Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Part 1 of Article 3 and Item
1 of Part 1 of Article 4 of the Republic of
Lithuania Law on Compensation for Damage Inflicted
by Unlawful Actions of Interrogatory and
Investigatory Bodies, the Prosecutor's Office and
Court with the Constitution of the Republic of
Lithuania
Vilnius, 30 June 2000
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas
Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the party concerned-the Seimas of
the Republic of Lithuania-Darius Karvelis, a consultant to the
Law Department of the Office of the Seimas of the Republic of
Lithuania,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the
Republic of Lithuania Law on the Constitutional Court, on 13
June 2000, in its public hearing conducted the investigation of
Case No. 30/98-13/99 subsequent to the petition of the
petitioner-the Kaunas Regional Court-requesting to investigate
whether Item 1 of Part 1 of Article 4 of the Republic of
Lithuania Law on Compensation for Damage Inflicted by Unlawful
Actions of Interrogatory and Investigatory Bodies, the
Prosecutor's Office and Court was in compliance with Part 2 of
Article 20, Article 29 and Part 1 of Article 31 of the
Constitution of the Republic of Lithuania, as well as
subsequent to the petition of the petitioner-the Court of
Appeal of Lithuania-requesting to investigate whether Part 1 of
Article 3 and Part 1 of Article 4 of the same law were in
compliance with Parts 1 and 2 of Article 21, Part 1 of Article
29 and Part 1 of Article 30 of the Constitution of the Republic
of Lithuania.
The Constitutional Court
has established:
I
1. The petitioner-the Kaunas Regional Court-investigated a
civil case concerning damage compensation. On 18 November 1998,
by its ruling the court suspended the investigation of the case
and appealed to the Constitutional Court with a petition
requesting to investigate whether Item 1 of Part 1 of Article 4
of the Law on Compensation for Damage Inflicted by Unlawful
Actions of Interrogatory and Investigatory Bodies, the
Prosecutor's Office and Court (Official Gazette Valstybės
žinios, 1997, No. 104-2618; hereinafter also referred to as the
Law) was in compliance with Part 2 of Article 20, Article 29
and Part 1 of Article 31 of the Constitution.
The petitioner points out that Item 1 of Part 1 of Article
4 of the Law provides for a group of persons entitled to claim
compensation for damage inflicted by unlawful actions of
interrogatory and investigatory bodies, the prosecutor's office
and court. Under this item, damage is compensated only in cases
when the effective judgement of conviction is reversed. Thus,
under the Law, in cases when a judgement of conviction which
has not gone into effect is reversed (under procedure of
appeal), the person loses his right to claim compensation for
damage. In such a way judgements of acquittal which are passed
under appeal and cassation procedure are differentiated.
Therefore the petitioner doubts as for the compliance of Item 1
of Part 1 of Article 4 of the Law with the aforesaid articles
of the Constitution.
2. The petitioner-the Court of Appeal of
Lithuania-investigated a civil case under the procedure of
appeal concerning review of the decision of 17 March 1999 which
had been adopted by the Vilnius Regional Court in a civil case
concerning damage compensation. On 11 May 1999, by its ruling
the Court of Appeal of Lithuania suspended the investigation of
the case and appealed to the Constitutional Court with a
petition requesting to investigate whether Part 1 of Article 3
and Part 1 of Article 4 of the Law was in compliance with Parts
1 and 2 of Article 21, Part 1 of Article 29 and Part 1 of
Article 30 of the Constitution.
The request of the petitioner is based on these arguments.
Under Part 1 of Article 3 of the Law, persons shall have
the right to compensation of damage who have been unlawfully
temporarily detained, unlawfully convicted, unlawfully arrested
or who have been unlawfully given administrative arrest or
correctional labour in case at least one of the procedural
decisions established in Part 1 of Article 4 of this Law are
effective: the decision of conviction has been reversed by
which the person was convicted and criminal punishment imposed
on him, the case has been dismissed or the convicted person has
been acquitted on the ground that a new or newly discovered
circumstance shows conclusively that there has been a
miscarriage of justice unless it is proved that the
non-disclosure of the said circumstance in time is wholly or
partly attributable to the convicted person (Item 1); the
unlawful decision of the interrogator, investigator or a public
prosecutor, or a court (judge's) order under which the person
was temporarily detained or arrested has been reversed as
unreasonable and unlawful (Item 2); there is a court decision
to revoke the administrative arrest or correctional labour due
to the circumstances vindicating the person (Item 3). The
petitioner points out that the person, who has not been
detained or arrested, however, who was charged with an offence
and tried in court, and after the non-effective decision of
conviction against him was subsequently reversed under
procedure of appeal and after that he was acquitted by a
court's decision, may not expect protection of his rights under
Part 1 of Article 4 of the Law (Article 4 of the Civil Code of
the Republic of Lithuania), as in such a case there is not any
effective procedural decision regarding his conviction. Even
though such a person was declared as the accused, his personal
rights were restricted, he had to defend himself from the
accusation and it was recognised by the decision of acquittal
that the accusation had been unreasonable, in such a case
damage compensation is linked with going into effect of the
decision of conviction and its subsequent reversal.
3. By its decision of 15 March 2000, the Constitutional
Court joined the petitions of the Kaunas Regional Court and the
Court of Appeal of Lithuania into one case.
II
In the course of the preparation of the case for the court
hearing, written explanations by D. Karvelis, a consultant to
the Law Department of the Office of the Seimas, V.
Stankevičius, a senior consultant to the Law Department of the
Office of the Seimas, and R. Ruškytė, Director of the
Department for Law and Order of the Office of the Government,
were received.
1. The representative of the party concerned D. Karvelis
noted that the Seimas adopted the Law in attempt to guarantee
the constitutional rights of persons, while taking account of
provisions of the Convention for the Protection of Human Rights
and Fundamental Freedoms. The purpose of the adopted Law is
regulation of compensation of damage inflicted on a natural
person due to unlawful conviction, and unlawful temporary
detainment, unlawful detainment, unlawful arrest, unlawful
imposition of administrative arrest or correctional labour. In
cases when on the grounds established by the Law and under
judicial procedure it is proved that the person has suffered
moral or material damage, the damage compensation is assumed by
the state. The state pays damage compensation to the person
also in cases when the European Court of Human Rights or the
Committee of Ministers adopt a decision on compensation for
damage, and also when a friendly agreement, which is approved
by the Government, has been reached between the victim and the
representative of the Government at the Commission for Human
Rights and the European Court of Human Rights. Thus the state
assumes a duty to pay compensation to a person for material and
moral damage inflicted on him by unlawful actions of
interrogatory and investigatory bodies, the prosecutor's office
and court in cases when laws of the Republic of Lithuania have
been violated. In addition, the Republic of Lithuania, having
joined the Convention for the Protection of Human Rights and
Fundamental Freedoms and having ratified its protocols,
recognised the jurisdiction of the European Court of Human
Rights and obligated itself to enforce its judgements.
The representative of the party concerned also noted that
Items 1, 2 and 3 of Part 1 of Article 4 of the Law provide for
different bases for the appearance of the right to damage
compensation.
Item 1 of Part 1 of Article 4 of the Law provides for a
basis to damage compensation in the case that a person has been
convicted unlawfully, i.e. the effective judgement of
conviction by which the person was given a criminal punishment
has been reversed. In such a case, under the Law, the person
becomes entitled to damage compensation only on the grounds of
the legal fact that he has been convicted unlawfully and
irrespective of the fact as to what criminal punishment has
been given to him. Thus, it is of no importance whether the
person was convicted for imprisonment or whether he has been
given any other punishment provided for in the Criminal Code of
the Republic of Lithuania. Meanwhile, Item 2 of Part 1 of
Article 4 of the Law provides that the people who have suffered
damage due to unlawful temporary detention, detention or arrest
shall have the right to compensation for damage. By Item 3 of
Part 1 of Article 4 of the Law the rights of persons are
protected due to unlawful administrative arrest or correctional
labour when there are circumstances vindicating the person.
The representative of the party concerned emphasised that
in the Republic of Lithuania a court decision is adopted and
goes into effect under the procedure established by the
Criminal Code of the Republic of Lithuania. Part 1 of Article
398 of this code provides that "a decision of the court of the
first instance goes into effect upon expiration of the period
of lodging an appeal in case this decision has not been
appealed against". Part 4 of the same article provides that "a
decision of the court of appeal goes into effect on the day it
is pronounced", Part 7 thereof provides that "a decision of
conviction of courts of the first instance and instance of
appeal is enforced after its going into effect". Thus no rights
of a person can be violated by a court until the decision of
conviction goes into effect and starts to be enforced. After
the court decision of conviction goes into effect and upon its
reversal, the convicted person, under Item 1 of Part 1 of
Article 4 of the Law, acquires the right to damage
compensation.
The representative of the party concerned pointed out that
Item 2 of Part 1 of Article 4 of the Law establishes the right
of persons to damage compensation due to unlawful conviction,
while Part 2 of Article 20 of the Constitution protects persons
from unlawful detention or arrest. Thus, in case a person is
detained or arrested unlawfully, he would acquire the right to
appeal to court regarding compensation for damage in pursuance
of Item 2 of Part 1 of Article 4 of the Law. The objects of
regulation of Item 1 of Part 1 of Article 4 of the Law and Part
2 of Article 20 of the Constitution are different, therefore
there can be no legal collision between them. Item 1 of Part 1
of Article 4 of the Law is in conformity with Part 2 of Article
20 of the Constitution.
In the opinion of the representative of the party
concerned, Item 1 of Part 1 of Article 4 of the Law does not
single out any group of persons under the criteria pointed out
in the Constitution, thus, due to this reason the said item is
in compliance with Article 29 of the Constitution.
The representative of the party concerned noted that the
provision established in Part 1 of Article 31 of the
Constitution guarantees that every person is presumed innocent
until proven guilty by an effective court sentence. Item 1 of
Part 1 of Article 4 of the Law provides for the compensation of
damage only in cases when the effective judgement of conviction
by which the person was convicted has been reversed. Thus, the
said constitutional provision regulates the relations occurring
until the court judgement of conviction goes into effect, while
the norm of the Law regulates the relations occurring after the
court judgement of conviction has gone into effect. Thus, there
is not any collision between them and Item 1 of Part 1 of
Article 4 of the Law is in conformity with Part 1 of Article 31
of the Constitution.
2. The representative of the party concerned R. Ruškytė
presented the following explanations.
Part 1 of Article 30 of the Constitution provides for a
procedural right of persons to appeal to court regarding damage
compensation, while Part 2 of the same article provides that
the compensation for moral and material damages inflicted on a
person is established by law. One of the laws establishing the
right to damage compensation is the Civil Code. In Article 486
thereof it is provided that in cases and under the procedure
established by the law, the state shall compensate damages
inflicted on a natural person due to unlawful conviction,
unlawful temporary detention or unlawful imposition of arrest
in the course of the criminal procedure, and due to unlawful
detention or arrest, or unlawful imposition of correctional
labour in the course of the administrative procedure.
The Law on Compensation for Damage Inflicted by Unlawful
Actions of Interrogatory and Investigatory Bodies, the
Prosecutor's Office and Court provides for damage compensation
in cases when damage is inflicted by unlawful actions of the
interrogator, investigator, public prosecutor, or court
(judge). This law does not establish any restrictions for
persons to appeal to court in other cases when the person deems
his constitutional rights or freedoms to have been violated
(for instance, his property has been damaged or ruined, or he
himself has been injured). Besides, the provisions of Part 2 of
Article 30 of the Constitution are implemented by other laws as
well. Therefore, in the opinion of the representative of the
party concerned, the provisions of the Law are in conformity
with Part 1 of Article 30 of the Constitution.
The representative of the party concerned pointed out that
the Law does not provide for any restrictions or limitations of
human rights on the basis of his or her sex, race, nationality,
language, origin, social status, religion, convictions, or
opinions. The Law is applicable to all persons mentioned in
Part 1 of Article 3 of the Law (by not singling out any
categories of persons) who have been unlawfully temporarily
detained, unlawfully detained, unlawfully convicted, unlawfully
arrested or whom administrative arrest or correctional labour
have been imposed unlawfully. Part 1 of Article 4 of the Law
providing for the bases under which the right to damage
compensation appears does not single out any category of
persons, either. Item 1 of Part 1 of Article 4 of the Law
establishes legal regulation for the persons whose situation is
the same, i.e. the person has been convicted, an effective
court judgement of conviction regarding him has been adopted,
the judgement has been reversed, the judgement has been
reversed on the grounds that a new or newly discovered
circumstance shows conclusively that there has been a
miscarriage of justice unless it is proved that the
non-disclosure of the unknown circumstance in time is wholly or
partly attributable to the convicted person.
The representative of the party concerned is of the
opinion that the legal situation of the person who has been
accused of commission of crime, in case his guilt has not been
proven by the law and the judgement has not gone into effect,
is different from the legal situation of the person in whose
regard the judgement has gone into effect: under the Law, the
former does not acquire the right to damage compensation. Thus,
Part 1 of Article 3 and Part 1 of Article 4 of the Law are in
compliance with Part 1 of Article 29 of the Constitution.
The fact of the reversal of an effective judgement does
not mean that the court was erroneous in all aspects. An error
may appear due to an erroneous conclusion of a specialist or an
expert, and because of other reasons (for example, a person is
convicted for murder of one citizen, while later it becomes
evident that another person was murdered). Due to these reasons
the judgement may be reversed but the case undergoes further
investigation and a new judgement of conviction regarding the
accused is adopted.
In the opinion of the representative of the party
concerned, the Law does not establish any new nor change any
legal norms regulating the bases and procedures of detention of
persons which might violate the person of an individual or his
dignity, therefore the Law is in conformity with Part 1 of
Article 21 of the Constitution wherein it is established that
the person shall be inviolable.
The representative of the party concerned noted that
Articles 3 and 4 of the Law are in conformity with Article 5 of
the Convention for the Protection of Human Rights and
Fundamental Freedoms and Article 3 of Protocol No. 7 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms the purpose of which is to provide, according to
domestic laws, the unlawfully detained or convicted person with
the right to be compensated for damages incurred. Such a
provision is also provided for in Paragraph 6 of Article 14 of
the International Covenant on Civil and Political Rights
whereby only such persons have the right to be compensated who
were convicted by a final decision and who subsequently were
acquitted on the grounds of newly discovered facts.
3. In his written explanations, the representative of the
party concerned V. Stankevičius noted that the Law was passed,
while taking account of the provisions of the Convention for
the Protection of Human Rights and Fundamental Freedoms and
those of the Constitution. Along with other bases for damage
compensation, the Law provides for the right to damage
compensation for a convicted person, i.e. the judgement of
conviction regarding him went into effect and subsequently was
reversed.
In the opinion of the representative of the party
concerned, the provisions of Part 1 of Article 3 and Part 1 of
Article 4 of the Law are in compliance with the Constitution as
they are based on the provisions of Parts 1, 2 and 3 of Article
21, Part 4 of Article 22, Part 2 of Article 30, Part 1 of
Article 31, Part 1 of Article 109 and Part 1 of Article 111 of
the Constitution.
Part 2 of Article 30 of the Constitution provides that the
law shall establish the procedure for compensating material and
moral damage inflicted on a person. According to the
representative of the party concerned, the Constitution does
not regulate issues of compensation of material and moral
damage as this right is granted to the legislator. Therefore
the fact that as to what persons have the right to damage
compensation and under what bases are in essence decided by the
legislator, who must take account of the requirements of the
Constitution. Thus, the legislator was entitled to provide for
the right to damage compensation for the person who was
convicted unlawfully and not to provide for the right to damage
compensation for the person who was tried however has not been
convicted. The Law does not provide for the right to damage
compensation for the latter as the Constitution does not
contain any provisions which would guarantee damage
compensation for such a person. However, it is possible to find
provisions in the Constitution obligating the legislator to
provide for damage compensation for the person convicted
unlawfully.
Parts 1, 2 and 3 of Article 21 of the Constitution provide
that the person shall be inviolable, it shall be prohibited to
humiliate human dignity, human dignity shall be protected by
law. Part 4 of Article 22 of the Constitution provides that the
law and the court shall protect individuals from arbitrary or
unlawful interference in their private or family life, and from
encroachment upon their honour and dignity. The aforementioned
constitutional norms grant respective powers to the legislator
when he adopts laws and those to the court when it administers
justice, protecting rights of citizens, their personal life,
their honour and dignity against any arbitrary or unlawful
encroachment or interference.
The representative of the party concerned noted that the
legislator, while deciding the question whether the person is
entitled to damage compensation regarding whom an adopted
judgement of conviction had been reversed before it went into
effect or whether such a person is entitled to the said right
regarding whom an adopted judgement of conviction went into
effect but subsequently was reversed, must conform to Part 1 of
Article 31 of the Constitution.
Part 1 of Article 31 of the Constitution provides that
every person shall be presumed innocent until proven guilty
according to the procedure established by law and until
declared guilty by an effective court sentence. This is a
principal and most important provision in the case at issue,
which establishes criteria for the protection of rights, honour
and dignity of an individual. The criteria were being followed
when in the Law one of the bases was formulated under which the
right to damage compensation appeared. This constitutional norm
is also important due to the fact that it separates recognition
of guilt of the person, which only is possible after the
judgement of conviction has gone into effect, from institution
of the criminal case, adoption of the judgement of conviction
and other acts of application of law. In the process of
verification of the guilt of the person until the person is
recognised guilty, neither his personal nor property rights are
violated, neither his honour nor dignity is encroached upon,
neither material nor moral damage is inflicted on him.
In the opinion of the representative of the party
concerned, assessing the provisions of Part 1 of Article 31 of
the Constitution together with those of Parts 1, 2 and 3 of
Article 21 and Part 4 of Article 22 of the Constitution, it is
possible to draw a conclusion that it is an effective judgement
of conviction which later is recognised as unlawful that
encroaches upon the rights of the person, his dignity and
honour. Thus, it is for an unlawfully convicted person that the
Constitution guarantees that after reversal of the unlawful
judgement of conviction all his rights are restored and he
acquires the right to damage compensation. Nothing but these
provisions are established in the Law.
The representative of the party concerned also pointed out
that in the case at issue the provision of Part 1 of Article
109 of the Constitution providing that in the Republic of
Lithuania, the courts shall have the exclusive right to
administer justice is also important. It is linked with the
provision of Part 4 of Article 22 of the Constitution
obligating the courts to protect individuals from any arbitrary
or unlawful interference in their private or family life, and
from encroachment upon their honour and dignity. The provisions
of Part 1 of Article 109 of the Constitution are supplemented
by the provisions of Part 1 of Article 111 of the Constitution
establishing the system of courts. Therefore, virtually it is
possible to maintain that under the Constitution, justice is
administered not by individual courts but by the system of
courts in general. The system of courts guarantees the
implementation of the provisions of Part 1 of Article 31 of the
Constitution, it ensures objective verification of the guilt of
an individual so that no one would be convicted unlawfully.
The representative of the party concerned drew his
attention to the fact that in Paragraph 2 of Article 6 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms it is also established that everyone charged with a
criminal offence shall be presumed innocent until proved guilty
according to law, while Paragraph 3 thereof provides for the
rights of everyone charged with a criminal offence. Among those
rights there is not the right of an individual charged with a
criminal offence to damage compensation.
III
In the course of the preparation of the case for judicial
investigation, explanations by Habil. Dr. V. Vadapalas,
Director of the European Law Department under the Government of
the Republic of Lithuania, Dr. G. Švedas, Vice-minister of
Justice of the Republic of Lithuania, A. Dapšys, Director of
the Law Institute, Dr. K. Jovaiša, a senior scientific worker
at the same institute, the chief specialist J. Misiūnas, the
senior specialist P. Ragauskas, Assoc. Prof. Dr. V. Staskonis
who works at the Law Faculty of Vilnius University, Dr. T.
Birmontienė, Director of the Lithuanian Centre for Human
Rights, S. Kaušinis, the secretary-in-chief of the Lithuanian
Human Rights Association, were received.
IV
In the court hearing the representative of the party
concerned D. Karvelis virtually reiterated the arguments set
down in his written explanations.
The Constitutional Court
holds that:
I
1. Part 1 of Article 3 of the Law on Compensation for
Damage Inflicted by Unlawful Actions of Interrogatory and
Investigatory Bodies, the Prosecutor's Office and Court
provides that the persons shall have the right to compensation
of damage who have been unlawfully temporarily detained,
unlawfully detained, unlawfully convicted, unlawfully arrested
or who have been given administrative arrest or correctional
labour unlawfully in case there are bases for it established in
Article 4 of this Law.
Part 1 of Article 4 of the Law provides that persons shall
have the right to compensation of damage in case material or
moral damage is inflicted on them by unlawful actions and in
case there is at least one of the following effective
procedural decisions:
1) to reverse the decision of conviction by which the
person has been convicted and criminal punishment has been
imposed on him, the case has been dismissed or the convicted
person has been acquitted on the ground that a new or newly
discovered circumstance shows conclusively that there has been
a miscarriage of justice unless it is proved that the
non-disclosure of the said circumstance in time is wholly or
partly attributable to the convicted person;
2) to reverse the decision of the interrogator,
investigator or a public prosecutor, or a court (judge's) order
under which the person was temporarily detained or arrested on
the ground that the said decision (order) is unreasonable and
unlawful;
3) there is a court decision to revoke the administrative
arrest or correctional labour due to the circumstances
vindicating the person.
Thus every item of Part 1 of Article 4 of the Law provides
for the bases for damage compensation, while taking account of
the fact by what unlawful action damage was inflicted.
2. The petitioner-the Kaunas Regional Court-requests to
investigate the compliance of Item 1 of Part 1 of Article 4 of
the Law with Part 2 of Article 20, Article 29 and Part 1 of
Article 31 of the Constitution. It is pointed out in the ruling
of the said court that, under Item 1 of Part 1 of Article 4 of
the Law, damage is compensated for an individual due to his
unlawful conviction only in cases when the effective judgement
of conviction is reversed. Thus, under the Law, in cases when a
judgement of conviction which has not gone into effect is
reversed, the person loses his right to claim compensation for
damage. In such a way judgements of acquittal which are passed
under appeal and cassation procedure are differentiated.
The petitioner-the Court of Appeal of Lithuania-requests
to investigate the compliance of Part 1 of Article 3 and Part 1
of Article 4 of the Law with Parts 1 and 2 of Article 21, Part
1 of Article 29 and Part 1 of Article 30 of the Constitution.
The ruling of the said court points out that person, who has
not been detained or arrested, however, who was charged with an
offence and tried in court, and after the non-effective
decision of conviction against him was subsequently reversed
under procedure of appeal and after that he was acquitted by a
court's decision, loses his right to compensation of damage as
there is not a single condition for the appearance of this
right, i.e. there must have been an effective judgement of
conviction which subsequently ought to have been reversed. It
is evident from the ruling of the said court that even though
it points out all Part 1 of Article 4 of the Law, actually the
court only questions the compliance of Item 1 of Part 1 of
Article 4 of the Law with the Constitution. There are not any
motives concerning non-compliance of Items 2 and 3 of Part 1 of
Article 4 of the Law with the Constitution pointed out in the
court ruling.
Taking account of the motives pointed out in the petitions
of the petitioners, the Constitutional Court will investigate
the compliance of Part 1 of Article 3 and only Item 1 of Part 1
of Article 4 of the Law with the Constitution but not all Part
1 of the latter article. The compliance of the disputed norms
of the Law with the Constitution will be investigated only from
the aspect that the right of an individual to compensation of
damage is linked with reversal of the effective judgement of
conviction.
3. The ruling of the Kaunas Regional Court does not
contain any motives regarding a conflict of the disputed norms
of the Law with Part 2 of Article 20 and Part 1 of Article 31
of the Constitution, while the ruling of the Court of Appeal of
Lithuania does not contain any motives regarding a conflict of
the disputed norms of the Law with Parts 1 and 2 of Article 21
of the Constitution.
Taking account of the fact that the courts have not
presented any arguments concerning a conflict of the disputed
norms with Part 2 of Article 20, Parts 1 and 2 of Article 21
and Part 1 of Article 31 of the Constitution, the
Constitutional Court will not investigate whether Part 1 of
Article 3 and Item 1 of Part 1 of Article 4 of the Law are in
compliance with the said articles of the Constitution.
4. The Constitution is an integral and directly applicable
statute, therefore the Constitutional Court, while
investigating the compliance of the disputed norms of the Law
with the Constitution, will also investigate if they are in
conformity with Part 2 of Article 30 of the Constitution.
5. Part 1 of Article 3 of the Law provides for a directing
norm under which the persons shall have the right to
compensation of damage who were unlawfully temporarily
detained, unlawfully detained, unlawfully convicted, unlawfully
arrested or who were unlawfully given administrative arrest or
correctional labour in case there are bases for it established
in Article 4 of this Law, therefore the compliance of Part 1 of
Article 3 of the Law with the aforesaid articles of the
Constitution is to be assessed on the ground whether Item 1 of
Part 1 of Article 4 of the Law is in compliance with the
aforesaid articles of the Constitution.
II
1. Article 18 of the Law provides: "The rights and
freedoms of individuals shall be inborn."
In the Constitution the state is obligated to respect
human rights and freedoms, and to guarantee their protection
from any unlawful attempt or restriction by legal, material or
organisational means.
State institutions, its officials must protect and defend
human rights and freedoms, while it is very important that,
while discharging the functions entrusted to them, they would
not violate human rights and freedoms by themselves.
One of the main ways of protection of violated rights and
freedoms is compensation of damage inflicted by unlawful
actions.
2. Article 30 of the Constitution provides:
"Any person whose constitutional rights or freedoms are
violated shall have the right to appeal to court.
The law shall establish the procedure for compensating
material and moral damage inflicted on a person."
The norm of Part 2 of Article 30 of the Constitution
provides for a duty of the legislator to pass a law or laws
providing for compensation of damage for a person who suffered
material or moral damage. The laws must provide for factual
protection of violated human rights and freedoms, this
protection must be coordinated with protection of the other
values entrenched in the Constitution.
Thus the Constitution guarantees the right of an
individual to compensation of material or moral damage,
including recover of damage under judicial procedure.
3. While deciding the question of legal responsibility of
the state for damage caused by actions of its institutions or
officials, one is to underline the provisions of Article 5 of
the Constitution that the scope of powers shall be
circumscribed by the Constitution, and that institutions of
power shall serve the people. On the grounds of these
constitutional provisions, the constitutional principle of
protection of human rights and freedoms as well as other
principles of the state under the rule of law, one is to draw a
conclusion that, in the course of implementation of Part 2 of
Article 30 of the Constitution, the law must provide for a duty
of the state to compensate material and moral damage inflicted
by unlawful actions of its institutions and officials. Only
when Part 2 of Article 30 of the Constitution is interpreted in
such a manner, will it be possible to ensure effective
protection of violated constitutional rights and freedoms of
individuals.
The character of functions of the state, the diversity of
activities of its institutions determine peculiarities of legal
responsibility of the state, therefore compensation for damage
in various areas of discharge of functions of the state may be
regulated in a different manner.
4. As mentioned, the norm of Part 2 of Article 30 of the
Constitution obligates the legislator to pass laws providing
for compensation of damage. The Constitutional Court emphasises
that the Constitution is a directly applicable statute,
therefore even in the absence of respective legal regulation,
wherein guarantees are established for protection of respective
human rights and freedoms, an individual, making direct
reference to Part 2 of Article 30 of the Constitution as well
as other articles of the Constitution, may claim compensation
for damage inflicted on him by unlawful actions of state
institutions or its officials.
III
On the compliance of Part 1 of Article 3 and Item 1 of
Part 1 of Article 4 of the Law with Part 2 of Article 30 of the
Constitution.
1. Part 1 of Article 3 and Item 1 of Part 1 of Article 4
of the Law regulate compensation of material and moral damage
suffered by a person due to his unlawful conviction, i.e. due
to violations of the Code of Criminal Procedure which were
committed by the court while adopting a judgement to convict
the person.
Under Item 1 of Part 1 of Article 4 of the Law, persons
shall have the right to compensation of damage in case material
or moral damage has been inflicted on them by unlawful actions
and in case there is an effective procedural decision to
reverse the decision of conviction by which the person has been
convicted and given criminal punishment, the case has been
dismissed or the convicted person has been acquitted on the
ground that a new or newly discovered circumstance shows
conclusively that there has been a miscarriage of justice
unless it is proved that the non-disclosure of the said
circumstance in time is wholly or partly attributable to the
convicted person.
Deciding whether the disputed norms of the Law are in
compliance with the Constitution, it is important to take
account of the relation of these norms of the Law with those of
the Code of Criminal Procedure, and the fact as to what legal
regulation of going into effect of judgements exists in the
legal system of Lithuania.
The procedure of going into effect of judgements is
established in Article 398 of the Code of Criminal Procedure.
For instance, a judgement of a court of the first instance goes
into effect upon expiration of the term of appeal in case this
judgement has not been appealed against. After the appeal has
been filed, the judgement of the court of the first instance
goes into effect in case the court of appeal left the judgement
unchanged and rejected the appeal; in such a case the judgement
goes into effect on the day the decision of the court of appeal
is adopted. A judgement of the court of appeal goes into effect
on the day it is pronounced.
Thus, upon reversal of a judgement of conviction passed by
a court of the first instance or by court of appeal and in case
there are other conditions pointed out in Item 1 of Part 1 of
Article 4 of the Law, then, under the Law, the person acquires
the right to compensation of material and moral damage.
2. The lawfulness and reasonableness of a non-effective
judgement may be verified under procedure of appeal. Under the
powers established in Article 380 of the Code of Criminal
Procedure, the court of appeal, after it has investigated a
case concerning a non-effective judgement of the court of the
first instance, may reverse the judgement and dismiss the case,
as well as reverse the judgement of the court of the first
instance and adopt a new judgement. The Code of Criminal
Procedure provides for various bases for reversal of judgements
and dismissal of cases and those for reversal of judgements and
adoption of new judgements. The non-effective judgement by
which the person was given criminal punishment may be reversed
and the case be dismissed or the convicted person be acquitted,
however such a person, even though there are the said
conditions pointed out in Item 1 of Part 1 of Article 4 of the
Law, under the Law does not acquire the right to compensation
of damage only because of the fact that the judgement of
conviction rendered against him has been reversed prior to its
going into effect, although the criminal procedure in the case
has been completed.
3. Item 1 of Part 1 of Article 4 of the Law provides for
the right to compensation of damage only for persons regarding
whom the judgement of conviction went into effect and
subsequently was reversed, and thus the right to compensation
of damage is denied for those who also suffered material or
moral damage due to the judgement of conviction, however the
judgement of conviction regarding them was reversed prior to
its going into effect, i.e. under procedure of appeal. Such
legal regulation is not in line with the guarantee for a person
to compensate material and moral damage as established in Part
2 of Article 30 of the Constitution.
Item 1 of Part 1 of Article 4 of the Law is legally
deficient from the aspect that unlawful actions of the court
are linked only with a certain procedural action, i.e. a
procedural decision to reverse the judgement of conviction.
The Constitutional Court notes that, under the
Constitution, the right of a person to compensation of damage
may not be conditioned on the fact as to in what manner-under
cassation procedure or that of appeal-the judgement of
conviction is reversed. The implementation of the right of a
person to demand that damage inflicted on him by unlawful
actions of the court in the course of the adoption of the
judgement of conviction be compensated is to be linked with the
fact that either effective or non-effective judgement of
conviction has been reversed and the procedure in the criminal
case has been completed, i.e., the case may not be further
investigated under the Code of Criminal Procedure (the right to
lodge an appeal of cassation has not been made use of; the term
to lodge an appeal of cassation and a recommendation of
cassation has expired etc.).
Taking account of the arguments set forth, one is to
conclude that Item 1 of Part 1 of Article 4 of the Law to the
extent that the right of compensation for damage is denied for
the persons regarding whom the judgement of conviction has been
reversed prior to its going into effect and the case has been
dismissed or the convicted person acquitted on the ground that
a new or newly discovered circumstance shows conclusively that
there has been a miscarriage of justice unless it is proved
that the non-disclosure of the said circumstances in time is
wholly or partly attributable to the convicted person, and the
criminal procedure has been completed, conflicts with Part 2 of
Article 30 of the Constitution.
Having held that Item 1 of Part 1 of Article 4 of the Law
conflicts with Part 2 of Article 30 of the Constitution, one is
to draw a conclusion that due to the same motives and to the
same extent Part 1 of Article 3 of the Law is also in conflict
with Part 2 of Article 30 of the Constitution.
IV
On the compliance of Part 1 of Article 3 and Item 1 of
Part 1 of Article 4 of the Law with Article 29 of the
Constitution.
Article 29 of the Constitution provides:
"All persons shall be equal before the law, the court, and
other State institutions and officers.
A person may not have his rights restricted in any way, or
be granted any privileges, on the basis of his or her sex,
race, nationality, language, origin, social status, religion,
convictions, or opinions."
The constitutional principle of equality of all persons
requires that in law the main rights and duties be established
equally to all.
The Constitutional Court, assessing the compliance of the
disputed norms of the Law with the Constitution, underlines
that the constitutional principle of equality of all persons
before the law, the court, and other state institutions and
officers, obligates the state to defend the rights and freedoms
of every person by equally effective means.
As it has already been held in this ruling, while
construing Part 2 of Article 30 of the Constitution, damage
inflicted on a person by unlawful actions must be compensated.
The right of a person to compensation of damage inflicted on
him by violating his rights and freedoms may not be
differentiated according to the fact that the legal situation
of persons differs in other respects. Meanwhile, in the
disputed norms of the Law the persons who suffered material or
moral damage due to miscarriage of justice in the course of
adoption of the judgement of conviction are treated depending
on a respective procedural decision by which the miscarriage of
justice was notified and the judgement of conviction was
reversed. Under Item 1 of Part 1 of Article 4 of the Law, the
person regarding whom the judgement of conviction has been
reversed prior to its going into effect and the case has been
dismissed or the convicted person acquitted on the ground that
a new or newly discovered circumstance shows conclusively that
there has been a miscarriage of justice unless it is proved
that the non-disclosure of the said circumstance in time is
wholly or partly attributable to the convicted person, does not
have the right to compensation of damage even though the whole
procedure has been completed.
Taking account of the arguments set forth, one is to
conclude that that Item 1 of Part 1 of Article 4 of the Law to
the extent that the right of compensation for damage is denied
for the persons regarding whom the judgement of conviction has
been reversed prior to its going into effect and the case has
been dismissed or the convicted person acquitted on the ground
that a new or newly discovered circumstance shows conclusively
that there has been a miscarriage of justice unless it is
proved that the non-disclosure of the said circumstance in time
is wholly or partly attributable to the convicted person, and
the criminal procedure has been completed, conflicts with Part
1 of Article 29 of the Constitution.
Having held that Item 1 of Part 1 of Article 4 of the Law
conflicts with Part 1 of Article 29 of the Constitution, one is
to draw a conclusion that due to the same motives and to the
same extent Part 1 of Article 3 of the Law is also in conflict
with Part 1 of Article 29 of the Constitution.
V
On the compliance of Part 1 of Article 3 and Item 1 of
Part 1 of Article 4 of the Law with Part 1 of Article 30 of the
Constitution.
Part 1 of Article 30 of the Constitution provides: "Any
person whose constitutional rights or freedoms are violated
shall have the right to appeal to court."
The guarantee of the protection of the rights and freedoms
of persons is an essential element of the constitutional
institute of rights and freedoms of persons. The guarantee
established in Part 1 of Article 30 of the Constitution is of
procedural nature, it means that a person must be ensured
judicial protection of his rights and freedoms. The right to
appeal to court is an absolute one.
The Constitutional Court notes that no such legal
regulation may be established when a person implementing one
his constitutional right would loose an opportunity to
implement another constitutional right. The legal regulation
established in the Law is deficient because it also presupposes
such a legal situation when a person, implementing his
constitutional right to appeal to court (the right that his
case be investigated under procedure of appeal), may not
implement his another constitutional right (the right that he
be compensated material and moral damage that has been
inflicted on him).
Taking account of the arguments set forth, one is to
conclude that Item 1 of Part 1 of Article 4 of the Law to the
extent that the right of compensation for damage is denied for
the persons regarding whom the judgement of conviction has been
reversed prior to its going into effect and the case has been
dismissed or the convicted person acquitted on the ground that
a new or newly discovered circumstance shows conclusively that
there has been a miscarriage of justice unless it is proved
that the non-disclosure of the said circumstances in time is
wholly or partly attributable to the convicted person, and the
criminal procedure has been completed, conflicts with Part 1 of
Article 30 of the Constitution.
Having held that Item 1 of Part 1 of Article 4 of the Law
conflicts with Part 2 of Article 30 of the Constitution, one is
to draw a conclusion that due to the same motives and to the
same extent Part 1 of Article 3 of the Law is also in conflict
with Part 1 of Article 30 of the Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
To recognise that Part 1 of Article 3 and Item 1 of Part 1
of Article 4 of the Republic of Lithuania Law on Compensation
for Damage Inflicted by Unlawful Actions of Interrogatory and
Investigatory Bodies, the Prosecutor's Office and Court to the
extent that the right of compensation for damage is denied for
the persons regarding whom the judgement of conviction has been
reversed prior to its going into effect and the case has been
dismissed or the convicted person acquitted on the ground that
a new or newly discovered circumstance shows conclusively that
there has been a miscarriage of justice unless it is proved
that the non-disclosure of the said circumstance in time is
wholly or partly attributable to the convicted person, and the
criminal procedure has been completed, conflict with Part 1 of
Article 29 and Parts 1 and 2 of Article 30 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.