quite often the prospect of
judicial investigation of the case is completely ruined as the
evidence is changed, versions are raised and checked, the
significance of other evidence is devalued, the investigation
of the case is procrastinated. The tasks of criminal procedure
is prompt and complete exposition of crimes, inculpation of the
culprits and proper application of the law so that every person
who has committed a crime would be given a just punishment,
while under Article 1 of the CCP these tasks are mandatory for
the court as well. Therefore, the disputed norms of the CCP
ought to be applied, but cases should not be referred back in
order to complement the preliminary investigation.
The representative of the party concerned is of the
opinion that the petitioner is wrong when he maintains that
under Article 118 of the Constitution the function of criminal
prosecution is carried out by public prosecutors only. This is
clearly reaffirmed by Article 3 of the CCP: "the court, the
public prosecutor, the investigator and the interrogative body
must, within their powers, institute a criminal case in every
case when the signs of a crime come to light, as well as to
resort to all measures provided for by the law so that the
event of crime and the persons guilty of crime would be
established and that they would be punished." The function of
criminal prosecution is more conspicuous in judicial cases
instituted subsequent to the claim of the victim as in such
cases the preliminary investigation is not performed at all
(Part 3 of Article 126 of the CCP).
In the opinion of the representative of the party
concerned, the allegation of the petitioner concerning an
ostensible violation of the principle of contention is
groundless as well.
In the opinion of the representative of the party
concerned, there exist no contradictions between the norms of
Part 4 of Article 255, Part 4 of Article 256, Part 4 of Article
260 of the CCP and those of Article 20 of the Constitution
which protect the freedom of individuals as the necessity and
particularity of the measure of pretrial detention may without
restrictions be chosen by the court (Articles 65, 98, 106, 112
and 249 of the CCP) irrespective of the degree or influence of
the participation of the prosecutor in this procedure.
The representative of the party concerned noted that the
whole criminal procedure is divided into consistent phases
wherein certain participants take part while tasks peculiar
only to this concrete phase are solved with corresponding
guarantees of their solution which are established in the law.
The opportunity for the judge to give instructions directly to
the investigator or the interrogative body to present new
evidence is linked with a wish of the legislator to block the
way to procrastination of decisions in cases at law due to
formal grounds. It is to be noted that in such a case the
prosecutor may not entirely keep away from the control over the
activities of the interrogation or the investigator.
The representative of the party concerned is of the
opinion that the argumentation of the petitioner concerning the
non-compliance of the provisions of Part 4 of Article 255, Part
4 of Article 256 and Part 4 of Article 260 of the CCP with that
of Part 2 of Article 31 of the Constitution is groundless. Even
though the petitioner maintains that after the judge has given
instructions to the investigator or the interrogative body he
establishes organisational ties with the investigator or the
interrogator and later such ties inevitably acquire the nature
of interest, however, the defence as well as other participants
to the proceedings often additionally become acquainted with
the criminal case which is already at court.
The representative of the party concerned is of the
opinion that the norms of the CCP which are disputed by the
petitioner are in compliance with the Constitution.
IV
In the course of the preparation of the case for the court
hearing, an explanation of the specialist Dr. G. Goda, an
associate professor at the Department for Criminalistics and
Criminal Procedure of the Law Faculty of Vilnius University,
was received.
It is maintained therein that the Constitution does not
contain any procedural rules establishing the phases of
investigation of criminal cases as well as the procedure as to
how the case is handed over from one phase into the next one
etc. The Constitution also does not mention anything as for the
role of the court regarding the collection and investigation of
evidence. The grammatical comparison of the provisions of the
Constitution and those of the CCP do not provide for any reason
to speak about any contradictions or disagreements.
In the opinion of the specialist, the constitutional
provision that only the court shall administer justice means in
the criminal legal proceedings that it is only the court that
may recognise that a person is guilty of commission of a crime
and give him a punishment. However, the court can establish
that the person committed a crime only if it has the evidence
proving the guilt of the accused. The Constitution does not
provide that in the case the court must adopt a decision on the
grounds of only that evidence which has been presented by the
parties and that it may not show any initiative on its own in
this sphere. In criminal proceedings it is necessary to make an
attempt to establish the material truth and not only to limit
oneself with the establishment of the formal truth. Therefore
in a situation when the court, seeing that in order to
establish the material truth in the case it is necessary and
possible to acquire new evidence, would not resort to any
measures to demand and obtain this evidence, it would mean not
implementation of justice but refusal to implement justice.
It is not correct to name the reference back of cases for
complementing the investigation the most rational and effective
way. The assertions of the petitioner that the discussed norms
of the CCP legalise the violation of the distribution of
functions among the investigator, the prosecutor and the court
which is established by the Constitution are groundless as
well. The requirement by the court to present new evidence does
mean taking back the control function enjoyed by the prosecutor
over the activities of the interrogative bodies and the
investigator. The court demands new evidence so that it may be
able properly to accomplish its duty, i.e. fairly to decide the
case. It is also incorrect to assert that the demand by the
court to present new evidence equals to the accomplishment of
the control over the activities of the interrogative bodies and
the investigators because the content of the notion of control
is different and much more diversified (Articles 141 and 160 of
the CCP).
In the opinion of the specialist, the doubt that the court
by changing the accusation loses its impartiality and takes
over the functions of the prosecutor is groundless as well. If,
in the course of the investigation of the case in court it
becomes clear that the accused may be recognised guilty under a
different charge, i.e. when there are signs of another criminal
deed in the deed of the accused, then, doubtless to say, the
accused must stand trial and be convicted for the deed which he
has committed. Until the CCP amendments of 10 June 1993, in
cases when the accusation had to be changed by escalating it,
the case used to be referred back in order to complement the
investigation. Quite often, however, it used to mean noticeable
procrastination of the proceedings, although the bodies of
preliminary investigation had to perform mere formal actions
without establishing any new factual circumstances. Therefore
it was decided that in cases when the accusation had to be
changed without changing the factual aspect of the case it was
not necessary to refer the case back to the investigation while
it was possible to do so in the course of the judicial
investigation.
The specialist noted that the norms of criminal procedure
constitute a consistent system. Therefore by applying the
disputed norms of the CCP, pretrial detention (incarceration)
may only be applied in case there are the bases for pretrial
detention (incarceration) which are directly listed by the CCP.
Upon disappearance of the basis due to which pretrial detention
(incarceration) was imposed, the pretrial detention
(incarceration) for a person must immediately be ended or
changed with another measure of suppression.
In the opinion of the specialist, the provisions of Parts
1, 2 and 6 of Article 280 of the CCP are in compliance with
Parts 2 and 6 of Article 31, Part 1 of Article 109 and Part 1
of Article 118 of the Constitution.
V
In the course of the preparation of the case for the
judicial investigation, explanations by D. Vansevičius,
Chairman of the Vilnius City First District Court, and by V.
Masiokas, Chairman of the Kaunas City District Court, were
received wherein virtual agreements were expressed with the
statements set forth by the petitioner.
The Constitutional Court
holds that:
In Lithuania, the criminal procedure is established by the
CCP which was adopted as early as 1961. Upon the restoration of
the independence of the Republic of Lithuania, the norms of the
said legal act have been amended and supplemented for many a
time. By the amendments of the regulation of procedural
relations it was attempted to conform the criminal procedure to
the new conditions as well as to eliminate the elements alien
to democratic systems.
By the norms of the criminal procedure it is attempted to
create conditions by lawful means to protect society against
criminal deeds. Alongside, it needs to be noted that another
aim of the criminal procedure, which is to ensure the
protection of the rights and freedoms of indicted persons, is
of no less importance. Sufficient protection means as well as
their guarantees in the criminal procedure create preconditions
to evade unreasonable criminal prosecution of persons as well
as unjust punishments.
The system of the norms of the CCP must be grounded on the
principles of democracy (equality before the law and court,
presumption of innocence, public and fair investigation of
cases, impartiality and independence of the court and judges,
separation of the functions of the court and other subjects of
criminal procedure, guarantee of the right to defence etc.)
which are established by the Constitution. It needs to be noted
that by amending the elements of a codified system the
functioning of the whole such system is influenced. However,
even in those cases it is important to ensure the harmony and
consistency of the system. Therefore in the course of the legal
assessment of the norms of individual articles of the CCP one
has to take account of their relation not only with the
Constitution but also with the system of criminal procedure
which is established by the CCP.
The relations of the court with other state institutions
or officials, as well as the nature of its actions in criminal
procedure are determined by the principle of the separation of
powers established by the Constitution. Particularising this
principle, Part 1 of Article 109 of the Constitution prescribes
that in the Republic of Lithuania the courts shall have the
exclusive right to administer justice. This norm establishes
that the courts are the only state institution administering
justice. No other state institution nor any other official may
accomplish this function. The court accomplishes this function,
conforming to a certain procedure of proceedings which is
regulated by the law.
The functions of public prosecutors and investigators as
subjects of criminal procedure are established by Article 118
of the Constitution. It is provided therein that public
prosecutors shall prosecute criminal cases on behalf of the
State, shall carry out criminal prosecutions, and shall
supervise the activities of the interrogative bodies, while
pretrial interrogation shall be carried out by investigators.
Thus it is public prosecutors who are entitled with these
functions: criminal prosecution, public charge, control over
the activities of interrogative bodies.
1. On the compliance of Parts 4 and 5 of Article 255, Part
4 of Article 256 and Part 4 of Article 260 of the CCP with the
Constitution.
Parts 4 and 5 of Article 255 entitled Reference of the
case back in order to complement the investigation of the CCP
provides:
"In cases when the court by bringing the accused to trial
recognises that the preliminary investigation was in essence
incomplete, and that it is impossible to complement it during
the trial, then the court, by not referring the case back to
complement the investigation, by its ruling shall obligate the
investigator or interrogative body to present new evidence
while it shall suspend the criminal case.
The instructions of the court shall be mandatory for the
investigator or the interrogative body. By giving the
instructions, the court shall establish the term within which
the said instructions must be carried out."
Part 4 of Article 256 of the CCP regulating the suspension
of a criminal case provides: "In the event that the court
recognises that the preliminary investigation is in essence
incomplete and it gives instructions to the investigator or the
interrogative body to present new evidence, the court shall
adopt a ruling to suspend the case until the new evidence is
received."
Part 4 of Article 260 entitled The actions of the judge
taken for preparation of the court hearing of the CCP provides:
"In the event that the preliminary investigation is incomplete
in essence while it is impossible to complement it during the
trial, by his ruling the judge shall give instructions to the
investigator or the interrogative body to present new evidence
and shall suspend the case until the new evidence is received.
The court must make the participants to the proceedings
familiar with the newly acquired evidence prior to the judicial
examination."
The disputed norms virtually regulate relations of one
type, therefore the Constitutional Court will investigate the
compliance of the whole group of the said norms with he
Constitution.
1.1. In the opinion of the petitioner, the disputed norms
of the criminal procedure violate the provisions of Part 1 of
Article 109, and those of Parts 1 and 2 of Article 118 of the
Constitution dealing with the separation of the functions of
courts, prosecutors and investigators as the actions prescribed
by the disputed norms mean not justice administration but
control over the investigator and the interrogative body which
is characteristic of the prosecutor. Besides, by these norms
the court is also burdened with the function of criminal
prosecution as well.
The Constitutional Court notes that the provision of Part
1 of Article 109 of the Constitution whereby justice is
administered by the courts only, means in criminal procedure
law that a person may not by recognised guilty of a commission
of a crime nor may he be given a criminal punishment save by a
court judgement and by the law. During the trial, a court of
first instance, implementing this function, must thoroughly,
fully and objectively investigate all the circumstances of the
criminal case and decide the case in essence. It is only the
court that may recognise that a person is guilty and sentence
him.
Parts 1 and 2 of Article 118 of Chapter 9 entitled The
Court of the Constitution establish that public prosecutors
shall prosecute criminal cases on behalf of the State, shall
carry out criminal prosecutions, and shall supervise the
activities of the interrogative bodies, while pretrial
interrogation shall be carried out by investigators. The
Constitution treats prosecutors as part of the judiciary which
accomplishes special functions. Thus the prosecutor is an
official who is in charge of pretrial investigation and who is
responsible for the fact that a person is reasonably brought to
responsibility. The competence, rights and duties of the
prosecutor are established by the law. To implement the
functions of the prosecutor, the CCP provides for respective
rules. Under the law, the prosecutor shall be autonomous and
independent.
Comparing the norms of Part 1 of Article 109 with those of
Parts 1 and 2 of Article 118 of the Constitution it becomes
clear that the constitutional function of the
court-administration of justice-is different than the
preliminary investigation, criminal prosecution or support of
the charge. Administering justice, the court investigates
criminal cases and decides whether the accused are guilty or
innocent and gives them criminal punishments or acquits them.
The norms of Parts 4 and 5 of Article 255, Part 4 of
Article 256 and Part 4 of Article 260 of the CCP are set forth
in Section 23 entitled Bringing the accused before trial and
the preparatory actions for the court hearing of Chapter 4
entitled Case procedure at the court of first instance of the
CCP. Elucidating the question of the compliance of the disputed
norms with the Constitution, one has to take account of the
aims and peculiarities of this phase of criminal procedure.
In the phase when the accused is brought to trial and when
preparations are made for the trial the question of guilt of
the accused is not decided. The judge or the court during its
procedural sitting draws preliminary conclusions only,
therefore the evidence of the case are not investigated but it
is decided whether there are enough data to investigate the
case in trial. By in essence investigating the case in trial,
the court is not bound by the decision to bring the accused to
trial. If the questions listed in the CCP are decided
attentively and justly during the procedural sitting,
pre-conditions are created properly and in essence to
investigate the case.
The public prosecutor may take part in the criminal case
from its very beginning. He has broad powers in the phase of
the initiation of the civil case and that of the preliminary
investigation. Under the procedure established by laws, he
initiates criminal prosecution and, investigating the crime, he
accomplishes actions of prosecution. One of his functions is
control over the institutions which carry out the preliminary
investigation. The prosecutor, under the procedure established
by laws, controls the interrogation and is in charge of it,
attempting that the interrogative bodies would, precisely under
the requirements of laws, resort to all possible actions of
search and procedure so that they could establish the person
who has committed the crime and against whom they might
initiate criminal prosecution. The prosecutor may interrogate
himself as far as any crime is concerned. The prosecutor in
charge of the interrogation may remove the interrogator from
the investigation of a concrete crime etc. for violations of
laws as well as for failing to accomplish the instructions
given by the prosecutor.
Upon accomplishing the preliminary investigation and
considering that there are enough grounds to bring the accused
to trial, the investigator draws up an indictment. The case,
together with the indictment, is handed over to the prosecutor.
Investigating the case together with the indictment, the
prosecutor must check on the grounds of the case material,
whether there was a deed of which the accused is being accused,
whether there is corpus delicti in the said deed, whether the
preliminary investigation was performed thoroughly, fully and
objectively, whether the accusation is grounded on the evidence
that there is in the case, whether the criminal law was applied
properly etc. Upon recognising that there are grounds to pass
the case over to court and that the indictment is drawn up
properly, the prosecutor confirms the indictment. After this,
he passes this case over to court. Thus the prosecutor is
responsible for the pretrial phase of criminal procedure. Only
properly prepared cases must be passed over to court.
The obligation of the court is to use all means possible
in order to establish the truth in a criminal case. Alongside,
it needs to be noted that striving for these ends, the court
may not overstep the limits of the justice administration
functions which are established by the Constitution.
Assessing the legal situation provided for by the disputed
norms of the CCP under which the court, by its ruling,
obligates the investigator or the interrogative body to present
new evidence, one has to take account of the following
circumstances.
First, the disputed norms of Parts 4 and 5 of Article 255
of the CCP link the instructions of the court to the
investigator or the interrogative body with a recognition that
the preliminary investigation is in essence incomplete. It
means that in the case the circumstances are not clarified
which are of essential importance for bringing an accusation.
In other words, it is held that the pretrial investigation, the
prosecutor is in charge of and responsible for, has been
carried out improperly. Therefore, upon recognition that the
case has been prepared improperly, one has to recognise the
obligation of the court to request new evidence which is
established by the disputed norms as setting to decide the
tasks raised for the prosecution. By such a procedural
regulation conditions are created to hand unprepared criminal
cases over to trial. Alongside, the Constitutional Court draws
one's attention to the fact that the commission for the court
of appeal instance to obligate the investigator or the
interrogative body to perform the required investigative
actions which is provided for by Part 8 of Article 378 of the
CCP is linked not with virtually incomplete preliminary
investigation but the circumstances which have not been
established during the preliminary investigation.
Second, a criminal case in the course of which the court
has given obligations to the institutions of preliminary
investigation remains at the disposal of the court. However,
the law does not grant the court any procedural means which
could ensure that such an obligation be carried out properly
and in due time. It is to be noted that it is the prosecutor
who enjoys procedural means to exercise control over
preliminary investigation.
Third, the court obligates not the prosecutor who has
presented the case to the court to present new evidence but
directly the investigator or the interrogative body. After it
becomes clear that the preliminary investigation has in essence
been incomplete, such a requirement by the court shows that the
court, in a sense, has taken the functions of the prosecutor
who is responsible for the preliminary investigation of the
case. This permits to believe that in the actions of the court
there appear elements of criminal prosecution which are
uncharacteristic of justice implementation.
Taking account of these arguments and motives, it is to be
concluded that the disputed norms of Parts 4 and 5 of Article
255, Part 4 of Article 256 and Part 4 of Article 260 are not in
line with the requirements of Part 1 of Article 109, and Parts
1 and 2 of Article 118 of the Constitution.
1.2. In the opinion of the petitioner, the disputed norms
of the CCP restrict the powers of the judiciary and make the
court dependent on the actions of the prosecutor, the
investigator and the interrogative body.
Part 2 of Article 109 of the Constitution prescribes:
"While administering justice, judges and courts shall be
independent." This constitutional norm is linked with Part 2 of
Article 31 of the Constitution whereby every indicted person
shall have the right to a fair and public hearing by an
independent and impartial court.
The independence of courts and judges is one of the most
important principles in justice implementation. The
establishment of this principle not only in Chapter 9 The Court
but also in the norm of Part 2 of Article 31 of the Chapter 2
The Individual and the State of the Constitution indicates that
the independence of the court and the judge is, first of all, a
necessary condition for protection of human rights and
freedoms.
The oath which the judge takes before taking office under
Part 6 of Article 112 of the Constitution also obligates him to
be independent. The judge swears "to be faithful to the
Republic of Lithuania and to administer justice only pursuant
to law, to protect the rights, freedoms and lawful interests of
people, always to be conscientious, humane and never damage the
name of the judge by improper behaviour".
The principle of the independence of the court is
entrenched in many international documents as well. Article 10
of the Universal Declaration of Human Rights provides that
everyone is entitled in full equality to a fair and public
hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any criminal
charge against him. On 29 November 1985, the General Assembly
of the United Nations by its resolution 40/32 and by its
resolution 40/146 of 13 December 1985 approved "Basic
Principles on the Independence of the Judiciary".
Paragraph 1 of Article 6 of the European Convention for
the Protection of Human Rights and Fundamental Freedoms
provides that everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial
tribunal established by law.
On 13 October 1994, the Committee of Ministers of the
Council of Europe adopted recommendation No. R (94) 12 "On the
Independence, Efficiency and Role of Judges". A responsibility
of judges is consolidated therein whereby judges must act
independently in all cases and free from any outside influence,
and conduct cases in an impartial manner in accordance with
their assessment of the facts and their understanding of the
law, to ensure that a fair hearing is given to all parties and
that the procedural rights of the parties are respected
pursuant to the provisions of the European Convention for the
Protection of Human Rights and Fundamental Freedoms. It is also
required in some cases that judges withdraw from a case or
resort to other measures so that the independence and
impartiality of courts would be fully implemented.
Upon assessment the whole-complex of the guarantees for
the independence of judges and courts, in its 5 December 1995
ruling the Constitutional Court noted that they are closely
interrelated: "[...] Therefore, the independence of judges and
court in general may not be examined on the basis of one
element, no matter how salient it may be. On the other hand, it
must be admitted that if any of the safeguards guaranteeing the
independence of judges and court are violated, it would impede
administration of justice and protection of human rights and
freedoms."
An important aspect of the independence of the judge and
the court in criminal procedure is the independence of the
court in deciding all questions linked with cases under
investigation. The CCP norms establish that the court has the
right to join or separate criminal cases, to dismiss a case
during a trial, to refer a case back in order to complement the
investigation etc. It is only the court that decides how it has
to investigate a criminal case. The court is independent in all
phases of the criminal case which is under its investigation,
as well as in the phase of bringing the accused to trial and
preparation for trial.
With regard to the independence of the court, the fact
that the court follows respective norms of the CCP does not
mean in itself that its independence is denied. The court must
follow the norms of the CCP in all cases even though it
recognises that the preliminary investigation has in essence
been incomplete.
Taking account of the arguments set forth, a conclusion is
to be drawn that the disputed norms of Parts 4 and 5 of Article
255, Part 4 of Article 256 and Part 4 of Article 260 of the CCP
are in compliance with the provisions on independence of courts
contained in Part 2 of Article 109 and Part 2 of Article 31 of
the Constitution.
1.3. The petitioner doubts whether in the course of
application of the disputed norms of Part 4 of Article 255,
Part 4 of Article 256 and Part 4 of Article 260 of the CCP the
principle of the impartiality of courts as well as the right of
indicted individuals to a fair investigation of his case by a
court is not violated.
Part 2 of Article 31 of the Constitution provides that
every indicted person shall have the right to a fair and public
hearing by an independent and impartial court. This
constitutional provision consolidates the principle of the
right of individuals to proper court proceedings. Conformity to
it is a necessary condition to decide a case fairly.
Guaranteeing individuals' rights in court proceedings, one has
by legal norms to ensure that the proceedings be carried out
conscientiously, professionally, that the rights of the parties
to the proceedings be respected, and that an impartial judge
investigate the case.
Links may be traced between the provisions contained by
Part 2 of Article 31 of the Constitution with the norm of
Article 6 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms providing for the right
of every individual to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law.
Besides, in attempt to ensure fair investigation of cases,
the CCP provides that the judge may not investigate the case at
any phase of the procedure in cases when he was formerly the
victim, the civil claimant or respondent in that case, or if he
participated in the case as a witness, prosecutor, an expert
etc. Under such circumstances the judge must withdraw from the
case. The law of criminal procedure provides that on the same
grounds the prosecutor, the accused, the defence, as well as
other indicated participants to criminal procedure, may demand
that the judge withdraw from the case.
It needs to be noted that in a similar manner these
procedural relations are treated by the European institutions
for human rights protection as well. For instance, the European
Court of Human Rights in its decision of 26 October 1984
adopted in the case De Cubber vs. Belgium (Publications de la
court Européenne des droits de l'homme. Publications of the
European Court of Human Rights. Série A: Arrźts et decisions.
Series A: Judgements and decisions, Vol. 86) emphasized that
the same individual may not be the judge and the investigating
judge in the proceedings, while in the 1 October 1982 case
Piersack vs. Belgium (Publications de la court Européenne des
droits de l'homme. Publications of the European Court of Human
Rights. Série A: Arrźts et decisions. Series A: Judgments and
decisions, Vol. 53) the same conclusion was drawn on the
grounds of the fact that the president of a court earlier acted
as a public prosecutor in the same case.
In attempt to justify the contested norms of the CCP
sometimes one bases himself on the laws of criminal procedure
of other states, most often Austria and Germany. It is
maintained that the laws of criminal procedure of Austria
provide that a court, taking account of requests of the
parties, may commission the investigating judge to perform
additional investigative actions in the phase of intermediary
procedure. In Germany, during intermediary procedure a court,
in attempt better to investigate the circumstances of a case,
is entitled to give instructions to present special evidence.
It needs to be observed that the aforesaid legal
regulation is applied in a different system of criminal
procedure norms. For example, the actions of the court are not
linked with in essence incomplete preliminary investigation
etc. Therefore these examples negate rather than substantiate
the conformity of the disputed norms with the system of
procedural norms established by the CCP of Lithuania.
The stipulation of the Constitution to investigate the
case fairly presupposes the fact that the court must justly
establish the actual circumstances of the case and justly to
apply criminal laws. Safeguarding of the impartiality of the
court is one of the conditions for just investigation of cases.
The same condition would be separation of functions of the
subjects of procedural activities. Therefore a case is justly
investigated only if the principles of constitutional
procedural activities are not violated and the rights of the
participants to the proceedings are ensured.
The requirement by the court, upon recognition that the
preliminary investigation was incomplete in essence, that that
investigator or interrogative body present new evidence, which
is provided for by the disputed norms, permits to assert that
they provide for the functions uncharacteristic of courts. When
a court or a judge gives instructions to the investigator or
interrogative body, respective procedural links are established
between these institutions which may condition the interest of
the court. Thereby preconditions are created allowing to doubt
whether the court, applying these norms, is an impartial
arbiter. It needs to be noted that in such cases it could be
more difficult for the judge himself to assess the
circumstances of the case in an objective manner.
Taking account of these arguments and motives, a
conclusion is to be drawn that the norms of Parts 4 and 5 of
Article 255, Part 4 of Article 256 and Part 4 of Article 260 of
the CCP contradict Part 2 of Article 31 of the Constitution.
1.4. The petitioner maintains that upon suspension of a
case on the bases established by the disputed norms of the CCP
the pretrial detention (incarceration) becomes unlawful.
Part 1 of Article 20 of the Constitution provides that
personal freedom shall be inviolable. This freedom established
by the Constitution is, first of all, protection of individuals
against arbitrary detention or incarceration. The principle of
lawfulness of detention of individuals is entrenched in Part 2
of Article 20 of the Constitution: no person may be deprived of
freedom except on the bases, and according to the procedures,
which have been established in laws.
One of types of freedom restriction is pretrial detention
(incarceration) which is applied in criminal procedure. The
imposition of this measure of detention, its duration, the
right of the defence to appeal against the pretrial detention
(incarceration) or a ruling to extend the term of pretrial
detention (incarceration), as well as other circumstances
linked with pretrial detention, are regulated by the law.
The bases for pretrial detention (incarceration) are
listed in Article 104 of the CCP. Such bases must be grounded
on a reasonable assumption that the accused will
(1) escape (hide) from the investigation and trial;
(2) impede to establish the truth in the case;
(3) commit new crimes listed in Part 6 of Article 104 of
the CCP.
A request to extradite a person to institutions of law and
order of a foreign state is a basis for detention
(incarceration) as well.
The disputed norms of the CCP do not provide for new bases
for imposition of pretrial detention (incarceration), therefore
when they are applied pretrial detention is only possible in
case there are the bases for pretrial detention directly
indicated by the CCP.
Taking account of these arguments and motives, it is
possible to conclude that the disputed norms of Parts 4 and 5
of Article 255, Part 4 of Article 256 and Part 4 of Article 260
of the CCP are in compliance with Article 20 of the
Constitution.
2. On the compliance of Parts 1, 2 and 6 of Article 280 of
the CCP with the Constitution.
Part 6 of Article 31 of the Constitution prescribes: "From
the moment of arrest or first interrogation, persons suspected
or accused of a crime shall be guaranteed the right to defence
and legal counsel."
The right of the accused to defence ensured by Part 6 of
Article 31 of the Constitution presupposes that fact that the
accused must be guaranteed sufficient procedural means to
defend himself against the brought accusation and that he must
have an opportunity to make use of them. The right of the
accused to defence is one of the guarantees for establishment
of the truth in the case. This right is considered a necessary
condition in implementation of the objective of criminal
procedure which is justly to punish every person who committed
a crime and to ensure that an innocent person would not be
brought to criminal responsibility and convicted.
It is possible to link the right to defence established in
the Constitution with the norms of international law acts
providing for respective standards for protection of the rights
of an individual charged with a crime. For instance, the
following guarantees are provided for by Paragraph 3 of Article
6 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms. Such an individual has the following
minimum rights: (a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of
the accusation against him; (b) to have adequate time and
facilities for the preparation of his defence; (c) to defend
himself in person or through legal assistance of his own
choosing or, if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice
so require; (d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against
him; (e) to have the free assistance of an interpreter if he
cannot understand or speak the language used in court.
The accused is a person in whose respect a decision has
been adopted to charge him with a crime or institute a case
against him under a summary procedure. This person must have
the right to know what he is being charged with. Only when he
knows the accusation against him, may he properly implement his
right to defence. The accused must be informed about any change
in the accusation at any phase of the criminal procedure. He
may defend himself by presenting explanations regarding the
brought charge, by presenting evidence, filing requests,
demanding withdrawal of persons investigating his case, taking
part in the judicial investigation under the established
procedure, appealing against the actions and decisions of the
interrogator, investigator, prosecutor and the court. Such a
person has the right to defence etc.
The rights of the accused enumerated in the CCP mean that
the officials of respective institutions have the duty to
ensure them. The interrogator, investigator, prosecutor or the
court must ensure that the accused should have an opportunity
to defend himself from the charge brought against it by means
and ways as provided by the law, as well as to ensure the
protection of his personal and property rights. During the
judicial investigation of a case, a guarantee of the right of a
person accused of a crime, which is the equality of the rights
of the prosecutor, the accused, the defence, the victim and his
representative, the civil claimant and respondent, and their
representatives, as well as conformity to the principle of
contention, are of importance.
It needs to be noted that the norm of Part 6 of Article 31
of the Constitution whereby the right to defence is guaranteed
is linked with the norms of Part 1 of Article 109 and Part 1 of
Article 118 of the Constitution wherein the functions of the
court and those of the prosecutor are consolidated, as well as
the norm of Part 2 of Article 31 of the Constitution which
provides for the guarantee for every indicted person that he
shall have the right to a fair and public hearing by an
independent and impartial court. In the said norms significant
guarantees for the protection of human rights are established.
The petitioner is of the opinion that the norms of Parts
1, 2 and 6 of Article 280 of the CCP on changing the accusation
in court are doubtful, as they may violate the right of a
person to defence guaranteed by Part 6 of Article 31 of the
Constitution. According to the petitioner, the court
alleviating or escalating the accusation under Article 280 of
the CCP takes over the functions of the prosecutor. This
violates the limits of the functions of prosecutors and the
courts which are established by Part 1 of Article 109 and Part
1 of Article 118 of the Constitution and the right of an
indicted person to an impartial court which is established by
Part 2 of Article 31 of the Constitution.
2.1. Part 1 of Article 280 of the CCP provides: "It shall
be permitted to alleviate an accusation in court provided the
new accusation does not differ in essence by its factual
circumstances from the initial accusation. It shall also be
permitted to remove from the initial accusation its part or
circumstances aggravating the responsibility of the accused."
Assessing this norm which permits the court to qualify the
deed of the accused under an article of the CC providing for a
more moderate punishment, or to remove from the initial
accusation its part or the circumstances aggravating the
situation of the accused, one has not any reasons to assert
that the situation of the accused is being aggravated.
Alleviating the accusation which is provided for by the
disputed norm is to be treated as an element of a justice
function which is accomplished by the court. The court, as an
institution administering justice, assesses the circumstances
of a case and adopts a corresponding decision in the case. This
does not permit to assert that the court has overstepped the
limits of the right guaranteed to an individual to an impartial
judicial investigation. The legal norms providing for such
changing of the accusation also do not violate the separation
of the functions between the court and prosecutors (Part 1 of
Article 109 and Part 1 of Article 118 of the Constitution).
Taking account of these motives and arguments, one is to
draw a conclusion that Part 1 of Article 280 of the CCP is in
compliance with Parts 2 and 6 of Article 31, Part 1 of Article
109 and Part 1 of Article 118 of the Constitution.
2.2. Part 2 of Article 280 of the CCP provides: "In court
it shall be permitted to escalate the accusation and qualify
the deed of the accused under another criminal law provided the
new accusation does not differ in essence by its factual
circumstances from the initial accusation. The chairman of the
court shall notify the participants of the judicial
investigation in trial prior to judicial examination. In such
cases the court shall, following a request of the accused or
the defence, announce an adjournment of trial so that the
defence may become prepared for further procedure."
Upon escalation of the accusation, the situation of the
accused becomes more difficult. Therefore, safeguarding of the
right of an indicted person to defence becomes of crucial
importance. The legal opportunities of defence in attempt to
deny the accusation or alleviate responsibility may not be
different as regards the person against whom a charge was
brought during the phase of initial investigation and the
person against whom, by applying the disputed norms of Article
280 of the CCP, such a charge was brought in court. Otherwise,
the individual's right to defence would be violated.
Analysing Part 2 of Article 280 of the CCP, first of all
one has to note that it has been worded in a defective way: it
is not clear as to on whose initiative the accusation is
changed, and what concrete actions the participants to the
procedure perform. It is possible to understand Part 2 of
Article 280 of the CCP that on its basis the court must
undertake procedural actions on its own initiative whereby the
accusation is escalated. It is established in the said norm
that the chairman of the court shall notify the participants of
the procedure concerning the possibility of such change of the
accusation. Such a notification, which is worded as a
notification concerning the possibility of change of the
accusation, is not concrete. It is not clear whether it means
that such an accusation may be brought against a person or that
it is incriminated. The imprecise wording of the norm permits
to assert that the disputed norm does not ensure the right of
the accused to know what he is accused of. Applying this norm,
the principles of equality of the prosecution and the defence
and those of contention during the judicial investigation might
be violated. Therefore, it is possible to presume that the
court accomplishes both the functions of justice and
prosecution at the same time. Thus this norm violates the norms
of Part 1 of Article 109 and Part 1 of Article 118 of the
Constitution.
As mentioned, the disputed norm may be understood in a way
whereby the court, by notifying the participants of the
procedure on its own initiative, undertakes actions linked with
escalation of the accusation. In this procedure this is not in
line with the principle of court's impartiality. Changing the
accusation in such a way, the court virtually shows to what
direction it is going to turn the investigation of the case.
Such change of the accusation may impede the judge impartially
to assess circumstances of the case. Besides, this creates
preconditions for the participants of the procedure reasonably
to doubt the impartiality of the court.
Taking account of these motives and arguments, a
conclusion is to be drawn that Part 2 of Article 280 of the CCP
in the scope whereby it is permitted to escalate the accusation
on the initiative of the court and qualify the deed of the
accused under another criminal law, contradicts Parts 2 and 6
of Article 31, Part 1 of Article 109 and Part 1 of Article 118
of the Constitution.
Part 6 of Article 280 of the CCP virtually repeats the
norm of Part 2 of Article 280 of the CCP. Therefore, on the
grounds of the arguments and motives set forth above, one is to
conclude as well that Part 6 of Article 280 of the CCP in the
scope whereby it is permitted to escalate the accusation on the
initiative of the court and qualify the deed of the accused
under another criminal law, contradicts Parts 2 and 6 of
Article 31, Part 1 of Article 109 and Part 1 of Article 118 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:
1. To recognise that Parts 4 and 5 of Article 255, Part 4
of Article 256 and Part 4 of Article 260 of the Republic of
Lithuania Code of Criminal Procedure contradict Part 2 of
Article 31, Part 1 of Article 109 and Parts 1 and 2 of Article
118 of the Constitution of the Republic of Lithuania.
2. To recognise that Part 1 of Article 280 of the Republic
of Lithuania Code of Criminal Procedure is in compliance with
the Constitution of the Republic of Lithuania.
3. To recognise that Part 2 of Article 280 of the Republic
of Lithuania Code of Criminal Procedure in the scope whereby it
is permitted to escalate the accusation on the initiative of
the court and qualify the deed of the accused under another
criminal law, contradicts Parts 2 and 6 of Article 31, Part 1
of Article 109 and Part 1 of Article 118 of the Constitution of
the Republic of Lithuania.
4. To recognise that Part 6 of Article 280 of the Republic
of Lithuania Code of Criminal Procedure in the scope whereby it
is permitted to escalate the accusation on the initiative of
the court and qualify the deed of the accused under another
criminal law, contradicts Parts 2 and 6 of Article 31, Part 1
of Article 109 and Part 1 of Article 118 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.