Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Paragraph 2 of Article 7 of
the Republic of Lithuania Criminal Code with the
Constitution of the Republic of Lithuania
Vilnius, 11 January 2001
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-Gintaras Goda, a senior consultant to
the Law Department of the Office of the Seimas,
pursuant to Paragraph 1 of Article 102 of the Constitution
of the Republic of Lithuania and Paragraph 1 of Article 1 of
the Republic of Lithuania Law on the Constitutional Court, on 3
January 2001 in its public hearing conducted the investigation
of Case No. 7/99-17/99 subsequent to the following petitions:
a petition of the Panevėžys Regional Court, requesting to
investigate whether Paragraph 2 of Article 7 of the Republic of
Lithuania Criminal Code was in compliance with Articles 7, 29,
Paragraph 4 of Article 31 of the Constitution of the Republic
of Lithuania, as well as the principle of a law-governed state
entrenched in the Preamble to the Constitution of the Republic
of Lithuania;
a petition of the Panevėžys City District Court,
requesting to investigate whether Paragraph 2 of Article 7 of
the Republic of Lithuania Criminal Code was in compliance with
Articles 7, 29, Paragraph 4 of Article 31 of the Constitution
of the Republic of Lithuania, as well as the principle of a
law-governed state entrenched in the Preamble to the
Constitution of the Republic of Lithuania.
These petitions were joined into one case by the
Constitutional Court decision of 13 September 2000.
The Constitutional Court
has established:
I
The petitioner-the Panevėžys Regional Court-was
investigating a criminal case. By its 5 March 1999 ruling, the
said court suspended the investigation of the case and appealed
to the Constitutional Court with a petition requesting the
Constitutional Court to investigate whether Paragraph 2 of
Article 7 of the Republic of Lithuania Criminal Code
(hereinafter also referred to as the CC) was in compliance with
Articles 7, 29, Paragraph 4 of Article 31 of the Constitution,
as well as the principle of a law-governed state entrenched in
the Constitution.
The petitioner-the Panevėžys City District Court-was
investigating a criminal case. By its 1 July 1999 ruling, the
said court suspended the investigation of the case and appealed
to the Constitutional Court with a petition requesting the
Constitutional Court to investigate whether Paragraph 2 of
Article 7 of the CC was in compliance with Articles 7, 29,
Paragraph 4 of Article 31 of the Constitution, as well as the
principle of a law-governed state entrenched in the
Constitution.
II
The requests of the petitioners are based on the following
arguments.
1. According to the petitioners, the content of Paragraph
2 of Article 7 of the CC is not clear. In some cases, after
Paragraph 2 of Article 7 of the CC is linked with particular
norms of the Special Section of the CC, Article 7 of the CC is
not applicable, i.e. it is valid under certain conditions. The
petitioners maintain that Article 7 of the CC establishes not a
universal legal rule but a rule that may be applied with
certain reservations.
2. The petitioners have doubts if Paragraph 2 of Article 7
of the CC because of the alleged legal vagueness does not
violate Paragraph 4 of Article 31 of the Constitution which
establishes that punishments may only be administered or
applied on the basis of law, and the principle of equality
established in Article 29.
The petitioners also have doubts whether Paragraph 2 of
Article 7 of the CC is in conformity with Article 7 of the
Constitution wherein it is provided that only laws which are
promulgated shall be valid, as, allegedly, the promulgated norm
of the law is not valid in certain cases. The petitioners
request the Constitutional Court to investigate whether
Paragraph 2 of Article 7 of the CC is in conformity with the
principle of a law-governed state enshrined in the
Constitution, which presupposes clarity of legal norms, their
unconditional validity and the supremacy of laws in the legal
system.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from G. Goda, the representative of the party
concerned-the Seimas.
1. The representative of the party concerned pointed out
that Paragraph 2 of Article 7 of the CC contains a humane and
civilised norm permitting, in light of changes in the penal
policy of the state, to ameliorate the situation of persons,
who, before the penal law was amended, had been brought to
criminal responsibility.
According to G. Goda, the doubts of the petitioners
concerning the conformity of Paragraph 2 of Article 7 of the CC
with the provision consolidated in Article 7 of the
Constitution that only laws which are promulgated shall be
valid, are groundless. The Constitution provides that only laws
which are promulgated shall be valid, while the courts raise
the problem regarding non-application of valid laws.
2. In the opinion of the representative of the party
concerned, the petitioners do not present any arguments as to
how in the course of the application or not application of
Article 7 of the CC the principle of equality of persons
entrenched in Article 29 of the Constitution might be violated.
Article 7 of the CC does not contain any established privileges
or discriminatory rules with regard to sex, race, nationality
or other bases.
G. Goda maintains that Paragraph 2 of Article 7 of the CC
has been worded sufficiently clearly. There are not any
exceptions nor preconditions in this paragraph which permit to
bring persons to criminal responsibility otherwise but on the
basis of law, therefore Paragraph 2 of Article 7 of the CC does
not violate Paragraph 4 of Article 31 of the Constitution.
According to the representative of the party concerned,
Paragraph 2 of Article 7 of the CC does not establish that the
disputed norms are valid under certain conditions only. Neither
does Paragraph 2 of Article 7 of the CC question the principle
of the supremacy of laws in the legal system. Thus Paragraph 2
of Article 7 of the CC is in conformity with the principle of a
law-governed state.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations concerning
the arguments of the petitioners were received from K. Šimkus,
Deputy Advisor on issues of law and order to the President of
the Republic of Lithuania, V. Vadapalas, Director General of
the European Law Department under the Government of the
Republic of Lithuania, R. Budbergytė, Vice-minister of Justice,
A. Dapšys, Director of the Law Institute, as well as from the
Criminal Law Department of the Law Faculty, Law University of
Lithuania, and Dr. Ancelis, Dean of the Police Faculty of the
same university.
V
At the Constitutional Court hearing the representative of
the party concerned G. Goda virtually reiterated the arguments
set down in his written explanations to the Constitutional
Court.
The Constitutional Court
holds that:
I
On the compliance of Paragraph 2 of Article 7 of the
Criminal Code with Paragraph 2 of Article 7 of the
Constitution.
1. Paragraph 2 of Article 7 of the Criminal Code provides:
"A law, abolishing criminality of a deed, mitigating punishment
or otherwise ameliorating the legal situation of a person who
has committed the deed, shall be retroactively valid, i.e. it
shall applicable to the persons who had committed respective
deeds before the said law went into effect, as well as to the
persons serving the sentence and to those who have previous
record."
It is pointed out in the petitions of the petitioners that
Paragraph 2 of Article 7 of the CC is not clear: in some cases,
after Paragraph 2 of Article 7 of the CC is linked with
particular norms of the CC, Paragraph 2 of Article 7 of the CC
is not applicable, i.e. it is valid under certain conditions.
Paragraph 2 of Article 7 of the CC establishes not a universal
legal rule but a rule that may be applied with certain
reservations. According to the petitioners, the norm
established in Paragraph 2 of Article 7 of the CC is not valid
in some cases. They doubt if Paragraph 2 of Article 7 of the CC
is in compliance with Article 7 of the Constitution wherein it
is established that only laws which are promulgated shall be
valid.
It needs to be noted that although the petitioners request
the Constitutional Court to investigate whether Paragraph 2 of
Article 7 of the CC is in compliance with whole Article 7 of
the Constitution, however, their petitions contain only the
motives as for the non-compliance of Paragraph 2 of Article 7
of the CC with not whole Article 7 of the Constitution bot only
Paragraph 2 thereof wherein it is established that only laws
which are promulgated shall be valid, therefore the
Constitutional Court will investigate whether Paragraph 2 of
Article 7 of the CC is in compliance with Paragraph 2 of
Article 7 of the Constitution.
2. Paragraph 2 of Article 7 of the Constitution provides:
"Only laws which are promulgated shall be valid."
This constitutional norm means that laws are not valid and
may not be applied unless they are officially promulgated. The
official promulgation of laws in pursuance with the procedure
established in the Constitution and laws is a necessary
condition so that laws be valid and that subjects of legal
relations should know as to what laws are valid, what their
content is, and that they might follow these laws. There may
not be not promulgated laws in a democratic state.
Paragraph 2 of Article 7 of the Constitution also reflects
the legal principle that the validity of promulgated laws is
directed to the future and that these laws are not
retroactively valid (lex retro non agit). Thus, laws are
applied to the facts and effects which take place after these
laws go into effect. The requirement that the validity of
promulgated laws be directed to the future and that these laws
should not be retroactively valid is an important precondition
of legal certainty and an essential element of the rule of law
and a law-governed state.
3. Alongside, it needs to be noted that the legal
principle that the validity of promulgated laws is directed to
the future and that these laws are not retroactively valid is
to be linked with the constitutional principles of justice and
humanness. The Constitutional Court has held that the laws
abolishing punishment or mitigating responsibility for a deed
have retroactive validity (lex benignior retro agit) (ruling of
25 March 1998).
A common rule is established in Paragraph 2 of Article 7
of the CC concerning retroactive validity of penal laws: the
newly adopted penal laws which, if compared with earlier
adopted laws, ameliorate the legal situation of persons who
have committed criminal deeds, i.e. abolish criminality of the
deed, mitigate the punishment or otherwise ameliorate their
legal situation, have retroactive validity.
4. It needs to be noted that the norms of Article 7 of the
CC are in line with the provisions of international law acts
whereby no one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence, under national or international law, at the
time when it was committed, nor shall a heavier penalty be
imposed than the one that was applicable at the time when the
criminal offence was committed (Paragraph 1 of Article 15 of
the International Covenant on Civil and Political Rights,
Paragraph 2 of Article 11 of the Universal Declaration of Human
Rights, Paragraph 1 of Article 7 of the Convention for the
Protection of Human Rights and Fundamental Freedoms). In
addition, Paragraph 1 of Article 15 of the International
Covenant on Civil and Political Rights provides: "If,
subsequently to the commission of the offence, provision is
made by law for the imposition of a lighter penalty, the
offender shall benefit thereby."
5. The petitioners, requesting the Constitutional Court to
investigate whether Paragraph 2 of Article 7 of the CC is in
compliance with Paragraph 2 of Article 7 of the Constitution,
point out that in some cases Paragraph 2 of Article 7 of the CC
is not applicable, i.e. it is valid under certain circumstances
and is applied with certain reservations. The petitioners also
maintain that Paragraph 2 of Article 7 of the CC has been
promulgated, however, in some cases it is not valid.
The Constitutional Court notes that Paragraph 2 of Article
7 of the CC, as a constituent part of the CC, has been
promulgated under procedure established by laws and is valid.
As mentioned, a common rule is established in Paragraph 2 of
Article 7 of the CC that the penal laws abolishing criminality
of a deed, mitigating punishment or otherwise ameliorating the
legal situation of persons who have committed the deed have
retroactive validity. This rule is based on the constitutional
principles of justice and humanness and is in conformity with
the Constitution.
The petitioners faced the problem of constitutionality of
Paragraph 2 of Article 7 of the CC when they were deciding
whether another law, i.e. the Republic of Lithuania Law "On
Discharge from Criminal Liability and Punishment Established by
Article 310 of the Criminal Code for Storing and Shipment of
Spirit and Its Solutions (Mixtures)" of 26 March 1998
(hereinafter referred to as the Law of 26 March 1998), was to
be applied. This law was recognised as null and void by the
Republic of Lithuania Law "On Recognition of the Law 'On
Discharge from Criminal Liability and Punishment Established by
Article 310 of the Criminal Code for Storing and Shipment of
Spirit and Its Solutions (Mixtures)' as Null and Void" of 7
April 1998. In the opinion of the petitioners, pursuant to
Paragraph 2 of Article 7 of the CC, the Law of 26 March 1998,
as ameliorating the legal situation of a certain category of
persons, even though abolished, was to be further applied.
Thus, in this part of the petitions, the motives of the
petitioners are linked with issues of applicability of other
laws, but not with the conformity of the content of Paragraph 2
of Article 7 of the CC with Paragraph 2 of Article 7 of the
Constitution.
The Constitutional Court notes that under the Constitution
and the Law on the Constitutional Court, the Constitutional
Court does not consider issues of applicability of laws. Doubts
concerning applicability of laws must be removed by courts
themselves by construing the norms to be applied
(Constitutional Court decision of 11 July 1994).
Taking account of the arguments set forth, one is to
conclude that Paragraph 2 of Article 7 of the CC is in
compliance with Paragraph 2 of Article 7 of the Constitution.
II
On the compliance of Paragraph 2 of Article 7 of the
Criminal Code 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 petitioners have doubts as to the compliance of
Paragraph 2 of Article 7 of the CC with the principle of
equality of persons established in Article 29 of the
Constitution.
The Constitutional Court has noted that this principle
must be observed when passing and applying laws, as well as
administering justice. This principle obligates to apply
uniform legal assessment to homogeneous facts and prohibits to
arbitrarily assess essentially homogeneous facts (ruling of 24
January 1996).
Paragraph 2 of Article 7 of the CC does not single out any
categories of persons on the bases indicated in Article 29 of
the Constitution in whose regard Paragraph 2 of Article 7 of
the CC is applicable. The provisions of Paragraph 2 of Article
7 of the CC are not discriminatory, i.e. on the common bases
and under the same conditions they are applicable to all
persons who have committed dangerous deeds: suspects, accused,
defendants, convicts, as well as persons who have the previous
record.
Taking account of the arguments set forth, one is to
conclude that Paragraph 2 of Article 7 of the CC is in
compliance with Article 29 of the Constitution.
III
On the compliance of Paragraph 2 of Article 7 of the
Criminal Code with Paragraph 4 of Article 31 of the
Constitution.
Paragraph 4 of Article 31 of the Constitution provides:
"Punishments may only be administered or applied on the basis
of law."
This constitutional provision means that punishment may
only administered or applied on the basis of not any legal act
but a law. Thus legal preconditions are created to secure the
effective protection of the rights and freedoms of persons to
whom punishments are administered or applied.
The provisions of Paragraph 4 of Article 31 of the
Constitution are particularised and developed in the Criminal
Code and other laws.
As mentioned, Paragraph 2 of Article 7 of the CC provides
that the laws mitigating punishments shall be retroactively
valid. Thus, under Paragraph 2 of Article 7 of the CC, issues
on mitigating punishments are decided on the basis of law only.
Paragraph 2 of Article 7 of the CC does not contain any norms
that are not in line with the provisions of Paragraph 4 of
Article 31 of the Constitution.
Taking account of the arguments set forth, one is to
conclude that Paragraph 2 of Article 7 of the CC is in
compliance with Paragraph 4 of Article 31 of the Constitution.
IV
On the compliance of Paragraph 2 of Article 7 of the
Criminal Code with the principle of a law-governed state
enshrined in the Constitution.
The petitioners have doubts if Paragraph 2 of Article 7 of
the CC is in conformity with the principle of a law-governed
state enshrined in the Constitution, which presupposes clarity
of legal norms, their unconditional validity and the supremacy
of laws in the legal system.
The Constitutional Court has held that the constitutional
principle of a law-governed state is a universal one upon which
the whole Lithuanian legal system as well as the Constitution
of the Republic of Lithuania itself are based and that the
content of the principle of a law-governed state is revealed in
various provisions of the Constitution (rulings of 23 February
2000, 18 October 2000).
It needs to be noted that Paragraph 2 of Article 7 of the
CC is worded in a clear manner and that this paragraph, as a
constituent part of the CC, has been promulgated and is valid.
It is not in conflict with the principle of supremacy of laws
entrenched in the Constitution. Paragraph 2 of Article 7 of the
CC is based on the constitutional principles of justice and
humanness. Besides, in the present ruling of the Constitutional
Court has been held that Paragraph 2 of Article 7 of the CC is
in compliance with Paragraph 2 of Article 7, Article 29 and
Paragraph 4 of Article 31 of the Constitution.
Taking account of the arguments set forth, one is to
conclude that Paragraph 2 of Article 7 of the CC is in
compliance with the principle of a law-governed state enshrined
in 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 of the Republic of Lithuania has passed
the following
ruling:
To recognise that Paragraph 2 of Article 7 of the Republic
of Lithuania Criminal Code is in compliance with the
Constitution of the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.