Lietuviškai
Case No. 02/03-03/03-04/03-05/03-39/03-
05/04-16/04-02/05-04/05
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 2 (WORDING OF 16 MARCH
2000), PARAGRAPH 3 (WORDING OF 11 JUNE 2002), PARAGRAPH 4
(WORDING OF 11 MAY 1999), AND PARAGRAPH 7 (WORDING OF 11 JUNE
2002) OF ARTICLE 21 OF THE REPUBLIC OF LITHUANIA LAW ON TOBACCO
CONTROL AS WELL AS ON THE COMPLIANCE OF PARAGRAPHS 5, 7, AND 14
OF ARTICLE 25 OF THE SAME LAW (WORDING OF 20 NOVEMBER 2003)
WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA
3 November 2005
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas
Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representatives of the Seimas of the Republic of
Lithuania, the party concerned, who were Vaclovas Karbauskis, a
member of the Seimas of the Republic of Lithuania, Gediminas
Sagatys and Saulius Švedas, senior advisors of the Legal
Department of the Office of the Seimas, as well as Girius
Ivoška, an advisor of the same department,
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 13
October 2005 in its public hearing heard Case No.
02/03-03/03-04/03-05/03-39/03-05/04-16/04-02/05-04/05
subsequent to the following petitions:
- the 28 November 2002 petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
as to whether the provision "the violation shall incur a fine
of twenty thousand litas upon entities of commercial-economic
activity" of Paragraph 4 of Article 21 of the Republic of
Lithuania Law on Tobacco Control is not in conflict with the
principles of justice and of a state under the rule of law
consolidated in the Constitution of the Republic of Lithuania;
- the 5 December 2002 petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
as to whether the provision of Paragraph 4 of Article 21 of the
Republic of Lithuania Law on Tobacco Control that violation of
requirements in the sales of tobacco products which are
established in Paragraph 2 of Article 10 of this law shall
incur a fine of twenty thousand litas upon entities of
commercial-economic activity is not in conflict with Paragraph
1 of Article 23, Paragraphs 1 and 2 of Article 46 of the
Constitution of the Republic of Lithuania and the principles of
justice and a state under the rule of law consolidated in the
Constitution of the Republic of Lithuania;
- the 9 December 2002 petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
as to whether the provision of Paragraph 4 of Article 21 of the
Republic of Lithuania Law on Tobacco Control that the violation
of the requirements regarding sales of tobacco products which
are established in Paragraph 2 of Article 10 of this law shall
incur a fine of twenty thousand litas upon entities of
commercial-economic activity is not in conflict with Paragraph
1 of Article 23, Paragraphs 1 and 2 of Article 46 of the
Constitution of the Republic of Lithuania and the principles of
justice and a state under the rule of law consolidated in the
Constitution of the Republic of Lithuania;
- the 13 December 2002 petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
as to whether the provision of Paragraph 4 of Article 21 of the
Republic of Lithuania Law on Tobacco Control that violation of
requirements in the sales of tobacco products which are
established in Paragraph 2 of Article 10 of this law shall
incur a fine of twenty thousand litas upon entities of
commercial-economic activity is not in conflict with Paragraph
1 of Article 23, Paragraphs 1 and 2 of Article 46 of the
Constitution of the Republic of Lithuania and the principles of
justice and a state under the rule of law consolidated in the
Constitution of the Republic of Lithuania;
- the 30 September 2003 petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
as to whether the provision of Paragraph 3 of Article 21 of the
Republic of Lithuania Law on Tobacco Control that failure to
have documents of juridical power, confirming acquisition of
tobacco products, shall incur a fine of twenty thousand litas
upon entities of commercial-economic activity is not in
conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of
Article 46 of the Constitution of the Republic of Lithuania and
the principles of justice and a state under the rule of law
consolidated in the Constitution of the Republic of Lithuania;
- the 21 October 2003 petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
as to whether the provision of Paragraph 7 of Article 21 of the
Republic of Lithuania Law on Tobacco Control that the failure
to adhere to the requirements of prohibiting of advertisement
of tobacco products, set forth in Paragraph 3 of Article 11 of
this law, shall incur a fine of five thousand litas upon
entities of commercial-economic activity is not in conflict
with Paragraphs 1 and 2 of Article 46 of the Constitution of
the Republic of Lithuania and the principles of justice and a
state under the rule of law consolidated in the Constitution of
the Republic of Lithuania;
- the 27 February 2004 petition of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate
as to whether the provision "trade in tobacco products without
a respective permit or licence for such activity, shall incur a
fine of fifty thousand litas upon entities of
commercial-economic activity" of Paragraph 2 of Article 21 of
the Republic of Lithuania Law on Tobacco Control is not in
conflict with Paragraphs 1 and 2 of Article 46 of the
Constitution of the Republic of Lithuania and the principles of
justice and a state under the rule of law consolidated in the
Constitution of the Republic of Lithuania;
- the 21 January 2005 petition of the Supreme
Administrative Court of Lithuania, the petitioner, requesting
to investigate as to whether Paragraph 14 of Article 26
(wording of 20 November 2003) of the Republic of Lithuania Law
on Tobacco Control to the extent that, according to the
petitioner, it restricts the right of the court which, after it
takes account of all the circumstances mitigating the
liability, including those provided for in the law, to impose a
milder fine than that established in Paragraph 7 of Article 26
of the Republic of Lithuania Law on Tobacco Control (wording of
20 November 2003) for violation of the prohibitions regarding
sale and storing of tobacco products established in Item 6 of
Paragraph 3 of Article 14 of this law, is not in conflict with
Paragraphs 1, 2 and 3 of Article 109 of the Constitution of the
Republic of Lithuania and the constitutional principle of a
state under the rule of law;
- the 21 February 2005 petition of the Supreme
Administrative Court of Lithuania, the petitioner, requesting
to investigate as to whether Paragraphs 5 and 14 of Article 26
of the Republic of Lithuania Law on Tobacco Control (wording of
20 November 2003) to the extent that, according to the
petitioner, it does not provide for the right of the court
which considers a respective case, after it takes account of
the factual circumstances which mitigate the liability, to
impose milder "punishment" than the lowest level of the
sanction provided for in Paragraph 5 of Article 26 of the
Republic of Lithuania Law on Tobacco Control (wording of 20
November 2003), is not in conflict with the principle of a
state under the rule of law entrenched in the Constitution of
the Republic of Lithuania.
By the Constitutional Court decision of 27 January 2003,
the 28 November 2002 petition of the Vilnius Regional
Administrative Court, the 5 December 2002 petition of the
Vilnius Regional Administrative Court, the 9 December 2002
petition of the Vilnius Regional Administrative Court, and the
23 December 2002 petition of the Vilnius Regional
Administrative Court were joined into one case and it was given
reference No. 02/03-03/03-04/03-05/03.
By the Constitutional Court decision of 29 September 2005,
the petitions joined into Case No. 02/03-03/03-04/03-05/03 were
also joined with the 30 September 2003 petition of the Vilnius
Regional Administrative Court, the 21 October 2003 petition of
the Vilnius Regional Administrative Court, the 27 February 2004
petition of the Vilnius Regional Administrative Court, the 21
January 2005 petition of the Supreme Administrative Court of
Lithuania, and the 21 February 2005 petition of the Supreme
Administrative Court of Lithuania and the case was given
reference No. 02/03-03/03-04/03-05/03-39/03-05/04-16/04-02/05-04/05.
The Constitutional Court
has established:
I
1. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling of 28 November 2002 the court suspended the
consideration of the case and applied to the Constitutional
Court with a petition requesting to investigate as to whether
the provision "the violation shall incur a fine of twenty
thousand litas upon entities of commercial-economic activity"
of Paragraph 4 of Article 21 of the Law on Tobacco Control is
not in conflict with the principles of justice and of a state
under the rule of law consolidated in the Constitution.
2. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling of 5 December 2002 the court suspended the consideration
of the case and applied to the Constitutional Court with a
petition requesting to investigate as to whether the provision
of Paragraph 4 of Article 21 of the Law on Tobacco Control that
violation of requirements in the sales of tobacco products
which are established in Paragraph 2 of Article 10 of this law
shall incur a fine of twenty thousand litas upon entities of
commercial-economic activity is not in conflict with Paragraph
1 of Article 23, Paragraphs 1 and 2 of Article 46 of the
Constitution and the principles of justice and a state under
the rule of law consolidated in the Constitution.
3. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling of 9 December 2002 the court suspended the consideration
of the case and applied to the Constitutional Court with a
petition requesting to investigate as to whether the provision
of Paragraph 4 of Article 21 of the Law on Tobacco Control that
violation of requirements in the sales of tobacco products
which are established in Paragraph 2 of Article 10 of this law
shall incur a fine of twenty thousand litas upon entities of
commercial-economic activity is not in conflict with Paragraph
1 of Article 23, Paragraphs 1 and 2 of Article 46 of the
Constitution and the principles of justice and a state under
the rule of law consolidated in the Constitution.
4. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling of 13 December 2002 the court suspended the
consideration of the case and applied to the Constitutional
Court with a petition requesting to investigate as to whether
the provision of Paragraph 4 of Article 21 of the Law on
Tobacco Control that violation of requirements in the sales of
tobacco products which are established in Paragraph 2 of
Article 10 of this law shall incur a fine of twenty thousand
litas upon entities of commercial-economic activity is not in
conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of
Article 46 of the Constitution and the principles of justice
and a state under the rule of law consolidated in the
Constitution.
5. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling of 30 September 2003 the court suspended the
consideration of the case and applied to the Constitutional
Court with a petition requesting to investigate as to whether
the provision of Paragraph 3 of Article 21 of the Law on
Tobacco Control that failure to have documents of juridical
power, confirming acquisition of tobacco products, shall incur
a fine of twenty thousand litas upon entities of
commercial-economic activity is not in conflict with Paragraph
1 of Article 23, Paragraphs 1 and 2 of Article 46 of the
Constitution and the principles of justice and a state under
the rule of law consolidated in the Constitution.
6. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling of 21 October 2003 the court suspended the consideration
of the case and applied to the Constitutional Court with a
petition requesting to investigate as to whether the provision
of Paragraph 7 of Article 21 of the Law on Tobacco Control that
the failure to adhere to the requirements of prohibiting of
advertising of tobacco products, set forth in Paragraph 3 of
Article 11 of this law, shall incur a fine of five thousand
litas upon entities of commercial-economic activity is not in
conflict with Paragraphs 1 and 2 of Article 46 of the
Constitution and the principles of justice and a state under
the rule of law consolidated in the Constitution.
7. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling of 27 February 2004 the court suspended the
consideration of the case and applied to the Constitutional
Court with a petition requesting to investigate as to whether
the provision "trade in tobacco products without a respective
permit or licence for such activity, shall incur a fine of
fifty thousand litas upon entities of commercial-economic
activity" of Paragraph 2 of Article 21 of the Law on Tobacco
Control is not in conflict with Paragraphs 1 and 2 of Article
46 of the Constitution and the principles of justice and a
state under the rule of law consolidated in the Constitution.
8. The Supreme Administrative Court of Lithuania, the
petitioner, was investigating an administrative case. By its
ruling of 21 January 2005 the court suspended the consideration
of the case and applied to the Constitutional Court with a
petition requesting to investigate as to whether Paragraph 14
of Article 26 (wording of 20 November 2003) of the Law on
Tobacco Control to the extent that, according to the
petitioner, it restricts the right of a court, which takes
account of all the circumstances, including those provided for
in the law, which mitigate the liability, to impose a milder
(i.e. smaller) fine than that established in Paragraph 7 of
Article 26 of the Law on Tobacco Control (wording of 20
November 2003) for violation of the prohibitions regarding sale
and storing of tobacco products established in Item 6 of
Paragraph 3 of Article 14 of this law, is not in conflict with
Paragraphs 1, 2 and 3 of Article 109 of the Constitution and
the constitutional principle of a state under the rule of law.
9. The Supreme Administrative Court of Lithuania, the
petitioner, was investigating an administrative case. By its
ruling of 21 February 2005 the court suspended the
consideration of the case and applied to the Constitutional
Court with a petition requesting to investigate as to whether
Paragraphs 5 and 14 of Article 26 (wording of 20 November 2003)
of the Law on Tobacco Control to the extent that, according to
the petitioner, it does not provide for the right of the court
considering a respective case, which takes account of the
factual circumstances which mitigate the liability, to impose
milder (i.e. smaller) "punishment" than the level of the
sanction provided for in Paragraph 5 of Article 26 of the Law
on Tobacco Control (wording of 20 November 2003), is not in
conflict with the principle of a state under the rule of law
which is consolidated in the Constitution.
II
1. The doubts concerning the compliance of Paragraphs 2,
3, 4 and 7 (provisions thereof) of Article 21 of the Law on
Tobacco Control with the Constitution are based on the
following arguments which are set forth mutatis mutandis in all
petitions (of 28 November 2002, 5 December 2002, 9 December
2002, 13 December 2002, 30 September 2003, 21 October 2003, and
27 February 2004) of the Vilnius Regional Administrative Court.
1.1. Economic sanctions for violations of the Law on
Tobacco Control upon entities of commercial-economic activity
must be in line with the principles of justice and a state
under the rule of law, which are consolidated in the
Constitution, they must be adequate to the violations of law
and be in conformity to the legitimate and generally important
objectives sought.
Meanwhile, under Paragraphs 2, 3, 4, and 7 of Article 21
of the Law on Tobacco Control, differentiation of the economic
sanctions-fines established therein are not permitted, if one
takes account of the number of respective violations of law
committed at the same time, injury made, extent, peculiarities
of commercial-economic activity and other circumstances, since
the same economic sanctions are established to
commercial-economic entities for the violations of law, whose
injury made to people's health and the economy is different.
Doubts are raised whether such legal regulation is not in
conflict with the constitutional principles of justice and a
state under the rule of law.
1.2. The freedom and initiative of an entity of commercial
economic activity may not violate human rights and freedoms,
nor the interests of society and the state. On the other hand,
fair measures must be established and applied to economic
entities for violations of law, which should not ruin their
activity.
Meanwhile, Paragraphs 2, 3, 4, and 7 of Article 21 of the
Law on Tobacco Control establish the legal regulation where
strictly defined economic sanctions-fines-are established upon
entities of economic-commercial activity for violations of this
law, but not the lowest and top limits of the sanction, nor the
relative amount of a monetary fine, which is related with the
annual revenues (or those fixed otherwise) of the entity of
commercial-economic activity. The petitioners have doubts as
regards the compliance of such legal regulation with Paragraphs
1 and 2 of Article 46 of the Constitution.
1.3. Property shall be inviolable (Paragraph 1 of Article
23 of the Constitution). Under the Law on Enterprises, assets
of individual (personal) enterprises are inseparable from the
assets of the owner and the owner is liable for the obligations
of the enterprise by way of all his assets, also after the
enterprise is liquidated. If an individual enterprise is
financially incapable of paying the fixed fines imposed under
Paragraphs 3 and 4 of Article 21 of the Law on Tobacco Control,
the exaction can be directed not only against the assets
registered by the name of the enterprise, but also at the
assets of the owner of the enterprise. Therefore, doubts are
raised whether the legal regulation established in Paragraphs 3
and 4 of Article 21 of the Law on Tobacco Control is not in
conflict with Paragraph 1 of Article 23 of the Constitution.
2. The Supreme Administrative Court of Lithuania bases its
doubts (ruling of 21 January 2005) concerning the compliance of
Paragraph 14 of Article 26 of the Law on Tobacco Control
(wording of 20 November 2003) with the Constitution upon the
following arguments.
2.1. The constitutional principle of a state under the
rule of law inter alia means that state sanctions for
violations of law must be proportionate to these violations and
adequate to the objective sought and the rights of the person
to a fair investigation of the case must be ensured. In the
opinion of the petitioner, if the legislator establishes such
lowest limit of the sanction for the violation of law, i.e. the
minimum monetary fine, which is a strict one, he must also
establish such legal regulation, under which a court, after it
evaluates all circumstances mitigating the liability, could
impose a smaller fine than the lowest limit of the sanction.
Meanwhile, under Paragraph 7 of Article 26 of the Law on
Tobacco Control (wording of 20 November 2003), for violation of
the prohibitions regarding sale, storing and transporting of
tobacco products, which are established in Items 6 and 7 of
Paragraph 3 of Article 14 of the said law, as well as
violations established in Items 1, 2 and 3 of Paragraph 5 of
Article 14 of the same law, legal persons and branches of
foreign legal persons are punished by a fine from three
thousand till five thousand litas. The established minimum fine
is to be assessed as a strict one. Under Paragraph 14 of
Article 26 of the Law on Tobacco Control (wording of 20
November 2003), if there are circumstances mitigating the
liability, the size of the imposed fine may not exceed the
average of the economic sanction for the committed violation,
while if there are circumstances aggravating the liability, its
size may not be smaller than the average of the economic
sanction for the committed violation. Thus, there is an
opportunity to differentiate legal liability, to individualise
the size of the monetary fine, however, neither under Paragraph
14 of Article 26 of the Law on Tobacco Control (wording of 20
November 2003), nor under other articles (parts thereof), even
after assessment of the character and circumstances of the
committed violation of law, it is impossible to impose a
smaller fine that established in this law, thus also a fine
smaller than the minimum fine of three thousand litas
established in Paragraph 7 of Article 26 of the Law on Tobacco
Control (wording of 20 November 2003).
2.2. In the Republic of Lithuania, justice shall be
administered solely by courts; while administering justice, the
judge and courts shall be independent; while considering cases,
judges shall obey only the law (Paragraphs 1, 2, and 3 of
Article 109 of the Constitution). Thus, the court must
objectively investigate and assess all circumstances of the
case and apply such a sanction which is consistent with the
character and degree of the committed deed which was contrary
to law. In case the court, after it assesses all the
circumstances mitigating the liability, cannot impose a smaller
monetary fine than the lowest limit of the sanction-the minimum
monetary fine-then its opportunities to individualise the
monetary fine and justly to solve the case are limited;
alongside, the opportunities of the court to administer justice
are limited.
3. The Supreme Administrative Court of Lithuania bases its
doubts (ruling of 21 February 2005) concerning the compliance
of Paragraphs 5 and 14 of Article 26 of the Law on Tobacco
Control (wording of 20 November 2003) with the Constitution
upon the following arguments.
Paragraph 5 of Article 26 of the Law on Tobacco Control
(wording of 20 November 2003) provides that for violation of
the prohibitions established in Items 1, 2, 3 or 4 of Paragraph
3 of Article 14 of this law regarding sale, storing or
transporting of tobacco products, if this does not incur
criminal liability, legal persons and branches of foreign legal
persons are punished with a fine from ten thousand till thirty
thousand litas. The established minimum fine, if one takes
account of the level of development of the state and the level
of subsistence, is to be assessed as a strict one. However,
under Paragraph 14 of Article 26 of the Law on Tobacco Control
(wording of 20 November 2003), if there are circumstances
mitigating the liability, the size of the imposed fine may not
exceed the average of the economic sanction for the committed
violation, while if there are circumstances aggravating the
liability, its size may not be smaller than the average of the
economic sanction for the committed violation; when there are
circumstances both mitigating and aggravating the liability,
the fine is imposed by taking account of their amount and
significance. Thus, this law does not permit the court to
impose a smaller monetary fine than the established minimum
monetary fine even in the cases where the factual circumstances
describing the violation of law and the violator testify that
the fine of ten thousand litas due to its severity (size) is
inconsistent with the degree of danger of the violation of law,
the assets of the violator etc. and thus is evidently unjust.
The fact that even in such circumstances the court is not
permitted to impose "just" punishment for the committed
violation of law, violates the constitutional principle of a
state under the rule of law.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from representatives of the Seimas, the party
concerned, who were G. Sagatys, G. Ivoška and S. Švedas.
1. In the opinion of G. Ivoška, Paragraph 4 of Article 21
of the Law on Tobacco Control (to the extent pointed out by the
petitioners) is not in conflict with Paragraph 1 of Article 23,
Paragraphs 1 and 2 of Article 46 of the Constitution as well as
the constitutional principles of justice and a state under the
rule of law. The position of the representative of the party
concerned is based upon the following arguments.
1.1. According to G. Ivoška, the legislator established a
different procedure for holding natural and legal persons
legally liable for violations of the Law on Tobacco Control: to
natural persons administrative penalties are applied according
to the Code of Administrative Violations of Law of the Republic
of Lithuania (hereinafter also referred to as the CAVL), while
to legal persons they are applied according to Article 21 of
the Law on Tobacco Control.
1.2. Paragraph 4 of Article 24 of the Law on Tobacco
Control employs the notion "entities of commercial-economic
activity", while Paragraph 1 of the same articles employs the
notion "enterprise". Under Paragraph 2 of Article 2 of the Law
on Enterprises, the enterprise, as a subject of law, may have
the rights of a legal person or may act as a natural person
(enterpriser); thus both an enterprise which has the rights of
a legal person and an enterprise which acts as a natural person
can be regarded as entities of commercial-economic activity,
therefore, both the enterprises and the natural persons who are
engaged in trade in tobacco products may be imposed the fine
established in Paragraph 4 of Article 26 of the Law on Tobacco
Control. Under Paragraph 4 of Article 2.50 of the Civil Code of
the Republic of Lithuania, individual (personal) enterprises
are legal persons of unlimited civil liability; if, in order to
fulfil property obligations of such legal person the assets of
the legal person are insufficient, then the participant of the
legal person is liable for the obligations of such person. The
right of ownership is not absolute, it may be limited by the
law due to inter alia committed deeds that are contrary to law.
1.3. Paragraph 4 of Article 21 of the Law on Tobacco
Control establishes a strictly defined sanction for violations
of this law, which is a fine of twenty thousand litas. Other
paragraphs of this article also establish monetary sanctions of
strictly defined amounts. In the opinion of G. Ivoška, such
legal regulation should not be regarded as unlawful: for the
said violations of law these sanctions have been consolidated
due to the necessity to implement the objective established in
Article 2 of the Law on Tobacco Control-to diminish the use of
tobacco products and the effects brought about by such products
to the health of residents, as well as the principles
consolidated in Article 3 of the same law which must be
observed by both natural and legal persons which sell tobacco
products.
Besides, under Article 25 of the Law on Tobacco Control,
an economic entity, which disagrees with a decision of any
institution specified in Paragraph 1 of Article 21 of this law
to apply the economic sanctions, may, within one year of the
day of submission of the decision, apply to court requesting to
repeal the said decision, or to amend it and to pay damages. In
the opinion of G. Ivoška, the right to demand that the decision
on the application of the economic sanction-monetary fine-be
amended also includes the right to demand that the size of the
imposed fine be changed.
1.4. In Article 46 of the Constitution the principles
constituting the economic basis of the state are established,
while Paragraph 4 of Article 21 of the Law on Tobacco Control
regulates relations of liability for violations of this law.
According to the representative of the party concerned, the
relations of liability for violations of laws are of different
character than those regulated in Article 46 of the
Constitution, therefore, Paragraph 4 of Article 21 of the Law
on Tobacco Control is not in conflict with Paragraphs 1 and 2
of Article 46 of the Constitution.
2. In the opinion of S. Švedas, Paragraphs 2, 3 and 7 of
Article 21 of the Law on Tobacco Control (to the extent
specified by the petitioners) are not in conflict with
Paragraph 1 of Article 23, Paragraphs 1 and 2 of Article 46 of
the Constitution and the constitutional principles of justice
and a state under the rule of law. S. Švedas grounds his
position upon the following arguments.
2.1. According to S. Švedas, tobacco products are to be
attributed to products of special purpose, to which a special
regime of legal regulation must be applied. The legislator
established not only sanctions (fines) for violations of
requirements of the Law on Tobacco Control, but also for the
fact that the economic entity, if it disagrees with the
decision adopted in its respect to apply an economic sanction,
has the right to apply to court requesting to repeal the said
decision or to amend it and to repay the damages (Article 25).
The Law on Tobacco Control contains sufficient protection
measures so that economic entities would not be unreasonably
and unlawfully punished, as well as measures permitting the
punished economic entities to pay the fines imposed upon them
not at once but during a certain period of time. Therefore, in
the opinion of the representative of the party concerned, it is
groundless to believe that the fine provided for by the law can
ruin the enterprise, its activities and to have grave effects
to business.
2.2. One of the essential elements of the principle of a
state under the rule of law established in the Constitution is
legal certainty and legal clarity. According to the
representative of the party concerned, the provisions of
Paragraphs 2, 3, and 7 of Article 21 of the Law on Tobacco
Control are sufficiently clear, they do not contain
contradictions nor ambiguities, therefore there are no grounds
to assert that they are in conflict with the constitutional
principle of a state under the rule of law.
2.3. Under Article 46 of the Constitution, Lithuania's
economy shall be based on the right of private ownership and
individual freedom of economic activity and initiative. The
legal persons who can participate in commercial-economic
activity are grouped into persons of limited and unlimited
liability. Under Paragraph 4 of Article 2.50 of the Civil Code,
the individual (personal) enterprise is a legal person of
unlimited civil liability; if in order to fulfil property
obligations of a legal person of unlimited civil liability the
assets of the legal person are insufficient, then the
participant of the legal person is liable for the obligations
of such person. According to the representative of the party
concerned, persons, when they found enterprises which are
engaged in commercial-economic activity, decide by themselves
whether the enterprise founded will be of limited or unlimited
liability; they must understand their possible property
liability under the obligations of the legal person of
unlimited liability, if, in order to fulfil them, the assets of
the legal person are insufficient.
2.4. In Paragraphs 1 and 2 of Article 46 of the
Constitution the principles constituting the economic basis of
the state are established, but liability relations are not
regulated. Therefore, the disputed provisions of Paragraphs 2,
3 and 7 of Article 21 of the Law on Tobacco Control (to the
extent specified by the petitioners) are not in conflict with
Paragraphs 1 and 2 of Article 46 of the Constitution.
3. According to G. Sagatys, Paragraphs 5 and 14 of Article
26 of the Law on Tobacco Control (wording of 20 November 2003)
(to the extent specified by the petitioners) are not in
conflict with Paragraphs 1, 2 and 3 of Article 109 of the
Constitution and the constitutional principle of a state under
the rule of law. G. Sagatys grounds his position upon the
following arguments.
3.1. Article 33 of the Law on Tobacco Control (wording of
20 November 2003) provides for an opportunity to appeal in
court against applied economic sanctions. Thereby the provision
of Paragraph 1 of Article 109 of the Constitution is
implemented that in the Republic of Lithuania, justice shall be
administered solely by courts. The provisions of Paragraphs 2
and 3 of Article 109 of the Constitution are particularised by
the laws which regulate the procedure for consideration of
complaints concerning the economic sanctions established in the
Law on Tobacco Control (the Republic of Lithuania Law on
Courts, the Republic of Lithuania Law on the Proceedings of
Administrative Cases etc.); according to G. Sagatys, these laws
grant all interested persons sufficient legal guarantees and
protection against any violations of the provisions of the Law
on Tobacco Control which regulate the bases and procedure for
imposition of the economic sanctions.
3.2. According to G. Sagatys, the size of the sanctions
applied for violations of law is generally a matter of public
accord and of political resolve. The economic sanctions
established in the Law on Tobacco Control (wording of 20
November 2003) are totally in line with the principles of the
state tobacco control policy and generally important objectives
which are sought to achieve by means of this law. The economic
sanctions established in Paragraphs 5, 7 etc. of Article 26 of
the same law are to be assessed not as strict but adequate ones
to the gravity of committed violations of law and proportionate
to the objectives sought.
3.3. Paragraph 15 of Article 26 of the Law on Tobacco
Control (wording of 20 November 2003) establishes inter alia
what circumstances are circumstances mitigating the liability
and also that the institution which imposes the fine can
recognise also other circumstances as mitigating ones, which
are not specified in this paragraph. Thus, the institution,
while applying the economic sanctions to a legal person or the
branch of a foreign legal person, is guided not by a final, but
exemplary list of circumstances mitigating the liability.
According to the representative of the party concerned, by
applying the systemic, logic and teleological methods of
construction of law, it is possible to maintain that the law
does not prevent the court which is considering a case on
application of the economic sanctions, to take account of all
circumstances mitigating the liability, including those which
are not expressis verbis specified in the law. Thus, according
to G. Sagatys, the court is bound only by the lowest limit of
the economic sanctions consolidated in the law, i.e. the
minimum monetary fine, but not by the entirety of the
mitigating circumstances to be established in a corresponding
case.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from A. Mačiulytė, the Secretary of the Ministry of
the Agriculture of the Republic of Lithuania and Č. Balsys,
Director of the State Service for Tobacco and Alcohol Control
(hereinafter also referred to as the SSTAC) under the
Government of the Republic of Lithuania.
V
1. At the hearing of the Constitutional Court, G. Ivoška,
a representative of the party concerned, the Seimas, asserted,
differently from what he had maintained in his written
explanations, that although the Law on Tobacco Control (wording
of 20 December 1995, with subsequent amendments and
supplements) did not grant an opportunity to directly apply the
CAVL in the cases in which the issue of liability of a legal
person was decided for violations of the Law on Tobacco
Control, still, pursuant to the principle of equality of
persons entrenched in the Constitution, also because the
administrative violations, which are defined in the Law on
Tobacco Control, and which are committed by legal persons, are
to be held analogous to violations of administrative law, which
are defined in the CAVL, and which are committed by natural
persons, in such cases also the CAVL should have been applied
to economic entities. Thus, the Law on Tobacco Control (wording
of 20 December 1995, with subsequent amendments and
supplements) did not deprive the court, which considers a case
deciding an issue of liability of a legal person for violation
of the Law on Tobacco Control, of an opportunity to apply the
CAVL and, if there are mitigating circumstances, to impose such
monetary fine upon the legal person, which is smaller than the
strictly defined fine established in the Law on Tobacco
Control.
As regards other issues, G. Ivoška virtually reiterated
the arguments set forth in his written explanations.
2. At the Constitutional Court hearing, S. Švedas, a
representative of the Seimas, the party concerned, virtually
reiterated the arguments set forth in his written explanations.
3. At the Constitutional Court hearing, G. Sagatys, a
representative of the Seimas, the party concerned, virtually
reiterated the arguments set forth in his written explanations.
G. Sagatys also noted that the economic sanctions
established in the Law on Tobacco Control (wording of 20
November 2003) have all the typical distinctions of the
administrative penalty-a monetary fine. He asserted that in
cases in which the issue of liability of a legal person is
decided for violations of the Law on Tobacco Control, one must
also apply both the law in question and the provisions of the
general part of the CAVL, inter alia its Article 301 under
which a body (official), who considers cases of administrative
violations of law, "shall have the right to impose a smaller
penalty that the minimum one established in the sanction or to
impose a milder penalty than that provided for in the sanction,
or not to impose an administrative penalty at all."
4. At the Constitutional Court hearing, V. Karbauskis, a
representative of the Seimas, the party concerned, a member of
the Seimas, assented to the explanations of G. Sagatys, a
representative of the Seimas, the party concerned.
5. At the Constitutional Court hearing explanations were
presented by the specialist Ona Vitartienė, Head of the Law and
Control Division of the State Service for Tobacco and Alcohol
Control.
The Constitutional Court
holds that:
I
1. By its ruling of 28 November 2002, the Vilnius Regional
Administrative Court, the petitioner, applied to the
Constitutional Court with a petition requesting to investigate
as to whether the provision "the violation shall incur a fine
of twenty thousand litas upon entities of commercial-economic
activity" of Paragraph 4 of Article 21 of the Law on Tobacco
Control is not in conflict with the principles of justice and
of a state under the rule of law consolidated in the
Constitution.
By its ruling of 5 December 2002, the Vilnius Regional
Administrative Court, the petitioner, applied to the
Constitutional Court with a petition requesting to investigate
as to whether the provision of Paragraph 4 of Article 21 of the
Law on Tobacco Control that violation of requirements in the
sales of tobacco products which are established in Paragraph 2
of Article 10 of this law shall incur a fine of twenty thousand
litas upon entities of commercial-economic activity is not in
conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of
Article 46 of the Constitution and the principles of justice
and a state under the rule of law consolidated in the
Constitution.
By its ruling of 9 December 2002, the Vilnius Regional
Administrative Court, the petitioner, applied to the
Constitutional Court with a petition requesting to investigate
as to whether the provision of Paragraph 4 of Article 21 of the
Law on Tobacco Control that violation of requirements in the
sales of tobacco products which are established in Paragraph 2
of Article 10 of this law shall incur a fine of twenty thousand
litas upon entities of commercial-economic activity is not in
conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of
Article 46 of the Constitution and the principles of justice
and a state under the rule of law consolidated in the
Constitution.
By its ruling of 13 December 2002, the Vilnius Regional
Administrative Court, the petitioner, applied to the
Constitutional Court with a petition requesting to investigate
as to whether the provision of Paragraph 4 of Article 21 of the
Law on Tobacco Control that violation of requirements in the
sales of tobacco products which are established in Paragraph 2
of Article 10 of this law shall incur a fine of twenty thousand
litas upon entities of commercial-economic activity is not in
conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of
Article 46 of the Constitution and the principles of justice
and a state under the rule of law consolidated in the
Constitution.
By its ruling of 30 September 2003, the Vilnius Regional
Administrative Court, the petitioner, applied to the
Constitutional Court with a petition requesting to investigate
as to whether the provision of Paragraph 3 of Article 21 of the
Law on Tobacco Control that failure to have documents of
juridical power, confirming acquisition of tobacco products,
shall incur a fine of twenty thousand litas upon entities of
commercial-economic activity is not in conflict with Paragraph
1 of Article 23, Paragraphs 1 and 2 of Article 46 of the
Constitution and the principles of justice and a state under
the rule of law consolidated in the Constitution.
By its ruling of 21 October 2003, the Vilnius Regional
Administrative Court, the petitioner, applied to the
Constitutional Court with a petition requesting to investigate
as to whether the provision of Paragraph 7 of Article 21 of the
Law on Tobacco Control that the failure to adhere to the
requirements of prohibiting of advertisement of tobacco
products, set forth in Paragraph 3 of Article 11 of this law,
shall incur a fine of twenty thousand litas upon entities of
commercial-economic activity is not in conflict with Paragraphs
1 and 2 of Article 46 of the Constitution and the principles of
justice and a state under the rule of law consolidated in the
Constitution.
By its ruling of 27 February 2004, the Vilnius Regional
Administrative Court, the petitioner, applied to the
Constitutional Court with a petition requesting to investigate
as to whether the provision "trade in tobacco products without
an appropriate permit or licence for such activity, shall incur
a fine of fifty thousand litas upon entities of
commercial-economic activity" of Paragraph 2 of Article 21 of
the Law on Tobacco Control is not in conflict with Paragraphs 1
and 2 of Article 46 of the Constitution and the principles of
justice and a state under the rule of law consolidated in the
Constitution.
By its ruling of 21 January 2005, the Supreme
Administrative Court of Lithuania, the petitioner, applied to
the Constitutional Court with a petition requesting to
investigate as to whether Paragraph 14 of Article 26 (wording
of 20 November 2003) of the Law on Tobacco Control to the
extent that, according to the petitioner, it restricts the
right of the court, after it takes account of all the
circumstances, including those provided for in the law, which
mitigate the liability, to impose a milder fine than that
established in Paragraph 7 of Article 26 of the Law on Tobacco
Control (wording of 20 November 2003) for violation of the
prohibitions regarding sale and storing of tobacco products
established in Item 6 of Paragraph 3 of Article 14 of this law,
is not in conflict with Paragraphs 1, 2 and 3 of Article 109 of
the Constitution and the constitutional principle of a state
under the rule of law.
By its ruling of 21 February 2005, the Supreme
Administrative Court of Lithuania, the petitioner, applied to
the Constitutional Court with a petition requesting to
investigate as to whether Paragraphs 5 and 14 of Article 26
(wording of 20 November 2003) of the Law on Tobacco Control to
the extent that, according to the petitioner, it does not
provide for the right of the court considering a case, which,
while taking account of the factual circumstances mitigating
the liability, as well as those provided for by the law, to
impose milder (i.e. smaller) "punishment" than the level of the
sanction provided for in Paragraph 5 of Article 26 of the Law
on Tobacco Control (wording of 20 November 2003), is not in
conflict with the constitutional principle of a state under the
rule of law consolidated in the Constitution.
2. On 20 December 1995, the Seimas adopted the Republic of
Lithuania Law on Tobacco Control. This law (save certain
exceptions) went into effect on 7 February 1996.
The Law on Tobacco Control (wording of 20 December 1995),
inter alia its Article 21, was amended and/or supplemented more
than once.
3. On 20 November 2003, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on Tobacco Control and on
Recognising the Law on Implementing the Law on Tobacco Control
as No Longer Valid, by Article 1 whereof the Law on Tobacco
Control (wording of 20 December 1995 with the amendments and
supplements made till 20 November 2003) was amended and set
forth in a new wording. The Law on Tobacco Control of the new
wording (save certain exceptions) went into effect on 1 May
2004.
4. The Law on Tobacco Control regulates relations linked
to tobacco growing, manufacture of tobacco products, trade in
tobacco products, their keeping, import, tobacco advertising,
consumption etc., and establishes the foundations of tobacco
control in the Republic of Lithuania (Paragraph 2 (wordings of
20 December 1995 and 11 May 1999) of Article 2 and Paragraph 1
(wording of 20 November 2003) of Article 1); the purpose of the
Law on Tobacco Control is to reduce the consumption of tobacco
products in the Republic of Lithuania, accessibility thereof
(inter alia to minors) and the negative consequences for the
population and economy owing to it (Paragraph 1 (wording of 20
December 1995) of Article 2 and Paragraph 2 (wording of 20
November 2003) of Article 1).
5. The legal liability, inter alia sanctions for
violations the this law, for failure to follow certain
requirements and prohibitions established in the Law on Tobacco
Control are established for the Law on Tobacco Control itself:
- in Article 21 titled "Application of Economic Sanctions
For Violations of the Law on Tobacco Control" of the Law on
Tobacco Control (wordings of 20 December 1995, 11 May 1999, 16
March 2000, 11 July 2000, and 11 June 2002);
- in Article 26 titled "Economic Sanctions" of the Law on
Tobacco Control (wording of 20 November 2003).
6. It is clear from the petitions of the Vilnius Regional
Administrative Court that it doubts whether the following was
not in conflict with the Constitution:
- the provision "trade in tobacco products without an
appropriate permit or licence for such activity, shall incur a
fine of fifty thousand litas upon entities of
commercial-economic activity" of Paragraph 2 (wording of 16
March 2000; Official Gazette Valstybės žinios, 2000, No.
28-758) of Article 21 of the Law on Tobacco Control;
- the provision "failure to have documents of juridical
power, confirming acquisition of tobacco products, shall incur
a fine of twenty thousand litas upon entities of
commercial-economic activity" of Paragraph 3 (wording of 11
June 2002; Official Gazette Valstybės žinios, 2002, No.
68-2757) of Article 21 of the Law on Tobacco Control;
- the provision "violation of <...> requirements regarding
sales in tobacco products which are established in Paragraphs
<...> 2 <...> of Article 10 of this Law shall incur a fine of
twenty thousand litas upon entities of commercial-economic
activity" of Paragraph 4 (wording of 11 May 1999; Official
Gazette Valstybės žinios, 1999, No. 50-1597) of Article 21 of
the Law on Tobacco Control;
- the provision "the failure to adhere to the requirements
<...> of prohibiting of advertisement of tobacco products, set
forth in Paragraphs <...> 3 <...> of Article 11 of this Law,
shall incur a fine of twenty thousand litas upon entities of
commercial-economic activity" of Paragraph 7 (wording of 11
June 2002) of Article 21 of the Law on Tobacco Control.
It is clear from the petitions of the Supreme
Administrative Court of Lithuania that it doubts whether the
following is not in conflict with the Constitution:
- Paragraph 5 of Article 26 of the Law on Tobacco Control
(wording of 20 November 2003; Official Gazette Valstybės
žinios, 2003, No. 117-5317) to the extent that according to the
petitioner, it does not provide for the right of a court
considering a respective case to impose, while taking account
of all circumstances mitigating the liability, as well as those
provided for by the law, a smaller monetary fine than the level
of a respective sanction, i.e. the minimum monetary fine,
established in this paragraph;
- Paragraph 14 of Article 26 of the Law on Tobacco Control
(wording of 20 November 2003) to the extent that according to
the petitioner, it does not provide for the right of a court
considering a respective case to impose, while taking account
of all circumstances mitigating the liability, as well as those
provided for by the law, a smaller monetary fine than the
levels of respective sanctions established, i.e. the minimum
monetary fines, established in Paragraphs 5 and 7 of Article 26
of the Law on Tobacco Control (wording of 20 November 2003).
7. It needs also to be held that the investigation
(subsequent to the petition of the Supreme Administrative Court
of Lithuania, the petitioner (ruling of 21 January 2005))
whether Paragraph 14 of Article 26 of the Law on Tobacco
Control (wording of 20 November 2003) is not in conflict with
the Constitution to the extent that, according to the Supreme
Administrative Court of Lithuania, the petitioner, it does not
provide for the right of a court considering a respective case
to impose, while taking account of all circumstances mitigating
the liability, as well as those provided for by the law, a
smaller monetary fine than the minimum monetary fine
established in Paragraph 7 of Article 26 of the Law on Tobacco
Control (wording of 20 November 2003) also implies the
investigation into whether Paragraph 7 of Article 26 of the Law
on Tobacco Control (wording of 20 November 2003) (to the extent
that, according to the petitioner, it does not provide for the
right of a court considering a case to impose, while taking
account of all circumstances mitigating the liability, as well
as those provided for by the law, a smaller monetary fine than
the minimum monetary fines established in this paragraph) is
not in conflict with the Constitution.
8. It needs to be noted that the compliance of the
aforesaid provisions of Paragraph 2 (wording of 16 March 2000),
Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of
11 May 1999), Paragraph 7 (wording of 11 June 2002) of Article
21 of the Law on Tobacco Control, as well as the compliance of
Paragraphs 5, 7, and 14 (to the aforesaid extent) with Article
26 of the same law (wording of 20 November 2003) with the
Constitution was doubted by the courts that were investigating
administrative cases, in which the issue of application of
respective articles (parts thereof) occurred: there appeared
doubts as to whether the sanctions-monetary fines for
violations of the Law on Tobacco Control-consolidated in these
provisions were not in conflict (had not been in conflict) with
the Constitution precisely in the aspect and to the extent that
the courts, even if there were (had been) circumstances
mitigating the liability or other circumstances due to which a
corresponding monetary fine would clearly be too big to the
violator of law, since it was disproportionate (inadequate) to
the committed violation of law, and thus unjust, were not (had
not been) permitted to impose upon him a smaller monetary fine
than the lowest limit of a respective sanction-the minimum
monetary fine or a corresponding monetary fine of strictly
defined amount. In the constitutional justice case at issue,
the compliance of the disputed provisions of the Law on Tobacco
Control with the Constitution will be investigated in the
aspect precisely pointed out by the petitioners themselves and
only to this extent.
II
On the compliance of the provisions of Paragraph 2
(wording of 16 March 2000) of Article 21 and Paragraph 7
(wording of 11 June 2002) of Article 21 of the Law on Tobacco
Control with Paragraphs 1 and 2 of Article 46 of the
Constitution and the constitutional principles of justice and a
state under the rule of law, as well on the compliance of the
provisions of Paragraph 3 (wording of 11 June 2002) of Article
21 and Paragraph 4 (wording of 11 May 1999) of Article 21 of
the Law on Tobacco Control with Paragraph 1 of Article 23,
Paragraphs 1 and 2 of Article 46 of the Constitution and the
constitutional principles of justice and a state under the rule
of law.
1. The legal regulation established in Paragraph 2
(wording of 16 March 2000), Paragraph 3 (wording of 11 June
2002), Paragraph 4 (wording of 11 May 1999), Paragraph 7
(wording of 11 June 2002) of Article 21 of the Law on Tobacco
Control, which is disputed by the petitioners, is to be
construed and assessed within the context of the entire legal
regulation established in this article, in other articles
(parts thereof), as well as in other laws.
2. Paragraph 2 (wording of 16 March 2000) of Article 21 of
the Law on Tobacco Control used to provide: "Tobacco growing
and the manufacture and import thereof and trade in the
products thereof, without an appropriate permit or licence for
such activity, shall incur a fifty thousand litas fine upon
entities of commercial-economic activity. The SSTAC and
self-government executive institutions shall impose the fines."
3. Paragraph 3 (wording of 11 June 2002) of Article 21 of
the Law on Tobacco Control used to provide: "The manufacture,
supply to market and sale, storage and transporting of tobacco
products in the Republic of Lithuania, without observing the
requirements of Paragraphs 1 and 3 of Article 7, failure to
have documents of juridical power, confirming acquisition of
tobacco products, shall incur a fine of twenty thousand litas
upon entities of commercial-economic activity, while a
violation stipulated in this paragraph committed within one
year from the previous violation, shall incur a fine of fifty
thousand litas. The National Board for Consumers Rights
Protection, the State Tax Inspectorate, the SSTAC and the
courts shall, according to the scope of their competence, set
fines for violations of the requirements of this Article. The
National Board for Consumers Rights Protection, having examined
the documents submitted by the State Inspectorate for Non-Food
Products under the Ministry of the Economy, shall assign the
fines stipulated in this Paragraph if the tobacco product,
which does not meet the established quality requirements and in
which the amount present of substances harmful to health
exceeds the prescribed norms, has been supplied to market. In
this case, the State Inspectorate of Non-Food Products under
the Ministry of Economy shall draw up a record of a form
stipulated by the National Board for Consumers Rights
Protection, attesting that an unsafe product was supplied to
the market, and along with the required proofs shall transfer
it to the National Board for Consumers Rights Protection, no
later than within three business days."
Paragraph 3 (wording of 11 June 2002) of Article 21 of the
Law on Tobacco Control used to give reference to Paragraphs 1
and 3 of Article 7 of the same law.
At the time when Paragraph 3 (wording of 11 June 2002) of
Article 21 of the Law on Tobacco Control was in force
- Paragraph 1 of Article 7 of the Law on Tobacco Control
was set forth in the wording of 11 May 1999. It was established
therein that quality and hygiene indicators of tobacco
products, which are manufactured and/or sold within the
Republic of Lithuania, must conform to requirements of legal
acts of the Republic of Lithuania, which are prepared and
approved according to the procedure of the Government;
- Paragraph 3 of Article 7 of the Law on Tobacco Control
was set forth in the wording of 20 December 1995. It was
established therein that enterprises which have manufactured
and/or sold tobacco products, which do not meet established
quality requirements, with regard to amount of substances
harmful to health, which exceed the established norms, shall be
liable in accordance with the laws or other legal acts.
4. Paragraph 4 (wording of 11 May 1999) of Article 21 of
the Law on Tobacco Control used to provide: "Violation of
tobacco product import requirements, established in Items 2, 3
and 4 of Paragraph 2, and Paragraphs 3 and 5 of Article 8 of
this Law and also the requirements in the sales of tobacco
products, established in Paragraphs 1, 2, 5 and 6 of Article 10
of this Law, shall incur a fine of twenty thousand litas upon
entities of commercial-economic activity."
Paragraph 4 (wording of 11 May 1999) of Article 21 of the
Law on Tobacco Control used to give reference to Items 2, 3, 4
and 5 of Paragraph 2, Paragraphs 3 and 5 of Article 8, and
Paragraphs 1, 2, 5 and 6 of Article 10 of this law.
At the time when Paragraph 4 (wording of 11 May 1999) of
Article 21 of the Law on Tobacco Control was in force
- Item 2 of Paragraph 2 of Article 8 of the Law on Tobacco
Control was set forth in the wordings of 11 May 1999 and 11
June 2002. It was established therein that enterprises shall be
prohibited from importing tobacco and tobacco products into the
Republic of Lithuania without: certification (certificate),
attesting to the quality of each shipment of tobacco products
(wording of 11 May 1999); a conformity declaration and/or
certification (certificate), issued by the manufacturing
enterprise, attesting to the quality of each shipment of
tobacco products, and in importing tobacco intended for the
manufacture of tobacco products without a conformity
declaration issued by the manufacturer, attesting to the fact
that the tobacco is suitable for the manufacture of tobacco
products (wording of 11 June 2002);
- Items 3, 4, and 5 of Paragraph 2 of Article 8 of the Law
on Tobacco Control were set forth in the wording of 11 May
1999. It was established therein that enterprises shall be
prohibited from importing of tobacco and tobacco products into
the Republic of Lithuania without: inscriptions in Lithuanian
on the sides of the tobacco product packages, indicating the
amounts of the maximum allowed levels of tar and nicotine they
contain (Item 3 of Paragraph 2); labels (Item 4 of Paragraph
2); warning in Lithuanian appearing on tobacco product
packaging regarding the harmful effect of tobacco upon health
(Item 5 of Paragraph 2);
- Paragraph 3 of Article 8 of the Law on Tobacco Control
was set forth in the wording of 11 May 1999. It was established
therein that enterprises shall be allowed to import into the
Republic of Lithuania only such tobacco products, whose harmful
to health substance levels do not exceed the limits established
by legal acts of the Republic of Lithuania;
- Paragraph 5 of Article 8 of the Law on Tobacco Control
was set forth in the wording of 20 December 1999 and 16 March
2000. It was established therein that enterprises holding
permits to import into the Republic of Lithuania tobacco or
tobacco products, shall be prohibited from transferring
according to contract, the right to import such, to other
economic subjects, using the names of these enterprises on
their transport documents (20 December 1995); enterprises
holding licences to import into the Republic of Lithuania
tobacco or tobacco products, shall be prohibited from
transferring according to contract, the right to import such,
to other economic subjects, using the names of these
enterprises on their transport documents (wording of 16 March
2000);
- Paragraph 1 of Article 10 of the Law on Tobacco Control
was set forth in the wording of 11 May 1999. It was established
therein that trade in snuff and chewing tobacco shall be
prohibited in the Republic of Lithuania;
- Paragraph 2 of Article 10 of the Law on Tobacco Control
was set forth in the wordings of 11 May 1999 and 11 June 2002.
It was established therein that the sale, storing and
transporting of tobacco products shall be prohibited in the
Republic of Lithuania, with the exception of those transported
and exported through transit: without a document (certificate),
issued by the manufacturing enterprise, attesting as to the
quality of these products (Item 1 (wording of 11 May 1999));
without a declaration of conformity and/or certification
document (certificate), issued by the manufacturing enterprise,
attesting as to the quality of these products, or without a
mark in documents of juridical power, which accompany the
products confirming the quality of the tobacco products as
conforming to the requirements of the normative documents (an
institution authorised by the Government of the Republic of
Lithuania shall establish the requirements for official
registration of documents, which attest to the quality of
tobacco products) (Item 1 (wording of 11 June 2002)); if the
levels of harmful to health substances contained therein exceed
the limits established in the normative documents of the
Republic of Lithuania (Item 2 (wording of 11 May 1999)); when
selling (cigarettes, cigarillos, Russian cigarettes) by the
piece (Item 3 (wording of 11 May 1999)); when selling without
labels (Item 4 (wording of 11 May 1999)); without inscriptions
in Lithuanian on tobacco product package sides, concerning the
tar and nicotine levels contained therein (Item 5 (wording of
11 May 1999)); without warning inscriptions in Lithuanian on
tobacco product packages about the harmful effect of smoking to
health (Item 6 (wording of 11 May 1999)); if the trade marking
on tobacco products does not comply with requirements of this
law and legal acts of the Republic of Lithuania (Item 7
(wording of 11 May 1999)); to individuals of up to 18 years of
age (Item 8 (wording of 11 May 1999)); without documents
attesting to legal validity of product acquisition (Item 9
(wording of 11 May 1999)); in the absence of any documents
having legal significance which confirm product acquisition
(the documents having legal significance, which confirm product
acquisition must be on hand in all the places where tobacco
products are being sold, kept and stored in warehouses) (Item 9
(wording of 11 June 2002)); in the event they are falsified
(Item 10 (wording of 11 May 1999)); in the event they are
contraband (Item 11 (wording of 11 May 1999)); to keep and
store tobacco products, namely for enterprises not having a
licence to engage in the manufacture or import of tobacco
products and wholesale or retail trade thereof (Item 12
(wording of 11 June 2002));
- Paragraph 5 of Article 10 of the Law on Tobacco Control
was set forth in the wording of 11 May 1999. It was established
therein that trade in tobacco products shall be prohibited in
the Republic of Lithuania: in pharmacies, health care and
educational establishments (Item 1); in retail market
enterprises, where the goods intended for children make up 50
per cent or more of the retail trade turnover (Item 2); in
vending machine sales (Item 3); to persons of up to 18 years of
age (Item 4);
- Paragraph 6 of Article 10 of the Law on Tobacco Control
was set forth in the wordings of 11 May 1999 and 11 June 2002.
It was established therein that locations where tobacco
products are sold must display signs, warning of the effect of
smoking as being harmful to health, informing about prohibiting
the sale of tobacco products to individuals under 18 years of
age and limitations of tobacco product sales as established by
this law (the Government or its authorised institution had to
establish the texts of warnings and the procedure of their
inscription and design requirements) (wording of 11 May 1999);
that in places where tobacco products are sold, with the
exception of the premises where wholesale trade in tobacco
products is being conducted, there must be display signs with
warnings of the detrimental to health effect of smoking, and
with information about the sale of tobacco products being
prohibited to individuals under 18 years of age (the Government
or an institution authorised by it had to establish the texts
of warnings and the procedure of the inscription and design
requirements thereof) (wording of 11 June 2002).
5. Paragraph 7 of Article 21 of the Law on Tobacco Control
(wording of 11 June 2002) provided: "The failure to adhere to
the requirements of restrictions on the promotion and
prohibiting of advertisement of tobacco products advertising,
set forth in Paragraphs 1, 3, 4 and 5 of Article 11, shall
incur a fine of five thousand litas upon entities of
commercial-economic activity, and a ten thousand litas fine for
a repeated violation of these requirements, if it is committed
within one year from the previous violation. The State Service
for Tobacco and Alcohol Control under the Government of
Republic of Lithuania shall impose fines for these violations
(except for the violations in mass media). Fines for violations
of the requirements set forth in Paragraphs 1, 3, 4 and 5 of
Article 11 of this Law for the violations of the stipulated
requirements in the mass media shall be imposed by the National
Board for Consumer Rights Protection."
Paragraph 7 of Article 21 of the Law on Tobacco Control
(wording of 11 June 2002) made reference to Paragraphs 1, 3, 4
and 5 of Article 11 of the same law.
At the time when Paragraph 7 of Article 21 of the Law on
Tobacco Control (wording of 11 June 2002) was in force:
- Paragraph 1 of Article 11 of the Law on Tobacco Control
was set forth in the wordings of 11 June 2002 and 28 January
2003. It was established therein that the following promotional
practices of tobacco products shall be prohibited in Lithuania:
to issue part of its production gratis or as a bonus (Item 1
(wording of 11 June 2002)); to apply fixed discounts to owners
by way of coupons published by the mass media (Item 2 (wording
of 11 June 2002)); to circulate tobacco products or new samples
thereof, gratis (Item 3 (wording of 11 June 2002)); to supply
tobacco products to lotteries, contests, sports competitions,
and games as prizes or in conjunction with such (Item 4
(wording of 11 June 2002)); to organise retail trade subject
competitions which would promote tobacco product sales (Item 5
(wording of 11 June 2002)); to promote events intended for
persons under 18 years of age and also invite persons under 18
years of age to engage in activity promoting tobacco products
(Item 6 (wording of 11 June 2002)); to engage in the sale of
goods, which imitate tobacco products or packages thereof
(toys, food products, etc.) (Item 7 (wording of 28 January
2003));
- Paragraphs 3, 4, and 5 of Article 11 of the Law on
Tobacco Control were set forth in the wording of 11 June 2002.
It was established therein that tobacco product advertising as
well as surreptitious advertising of tobacco products shall be
prohibited in the Republic of Lithuania (Paragraph 3) and that
the prohibiting of tobacco product advertising stipulated in
paragraph 3 of this Article shall not apply to information
about tobacco products in places of the manufacture of such
products, through informational announcements, which are
intended for tobacco trade specialists, and the registered
names of the enterprises producing tobacco products or selling
them (if the name of the manufacturer of tobacco product or
tobacco products is a component part of the registered name of
name of these enterprises) and also the trademarks of the
goods, when these names are trade marks presented on the signs
hanging on the headquarters or division building of those
enterprises and the specialised transport of these enterprises
(Paragraph 4). It was also established that according to the
procedure established by the Government or an institution
authorised by it, it shall be permitted to provide only the
following information about tobacco products at tobacco product
sales locations: name and address of manufacturer and sales
enterprise, and type of trade (wholesale or retail) (Item 1 of
Paragraph 5); the name and brand of tobacco products (Item 2 of
Paragraph 5); words "We trade in" or "We sell" (Item 3 of
Paragraph 5); concentration in the smoking products of tobacco
tars, nicotine or other harmful materials (Item 4 of Paragraph
5); prices of tobacco products (Item 5 of Paragraph 5);
information regarding the damage to health resulting from the
use of tobacco products (Item 6 of Paragraph 5).
6. If one construes the provisions, which are disputed by
the petitioner, of Paragraph 2 (wording of 16 March 2000),
Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of
11 May 1999), and Paragraph 7 (wording of 11 June 2002) of
Article 21 of the Law on Tobacco Control in the context of the
entire legal regulation established in this article and in
other articles (parts thereof) of this law, as well as that
established in other laws, one is to hold that:
- all provisions, which are disputed by the petitioner, of
Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of
11 June 2002), Paragraph 4 (wording of 11 May 1999), and
Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law
on Tobacco Control, as well as some other provisions of this
article, established legal liability for failure to follow
certain requirements and prohibitions and established
sanctions-monetary fines-for respective violations of this law;
- the entities that could be held liable subsequent to the
provisions, which are disputed by the petitioner, of Paragraph
2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June
2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7
(wording of 11 June 2002) of Article 21 of the Law on Tobacco
Control were enterprises, establishments and organisations
(Paragraph 1 (wordings of 11 May 1999, 11 July 2000 and 11 June
2002) of Article 21), entities of commercial-economic activity
(Paragraph 2 (wordings of 11 May 1999 and 16 March 2000),
Paragraph 3 (wordings of 11 May 1999, 11 July 2000, and 11 June
2002), Paragraph 4 (wording of 11 May 1999), Paragraph 5
(wording of 11 May 1999) and Paragraph 7 (wordings of 11 May
1999 and 11 June 2002) of Article 21); in various articles of
the law in question the general notion "economic entities" is
employed as well;
- by means of all the sanctions-monetary
fines-consolidated in Paragraph 2 (wording of 16 March 2000),
Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of
11 May 1999), and Paragraph 7 (wording of 11 June 2002) of
Article 21 of the Law on Tobacco Control as well as in other
provisions of the same article (wording of 20 December 1995
with the amendments and supplements made till 20 November 2003)
pre-conditions were created inter alia to exert negative
influence on the economic situation of the economic entities
that were held legally liable and thus (in addition to other
ways) to ensure that the economic entities follow the
requirements established in the Law on Tobacco Control; the
monetary fines established in Article 21 of the Law on Tobacco
Control (wording of 20 December 1995 with the amendments and
supplements made till 20 November 2003) for violations of this
law are called "economic sanctions" in this law;
- all the sanctions-monetary fines-established in the
provisions, which are disputed by the petitioner, of Paragraph
2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June
2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7
(wording of 11 June 2002) of Article 21 of the Law on Tobacco
Control, as well as in other provisions of the same article
(wording of 20 December 1995 with the amendments and
supplements made till 20 November 2003), which, as it has been
mentioned, are called "economic sanctions" in this law, by
their legal content and other features are close to
administrative sanctions-administrative penalties for
corresponding violations of law-established in some other laws
(inter alia in the CAVL) and virtually they are not different
from the former; although the so-called economic sanctions
(established in Article 21 (wording of 20 December 1995 with
the amendments and supplements made till 20 November 2003) of
the Law on Tobacco Control) which, if compared with
administrative sanctions-administrative penalties for
corresponding violations of law-established in other laws, are
characteristic of certain peculiarities (for instance, the fact
that these sanctions are applicable to economic entities, also
the fact that these penalties inter alia create pre-conditions
to exert negative influence on the economic situation of the
economic entities which are brought to legal liability),
especially when one has in mind the fact that neither such
individual type of legal liability nor an individual legal
institute as "economic liability" does not exist at all, the
aforesaid so-called economic sanctions-monetary penalties-as
well as administrative penalties for corresponding violations
of law, are to be attributed to the same legal institute, i.e.
to the institute of administrative legal liability;
- the violations of the Law on Tobacco Control for which
the sanctions established in Paragraph 2 (wording of 16 March
2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4
(wording of 11 May 1999), and Paragraph 7 (wording of 11 June
2002) of Article 21 of the same law had to be applied, were
distributed, by means of the legal regulation established in
these paragraphs, into certain groups; equal sanctions-monetary
penalties of the same amount-were established not only for
similar but also very different violations of law, which, by
means of the legal regulation established in Article 21 of the
Law on Tobacco Control (wording of 20 December 1995 with the
amendments and supplements made till 20 November 2003, when the
Seimas adopted the Republic of Lithuania Law on Amending the
Law on Tobacco Control and on Recognising the Law on
Implementing the Law on Tobacco Control as No Longer Valid)
were attributed to the same group of violations of law;
- in Paragraph 2 (wording of 16 March 2000), Paragraph 3
(wording of 11 June 2002), Paragraph 4 (wording of 11 May
1999), and Paragraph 7 (wording of 11 June 2002) of Article 21
of the Law on Tobacco Control, inter alia in all provisions of
these paragraphs which are disputed by the petitioner, really
big monetary fines of fixed amount for corresponding violations
of this law were established: a five thousand litas fine
(Paragraph 7 (wording of 11 June 2002)), a ten thousand litas
fine (Paragraph 7 (wording of 11 June 2002)), a twenty thousand
litas fine (Paragraph 3 (wording of 11 June 2002), Paragraph 4
(wording of 11 May 1999)), a fifty thousand litas fine
(Paragraph 2 (wording of 16 March 2000) and Paragraph 3
(wording of 11 June 2002));
- at the time when Paragraph 2 (wording of 16 March 2000),
Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of
11 May 1999), and Paragraph 7 (wording of 11 June 2002) of
Article 21 of the Law on Tobacco Control were in force, the
compliance of the provisions of which with the Constitution is
disputed by the petitioners, under Article 21 of the Law on
Tobacco Control various institutions enjoyed powers to apply,
within their competence, the sanctions established in this
paragraph, i.e. to impose monetary sanctions for violations of
the Law on Tobacco Control: the SSTAC, the State Hygiene
Inspectorate under the State Service of Public Healthcare
(until the entry into effect of the amendments to the Law on
Tobacco Control made by the Republic of Lithuania Law on
Amending Article 21 of the Law on Tobacco Control which was
adopted by the Seimas on 11 July 2000), the Lithuanian State
Quality Inspectorate under the State Service for Competition
and Protection of Consumer Rights (until the entry into effect
of the amendments to the Law on Tobacco Control made by the
Republic of Lithuania Law on Amending Article 21 of the Law on
Tobacco Control which was adopted by the Seimas on 11 July
2000), the State Inspectorate for Non-Food Products under the
Ministry of the Economy (after the entry into effect of the
amendments to the Law on Tobacco Control made by the Republic
of Lithuania Law on Amending Article 21 of the Law on Tobacco
Control which was adopted by the Seimas on 11 July 2000), the
State Tax Inspectorate under the Ministry of Finance of the
Republic of Lithuania (after the entry into effect of the
amendments and supplements to the Law on Tobacco Control made
by the Republic of Lithuania Law on Amending and Supplementing
Articles 1, 6, 8, 9, 10, 11, 18, 21, and 29 of the Law on
Tobacco Control which was adopted by the Seimas on 11 June
2002, this establishment is referred to as the State Tax
Inspectorate in the Law on Tobacco Control), the National Board
for Consumers Rights Protection (after the entry into effect of
the amendments and supplements to the Law on Tobacco Control
made by the Republic of Lithuania Law on Amending and
Supplementing Articles 1, 6, 8, 9, 10, 11, 18, 21, and 29 of
the Law on Tobacco Control which was adopted by the Seimas on
11 June 2002), self-government executive institutions, courts;
- the Law on Tobacco Control (wording of 20 December 1995
with the amendments and supplements made till 20 November 2003,
when the Seimas adopted the Republic of Lithuania Law on
Amending the Law on Tobacco Control and on Recognising the Law
on Implementing the Law on Tobacco Control as No Longer Valid)
did not establish under what procedure cases concerning
violations of this law had to be considered, for which the
sanctions-monetary fines-established in Paragraph 2 (wording of
16 March 2000), Paragraph 3 (wording of 11 June 2002),
Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording
of 11 June 2002) of Article 21 of the Law on Tobacco Control
had to be applied, nor under what procedure these monetary
fines had to be imposed;
- the economic entities which could be held legally liable
on the grounds of the provisions of Paragraph 2 (wording of 16
March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4
(wording of 11 May 1999), and Paragraph 7 (wording of 11 June
2002) of Article 21 of the Law on Tobacco Control which are
disputed by the petitioners, if the former used to disagree
with the decision of a respective institution to apply the
so-called economic sanctions, they were able to apply to court
on the issue of repeal of the said decision, or on its
amendment and compensation of damages (Paragraph 1 (wording of
20 December 1995) of Article 25), however such application
would not suspend the execution of decisions of institutions to
apply economic sanctions, if the court had not established
otherwise (Paragraph 2 (wording of 20 December 1995) of Article
25);
- at the time when Paragraph 2 (wording of 16 March 2000),
Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of
11 May 1999), and Paragraph 7 (wording of 11 June 2002) of
Article 21 of the Law on Tobacco Control were in force, the
compliance of which with the Constitution is disputed by the
petitioners, neither the Law on Tobacco control nor other laws
contained any provisions under which the courts, when they
considered complaints on monetary fines imposed by respective
institutions under the aforesaid provisions of Article 21 of
the Law on Tobacco Control might impose a smaller fine upon the
violators than that established in these provisions;
- since, as it has been mentioned, in Paragraph 2 (wording
of 16 March 2000), Paragraph 3 (wording of 11 June 2002),
Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording
of 11 June 2002) of Article 21 of the Law on Tobacco Control
really big monetary fines of strictly defined amount for
corresponding violations of this law were established, while
neither the Law on Tobacco Control nor other laws contained any
provisions under which the courts, when they considered
complaints on monetary fines imposed by respective institutions
under the aforesaid provisions of Article 21 of the Law on
Tobacco Control might impose a smaller fine upon the violators
than that established in these provisions, under the laws valid
at that time (i.e. in the period when Paragraph 2 (wording of
16 March 2000), Paragraph 3 (wording of 11 June 2002),
Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording
of 11 June 2002) of Article 21 of the Law on Tobacco Control
were in force, the compliance of which with the Constitution is
disputed by the petitioners) there was not any opportunity to
impose a smaller monetary fine than that established in the
said provisions of the Law on Tobacco Control even in cases
where there were such circumstances mitigating the liability or
other circumstances due to which a corresponding monetary fine
would have been too big for the violator of law, since it was
disproportionate (inadequate) for the committed violation of
law and thus unjust;
- the sanctions-monetary fines for respective violations
of this law-established in Paragraph 2 (wording of 16 March
2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4
(wording of 11 May 1999), and Paragraph 7 (wording of 11 June
2002) of Article 21 of the Law on Tobacco Control, inter alia
in all provisions of these paragraphs which are disputed by the
petitioners, especially when one bears in mind the fact that
these really big monetary fines had to be imposed upon all
economic entities which had committed corresponding violations
of law, regardless of any, including mitigating, circumstances
(due to which a corresponding monetary fine would clearly have
been too big for the violator of law, since disproportionate
(inadequate) to the committed violation of law, and thus
unjust), are to be assessed as strict to violators of law.
7. The compliance of the provisions of Paragraph 2
(wording of 16 March 2000), Paragraph 3 (wording of 11 June
2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7
(wording of 11 June 2002) of Article 21 of the Law on Tobacco
Control, which are disputed by the petitioners, with the
Constitution (also in the aspect and to the extent pointed out
by the petitioners that courts, even if there had been certain
circumstances mitigating liability or other circumstances due
to which a respective monetary fine would clearly have been too
big to the violator of law, since it was disproportionate
(inadequate) for the committed violation of law and thus
unjust, could not impose, under these provisions, a smaller
monetary fine than the respective monetary amount which was
strictly defined), is to be investigated only by taking account
of the specificity of the relations regulated by the Law on
Tobacco Control, as well as the purpose of this law.
In this context one is to note that, as it is generally
known, tobacco use is harmful to health and can give rise to
negative social effects. Due to this, tobacco products are to
be ascribed to special products whose production, circulation
and consumption may and must be controlled by the state, which,
under the Constitution, is under obligation to look after the
health of the people (Paragraph 1 of Article 53 of the
Constitution) and is empowered to regulate economic activity so
that it serves the general welfare of the Nation (Paragraph 3
of Article 46 of the Constitution). The legislator, who has the
right, under the Constitution, to establish the means and a
procedure for control of tobacco as a special product, may
establish special legal regulation, inter alia certain
prohibitions, limitations, etc., which are not characteristic
of the legal regulation of relations of production, circulation
and consumption of other products. Certain empowerments to
legally regulate the relations linked with tobacco growing,
production, circulation and consumption of tobacco products
(inter alia with keeping, trade, import and advertising) may be
established by means of laws also to other law-making entities;
when such empowerments are being established, one must pay heed
to the Constitution, inter alia it is not permitted that
substatutory legal acts regulate the relations which, under the
Constitution, may be regulated only by laws.
In the context of the constitutional justice case at
issue, one is also to note that the disregard of the means and
procedure-prohibitions, limitations, etc.-of tobacco control,
which are established by laws, and other violations of
requirements of production, circulation and consumption of
tobacco and its products, which are established by other legal
acts, are harmful to the economic system of the state, inter
alia its financial order. Under the Constitution, the
legislator enjoys powers to establish legal liability for
violations of the said legal regulation, inter alia to
establish respective sanctions as well as monetary fines to
violators of law. It needs to be emphasised that these
sanctions can also be strict (the monetary fines may indeed be
really big) to violators of law. Alongside, it needs to be
emphasised that in itself (without assessment of the character,
danger (gravity), the scale and other features of a certain
violation of law) the consolidation of strict (to violators of
law) sanctions (inter alia big monetary fines) for violations
of the requirements of production, circulation and consumption
of tobacco and its products cannot be construed as unjust or
inadequate to the respective violation of law.
While establishing that monetary fines may be imposed upon
violators of law for the said violations of law, inter alia
establishing what entities (institutions, officials) can impose
these monetary fines, as well as amounts of these monetary
fines, the procedure for consideration of cases on violations
of this law, the legislator is bound by norms and principles of
the Constitution.
8. In the context of the constitutional justice case at
issue it needs to be noted especially that the legislator, when
he regulates the relations linked with tobacco growth,
production, circulation and consumption of tobacco products, is
bound by the principle of a state under the rule of law which,
as the Constitutional Court has held in its rulings more than
once, is a universal principle upon which the entire Lithuanian
legal system and the Constitution itself are based. The
Constitutional Court has also held that the content of the
constitutional principle of a state under the rule of law is to
be revealed while taking account of the content of various
other constitutional principles, including the principle of
justice (which encompasses inter alia natural justice)
(Constitutional Court ruling of 13 December 2004).
Thus, disregard of the principle of justice which is
entrenched in the Constitution would also mean disregard of the
constitutional principle of a state under the rule of law.
9. While construing the constitutional principle of a
state under the rule of law, the Constitutional Court has held
that this principle implies various requirements to the
legislator and other entities of law-making inter alia: the
violations of law for which liability is established in legal
acts must be clearly defined; while establishing legal
limitations and liability for violations of law one must pay
heed to the requirement of reasonableness, as well as the
principle of proportionality, under which the established legal
measures must be necessary in a democratic society and which
are appropriate to the legitimate and universally important
objectives (there must be a balance between the objectives and
measures), they cannot restrict the rights of the person more
than necessary in order to achieve these objectives, while if
these legal measures are linked with the sanctions for a
violation of law, then the said sanctions must be proportionate
to the committed violation of law; in the course of legal
regulation of social relations one must pay heed to
requirements of natural justice, which inter alia include a
necessity to ensure the equality of persons before the law, the
court and state institutions and officials (Constitutional
Court ruling of 13 December 2004).
Thus, the constitutional principles of justice and of a
state under the rule of law also mean that there must be a just
balance (proportionality) between the objective sought to
punish violators of law and to ensure prevention of violations
of law and the chosen means to achieve this objective, and the
sanctions (penalties, punishments) established for violations
of law must be proportionate to these violations. The
constitutional principles of justice and of a state under the
rule of law do not permit to establish such penalties for
violations of law, as well as such sizes of the fines, which
would evidently be disproportionate (inadequate) to the
violation of law and the objective sought (Constitutional Court
rulings of 6 December 2000, 2 October 2001, and 26 January
2004). The penalties established for violations of the laws
must be of such size which is necessary for the sought
legitimate and generally important objective--to ensure the
observance of the laws, the fulfilment of the established
duties (Constitutional Court ruling of 26 January 2004).
10. The constitutional principle of justice demands to
differentiate the established penalties for violations of law
(thus also the imposed administrative penalties and monetary
fines) so that the nature of the violation of law,
circumstances mitigating and aggravating the responsibility
could be taken into account, that, while taking account of
that, a milder punishment could be imposed than the minimum one
provided for in the sanction (Constitutional Court ruling of 26
January 2004).
10.1. If the law does not establish differentiated amounts
of monetary fines, but if it consolidates really big monetary
fines of strictly defined amount, and if no opportunity arises
to differentiate the legal liability for a respective violation
of law either from a corresponding law or other laws, then when
one imposes the monetary fine one has no opportunity to
individualise its size, while one takes account of the
character, danger (gravity), the scale and other features of
the violation of law, as well as of the circumstances
mitigating the liability and of other circumstances (due to
which a corresponding monetary fine would be too big for the
violator of law, since it is disproportionate (inadequate) for
the committed violation of law and thus unjust); such legal
regulation would not be in line with the principles of justice
and a state under the rule of law, which are entrenched in the
Constitution.
10.2. In the context of the constitutional justice case at
issue, one is also to emphasise that one would deviate from the
constitutional principle of justice, thus, from the
constitutional principle of a state under the rule of law, too,
also in the case if the law consolidated not a monetary fine of
strictly defined amount for violations of law, but such minimum
and maximum monetary fines which would permit to individualise
the amount of the imposed fine to a certain extent, however,
notwithstanding this, these monetary fines would be too strict
to the violators of law just the same, i.e. they would really
be big, and if in the course of the application of these
sanctions-imposition of monetary sanctions-one would not be
permitted to take account of the character, danger (gravity),
the scale and other features of the violation of law (due to
which a corresponding monetary fine would be too big for the
violator of law, since it is disproportionate (inadequate) for
the committed violation of law and thus unjust) and to impose a
smaller monetary fine to the violator of law than the minimum
level of the sanction consolidated in the law.
10.3. In this context it needs to be noted that, under
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). In the context of the
constitutional justice case at issue it needs to be noted that
the penalties in their system which are established in laws
must be such so that a court, when it imposes the penalties,
would be able to administer justice.
A fact is of essential importance that the legislator, by
choosing such a way of construction of the sanction-a monetary
fine-for commission of a deed contrary to law, when the article
itself, which establishes legal liability for the said deed
contrary to law, establishes such monetary fine that is really
big, i.e. a sanction that is too strict to the violators, must,
alongside, establish by means of a law also such legal
regulation whereby a court, when it applies the sanction for
this deed contrary to law, could, while imposing the monetary
fine, take account of all the circumstances mitigating the
liability, including those which are not expressis verbis
specified in the law, and provided there are such circumstances
mitigating the liability or other circumstances, due to which a
corresponding monetary fine would clearly be too big to the
violator of law, since it is disproportionate (inadequate) to
the committed violation of law and thus unjust, to impose a
smaller monetary fine upon him than that established in the
law.
Under the Constitution, the legislator cannot establish
any such legal regulation so that a court, which, pursuant to
the law adopts a decision on imposition of a monetary fine for
violation of law, would not be able, in general, by taking
account of the character, danger (gravity), the scale and other
features of the violation of law (due to which a corresponding
monetary fine would be too big for the violator of law, since
it is disproportionate (inadequate) for the committed violation
of law and thus unjust) and guided by the criteria of justice
and reasonableness, to individualise the size of the really big
monetary fine, i.e. the strict (to violators of law) penalty,
and to impose a smaller monetary fine than the minimum monetary
fine (the lowest level of the sanction) or the monetary fine of
strictly defined amount which are established in the law. Thus
the powers of the court would be restricted, i.e. the
exceptional empowerments of the court to administer justice,
which are consolidated in Paragraph 1 of Article 109 of the
Constitution would be limited, and thus preconditions would be
created to violate the constitutional rights of entities, inter
alia the constitutional right of the person to a fair trial.
10.4. In the context of the constitutional justice case at
issue, it needs to be noted that provided certain sanctions
established in laws by their size (strictness) amount to
criminal punishments, no matter to what type of legal liability
(criminal, administrative, disciplinary or other legal
liability) these sanctions are attributable, and no matter how
respective sanctions are named in laws, the laws must
necessarily establish procedural guarantees (which stem from
the Constitution, inter alia from its Article 31) to persons,
who are held legally liable under corresponding laws. In this
context it needs to be emphasised that the provisions of
Article 31 of the Constitution cannot be construed as being
designed only to the persons who are held criminally liable.
Neither is it permitted to disregard this imperative also
in the cases where laws establish certain sanctions which,
although are referred to as "economic sanctions" in the laws,
by their content and other features are to be attributed to the
institute of administrative legal liability, however by their
size (strictness) amount to criminal punishments. In such cases
the said procedural guarantees (which stem from the
Constitution) to persons who are held administratively liable
can be established in the laws that consolidate these sanctions
and/or other laws regulating administrative liability of
subjects (as well as of economic entities), the administrative
process (inter alia the legal proceedings of administrative
cases), as well as in laws that regulate the activity of courts
and in other laws.
11. While deciding whether the provisions of Paragraph 2
(wording of 16 March 2000), Paragraph 3 (wording of 11 June
2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7
(wording of 11 June 2002) of Article 21 of the Law on Tobacco
Control, which are disputed by the petitioners, were not in
conflict with the constitutional principles of justice and a
state under the rule of law in the aspect and to the extent
pointed out by the petitioners, i.e. that courts, even if there
are certain circumstances mitigating liability or other
circumstances due to which a respective monetary fine would
clearly have been too big to the violator of law, since it was
disproportionate (inadequate) for the committed violation of
law and thus unjust, could not impose, under these provisions,
a smaller monetary fine than the respective monetary fine of
strictly defined amount, one is to hold that the character,
danger (gravity), the scale and other features of the violation
of law, other circumstances (without ignoring those mitigating
the liability) of a corresponding violation of the Law on
Tobacco Control, for which a certain sanction consolidated in
these provisions had to be applied, i.e. a five thousand litas
fine (Paragraph 7 (wording of 11 June 2002)), a twenty thousand
litas fine (Paragraph 3 (wording of 11 June 2002), Paragraph 4
(wording of 11 May 1999)), a fifty thousand litas fine
(Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording
of 11 June 2002)) had to be imposed, could determine the fact
that, by being guided by the criteria of justice and
reasonableness and taking account of all the important
circumstances, one had to impose precisely the fine of the
amount in question upon the violator of law.
Therefore, although the sanctions-monetary
fines-consolidated in the provisions of the Law on Tobacco
Control are to be assessed as really big (strict to violators
of law), also that even if the amounts of these
sanctions-monetary fines-are strictly defined, in themselves
these sanctions are not to be considered as deviating from the
requirement of justice stemming from the Constitution or as
otherwise violating the constitutional principle of a state
under the rule of law.
12. The fact that, as it has been held in this Ruling of
the Constitutional Court, the strict monetary fines of strictly
defined amount and strict (really big) to the violators, which
were established in all the provisions of Paragraph 2 (wording
of 16 March 2000), Paragraph 3 (wording of 11 June 2002),
Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording
of 11 June 2002) of Article 21 of the Law on Tobacco Control,
which are disputed by the petitioners, had to be imposed upon
all economic entities for respective violations of this law,
regardless of any, including mitigating, circumstances due to
which a corresponding monetary fine would have been clearly too
big for the violator of law, since disproportionate
(inadequate) to the committed violation of law, and thus
unjust, and the fact that at the time when Paragraph 2 (wording
of 16 March 2000), Paragraph 3 (wording of 11 June 2002),
Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording
of 11 June 2002) of Article 21 of the Law on Tobacco Control
were in force, the compliance of which with the Constitution is
disputed by the petitioners, neither the Law on Tobacco control
nor other laws contained any provisions under which the courts,
when they considered complaints on monetary fines imposed by
respective institutions under the aforesaid provisions of
Article 21 of the Law on Tobacco Control might impose a smaller
fine upon the violators than that established in these
provisions, are to be assessed differently.
The aforementioned strictly defined amounts of monetary
fines were consolidated in the provisions of Paragraph 2
(wording of 16 March 2000), Paragraph 3 (wording of 11 June
2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7
(wording of 11 June 2002) of Article 21 of the Law on Tobacco
Control, which are disputed by the petitioners, and courts,
whenever they considered complaints from economic entities
regarding monetary fines imposed upon them by respective
institutions subsequent to the provisions of Article 21 of the
Law on Tobacco Control, had to apply precisely these
provisions. Therefore, one is to hold that it was the legal
regulation consolidated in the provisions of Paragraph 2
(wording of 16 March 2000), Paragraph 3 (wording of 11 June
2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7
(wording of 11 June 2002) of Article 21 of the Law on Tobacco
Control, which are disputed by the petitioners, that did not
permit the court to individualise the size of a
penalty-monetary fine-consolidated in a respective provision
nor to impose of smaller monetary fine upon the violator of law
than the one provided for.
Such legal regulation was not in compliance with the
principles of justice and a state under the rule of law which
are entrenched in the Constitution and restricted the powers of
the court-it limited the exceptional powers of the court to
administer justice, which are entrenched in Paragraph 1 of
Article 109 of the Constitution.
13. Taking account of the arguments set forth, one is to
conclude that the provision "trade in tobacco products without
an appropriate permit or licence for such activity, shall incur
a fine of fifty thousand litas upon entities of
commercial-economic activity" of Paragraph 2 (wording of 16
March 2000) of Article 21, the provision "failure to have
documents of juridical power, confirming acquisition of tobacco
products, shall incur a fine of twenty thousand litas upon
entities of commercial-economic activity" of Paragraph 3
(wording of 11 June 2002) of Article 21 of the same law, the
provision "violation of <...> requirements in the sale of
tobacco products which are established in Paragraphs <...> 2
<...> of Article 10 of this Law shall incur a fine of twenty
thousand litas upon entities of commercial-economic activity"
of Paragraph 4 (wording of 11 May 1999) of Article 21 of the
same law, the provision "the failure to adhere to the
requirements <...> of prohibiting of advertisement of tobacco
products, set forth in Paragraphs <...> 3 <...> of Article 11
of this Law shall incur a fine of five thousand litas upon
entities of commercial-economic activity" of Paragraph 7
(wording of 11 June 2002) of Article 21 of the same law to the
extent that they restrict the powers of a court to impose,
while taking account of circumstances mitigating the liability
and other circumstances (due to which a corresponding monetary
fine would be too big for the violator of law, since it is
disproportionate for the committed violation of law and thus
unjust) and conforming to the criteria of justice and
reasonableness, a smaller monetary fine than the monetary fines
of strictly defined amount established in these provisions,
were in conflict with Paragraph 1 of Article 109 of the
Constitution and the constitutional principles of justice and a
state under the rule of law.
14. Having drawn such a conclusion, in this constitutional
justice case the Constitutional Court will not investigate
whether the provision "trade in tobacco products without an
appropriate permit or licence for such activity, shall incur a
fine of fifty thousand litas upon entities of
commercial-economic activity" of Paragraph 2 (wording of 16
March 2000) of Article 21, the provision "failure to have
documents of juridical power, confirming acquisition of tobacco
products, shall incur a fine of twenty thousand litas upon
entities of commercial-economic activity" of Paragraph 3
(wording of 11 June 2002) of Article 21 of the same law, the
provision "violation of <...> requirements in the sale of
tobacco products which are established in Paragraphs <...> 2
<...> of Article 10 of this Law shall incur a fine of twenty
thousand litas upon entities of commercial-economic activity"
of Paragraph 4 (wording of 11 May 1999) of Article 21 of the
same law, the provision "the failure to adhere to the
requirements <...> of prohibiting of advertisement of tobacco
products, set forth in Paragraphs <...> 3 <...> of Article 11
of this Law shall incur a fine of five thousand litas upon
entities of commercial-economic activity" of Paragraph 7
(wording of 11 June 2002) of Article 21 of the same law were
not in conflict (in the aspect and to the extent specified by
the petitioners) were not in conflict with Paragraphs 1 and 2
of Article 46 of the Constitution, as well as whether the
aforesaid provisions of Paragraph 3 (wording of 11 June 2002)
and Paragraph 4 (wording of 11 May 1999) of Article 21 of the
Law on Tobacco Control (in the aspect and to the extent
specified by the petitioners) were not in conflict with
Paragraph 1 of Article 23 of the Constitution.
III
On the compliance of Paragraphs 5, 7, and 14 of Article 26
of the Law on Tobacco Control (wording of 20 November 2003)
with Paragraphs 1, 2, and 3 of Article 109 of the Constitution
and the constitutional principle of a state under the rule of
law.
1. Paragraph 5 of Article 26 of the Law on Tobacco Control
(wording of 20 November 2003) provides: "For violation of the
prohibitions set forth in Items 1, 2, 3 or 4, of Paragraph 3 of
Article 14 of this Law, regarding marketing of tobacco
products, storing or transporting thereof if that does not
impose criminal liability, legal persons and branches of
foreign legal persons shall be subject to a fine from ten
thousand litas to thirty thousand litas and their licence shall
be revoked."
Paragraph 5 of Article 26 of the Law on Tobacco Control
(wording of 20 November 2003) gives reference to Items 1, 2, 3
and 4 of Paragraph 3 of Article 14 of this law.
Under Paragraph 3 of Article 14 of the Law on Tobacco
Control (wording of 20 November 2003), it shall be prohibited
in the Republic of Lithuania, for legal persons and branches of
foreign legal persons to sell, store, transport tobacco
products and also, to import tobacco products into the Republic
of Lithuania inter alia: without documents of juridical power
confirming acquisition of tobacco products or transportation
thereof (documents of juridical power certifying the
acquisition or transportation of tobacco products must be kept
in all tobacco product sales outlet (or) places; it is
mandatory to hold transportation documents or documents of
juridical power certifying the acquisition of tobacco products,
while transporting tobacco products) (Item 1); if the products
are fake (Item 2); if the products are contraband (Item 3); in
addition to the special marks-labels according to the special
sample, established by the institution authorised by the
Government of the Republic of Lithuania, except in cases when
based upon the Republic of Lithuania Law on Excise Tax and
other legal acts, the special marks-labels of tobacco products
are not mandatory (Item 4).
2. Paragraph 7 of Article 26 of the Law on Tobacco Control
(wording of 20 November 2003) provides: "For violation of
prohibitions set forth in Items 6 or 7 of Paragraph 3 of
Article 14 of this Law, with respect to the marketing, storing
or transporting of tobacco products, for violation of
prohibitions set forth in Items 1, 2 or 3 of Paragraph 5 of
Article 14 of this Law, legal persons and branches of foreign
legal persons shall be subject to a fine from three thousand
litas to five thousand litas. For violation of the prohibitions
set forth in Items 6 or 7 of Paragraph 3 of Article 14, Items 1
or 2 of Paragraph 5 of Article 14, repeated over a
one-year-term from the imposition of a fine, legal persons and
branches of foreign legal persons shall be subject to a fine
from five thousand litas to ten thousand litas. For violation
of the prohibition set forth in Item 3 of Paragraph 5 of
Article 14 of this Law, repeated in the same sales outlet over
a one-year term from the imposition of the fine, legal persons
and branches of foreign legal persons shall be subject to a
fine from five thousand litas to ten thousand litas and the
licence shall be revoked in the sales outlet, where the
violation has been determined. A new licence shall not be
issued for a year from the day the licence was revoked."
Paragraph 7 of Article 26 of the Law on Tobacco Control
(wording of 20 November 2003) gives reference to Items 6 or 7
of Paragraph 3 of Article 14 and Items 1, 2 and 3 of Paragraph
5 of the same article of this law.
Under Paragraph 3 of Article 14 of the Law on Tobacco
Control (wording of 20 November 2003), it shall be prohibited
in the Republic of Lithuania for legal persons and branches of
foreign legal persons to sell, store, transport tobacco
products and also, to import tobacco products into the Republic
of Lithuania inter alia: if the marking of the tobacco products
fails to meet the marking requirements of tobacco products, set
forth in this Law and other legal acts (Item 6); in the absence
of the documents which certify, in accordance with the
procedure set forth by an institution authorised by the
Government of the Republic of Lithuania, the conformity of the
tobacco products (Item 7).
Under Paragraph 3 of Article 14 of the Law on Tobacco
Control (wording of 20 November 2003), it shall be prohibited
in the Republic of Lithuania to market: single cigarettes,
cigarillos, and Russian cigarettes (Item 1); cigarettes, if
less than 20 are contained in a pack (Item 2); tobacco products
to persons under 18 years of age (the sellers of tobacco
products shall have the right, and in the event of suspecting
that a person is under the age of 18, must require from the
buyer of tobacco products a document certifying his age; should
such a person fail to submit a document certifying his age, the
seller of tobacco products must refuse to sell him tobacco
products) (Item 3).
3. Paragraph 14 of Article 26 of the Law on Tobacco
Control (wording of 20 November 2003) provides: "The
institutions indicated in Paragraph 13 of this Article shall in
imposing the fines for violations of this Law, within the scope
of their competence, determine the specific amount of the fine
taking into consideration the nature of the violation and
circumstances mitigating or aggravating the liability. Should
there be liability-mitigating circumstances present, the amount
of the imposed fine must not exceed the average of the economic
sanction for the committed violation, and should there be
liability-aggravating circumstances present, the monetary fine
imposed must be at least equal to the average of the economic
sanction for the violation committed. Should there be both
mitigating and aggravating circumstances of liability present,
the fine shall be imposed taking into account the amounts and
significance thereof. The reduction or increase of the fine
shall be reasoned by the decision of the institution imposing
the fine for violations of the requirements set forth in this
Law."
Paragraph 14 of Article 26 of the Law on Tobacco Control
(wording of 20 November 2003) gives reference to Paragraph 13
of this article, under which for violations of this law, fines
shall be imposed inter alia by: the SSTAC for violations of
Items 1, 2, 3, 4 and 6 of Paragraph 3 of Article 14, Paragraph
5 of Article 14 (Item 2); the State Inspectorate for Non-Food
Products under the Republic Ministry of Economy-for violations
of Items 6 and 7 of Paragraph 3 of Article 14 (Item 4); the
State Tax Inspectorate-for violations of the provisions in
Items 1 and 4 of Paragraph 3 of Article 14 (Item 5); heads of
police establishments or the persons authorised by them-for
violations of Items 1, 2 and 3 of Paragraph 3 of Article 14
(Item 7); officials of the Department of Customs under the
Ministry of Finance of the Republic of Lithuania-for violations
of the provisions of Items 1 and 3 of Paragraph 3 of Article 14
(Item 8).
4. It is to be held that a rule has been established in
Paragraph 14 of Article 26 of the Law on Tobacco Control
(wording of 20 November 2003), under which monetary fines must
be imposed for any violation of the Law on Tobacco Control
specified in Paragraph 13 of the said article (not only for the
violations by which one disregards the requirements and
prohibitions established in Items 1, 2, 3, and 4 of Paragraph 3
of Article 14 of the Law on Tobacco Control (wording of 20
November 2003) which are referred to in Paragraph 5 of Article
26 of the same law and those established in Items 6 and 7 of
Paragraph 3 and Paragraph 5 of Article 14 of the Law on Tobacco
Control which are referred to in Paragraph 7 of Article 26 of
the Law on Tobacco Control (wording of 20 November 2003)), by
taking account of the character of the violation of law and the
circumstances mitigating or aggravating the liability, however,
without overstepping the lowest and top limits of the
respective sanctions-minimum and maximum monetary
fines-established in corresponding paragraphs of Article 26 of
the Law on Tobacco Control (wording of 20 November 2003):
- should there be liability-mitigating circumstances
present, the amount of the imposed fine must not exceed the
average of the economic sanction for the committed violation,
which is established in a corresponding paragraph of Article 26
of the Law on Tobacco Control (20 November 2003), however, it
cannot be smaller than a respective minimum monetary fine
established in Article 26 of the Law on Tobacco Control
(wording of 20 November 2003);
- should there be liability-aggravating circumstances
present, the amount of the monetary fine imposed must be at
least equal to the average of the economic sanction for the
violation committed, which is established in a corresponding
paragraph of Article 26 of the Law on Tobacco Control (20
November 2003), however, it cannot be bigger than a respective
maximum monetary fine established in Article 26 of the Law on
Tobacco Control (wording of 20 November 2003);
- should there be both mitigating and aggravating
circumstances of liability present, the fine shall be imposed
taking into account the amount and significance thereof,
however, it cannot be bigger than a respective maximum monetary
fine established in Article 26 of the Law on Tobacco Control
(wording of 20 November 2003), nor can it be smaller than a
respective minimum monetary fine established in the same
paragraph.
5. In the context of the constitutional justice case at
issue, it needs to be emphasised that, under Paragraph 14 of
Article 26 of the Law on Tobacco Control (wording of 20
November 2003), the legal liability not only can but also must
be differentiated, while the penalty-monetary sanction for a
respective violation of the Law on Tobacco Control-not only can
but also must be individualised, however, the institutions
which adopt respective decisions are not permitted to impose a
smaller monetary fine upon the violator of law than a
respective minimum monetary fine established in a corresponding
paragraph of this article.
6. It needs to be noted that neither the Law on Tobacco
Control (wording of 20 November 2003) nor other laws contain
any provisions under which courts, while considering complaints
of economic entities regarding monetary fines imposed upon them
by respective institutions under Article 26 of the Law on
Tobacco Control (wording of 20 November 2003), might be able to
impose upon the violator of law a smaller fine than the minimum
monetary fine consolidated in these provisions.
7. While deciding whether Paragraphs 5 and 7 of Article 26
of the Law on Tobacco Control (wording of 20 November 2003) to
the extent that, as the petitioner-the Supreme Administrative
Court of Lithuania-believes, they do not provide for the right
of a court investigating a respective case to impose, while
taking account of all the circumstances, including those
provided for in the law, mitigating the liability as well as
other circumstances (due to which a corresponding monetary fine
would clearly be too big for the violator of law, since
disproportionate (inadequate) to the committed violation of
law, and thus unjust) a smaller monetary fine than the
respective minimum monetary fines than established in these
paragraphs, are not in conflict with the constitutional
principle of a state under the rule of law, one is to hold that
the character, danger (gravity), the scale and other features
of certain violations of the Law on Tobacco Control for which
sanctions-monetary fines from ten thousand litas to thirty
thousand litas (Paragraph 5), from three thousand litas to five
thousand litas (Paragraph 7), or from five thousand litas to
ten thousand litas (Paragraph 7)-consolidated in these
provisions may be imposed, as well as other circumstances can
determine that fact that, when one is following the criteria of
justice and reasonableness and while taking account of all the
circumstances of importance (without ignoring those mitigating
the liability), a monetary fine of the amount which is not less
than the minimum level of a corresponding sanction must be
imposed upon the violator of law.
The circumstance is of an essential importance that, as
mentioned, under Paragraph 14 of Article 26 of the Law on
Tobacco Control (wording of 20 November 2003), the sanctions
must be imposed while one takes account of the character of the
violation of law and the circumstances mitigating or
aggravating the liability, and that the legal liability not
only can but also must be differentiated, while the
penalty-monetary sanction for a respective violation of the Law
on Tobacco Control-not only can but also must be
individualised.
Therefore, although the sanctions-monetary
penalties-consolidated in the said provisions of the Law on
Tobacco Control can be assessed as really big (strict to
violators of law), in themselves these sanctions are not to be
regarded as deviating from the requirement of justice which
stems from the Constitution, nor as violating the
constitutional principle of a state under the rule of law
otherwise, nor do they violate the provisions of Paragraphs 1,
2 and 3 of Article 109 of the Constitution.
8. The compliance of Paragraph 14 (in the aspect pointed
out by the petitioner) of Article 26 of the Law on Tobacco
Control (wording of 20 November 2003) is to be assessed
differently.
It has been held in this Ruling of the Constitutional
Court that neither the Law on Tobacco Control (wording of 20
November 2003) nor other laws contain any provisions under
which courts, while considering complaints of economic entities
regarding monetary fines imposed upon them by respective
institutions under Article 26 of the Law on Tobacco Control
(wording of 20 November 2003), might be able to impose upon
violators of law a smaller fine than the minimum monetary fine
consolidated in these provisions. Under Paragraph 14 of Article
26 of the Law on Tobacco Control (wording of 20 November 2003),
the court not only may but also must differentiate the legal
liability and individualise the penalty-monetary fine-for a
respective violation of the Law on Tobacco Control, however the
court is not permitted, while taking account of the character
of the violation of law, the circumstances mitigating the
liability as well as other circumstances (due to which a
corresponding monetary fine would clearly be too big for the
violator of law, since disproportionate (inadequate) to the
committed violation of law, and thus unjust) and while
following the criteria of reasonableness and justice, to impose
upon the violator of law a smaller monetary fine than the
lowest level-minimum monetary fine-of a corresponding sanction
established in a respective paragraph of Article 26 of the Law
on Tobacco Control (wording of 20 November 2003).
The rule under which monetary fines must be imposed for
any violation specified in Paragraph 13 of Article 26 of the
Law on Tobacco Control (wording of 20 November 2003) is
consolidated in precisely Paragraph 14 of this article.
Therefore, it is to be held that it is the legal regulation
established in Paragraph 14 of Article 26 of the Law on Tobacco
Control (wording of 20 November 2003) that does not permit a
court to individualise the penalty-the size of a monetary
fine-consolidated in a respective Paragraph 26 of Article 26 of
the Law on Tobacco Control (wording of 20 November 2003) nor to
impose upon the violator of law, while taking account of the
character of the violation of law, the circumstances mitigating
the liability as well as other circumstances (due to which a
corresponding monetary fine would clearly be too big for the
violator of law, since disproportionate (inadequate) to the
committed violation of law, and thus unjust) and while
following the criteria of reasonableness and justice, a smaller
monetary fine than the lowest level of a corresponding sanction
consolidated in a respective paragraph of this article.
Such legal regulation is not in line with the principles
of justice and a state under the rule of law entrenched in the
Constitution and it restricts the powers of the court-it limits
the exceptional powers of the court, which are consolidated in
Paragraph 1 of Article 109 of the Constitution, to administer
justice.
9. Taking account of the arguments set forth, one is to
draw conclusions that
- Paragraph 5 of Article 26 of the Law on Tobacco Control
(wording of 20 November 2003) in the aspect and to the extent
that precisely this paragraph does not provide for the right of
a court to impose, while taking account of all the
circumstances, including those established in the law, those
mitigating the liability and other circumstances, a smaller
monetary fine than the minimum monetary fine established in
this paragraph, is not in conflict with the constitutional
principle of a state under the rule of law;
- Paragraph 7 of Article 26 of the Law on Tobacco Control
(wording of 20 November 2003) in the aspect and to the extent
that precisely this paragraph does not provide for the right of
a court to impose, while taking account of all the
circumstances, including those established in the law, those
mitigating the liability and other circumstances, a smaller
monetary fines than the minimum monetary fine established in
this paragraph, is not in conflict with Paragraphs 1, 2, or 3
of Article 109 of the Constitution and the constitutional
principle of a state under the rule of law;
- Paragraph 14 of Article 26 of the Law on Tobacco Control
(wording of 20 November 2003) to the extent that it restricts
the powers of a court to impose, while taking account of the
circumstances mitigating the liability and other circumstances
(due to which a corresponding monetary fine would clearly be
too big for the violator of law, since disproportionate to the
committed violation of law, and thus unjust) and following the
criteria of justice and reasonableness, a smaller monetary fine
than the minimum monetary fines established in a respective
paragraph of this article, is in conflict with Paragraph 1 of
Article 109 of the Constitution and the constitutional
principle of a state under the rule of law.
10. Having inter alia drawn a conclusion that Paragraph 14
of Article 26 of the Law on Tobacco Control (wording of 20
November 2003) to the extent that it restricts the powers of a
court to impose, while taking account of the circumstances
mitigating the liability and other circumstances (due to which
a corresponding monetary fine would clearly be too big for the
violator of law, since disproportionate (inadequate) to the
committed violation of law, and thus unjust) and following the
criteria of justice and reasonableness, to impose a smaller
monetary fine than the minimum monetary fines established in a
respective paragraph of this article, is in conflict with
Paragraph 1 of Article 109 of the Constitution and the
constitutional principle of a state under the rule of law, in
the constitutional justice case at issue the Constitutional
Court will not investigate whether Paragraph 14 of Article 26
of the Law on Tobacco Control (wording of 20 November 2003) (to
the extent and in the aspect pointed out by the petitioners) is
not in conflict with Paragraphs 2 and 3 of Article 109 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 the provision "trade in tobacco
products without an appropriate permit or licence for such
activity, shall incur a fine of fifty thousand litas upon
entities of commercial-economic activity" of Paragraph 2
(wording of 16 March 2000) of Article 21 of the Republic of
Lithuania Law on Tobacco Control to the extent that it
restricted the powers of a court to impose, while taking
account of the circumstances mitigating the liability and other
circumstances (due to which a corresponding monetary fine would
clearly be too big for the violator of law, since
disproportionate to the committed violation of law, and thus
unjust) and following the criteria of justice and
reasonableness, a smaller monetary fine than the monetary fines
of strictly defined amount consolidated in these provisions,
was in conflict with Paragraph 1 of Article 109 of the
Constitution of the Republic of Lithuania and the
constitutional principles of justice and a state under the rule
of law.
2. To recognise that the provision "failure to have
documents of juridical power, confirming acquisition of tobacco
products, shall incur a fine of twenty thousand litas upon
entities of commercial-economic activity" of Paragraph 3
(wording of 11 June 2002) of Article 21 of the Republic of
Lithuania Law on Tobacco Control to the extent that it
restricted the powers of a court to impose, while taking
account of the circumstances mitigating the liability and other
circumstances (due to which a corresponding monetary fine would
clearly be too big for the violator of law, since
disproportionate to the committed violation of law, and thus
unjust) and following the criteria of justice and
reasonableness, a smaller monetary fine than the monetary fines
of strictly defined amount consolidated in these provisions,
was in conflict with Paragraph 1 of Article 109 of the
Constitution of the Republic of Lithuania and the
constitutional principles of justice and a state under the rule
of law.
3. To recognise that the provision "violation of <...>
requirements regarding sales in tobacco products which are
established in Paragraphs <...> 2 <...> of Article 10 of this
Law shall incur a fine of twenty thousand litas upon entities
of commercial-economic activity" of Paragraph 4 (wording of 11
May 1999) of Article 21 of the Republic of Lithuania Law on
Tobacco Control to the extent that it restricted the powers of
a court to impose, while taking account of the circumstances
mitigating the liability and other circumstances (due to which
a corresponding monetary fine would clearly be too big for the
violator of law, since disproportionate to the committed
violation of law, and thus unjust) and following the criteria
of justice and reasonableness, a smaller monetary fine than the
monetary fines of strictly defined amount consolidated in these
provisions, was in conflict with Paragraph 1 of Article 109 of
the Constitution of the Republic of Lithuania and the
constitutional principles of justice and a state under the rule
of law.
4. To recognise that the provision "the failure to adhere
to the requirements <...> of prohibiting of advertisement of
tobacco products, set forth in Paragraphs <...> 3 <...> of
Article 11 of this Law, shall incur a fine of twenty thousand
litas upon entities of commercial-economic activity" of
Paragraph 7 (wording of 11 June 2002) of Article 21 of the
Republic of Lithuania Law on Tobacco Control to the extent that
it restricted the powers of a court to impose, while taking
account of the circumstances mitigating the liability and other
circumstances (due to which a corresponding monetary fine would
clearly be too big for the violator of law, since
disproportionate to the committed violation of law, and thus
unjust) and following the criteria of justice and
reasonableness, a smaller monetary fine than the monetary fines
of strictly defined amount consolidated in these provisions,
was in conflict with Paragraph 1 of Article 109 of the
Constitution of the Republic of Lithuania and the
constitutional principles of justice and a state under the rule
of law.
5. To recognise that Paragraph 5 of Article 26 of the
Republic of Lithuania Law on Tobacco Control (wording of 20
November 2003) in the aspect and to the extent that precisely
this paragraph does not provide for the right of a court to
impose, while taking account of all the circumstances,
including those established in the law, those mitigating the
liability and other circumstances, a smaller monetary fine than
the minimum monetary fine established in this paragraph, is not
in conflict with the Constitution of the Republic of Lithuania.
6. To recognise that Paragraph 7 of Article 26 of the
Republic of Lithuania Law on Tobacco Control (wording of 20
November 2003) in the aspect and to the extent that precisely
this paragraph does not provide for the right of a court to
impose, while taking account of all the circumstances,
including those established in the law, those mitigating the
liability and other circumstances, a smaller monetary fine than
the minimum monetary fine established in this paragraph, is not
in conflict with the Constitution of the Republic of Lithuania.
7. To recognise that Paragraph 14 of Article 26 of the
Republic of Lithuania Law on Tobacco Control (wording of 20
November 2003) to the extent that it restricts the powers of a
court to impose, while taking account of the circumstances
mitigating the liability and other circumstances (due to which
a corresponding monetary fine would clearly be too big for the
violator of law, since disproportionate to the committed
violation of law, and thus unjust) and following the criteria
of justice and reasonableness, a smaller monetary fine than the
minimum monetary fines established in a respective paragraph of
this article, is in conflict with Paragraph 1 of Article 109 of
the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law.
This ruling of the Constitutional Court of the Republic of
Lithuania 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
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas