Lietuviškai
Case No. 13/02-22/02
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF ARTICLE 45 (WORDING OF 2 JULY
1998) AND PARAGRAPH 3 OF ARTICLE 312 (WORDING OF 3
FEBRUARY 1998) OF THE CRIMINAL CODE OF THE
REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE
REPUBLIC OF LITHUANIA
10 June 2003
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas
Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the Seimas of the Republic of
Lithuania, the party concerned, who was Antanas Jatkevičius, a
senior consultant to the Legal Department of the Office of the
Seimas,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, on 3 June
2003 in its public hearing heard Case No. 13/02-22/02 which
originated in these petitions
1) the petition of the Court of Appeal of Lithuania
requesting to investigate as to whether Paragraph 4 of Article
45 (wording of 2 July 1998) and the minimum punishment of
five-year imprisonment established in Paragraph 3 of Article
312 (wording of 3 February 1998) of the Criminal Code of the
Republic of Lithuania were not in conflict with Paragraph 2 of
Article 31 of the Constitution of the Republic of Lithuania as
well as the principle of a state under the rule of law, which
is entrenched in the Constitution of the Republic of Lithuania;
2) the petition of the Panevėžys Regional Court requesting
to investigate as to whether Paragraph 4 of Article 45 (wording
of 2 July 1998) of the Criminal Code of the Republic of
Lithuania was not in conflict with Paragraph 1 of Article 29
and Paragraph 2 of Article 31 of the Constitution of the
Republic of Lithuania.
By the Constitutional Court decision of 28 January 2003,
these petitions were joined into one case.
The Constitutional Court
has established:
I
1. The Court of Appeal of Lithuania, the petitioner, was
considering a criminal case. The said court suspended the
investigation of the case by its ruling and applied to the
Constitutional Court with a petition requesting to investigate
as to whether Paragraph 4 of Article 45 (wording of 2 July
1998; Official Gazette Valstybės žinios, 1998, No. 67-1937) and
the minimum punishment of five-year imprisonment established in
Paragraph 3 of Article 312 (wording of 3 February 1998;
Official Gazette Valstybės žinios, 1998, No. 17-397) of the
Criminal Code (hereinafter also referred to as the CC) were not
in conflict with Paragraph 2 of Article 31 of the Constitution
as well as the principle of a state under the rule of law,
which is entrenched in the Constitution.
2) The Panevėžys Regional Court, the petitioner, was
considering a criminal case. The said court suspended the
investigation of the case by its ruling and applied to the
Constitutional Court with a petition requesting to investigate
as to whether Paragraph 4 of Article 45 (wording of 2 July
1998) of the Criminal Code was not in conflict with Paragraph 1
of Article 29 and Paragraph 2 of Article 31 of the
Constitution.
II
1. The request of the petitioner, the Court of Appeal of
Lithuania, is based on the following arguments.
The state must ensure an effective protection of the human
being against criminal attempts and create a system, on the
basis of which the persons who have violated the prohibitions
established in the penal law would be held criminally liable.
The establishment of the sanctions for the commission of the
deeds provided for in the penal law is within the prerogative
of the legislator, meanwhile, it is the court that must
recognise the person guilty of the commission of the crime and
to impose on him the punishment which is adequate to the nature
of the crime and the degree of its danger.
According to the petitioner, the sanctions provided for in
the CC ought to be designed so that the court, conforming to
the grounds of imposition of punishment established by penal
laws, might impose a just punishment on the accused, thus
ensuring the realisation of the principle of a state under the
rule of law and the right of the person to a fair investigation
of his case.
The persons who commit crimes must be punished justly,
i.e. the imposed punishment must depend on the significance of
the value protected by the penal law, the nature of the crime
committed, its consequences, the degree of danger of the person
who violated law, and other important circumstances. Under
Paragraph 2 of Article 31 of the Constitution, a person charged
with the commission of a crime shall have the right to a fair
public hearing of his case by an independent and impartial
court. In the opinion of the petitioner, justice means not only
that one establishes the circumstances important to the cases
in an exhaustive, thorough and objective manner, but also that
the punishment imposed on the person who is recognised guilty
is adequate to the crime committed: the punishment for a
criminal deed must correspond to the nature and degree of the
danger of this deed.
The petitioner believes that Paragraph 3 of Article 312
(wording of 3 February 1998) of the CC, the sanction
established by which provides for the minimum punishment of
five-year imprisonment, encompasses a wide range of deeds,
which vary according to the degree of danger. Although,
according to the CC, in some situations the court is permitted
to impose a milder punishment on the culprit than provided for
in the law (Article 45 of the CC), however, the application of
these provisions are strictly limited by formal conditions and
prohibitions. In the absence of these conditions, the
opportunity of the court to impose a just punishment on the
culprit becomes restricted. In case of application of Paragraph
3 of Article 312 (wording of 3 February 1998) of the CC, the
court is obligated to impose the punishment of not less than
five years of imprisonment and a fine on the person who
violated the penal law, although the imposition of such strict
punishment is not always in line with the principle of justice.
Under Article 45 of the CC, under certain conditions and in
certain situations the court is permitted to avoid the
imposition of a clearly unjust punishment and to impose a
milder punishment than provided for by the law, if the limits
of a concrete sanction does not permit to take account of the
nature of the crime and of the person who committed it.
However, Paragraph 4 of Article 45 (wording of 2 July 1998) of
the CC provides for the criminal deeds, for which the persons
who committed them are not applied Paragraph 2 of Article 45 of
the CC, permitting to impose a milder punishment than provided
for in the law. The petitioner is of the opinion that thus
singling out certain elements of the crime, under which the
imposition of a milder punishment than provided for in the
concrete sanction (i.e. application of Article 45 of the CC) is
prohibited, one thereby restricts the opportunity of the court
to investigate the case justly and to individualise the
punishment.
2. The request of the petitioner, the Panevėžys Regional
Court, is based on the following arguments.
Paragraph 2 of Article 31 of the Constitution provides
that a person charged with the commission of a crime shall have
the right to a fair public hearing of his case by an
independent and impartial court. Justice means not only that
one establishes the circumstances important to the cases in an
exhaustive, thorough and objective manner, but also that the
punishment imposed on the person who is recognised guilty is
adequate to the crime committed. Paragraph 1 of Article 29 of
the Constitution provides that all persons shall be equal
before the law, the court, and other state institutions and
officials.
In the opinion of the petitioner, after Paragraph 4 of
Article 45 (wording of 2 July 1998) of the CC had singled out
certain elements of the crime, which, by their nature are not
among the most dangerous to the society, and after it had been
prohibited to impose a milder punishment than provided for in
the concrete sanction, the opportunity of the court to
investigate the case justly and to individualise the punishment
is restricted.
III
1. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations (dated 12
September 2002 and 27 January 2003) were received from the
representative of the party concerned, the Seimas, who was M.
Girdauskas, a senior consultant to the Legal Department of the
Office of the Seimas.
The representative of the party concerned noted that,
under Paragraph 4 of Article 31 of the Constitution, punishment
may be imposed or applied only on the grounds established in
law. By Article 109 of the Constitution, while considering
cases, judges shall obey only the law. Thus, the court has the
right to impose only the punishment provided for in the law on
the person who was recognised guilty. However, the legislator
is not completely free in the establishment of punishment for
criminal deeds. The scope of power shall be limited by the
Constitution (Paragraph 2 of Article 5 of the Constitution).
According to the representative of the party concerned, on the
grounds of the constitutional principles of justice and a state
under the rule of law, the state has to provide for sanctions
for violations of law, which must be proportionate (adequate)
for the violation of law, they must be in line with the sought
legitimate and generally important objectives, they should not
restrict the person evidently more than it is necessary to
achieve these objectives. In other words, laws must create
opportunities for the court to impose the punishment for every
crime, which is adequate and proportionate to the crime, so
that the constitutional right of the person might be
implemented that his case be investigated fairly and
impartially by the court.
According to M. Girdauskas, under Paragraph 4 of Article
45 (wording of 2 July 1998) of the CC, the court is not
permitted to impose a milder punishment on a person of age
charged with contraband on a large scale than the minimum
punishment provided in the sanction for contraband on a large
scale, which is a five-year imprisonment, provided the
circumstances specified in Paragraph 1 of Article 45 of the CC
are absent, although those specified in Paragraph 2 of the same
article are present. In the opinion of the representative of
the party concerned, the formula of Paragraph 3 of Article 312
(wording of 3 February 1998) includes not only the features of
very dangerous deeds for which strict punishments must be
applied, but also the features of less dangerous deeds.
The representative of the party concerned believes that
there are grounds to doubt whether Paragraph 4 of Article 45
(wording of 2 July 1998) and the minimum punishment of
five-year imprisonment established in Paragraph 3 of Article
312 (wording of 3 February 1998) of the CC is in conformity
with the Constitution.
2. In the course of the preparation of the case for the
Constitutional Court hearing, a letter of 30 May 2003 was
received from the representative of the party concerned, the
Seimas, who was Antanas Jatkevičius, a senior consultant to the
Legal Department of the Office of the Seimas, in which he
assented to the arguments set forth in the written explanations
of M. Girdauskas, the representative of the party concerned,
the Seimas.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from D. Grybauskaitė, Minister of Finance of the
Republic of Lithuania, P. Čėsna, Minister of Economy of the
Republic of Lithuania, G. Švedas, Vice-minister of Justice, J.
Liaudanskas, Secretary of the Ministry of the Interior of the
Republic of Lithuania, A. Klimavičius, Prosecutor General of
the Republic of Lithuania, Prof. Dr. V. Pavilonis, Head of the
Department of Criminal Law of the Faculty of Law, Vilnius
University, Prof. Dr. G. Babachinaitė, Head of the Department
of Criminology, the Law University of Lithuania, and
specialists of the Institute of Law.
V
At the Constitutional Court hearing, the representative of
the party concerned, the Seimas, who was A. Jatkevičius,
virtually reiterated the arguments set forth in the written
explanations of the representative of the Seimas M. Girdauskas.
Alongside, A. Jatkevičius noted that the punishment of
imprisonment provided for in Paragraph 3 of Article 312
(wording of 3 February 1998) of the CC may be assessed as being
in compliance with the Constitution, if the general part of the
CC provided that the court might impose a milder punishment
than the minimum established in relevant articles of the
special part of the CC.
The Constitutional Court
holds that:
I
1. On 3 February 1998, the Seimas adopted the Republic of
Lithuania Law on the Amendment of Articles 81, 11, 26, 35, 49,
54, 55, 207, 231, 2312, 2313, 2321, 2322, 2324, 2325, 2326,
234, 2341, 2342, 2343, 2344, 236, 285, 287, 288, 289, 290, 294,
295, 312 of the Criminal Code and Supplement Thereof with
Articles 1321, 2141, 3121, 3212, by Article 29 whereof it
amended and supplemented Article 312 of the CC.
On 2 July 1998, the Seimas adopted the Republic of
Lithuania Law on the Amendment and Supplement of Articles 81,
25, 32, 35, 45, 471, 531, 54, 55, 131, 239, 241, 242, 306, 3212
of the Criminal Code and Supplement Thereof with Articles 1313,
3101, by Article 5 whereof it amended and supplemented Article
45 of the CC.
2. The Court of Appeal of Lithuania, the petitioner,
requests to investigate as to whether Paragraph 4 of Article 45
(wording of 2 July 1998) of the CC and the minimum punishment
of five-year imprisonment established in Paragraph 3 of Article
312 (wording of 3 February 1998) of the CC are not in conflict
with Paragraph 2 of Article 31 of the Constitution as well as
the principle of a state under the rule of law, which is
entrenched in the Constitution.
The Panevėžys Regional Court, the petitioner, requests to
investigate as to whether Paragraph 4 of Article 45 (wording of
2 July 1998) of the CC is not in conflict with Paragraph 1 of
Article 29 and Paragraph 2 of Article 31 of the Constitution.
3. On 10 December 2002, the Seimas adopted the Republic of
Lithuania Law on the Amendment of Articles 81, 111, 45, 531,
2321, 2322, 2325, 2328, 312, 3212 of the Criminal Code,
Recognition of Article 2323 Thereof as no Longer Valid and
Supplement Thereof with Article 3401, by Article 3 whereof it
recognised Paragraph 4 of Article 45 of the CC as no longer
valid, while by Article 10 whereof it amended Article 312 of
the CC and inter alia reduced the minimum punishment of
five-year imprisonment provided for in Paragraph 3 thereof till
three-year imprisonment.
On 9 January 2003, the Seimas adopted the Republic of
Lithuania Law on the Recognition of Article 151 of the Criminal
Code as no Longer Valid, the Amendment and Supplement of
Articles 411, 45, 2271 Thereof and Supplement with Article 512
Thereof, by Article 3 whereof it supplemented Article 45 of the
CC with new Paragraph 6, while amended Paragraph 7 thereof.
4. On 26 September 2000, the Seimas adopted the Law on the
Confirmation and Entry into Force of the Criminal Code of the
Republic of Lithuania, whereby a new Criminal Code was
confirmed.
On 29 October 2002, the Seimas adopted the Republic of
Lithuania Law on the Procedure of Entry into Effect and
Implementation of the Criminal Code as Confirmed by Law No.
VIII-1968 of 26 September 2000, the Code of Criminal Procedure,
as Confirmed by Law No. IX-785 of 14 March 2002, and the Code
of Execution of Punishments as Confirmed by Law No. IX-994 of
27 June 2002, in Article 1 whereof it established that the new
Criminal Code shall become effective as of 1 May 2003.
5. Under the Constitution, it is only the Constitutional
Court that decides whether the laws and other acts of the
Seimas are not in conflict with the Constitution and whether
acts of the President of the Republic and the Government are
not in conflict with the Constitution or laws (Paragraph 1 of
Article 102). Paragraph 1 of Article 110 of the Constitution
provides that a judge may not apply a law, which is in conflict
with the Constitution. Under Paragraph 2 of Article 110 of the
Constitution, in cases when there are grounds to believe that
the law or other legal act applicable in a concrete case is in
conflict with the Constitution, the judge shall suspend the
consideration of the case and shall apply to the Constitutional
Court requesting it to decide whether the law or other legal
act in question is in compliance with the Constitution.
These constitutional provisions imply that in cases when
the Constitutional Court is applied by a court, investigating a
case, which has doubts as to the compliance, in the opinion of
the court, of a law applicable in that case with the
Constitution, as well as concerns the compliance of an act
adopted by the Seimas, an act of the President of the Republic
or the Government with the Constitution or laws, the
Constitutional Court is obligated to consider the request of
the court regardless of the fact whether the disputed law or
other legal act is in force or not (Constitutional Court ruling
of 21 August 2002).
6. It has been mentioned that the Court of Appeal of
Lithuania, the petitioner, requests to investigate as to
whether the minimum punishment of five-year imprisonment
established in Paragraph 3 of Article 312 of the CC (wording of
3 February 1998) is not in conflict with Paragraph 2 of Article
31 of the Constitution as well as the principle of a state
under the rule of law, which is entrenched in the Constitution.
It has also been mentioned that the Court of Appeal of
Lithuania, the petitioner, requests to investigate as to
whether Paragraph 4 of Article 45 of the CC (wording of 2 July
1998) is not in conflict with Paragraph 2 of Article 31 of the
Constitution as well as the principle of a state under the rule
of law which is entrenched in the Constitution, while the
Panevėžys Regional Court, the petitioner, as to whether the
same paragraph is not in conflict with Paragraph 1 of Article
29 and Paragraph 2 of Article 31 of the Constitution. It is
clear from the arguments set forth in the petition that the
petitioners have doubts concerning the compliance of not entire
Paragraph 4 of Article 45 of the CC (wording of 2 July 1998)
with the Constitution, but only whether this paragraph was not
in conflict with the Constitution to the extent that it
established that Paragraph 2 of the same article should be not
applied to the persons convicted for the criminal deed provided
for by Paragraph 3 of Article 312 of the CC (wording of 3
February 1998).
7. Subsequent to the petitions of the petitioners the
Constitutional Court will investigate whether the provision of
Paragraph 3 of Article 312 of the CC "shall be punished by
imprisonment from five years <...>" and Paragraph 4 of Article
45 of the CC to the extent that it established that Paragraph 2
of the Article should be not applied to the persons convicted
for the criminal deed provided for by Paragraph 3 of Article
312 of the CC (wording of 3 February 1998) were not in conflict
with the Constitution.
II
On the compliance of the provision of Paragraph 3 of
Article 312 of the CC "shall be punished by imprisonment from
five years" with Paragraph 2 of Article 31 of the Constitution
as well as the constitutional principle of a state under the
rule of law.
1. Article 312 of the CC (wording of 3 February 1998)
provided:
"Article 312. Contraband
Transportation of goods, money, valuables of art or other
items which must be declared at the customs through the state
border of the Republic of Lithuania by not declaring them at
the customs or avoiding the customs control in other way, or
with a forged declaration of customs or other documents, or
transporting goods or items under different name from that
indicated in the customs declaration or in other documents
shall be punished by imprisonment up to five years
together with a fine, or without a fine, or by a fine.
Transportation of goods, money, valuables of art or other
items which must be declared at the customs through the state
border of the Republic of Lithuania not through the customs, as
well as transportation of firing arms, ammunition, explosives,
explosive, radioactive and other strategic goods, poisonous and
toxic, psychotropic or narcotic substances, precursors through
the state border of the Republic of Lithuania by not declaring
them at the customs or avoiding the customs control in other
way, or without the permission to transport them
shall be punished by imprisonment from three years to six
years either together with a fine or without a fine.
The deeds provided for in Paragraphs 1 and 2 of this
Article, if they are committed by a group of persons with an
afore-planned intention, or repeatedly, or on a large scale, or
contraband of a large amount of firing arms, ammunition,
explosives or explosive substances
shall be punished by imprisonment from five years to ten
years together with a fine."
2. The Court of Appeal of Lithuania, the petitioner,
requests to investigate as to whether the minimum punishment of
five-year imprisonment established in Paragraph 3 of Article
312 of the CC (wording of 3 February 1998) was not in conflict
with Paragraph 2 of Article 31 of the Constitution as well as
the principle of a state under the rule of law, which is
entrenched in the Constitution.
3. Article 31 of the Constitution provides:
"A person shall be presumed innocent until proven guilty
and must be declared guilty by a effective court judgement in
accordance with the procedure established by law.
A person charged with the commission of a crime shall have
the right to a fair public hearing of his case by an
independent and impartial court.
It shall be prohibited to compel to give evidence against
oneself or against one's family members or close relatives.
Punishment may be imposed or applied only on the grounds
established in law.
No one may be punished a second time for the same crime.
A person suspected of the commission of a crime or an
accused, from the moment of his detention or first
interrogation, shall be guaranteed the right to defence as well
as the right to have an advocate."
3.1. This article of the Constitution consolidates
constitutional grounds of criminal law and law of criminal
procedure. The provisions of Article 31 of the Constitution
should be construed while taking account of the fact that the
Constitution establishes the principle of a state under the
rule of law, as well as that the Constitution consolidates
human rights and freedoms, other constitutional values which
must be protected and defended. One of the means for protection
of rights and freedoms of the human being as well as other
constitutional values is criminal liability for punishable
deeds.
3.2. The legislator in a state under the rule of law has
the right and, alongside, a duty to prohibit by laws the deeds
by which essential harm is inflicted on the interests of
persons, society and those of the state or in case there occurs
a threat that such damage will be inflicted; the laws define as
to what deeds are considered crimes and establish punishment
for their commission; by threatening with criminal punishments,
they protect individuals and society from criminal attempts
against them and establish bases on the grounds of which the
persons who have committed crimes are punished in attempt to
correct them (Constitutional Court ruling of 8 May 2000).
It should be noted in the context of the case under
consideration that Paragraph 4 of Article 31 of the
Constitution according to which punishment may be imposed or
applied only on the grounds established in law means inter alia
that, under the Constitution, the legislator has the duty to
establish by law as to what deeds are crimes, as well as
criminal liability for such deeds. Upon establishing as to what
deeds are crimes, as well as criminal liability for them, the
legislator is bound by the principles of natural justice and
proportionality established by the Constitution as well as
other requirements of a state under the rule of law.
Under the Constitution, the legislator may specify, by a
penal law, only those deeds as crimes which are really
dangerous and by which huge harm is inflicted on the interests
of persons, society and those of the state.
3.3. Paragraph 4 of Article 31 of the Constitution
according to which punishment may be imposed or applied only on
the grounds established in law also means that the legislator
must establish punishments for criminal deeds and sizes of
these punishments by law only; punishments must be established
for each criminal deed.
The principle of natural justice consolidated in the
Constitution presupposes that punishments established by a
penal law must be just. The constitutional principles of
justice and a state under the rule of law imply inter alia that
the means which are applied by the state must be adequate to
the sought objective. Thus, punishments must be adequate to the
criminal deeds for which they have been established; it is not
permitted to establish the punishments for criminal deeds and
their sizes which would be obviously inadequate to the criminal
deed and the purpose of the punishment. It should be noted
that, under Paragraph 3 of Article 21 of the Constitution, it
shall be prohibited to torture, injure a human being, degrade
his dignity, treat him in a cruel manner, as well as to
establish punishments of such kind. Punishments and their sizes
must be differentiated in a penal law, while taking account of
the danger of criminal deeds.
According to Article 109 of the Constitution, in the
Republic of Lithuania, justice shall be administered solely by
courts (Paragraph 1), while administering justice, the judge
and courts shall be independent (Paragraph 2), while
considering cases, judges shall obey only the law (Paragraph
3). Therefore, punishments established in a penal law and their
system must be such as to enable the court to administer
justice, while imposing punishments.
Under the Constitution, it is impossible to establish the
legal regulation (punishments or their sizes) in a penal law on
the basis of which the court, while taking account of all
circumstances of a case and applying the penal law, would not
be able to individualise the punishment which is imposed on a
concrete person for a concrete criminal deed.
3.4. The legislator, having constitutional powers to
establish punishments for criminal deeds and sizes of these
punishments, has the duty to provide maximum limits of
punishments for certain criminal deeds. If the maximum limit of
the punishment for a particular criminal deed were not
established in the penal law, pre-requisites for imposition of
unreasonably strict punishments and violation of human rights
and freedoms would be created. According to the Constitution,
the legislator may also establish minimal limits of punishments
for certain criminal deeds.
The legislator, by specifying certain deeds as crimes and
establishing minimal and maximum limits of punishments for
these deeds, may employ various ways of consolidation of sizes
of the said punishments, as well as indicate the minimal or
maximum limit of a punishment in the sanction of the norm of a
penal law which establishes liability for a certain criminal
deed.
The legislator, by choosing the way of creation of the
sanction for commission of a criminal deed when the article
itself, establishing liability for the specified criminal deed,
provides such minimum punishment of imprisonment which is
strict, alongside must establish by law the legal regulation
according to which the court, by imposing a punishment for this
criminal deed, must have an opportunity to take account of all
circumstances of the case mitigating criminal liability, as
well as of those which have not been expressis verbis
established by the law, and to impose a milder punishment than
that provided for by the law.
3.5. It has been mentioned that, according to Paragraph 2
of Article 31 of the Constitution, a person charged with the
commission of a crime shall have the right to a fair public
hearing of his case by an independent and impartial court.
Paragraph 2 of Article 31 of the Constitution consolidates
the right of a person to a fair, impartial and independent
court. While construing Paragraph 2 of Article 31 alongside
with Paragraph 4 of this article, according to which punishment
may be imposed or applied only on the grounds established in
law, it is noteworthy in the context of the case under
consideration that, under the Constitution, an independent and
impartial court may not, by considering a case and
investigating all circumstances of a case, impose a punishment
by failing to observe the law.
It should be noted that the constitutional right to a fair
trial inter alia means not only that, during the judicial
procedure, principles and norms of law of criminal procedure
must be observed, but also that the punishment established in
the penal law and imposed by the court must be just; the penal
law must provide for all opportunities for the court to impose,
while taking consideration of all circumstances of the case, a
just punishment on the person who committed a criminal deed.
The imposition of an unjust punishment would imply that the
right of a person to a fair trial is violated, consequently,
Paragraph 2 of Article 31 of the Constitution and the
constitutional principle of a state under the rule of law are
violated as well.
4. Under Paragraph 3 of Article 312 of the CC (wording of
3 February 1998), transportation of goods, money, valuables of
art or other items which must be declared at the customs
through the state border of the Republic of Lithuania by not
declaring them at the customs or avoiding the customs control
in other way, or with a forged declaration of customs or other
documents, or transporting goods or items under different name
from that indicated in the customs declaration or in other
documents, transportation of goods, money, valuables of art or
other items which must be declared at the customs through the
state border of the Republic of Lithuania not through the
customs, as well as transportation of firing arms, ammunition,
explosives, explosive, radioactive and other strategic goods,
poisonous and toxic, psychotropic or narcotic substances,
precursors through the state border of the Republic of
Lithuania by not declaring them at the customs or avoiding the
customs control in other way, or without the permission to
transport them, if these deeds are committed by a group of
persons with an afore-planned intention, or repeatedly, or on a
large scale, or contraband of a large amount of firing arms,
ammunition, explosives or explosive substances, shall be
punished by imprisonment from five years to ten years together
with a fine.
Thus, the minimum limit of the imprisonment punishment
established in Paragraph 3 of Article 312 of the CC (wording of
3 February 1998) for a crime specified therein, is five years.
5. It has been mentioned that, under the Constitution, the
legislator may establish minimum limits of punishments for
certain criminal deeds.
The fact that Paragraph 3 of Article 312 of the CC
(wording of 3 February 1998) established the minimum limit of
imprisonment punishment for a crime specified therein and that
this limit was five years does not itself mean that the court,
by applying the penal law, could not individualise the
punishment for a concrete person for a concrete criminal deed
specified in this paragraph, and that the court, by imposing a
punishment, could not administer justice.
6. Taking account of the arguments set forth, one is to
conclude that the provision of Paragraph 3 of Article 312 of
the CC (wording of 3 February 1998) "shall be punished by
imprisonment from five years <...>" was not in conflict with
Paragraph 2 of Article 31 of the Constitution, as well as the
constitutional principle of a state under the rule of law.
III
On the compliance of Paragraph 4 of Article 45 of the
Criminal Code (wording of 2 July 1998) with Paragraph 1 of
Article 29, Paragraph 2 of Article 31 of the Constitution, as
well as the constitutional principle of a state under the rule
of law.
1. Article 45 of the CC (wording of 2 July 1998) provided:
"Article 45. Imposition of a milder punishment than that
provided for by the law
Taking account of all circumstances of the case, the court
may impose a milder punishment than that established by the law
if the person who has committed a crime, arrives voluntarily
and confessed about the commission of the crime and, beside
that, sincerely regrets, has compensated the inflicted harm and
helped the investigation and the court to disclose the crime.
Taking account of all circumstances of the case, the court
may as well impose a milder punishment than that established by
the law if the harm inflicted by the crime has been
compensated, if there are other circumstances mitigating the
liability in the case, and:
1) persons supported by the convict are ill with a grave
illness and there is no one to take care of them, or
2) the convict supports children and there will be no one
to take care of them because of the imposition of the
punishment established by the law, or
3) the role of the convict in the crime committed by his
accomplices was of minor importance, or
4) the crime, under Article 16 of this Code, was
terminated at the preparatory or attempt stage.
Also the court, taking account of the circumstances
mitigating the liability, which are present in the case and if
the harm inflicted by the crime has been at least partially
compensated, may impose a milder punishment than that
established by the law, if the crime was committed by a minor.
Paragraph 2 of this Article shall not be applied to
persons convicted for crimes against public service (Articles
282-290), for illegal storage, transportation and realisation
of taxable goods (Article 3101), contraband (Article 312),
illegal non-exportation of goods or production from the
Republic of Lithuania (Article 3121), deceptive book-keeping
(Article 323), avoiding of taxes or payments (Article 325), as
well as to members of an organised group or a criminal
association.
A milder punishment than that established by the law may
also be imposed if a crime has been committed exceeding the
limits of indispensable defence.
If the conditions specified in Paragraphs 1, 2, 3 or 5 of
this Article exist, the court may:
1) impose a milder punishment than the minimum limit for
the committed crime provided for by the law, or
2) impose a milder type of punishment for the committed
crime than that provided for by the law, or
3) not impose the additional punishment in cases when its
imposition is obligatory according to the law, except for the
punishment of confiscation of property."
2. The Court of Appeal of Lithuania, the petitioner,
requests to investigate whether Paragraph 4 of Article 45 of
the CC (wording of 2 July 1998) was not in conflict with
Paragraph 2 of Article 31 of the Constitution, as well as the
constitutional principle of a state under the rule of law,
which is entrenched in the Constitution.
The Panevėžys Regional Court, the petitioner, requests to
investigate whether Paragraph 4 of Article 45 of the CC
(wording of 2 July 1998) was not in conflict with Paragraph 1
of Article 29 and Paragraph 2 of Article 31 of the
Constitution.
3. According to the Constitution, the legislator,
specifying certain deeds as crimes in the penal law and
establishing punishments for them and the minimum limit of
these punishments, is empowered to establish the grounds under
which a milder punishment than that provided for by the law may
be imposed.
4. Article 45 of the CC (wording of 2 July 1998)
established the grounds for imposition of a milder punishment
than that provided for by the law. These grounds are different.
4.1. Under Paragraphs 1, 3 and 5 of Article 45 of the CC,
the court could, upon the presence of the grounds established
therein and taking account of all circumstances of the case,
impose a milder punishment than that provided for by the law on
a person, who had committed any crime. According to Paragraph 1
of Article 45 of the CC (wording of 2 July 1998), taking
account of all circumstances of the case, the court may impose
a milder punishment than that provided for by the law for a
person, who has committed any crime, if the person who has
committed a crime, arrived voluntarily and confessed about the
commission of a crime and, beside that, he sincerely regretted,
if he had compensated the inflicted harm and helped the
investigation and the court to disclose the crime; under
Paragraph 3-if the crime was committed by a minor, and, beside
that, there were circumstances mitigating the liability and the
harm inflicted by the crime had been at least partially
compensated; under Paragraph 5-if the crime had been committed
exceeding the limits of indispensable defence.
4.2. Under Paragraph 2 of Article 45 of the CC (wording of
2 July 1998), taking account of all circumstances of the case,
the court could impose a milder punishment than that
established by the law on a person who had committed a crime
(except for the crimes specified in Paragraph 4 of Article 45
of the CC), if the harm inflicted by the crime had been
compensated, if there were other circumstances mitigating the
liability in the case, and at least one of the following
conditions were present: (1) persons supported by the convict
were ill with a grave illness and there was no one to take care
of them, or (2) the convict supported children and there would
be no one to take care of them because of the imposition of
punishment established by the law, or (3) the role of the
convict in the crime committed by accomplices had been of minor
importance, or (4) the crime, under Article 16 of the Code, had
been terminated at the preparatory or attempt stage.
It should be noted in the context of the case under
consideration that the circumstances mitigating the liability
for a committed crime, which are mentioned in Paragraph 2 of
Article 45 of the CC (wording of 2 July 1998), and the account
of which should be taken when imposing a punishment, were
established in Paragraph 1 of Article 40 of the CC: (1) the
culprit prevented harmful consequences of the committed crime
or voluntarily compensated the damage or eliminated the harm
which had been inflicted; (2) the crime had been committed
because of grave personal or family circumstances; (3) the
crime had been committed because of threatening or violence, or
material, official or other dependence; (4) the crime had been
committed because of great agitation caused by illegal actions
of the victim; (5) the crime had been committed in the event of
defence from a dangerous attempt to the society, though
exceeding the limits of indispensable defence; (6) the crime
had been committed by a minor; (7) the crime had been committed
by a pregnant woman; (8) the culprit sincerely regretted or
arrived voluntarily and confessed about the commission of the
crime, or actively helped to disclose the crime or to trace
other criminals. Paragraph 2 of Article 40 of the CC
established that the court, by imposing the punishment, might
also take account of mitigating circumstances which were not
specified in the law.
Under Paragraph 2 of Article 45 of the CC (wording of 2
July 1998), the imposition of a milder punishment than that
provided for by the law was bound by compensation of the harm
which had been inflicted by the crime, the presence of other
circumstances mitigating the liability and other conditions
specified in this paragraph: persons supported by the convict
were ill with a grave illness and there was no one to take care
of them, the convict supported children and there would be no
one to take care of them because of the imposition of the
punishment established by the law, the role of the convict in
the crime committed by his accomplices had been of minor
importance, or the crime, under Article 16 of the CC, had been
terminated at the preparatory or attempt stage.
One of the crimes specified in Paragraph 4 of Article 45
of the CC for the commission of which the court could not
impose on persons a milder punishment than that provided for by
the law, even if the conditions established in Paragraph 2 of
this Article existed, was contraband (Article 312 of the CC).
Thus, Paragraphs 2 and 4 of Article 45 of the CC (wording
of 2 July 1998) established the legal regulation according to
which, inter alia, the court could not impose a milder
punishment than that provided for by the law on a person who
had committed a criminal deed specified in Paragraph 3 of
Article 312 of the CC (wording of 3 February 1998), even if the
conditions established in Paragraph 2 of Article 45 of the CC
(wording of 2 July 1998) existed.
5. It has been mentioned that the legislator, by choosing
the way of creation of the sanction for commission of a
criminal deed when the article itself establishing liability
for the specified criminal deed provides the minimum punishment
of imprisonment which is strict, alongside must establish by
law the legal regulation according to which the court, by
imposing a punishment for this criminal deed, must have an
opportunity to take account of all circumstances of the case
mitigating criminal liability, as well as of those which have
not been expressis verbis established by the law, and to impose
a milder punishment than that provided for by the law.
It has been also noted that Constitution consolidates
human rights and freedoms, other constitutional values which
must be protected and defended, and that one of the means for
protection of rights and freedoms of the human being, and other
constitutional values is criminal liability for committed
deeds. Therefore, imposition of a milder punishment than that
provided for by the law is not a rule, but an exception: the
court may impose a milder punishment than that provided for by
the law only if there exist special circumstances mitigating
the liability, while the punishment imposed without taking
account of those circumstances would obviously be unjust. The
court has the duty to apply the institution of a milder
punishment than that provided for by the law especially
attentively and carefully, so that the interests of the victim,
society and those of the state would not be violated. In each
particular case the decision of the court to impose a milder
punishment than that provided for by the law must be reasoned.
In case of ungrounded and/or unreasoned imposition of a milder
punishment than that provided for by the law, justice would not
be administered. It would be in conflict with justice and the
constitutional principle of a state under the rule of law.
6. The minimum limit of the imprisonment punishment
established in Paragraph 3 of Article 312 of the CC (wording of
3 February 1998) for contraband committed by a group of persons
with an afore-planned intention, or repeatedly, or on a large
scale, or contraband of a large amount of firing arms,
ammunition, explosives or explosive substances, is five years.
It has been held in this ruling of the Constitutional
Court that the provision of Paragraph 3 of Article 312 of the
CC (wording of 3 February 1998) "shall be punished by
imprisonment from five years <...>" was not in conflict with
Paragraph 2 of Article 31 of the Constitution, as well as the
constitutional principle of a state under the rule of law.
It should be noted that the minimum five-year limit of
imprisonment punishment established in Paragraph 3 of Article
312 of the CC (wording of 3 February 1998) means that the
minimum imprisonment punishment established for a criminal
deed, specified in this paragraph is strict.
Though the legislator attributed contraband (thus, the
contraband committed by a group of persons with an
afore-planned intention, or repeatedly, or on a large scale, or
for a contraband of a large amount of firing arms, ammunition,
explosives or explosive substances as well) to grave crimes
(Article 81 of the CC), however, in every particular case of
commission of this grave crime there may exist circumstances
which are not specified in Article 45 of the CC (wording of 3
February 1998), under which the five-year imprisonment
punishment provided in Paragraph 3 of Article 312 (wording of 3
February 1998) might be obviously too strict, and if imposed,
this punishment would be unjust.
8. The legislator, by choosing such a way of creation of
the sanction for contraband committed by a group of persons
with an afore-planned intention, or repeatedly, or on a large
scale, or contraband of a large amount of firing arms,
ammunition, explosives or explosive substances (Paragraph 3 of
Article 312 of the CC (wording of 3 February 1998)), when the
article itself, establishing liability for the specified
criminal deed, provides the minimum punishment of imprisonment
which is strict (five years in this case), alongside must
establish by law the legal regulation according to which the
court, by imposing a punishment for this criminal deed, must
have an opportunity to take account of all circumstances of the
case mitigating criminal liability, as well as of those which
have not been expressis verbis established by the law, and to
impose a milder punishment than that provided for by the law.
9. Article 45 of the CC (wording of 3 February 1998)
established the legal regulation according to which the court
could impose a milder punishment than that provided for by the
law on a person who had committed the criminal deed specified
in Paragraph 3 of Article 312 of the CC only if there existed
conditions expressis verbis established in Paragraphs 1, 3 and
5 of this Article-mitigating circumstances, while Paragraph 2
of this article could not be in general applied to such a
person under Paragraph 4 of this article.
Thus, according to the legal regulation established by
Article 45 of the CC (wording of 2 July 1998), the court, while
deciding the question of imposition of punishment for a
criminal deed specified in Paragraph 3 of Article 312 of the CC
(wording of 3 February 1998), was restricted by the conditions
specified in Paragraphs 1, 2, 3, 4 and 5 of Article 45 of the
CC (wording of 2 July 1998). According to the law, the court,
even having held that there existed other mitigating
circumstances which were not expressis verbis specified in
Paragraphs 1, 2, 3, 4 and 5 of Article 45 of the CC (wording of
2 July 1998), was not able to take account of them and could
not impose on the person a milder punishment than that provided
for by Paragraph 3 of Article 312 of the CC (wording of 3
February 1998), even in cases when the minimum five-year
imprisonment punishment specified in this paragraph, if
imposed, would have been obviously unjust.
Such legal regulation established in Article 45 of the CC
(wording of 2 July 1998) was not in line with the right of a
person to a fair trial consolidated in Paragraph 2 of Article
31 of the Constitution, as well as the principle of a state
under the rule of law.
10. Taking account of the arguments set forth, one is to
conclude that Article 45 of the CC (wording of 2 July 1998) to
the extent that it restricted the right of the court, while
taking account of all circumstances mitigating the liability,
as well as those not specified by the law, to impose a milder
punishment than the punishment specified for a criminal deed as
provided for by Paragraph 3 of Article 312 of the CC (wording
of 3 February 1998) was in conflict with Paragraph 2 of Article
31 of the Constitution as well as the constitutional principle
of a state under the rule of law.
11. It has been mentioned that the Panevėžys District
Court, the petitioner, requested to investigate whether
Paragraph 4 of Article 45 of the CC (wording of 2 July 1998)
was not in conflict with Paragraph 1 of Article 29 of the
Constitution.
It has been held in this Ruling of the Constitutional
Court that Article 45 of the CC (wording of 2 July 1998) to the
extent that it restricted the right of the court, while taking
account of all circumstances mitigating the liability, as well
as those not specified by the law, to impose a milder
punishment than the punishment specified for a criminal deed as
provided for by Paragraph 3 of Article 312 of the CC (wording
of 3 February 1998) was in conflict with Paragraph 2 of Article
31 of the Constitution as well as the constitutional principle
of a state under the rule of law.
Having held this, the Constitutional Court will not
investigate whether Paragraph 4 of Article 45 of the CC
(wording of 2 July 1998) was not in conflict with Paragraph 1
of Article 29 of the Constitution.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
1. To recognise that Article 45 of the (wording of 2 July
1998) of the Criminal Code of the Republic of Lithuania to the
extent that it restricted the right of the court, while taking
account of all circumstances mitigating the liability, as well
as those not specified by the law, to impose a milder
punishment than the punishment specified for a criminal deed as
provided for by Paragraph 3 of Article 312 (wording of 3
February 1998) of the Criminal Code of the Republic of
Lithuania was in conflict with Paragraph 2 of Article 31 of the
Constitution of the Republic of Lithuania as well as the
constitutional principle of a state under the rule of law.
2. To recognise that the provision of Paragraph 3 of
Article 312 (wording of 3 February 1998) of the Criminal Code
of the Republic of Lithuania "shall be punished by imprisonment
from five years <...>" was not in conflict with Paragraph 2 of
Article 31 of the Constitution of the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas