Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Item 9 of Paragraph 8 of
Article 19 of the Republic of Lithuania Law on
Arms and Ammunition Control and Items 14.9 and
57.2 of the Rules on Hunting Arms Circulation
approved by Resolution of the Government of the
Republic of Lithuania No. 436 "On Approving the
Rules on Hunting Arms Circulation" of 10 April
1998 with the Constitution of the Republic of
Lithuania
Vilnius, 12 April 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 representatives of the party concerned-the Government
of the Republic of Lithuania-Vytas Rimkus, a senior
commissioner of the Law Service of the Police Department under
the Ministry of Internal Affairs of the Republic of Lithuania,
and Olegas Rimanas, a commissioner of the Operational
Activities Service of the criminal police of the said
department,
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 5
April 2001 in its public hearing conducted the investigation of
Case No. 33/99 subsequent to the petition submitted to the
Court by the Higher Administrative Court requesting
investigation into the compliance of Item 9 of Paragraph 8 of
Article 19 of the Republic of Lithuania Law on Arms and
Ammunition Control and Items 14.9 and 57.2 of the Rules on
Hunting Arms Circulation approved by Resolution of the
Government of the Republic of Lithuania No. 436 "On Approving
the Rules on Hunting Arms Circulation" of 10 April 1998 with
Paragraph 1 of Article 29 and Paragraphs 1 and 6 of Article 31
of the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
The petitioner-the Higher Administrative Court-was
investigating an administrative case wherein it was requested
to obligate the Public Police Division of the Vilnius City Head
Police Commissioner's Office of the Ministry of Internal
Affairs of the Republic of Lithuania to renew a permit to keep
and bear a hunting arm. By its ruling of 18 November 1999, the
said court suspended the investigation of the case and appealed
to the Constitutional Court with a petition requesting
investigation into the compliance of Item 9 of Paragraph 8 of
Article 19 of the Republic of Lithuania Law on Arms and
Ammunition Control (Official Gazette Valstybės žinios, 1996,
No. 69-1665; hereinafter also referred to as the Law) and Items
14.9 and 57.2 of the Rules on Hunting Arms Circulation
(Official Gazette Valstybės žinios, 1998, No. 37-974;
hereinafter also referred to as the Rules) approved by
Resolution of the Government of the Republic of Lithuania No.
436 "On Approving the Rules on Hunting Arms Circulation" of 10
April 1998 with Paragraph 1 of Article 29 and Paragraphs 1 and
6 of Article 31 of the Constitution.
II
The request of the petitioner is based on these arguments.
Item 9 of Paragraph 8 of Article 19 of the Law provides
that permits to acquire civil weapons shall not be issued to
the persons who have been entered into police preventive or
operational record files. Item 14.9 of the Rules also contains
the prohibition to issue permits to acquire hunting weapons to
the persons who have been entered into police preventive or
operational record files. Item 57.2 of the Rules provides that
a police office may also not renew the permit to keep and bear
a hunting weapon if provisions of Items 14.2-14.7, 14.9-14.12
of these rules may be applied to the person, thus, also in
cases when the person has been entered into police preventive
or operational record files. According to the petitioner, thus
certain restrictions and limitations of their rights are
applied against the persons who have been entered into
operational record files without establishment of their
culpability, besides, due to their entering into operational
record files their rights to defence are restricted. The
petitioner doubts if Item 9 of Paragraph 8 of Article 19 of the
Law and Items 14.9 and 57.2 of the Rules are in compliance with
Paragraph 1 of Article 29 and Paragraphs 1 and 6 of Article 31
of the Constitution.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representative of the party concerned-the
Seimas-R. Varslauskas, a senior consultant to the Law
Department of the Office of the Seimas.
The representative of the party concerned-the
Seimas-maintains that the norms of Article 31 of the
Constitution are designated to ensure implementation of the
principles of justice in criminal legal procedure. The public
relations regulated by the Law and the Rules are not identical
with the relations in the area of criminal legal procedure. In
the opinion of R. Varslauskas, the disputed provisions of the
Law and the Rules do not prohibit persons to make use of their
right to defence. Article 30 of the Constitution provides that
any person whose constitutional rights or freedoms are violated
shall have the right to appeal to court. Besides, the
constitutional principle of equality of persons in itself does
not deny the fact that laws may establish different legal
treatment with respect to certain categories of persons that
are in different situations. The representative of the Seimas
maintains that the disputed provisions of the Law and the Rules
are in conformity with the Constitution.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representatives of the party concerned-the
Government-V. Rimkus and O. Rimanas.
In the opinion of the party concerned-the
Government-Article 31 of the Constitution does not establish an
abstract presumption of legal non-culpability but links it with
commission of crime, i.e. legal penal relations. The
representatives maintain that the Higher Administrative Court
erroneously treats entering into the police preventive record
file (along with the restrictions arising therefrom) as a
criminal punishment. By this the court groundlessly attributes
the status of criminal charge to entering persons into the
record file. In the opinion of V. Rimkus and O. Rimanas, the
right to keep a weapon (including a hunting one) is not a
constitutional right, therefore it is not necessary that it be
protected in a judicial manner. In addition, they pointed out
that Article 29 of the Constitution presupposes that the same
requirements of laws are applied to all persons. The disputed
provisions of the Law and the Rules do not provide any legal
grounds to apply the said provisions in a different manner to
one or another group of people. In the opinion of the
representatives of the party concerned, Item 9 of Paragraph 8
of Article 19 of the Law and Items 14.9 and 57.2 of the Rules
are in compliance with Paragraph 1 of Article 29 and Paragraphs
1 and 6 of Article 31 of the Constitution.
V
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the specialist Dr. K. Šimkus, Head of the
Operational Tactics Department of the Police Faculty, the Law
University of Lithuania.
VI
At the Constitutional Court hearing the representatives of
the party concerned-the Government-V. Rimkus and O. Rimanas
virtually reiterated the arguments set down in their written
explanations.
The Constitutional Court
holds that:
I
1. On 2 July 1996, the Seimas adopted the Law on Arms and
Ammunition Control. Item 9 of Paragraph 8 of Article 19 of the
Law provides that permits to acquire civil weapons shall not be
issued to the persons who "have been entered into police
preventive or operational record files".
By its Resolution No. 436 "On Approving the Rules on
Hunting Arms Circulation" of 10 April 1998, the Government
approved the Rules on Hunting Arms Circulation Item 14.9
whereof provides that permits to acquire hunting weapons shall
not be issued to the persons who "have been entered into police
preventive or operational record files".
Item 57.2 of the Rules provides that a police office may
also not renew or it may abolish the permit to a natural person
to keep and bear a hunting weapon prior to its expiry if
"provisions of Items 14.2-14.7, 14.9-14.12 of these rules may
be applied to the said person".
2. The petitioner-the Higher Administrative Court-doubts
whether the aforesaid provisions of the Law and the Rules are
in compliance with Paragraph 1 of Article 29 and Paragraphs 1
and 6 of Article 31 of the Constitution. Even though in the
motivation of the petition the petitioner points out certain
provisions of the Republic of Lithuania Law on Operational
Activities and of the Republic of Lithuania Law on State
Secrets and Their Protection, however, in the substantive
provisions of the petition it does not request investigation
into their compliance with the Constitution, therefore the
provisions of the Law on Operational Activities regulating
entering of persons into police operational record files and
the provisions of the Law on State Secrets and Their Protection
establishing that information concerning actions of entities of
operational activities shall also constitute a state secret are
not a matter of consideration in this case.
The petitioner requests investigation into the compliance
of Item 57.2 of the Rules with the Constitution. It is pointed
out in the said item that a police office may also not renew or
it may abolish the permit to a natural person to keep and bear
a hunting weapon prior to its expiry. It is clear from the
petition that the petitioner has doubts as for the compliance
of not whole Item 57.2 with the Constitution but only to the
extent that it provides that the permit to a natural person to
keep and bear a hunting weapon may not be renewed or it may be
abolished prior to its expiry if provisions of Item 14.9 of the
Rules may be applied to the said person.
On the basis of the petition of the petitioner, the
Constitutional Court will investigate in this case whether Item
9 of Paragraph 8 of Article 19 of the Law and Item 14.9 of the
Rules as well as Item 57.2 of the Rules to the extent that it
provides that the permit to a natural person to keep and bear a
hunting weapon may not be renewed or it may be abolished prior
to its expiry if provisions of Item 14.9 of the Rules may be
applied to the said person are in compliance with Paragraph 1
of Article 29 and Paragraphs 1 and 6 of Article 31 of the
Constitution.
II
Under the Constitution, institutions of state power and
administration have a duty to ensure public safety and public
order, to protect individuals from attempts against their lives
or health, to protect human rights and freedoms.
It needs to be emphasised that arms and ammunition may be
dangerous to public order and public safety, to people's lives
and health, therefore, the legislator, taking account of the
necessity to ensure public safety and public order, to protect
human rights and freedoms, is empowered to establish conditions
and a procedure of arms and ammunition getting into civil
circulation, of their keeping, use and issuance of permits to
acquire weapons.
III
On the compliance of Item 9 of Paragraph 8 of Article 19
of the Law on Arms and Ammunition Control and Items 14.9 and
57.2 of the Rules on Hunting Arms Circulation approved by
Government Resolution No. 436 "On Approving the Rules on
Hunting Arms Circulation" of 10 April 1998 with Paragraph 1 of
Article 31 of the Constitution.
1. The petitioner doubts if the disputed provisions of the
Law and the Rules are in compliance with Paragraph 1 of Article
31 of the Constitution.
2. Paragraph 1 of Article 31 of the Constitution
stipulates 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."
The presumption of innocence is a fundamental principle of
administration of justice in the procedure of criminal cases
and one of the most important guarantees of human rights and
freedoms.
3. The disputed provisions of the Law and the Rules
regulate relations linked with the conditions and procedure of
issuance of permits to acquire arms and ammunition. These
provisions regulate different relations form those regulated in
Paragraph 1 of Article 31 of the Constitution.
4. Taking account of the arguments set forth, one is to
draw a conclusion that Item 9 of Paragraph 8 of Article 19 of
the Law on Arms and Ammunition Control and Item 14.9 of the
Rules on Hunting Arms Circulation approved by Government
Resolution No. 436 "On Approving the Rules on Hunting Arms
Circulation" of 10 April 1998 as well as Item 57.2 of the said
rules to the extent that it provides that the permit to a
natural person to keep and bear a hunting weapon may not be
renewed or it may be abolished prior to its expiry if
provisions of Item 14.9 of these rules may be applied to the
said person are in compliance with Paragraph 1 of Article 31 of
the Constitution.
IV
On the compliance of Item 9 of Paragraph 8 of Article 19
of the Law on Arms and Ammunition Control and Items 14.9 and
57.2 of the Rules on Hunting Arms Circulation approved by
Government Resolution No. 436 "On Approving the Rules on
Hunting Arms Circulation" of 10 April 1998 with Paragraph 6 of
Article 31 of the Constitution.
1. The petitioner doubts if the disputed provisions of the
Law and the Rules are in compliance with Paragraph 6 of Article
31 of the Constitution.
2. Paragraph 6 of Article 31 of the Constitution provides:
"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."
This constitutional provision establishes the right of an
individual suspected of commission of crime and that of the
accused to defence. It is one of the guarantees of protection
of human rights and a necessary condition so that every person
who committed a crime would be justly punished and that an
innocent person would not be brought to criminal responsibility
nor punished.
3. The disputed provisions of the Law and the Rules
regulate relations linked with issuance of permits to acquire
arms and ammunition. These provisions regulate different
relations from those regulated in Paragraph 6 of Article 31 of
the Constitution. The disputed provisions do not deny the right
of an individual suspected of commission of crime nor that of
the accused, from the moment of their arrest or first
interrogation, to defence and legal counsel.
The Constitutional Court notes that a person must enjoy
the right, on the basis of the Constitution, to defend his
infringed rights and that an opportunity to defend the
infringed rights, according to the Constitution, must be real.
It needs to be noted that Item 19 of the Rules also provides
that the police must inform the interested person in writing as
regards the decision to issue the permit to acquire a weapon.
The refusal to issue a weapon must be a motivated one, while
the person may appeal to court against such a decision (Item 20
of the Rules).
4. Taking account of the arguments set forth, one is to
draw a conclusion that Item 9 of Paragraph 8 of Article 19 of
the Law on Arms and Ammunition Control and Item 14.9 of the
Rules on Hunting Arms Circulation approved by Government
Resolution No. 436 "On Approving the Rules on Hunting Arms
Circulation" of 10 April 1998 as well as Item 57.2 of the said
rules to the extent that it provides that the permit to a
natural person to keep and bear a hunting weapon may not be
renewed or it may be abolished prior to its expiry if
provisions of Item 14.9 of these rules may be applied to the
said person are in compliance with Paragraph 6 of Article 31 of
the Constitution.
V
On the compliance of Item 9 of Paragraph 8 of Article 19
of the Law on Arms and Ammunition Control and Items 14.9 and
57.2 of the Rules on Hunting Arms Circulation approved by
Government Resolution No. 436 "On Approving the Rules on
Hunting Arms Circulation" of 10 April 1998 with Paragraph 1 of
Article 29 of the Constitution.
1. The petitioner doubts if the disputed provisions of the
Law and the Rules are in compliance with Paragraph 1 of Article
29 of the Constitution.
2. Paragraph 1 of 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."
In the norms of Article 29 of the Constitution the
principle of equality of all persons is established which means
the inborn human right to be treated equally with the others.
This principle sets the formal equality of all persons, as well
as the fact that persons may not be discriminated nor that they
may be granted privileges.
One must follow the constitutional principle of equality
of people before the law, the court and other state
institutions and officers in the course of passage of laws,
their application and administration of justice. However, the
said constitutional principle does not deny the fact that the
law may establish different legal treatment concerning certain
categories of people who are in different situations
(Constitutional Court ruling of 28 February 1996).
3. As held in the present Ruling, the legislator, having a
duty to ensure public safety and public order, to protect human
rights and freedoms, may establish conditions and a procedure
of arms and ammunition getting into civil circulation, of their
keeping, use and issuance of permits to acquire arms. Different
conditions of issuance of permits to acquire arms may be
established to certain categories of persons as much as it is
necessary to ensure public safety and public order. The legal
regulation whereby permits to acquire hunting weapons shall not
be issued to the persons who have been entered into police
preventive or operational record files or that such permits may
also be not renewed or that they may be abolished prior to
their expiry in itself does not violate the constitutional
principle of equality of all persons. It has been held in the
present Ruling that the legal norms regulating entering of
persons into police operational record files are not a matter
of consideration in this case.
4. Taking account of the arguments set forth, one is to
draw a conclusion that Item 9 of Paragraph 8 of Article 19 of
the Law on Arms and Ammunition Control and Item 14.9 of the
Rules on Hunting Arms Circulation approved by Government
Resolution No. 436 "On Approving the Rules on Hunting Arms
Circulation" of 10 April 1998 as well as Item 57.2 of the said
rules to the extent that it provides that the permit to a
natural person to keep and bear a hunting weapon may not be
renewed or it may be abolished prior to its expiry if
provisions of Item 14.9 of these rules may be applied to the
said person are in compliance with Paragraph 1 of Article 29 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 of the Republic of Lithuania has passed
the following
ruling:
To recognise that Item 9 of Paragraph 8 of Article 19 of
the Republic of Lithuania Law on Arms and Ammunition Control
and Item 14.9 of the Rules on Hunting Arms Circulation approved
by Resolution of the Government of the Republic of Lithuania
No. 436 "On Approving the Rules on Hunting Arms Circulation" of
10 April 1998 as well as Item 57.2 of the said rules to the
extent that it provides that the permit to a natural person to
keep and bear a hunting weapon may not be renewed or it may be
abolished prior to its expiry if provisions of Item 14.9 of
these rules may be applied to the said person are in compliance
with the Constitution of the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.