Lietuviškai
Case No. 01/04
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 5 OF ARTICLE 163² (WORDING
OF 5 JULY 2002) AND PARAGRAPH 6 OF THE SAME ARTICLE (WORDING OF
4 JULY 2003) OF THE CODE OF ADMINISTRATIVE VIOLATIONS OF LAW
WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA
10 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, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of the representative of the party
concerned, the Seimas of the Republic of Lithuania, who was
Girius Ivoška, adviser of the Law Department of the Office of
the Seimas of the Republic of Lithuania,
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, in its
public hearing on 3 November 2005 heard case No. 01/04
subsequent to the petition of the District Court of Panevėžys
City, requesting to investigate whether Article 163² and
separately its Paragraph 6 of the Code of Administrative
Violations of Law are not in conflict with Paragraph 1 of
Article 29, Paragraph 5 of Article 31 of the Constitution of
the Republic of Lithuania and the constitutional principle of a
state under the rule of law.
The Constitutional Court
has established:
I
The petitioner-the District Court of Panevėžys City was
investigating an administrative case. By its ruling the court
suspended the investigation of the case and applied to the
Constitutional Court with a petition requesting to investigate
whether Article 163² and separately its Paragraph 6 of the Code
of Administrative Violations of Law (hereinafter also referred
to as the CAVL) are not in conflict with Paragraph 1 of Article
29, Paragraph 5 of Article 31 of the Constitution and the
constitutional principle of a state under the rule of law.
II
The petition of the petitioner is based on the following
arguments.
1. According to Paragraph 6 of Article 163² of the CAVL,
the actions provided for in Paragraphs 1, 2, 3 and 4 of the
said article and performed by a person, who was previously
imposed the administrative penalty for the violations indicated
in Paragraphs 2, 3, 4, 5 or 6 of the said article, shall incur
a fine of twenty thousand to fifty thousand Litas, including
the confiscation of these goods. The petitioner doubted whether
the administrative penalty-the fine indicated in Paragraph 6 of
Article 163² of the CAVL-the size of which, according to the
petitioner, by its size equals a penalty imposed by court for
medium or serious crime, is not in conflict with Paragraph 1 of
Article 29 of the Constitution and the constitutional principle
of a state under the rule of law.
2. According to the petitioner, the penalty indicated in
Paragraph 6 of Article 163² of the CAVL is imposed on a person
who has already been fined for the violations indicated in
Paragraphs 2, 3, 4 or 5 of the said Article, i.e. the person is
punished a second time for the same offence. In the opinion of
the petitioner, Article 163² and separately its Paragraph 6 of
the CAVL are in conflict with Paragraph 5 of Article 31 of the
Constitution.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations of G.
Ivoška, the representative of the Seimas, the party concerned,
were received.
1. According to the representative of the party concerned,
the petitioner did not provide with arguments, reasoning the
doubt on the compliance of Paragraph 6 of Article 163² of the
CAVL with Paragraph 1 of Article 29 of the Constitution.
Therefore, this doubt is to be considered groundless.
2. According to the explanations of G. Ivoška, under
Paragraph 6 of Article 163² of the CAVL, an administrative
penalty should be imposed, since the person who has already
been punished for deeds of similar seriousness commits an
analogous violation again. In the opinion of the representative
of the party concerned, such a differentiation of the
administrative liability, where a person is punished for
violation of administrative law for the first time or on the
expiry of the punishment term, and where to a person, who has
already been punished for violation of administrative law, the
administrative sanction of a different size is established and
imposed for an analogous deed is reasonable, therefore, there
are no grounds to state that Paragraph 6 of Article 163² of the
CAVL is in conflict with Paragraph 5 of Article 31 of the
Constitution and the constitutional principle of a state under
the rule of law.
3. In the opinion of G. Ivoška, the notion "a person
punished for violation of administrative law" means that,
first, the offence for which the person was punished is
finished, second, the person's punishment process for the
violation of administrative law (execution of the
administrative penalty) is finished. Therefore, a deed for
which a person, who has already been punished for violation of
administrative law, is held administratively liable, is to be
assessed as not the same but another violation of
administrative law; the process, where the issue of punishing a
person for violation of administrative law, who has already
been punished for a violation of administrative law, is being
decided, is independent (not identical). Consequently, in the
opinion of the representative of the party concerned, Paragraph
6 of Article 163² of the CAVL is not in conflict with Paragraph
5 of Article 31 of the Constitution.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations of V.
Bulovas, Minister of the Interior of the Republic of Lithuania,
G. Švedas, Vice-minister of Justice of the Republic of
Lithuania, Assoc. Prof. Dr. P. Petkevičius, who works at the
Department of Constitutional and Administrative Law, the
Faculty of Law of Vilnius University, Assoc. Prof. Dr. A.
Dziegoraitis, Head of the Department of Administrative Law and
Procedure, the Faculty of Law of the Law University of
Lithuania, and Dr. A. Čepas, Director of the Institute of Law,
were received.
V
At the hearing of the Constitutional Court, the
representative of the Seimas, the party concerned, who was the
member of the Seimas G. Ivoška stated that the petitioner had
faced some uncertainties concerning the imposition of the
administrative penalties established by the CAVL. The
representative of the party concerned requested the
Constitutional Court to dismiss the case, because, in his
opinion, according to Item 2 of Paragraph 1, of Article 69 of
the Law on the Constitutional Court of the Republic of
Lithuania, the request of the petitioner is not within the
jurisdiction of the Constitutional Court.
G. Ivoška virtually reiterated the arguments set forth in
the written explanations, according to which, in his opinion,
Paragraph 6 of Article 163² of the CAVL is not in conflict with
the Constitution.
The Constitutional Court
holds that:
I
At the hearing of the Constitutional Court, the
representative of the Seimas, the party concerned, who was the
member of the Seimas G. Ivoška, requested the Constitutional
Court to dismiss the case, because, in his opinion, the
petitioner had some doubts concerning the application of the
administrative penalties established by the CAVL, therefore,
according to the representative of the party concerned, the
request of the petitioner is not within the jurisdiction of the
Constitutional Court.
This request of the representative of the party concerned
shall not be granted, because in the request of the petitioner
his position on the compliance of the disputed provisions of
the CAVL with the Constitution and the legal reasoning of the
position are provided.
II
1. On 10 February 1994, the Seimas adopted the Republic of
Lithuania Law "On Supplementing and Amending the Code of
Administrative Violations of Law" which became effective on 23
February 1994. Article 1 of this law supplemented Article 163²
titled "Trading in goods without labels or any other specific
markings" of the CAVL in which it was established:
"Trading in unmarked goods which are forbidden to be
merchandised without labels or any other specific markings,
shall incur a fine of one thousand to ten thousand Litas,
including the confiscation of these goods.
The same deed, committed by a person, who has already been
imposed an administrative penalty for the violation indicated
in Paragraph 1 of this Article,
shall incur a fine of ten thousand to twenty thousand
Litas, including the confiscation of these goods."
2. On 18 July 1994, the Seimas adopted the Republic of
Lithuania Law "On Supplementing and Amending the Code of
Administrative Violations of Law" which became effective on 29
July 1994. Article 111 of this Law amended and supplemented
Paragraph 1 of Article 163² (wording of 10 February 1994) of
the CAVL and was set forth as follows:
"Trading in unmarked goods that are forbidden to be
merchandised without labels or any other specific markings, or
storing them in the premises of the trading companies,
shall incur a fine of one thousand to ten thousand Litas,
including the confiscation of these goods."
3. On 11 April 1995, the Seimas adopted the Republic of
Lithuania Law "On Supplementing and Amending the Code of
Criminal Procedure and the Code of Administrative Violations of
Law of the Republic of Lithuania" which became effective on 3
May 1995. Article 2 of Part II of this law amended the title of
Article 163² (wording of 18 July 1994) of the CAVL; this
article was renamed as "Trading in goods without labels or any
other specific marking, as well as trading in goods with old
sample labels" and was set forth as follows:
"Trading in unmarked goods which are forbidden to be
merchandised without labels or any other specific markings,
trading in goods with old sample labels, storing such goods in
store-rooms and places of trade of the trading and catering
companies, as well as transportation of these goods while
violating the established procedure,
shall incur a fine of five thousand to ten thousand Litas
including the confiscation of these goods.
The same actions, performed by a person who has already
been imposed the administrative penalty for the violations
indicated in Paragraph 1 of this Article,
shall incur a fine of ten thousand to twenty thousand
Litas including seizure of these goods."
4. On 8 January 1998, the Seimas adopted the Republic of
Lithuania Law on Supplementing the Code of Administrative
Violations of Law by Article 1899 as well as Supplementing and
Amending Articles 163², 224, 259¹ and 320 Thereof which became
effective on 16 January 1998. Article 2 of this Law amended the
title of Article 163² (wording of 11 April 1995) of the CAVL;
this article was renamed as "Storage, transportation or
realisation of excised goods in violation of the established
procedure", and its Paragraph 1 was set forth as follows:
"Storage or transportation of excised goods in violation
of the established procedure, trading in such goods without
labels or any other specific markings, or with old sample
labels, any other realisation of goods while violating the
established order where it does not incur criminal liability,
shall incur a fine of five thousand to ten thousand Litas,
including the confiscation of these goods."
5. On 17 June 1999, the Seimas adopted the Republic of
Lithuania Law on Amending Article 163² of the Code of
Administrative Violations of Law, which became effective on 9
July 1999. Article 1 of this Law amended Article 163² of the
CAVL (wording of 8 January 1998) and it was set forth as
follows:
"Storage, transportation or realization of excised goods
in violation of the established procedure, trading in such
goods without labels or any other specific markings or with old
sample labels, when the value of the illegally stored,
transported or realized goods is up to two minimum subsistence
levels (MSL),
shall incur a fine of one hundred to three hundred Litas,
including the confiscation of these goods.
The actions indicated in Paragraph 1 of this Article, when
the value of the illegally stored, transported or realized
goods is two to ten minimum subsistence levels (MSL),
shall incur a fine of one thousand to five thousand Litas,
including the confiscation of these goods.
The actions indicated in Paragraph 1 of this Article, when
the value of the illegally stored, transported or realized
goods is ten to fifty minimum subsistence levels (MSL),
shall incur a fine of five thousand to twenty thousand
Litas, including the confiscation of these goods.
The actions indicated in Paragraph 1 of this Article,
which are performed by a person, who has already been imposed
an administrative penalty for the violation indicated in
Paragraph 1 of this Article,
shall incur a fine of one thousand to ten thousand Litas,
including the confiscation of these goods.
The actions indicated in Paragraphs 2, 3 or 4 of this
Article, which are performed by a person, who has already been
imposed an administrative penalty for the violation indicated
in Paragraphs 2, 3 or 4 of this Article,
shall incur a fine of twenty thousand to fifty thousand
Litas, including the confiscation of these goods."
6. On 5 July 2002, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing the Code of
Administrative Violations of Law, which (with certain
exceptions) became effective on 26 July 2002. Article 16 of
this law supplemented and amended Article 163² (wording of 17
June 1999) of the CAVL; this article was renamed as "Storage,
transportation, usage or realisation of excised goods in
violation of the established procedure", and was set forth as
follows:
"Storage, transportation, usage or realization of excised
goods in violation of the established procedure, trading in
such goods without labels or any other specific markings or
with old sample labels, when the value of the illegally stored,
transported, used or realized goods is up to two minimum
subsistence levels (MSL),
shall incur a fine of one hundred to three hundred Litas,
including the confiscation of these goods.
The actions indicated in Paragraph 1 of this Article, when
the value of the illegally stored, transported, used or
realized goods is two to ten minimum subsistence levels (MSL),
shall incur a fine of one thousand to five thousand Litas,
including the confiscation of these goods.
The actions indicated in Paragraph 1 of this Article, when
the value of the illegally stored, transported, used or
realized goods is ten to fifty minimum subsistence levels
(MSL),
shall incur a fine of five thousand to twenty thousand
Litas, including the confiscation of these goods.
The actions indicated in Paragraph 1 of this Article,
performed by a person who has already been imposed an
administrative penalty for the violation indicated in Paragraph
1 of this Article,
shall incur a fine of one thousand to ten thousand Litas,
including the confiscation of these goods.
The actions indicated in Paragraphs 2, 3 or 4 of this
Article, which are performed by a person, who has already been
imposed an administrative penalty for the violation indicated
in Paragraphs 2, 3 or 4 of this Article,
shall incur a fine of twenty thousand to fifty thousand
Litas, including the confiscation of these goods."
7. On 4 July 2003, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing the Code of
Administrative Violations of Law, which became effective on 25
July 2003. Article 48 of this law supplemented and amended
Article 163² (wording of 5 July 2002) of the CAVL and the
latter was set forth as follows:
"Storage, transportation, usage or realization of excised
goods in violation of the established procedure, trading in
such goods without labels or any other specific markings or
with old sample labels, when the value of the illegally stored,
transported, used or realized goods is up to two minimum
subsistence levels (MSL),
shall incur a fine of one hundred to three hundred Litas,
including the confiscation of these goods.
The actions indicated in Paragraph 1 of this Article, when
the value of the illegally stored, transported, used or
realized goods is two to ten minimum subsistence levels (MSL),
shall incur a fine of one thousand to five thousand Litas,
including the confiscation of these goods.
The actions indicated in Paragraph 1 of this Article, when
the value of the illegally stored, transported, used or
realized goods is ten to fifty minimum subsistence levels
(MSL),
shall incur a fine of five thousand to ten thousand Litas,
including the confiscation of these goods.
The actions indicated in Paragraph 1 of this Article, when
the value of the illegally stored, transported, used or
realized goods is more than fifty minimum subsistence levels
(MSL),
shall incur a fine of ten thousand to twenty thousand
Litas, including the confiscation of these goods.
The actions indicated in Paragraph 1 of this Article,
performed by a person who has already been imposed an
administrative penalty for the violation indicated in Paragraph
1 of this Article,
shall incur a fine of one thousand to ten thousand Litas,
including the confiscation of these goods.
The actions indicated in Paragraphs 2, 3 or 4 of this
Article, which are performed by a person, who has already been
imposed an administrative penalty for the violation indicated
in Paragraphs 2, 3, 4, 5 or 6 of this Article,
shall incur a fine of twenty thousand to fifty thousand
Litas, including the confiscation of these goods."
8. If one compares the legal regulation established in
Paragraph 5 of Article 163² (wording of 5 July 2002) of the
CAVL with that established in Paragraph 6 of Article 163²
(wording of 4 July 2003) of the CAVL, it is clear that by
Article 48 of the Law on Amending and Supplementing the Code of
Administrative Violations of Law, which was adopted on 4 July
2003, the following amendments to Article 163² of the CAVL
(wording of 5 July 2002) were made:
- in Paragraph 3 of Article 163² (wording of 4 July 2003)
of the CAVL a sanction was established: instead of the former
sanction-a monetary fine of five thousand to twenty thousand
Litas-another sanction was established, which was a monetary
fine of five thousand to ten thousand Litas;
- in Article 163² (wording of 4 July 2003) of the CAVL
there is a new Paragraph 4 where administrative legal liability
was established for storage, transportation, usage or
realization of excised goods in violation of the established
procedure, trading in such goods without labels or any other
specific markings, or with old sample labels, when the value of
the illegally stored, transported, used or realized goods
exceeds fifty minimum subsistence levels (MSL), which was a
monetary fine of ten thousand to twenty thousand Litas,
including the confiscation of these goods;
- Paragraphs 4 and 5 of Article 163² (wording of 5 July
2003) of the CAVL became respectively Paragraphs 5 and 6 of
Article 163² (wording of 4 July 2003) of the CAVL;
- in Paragraph 6 of Article 163² (wording of 4 July 2003)
of the CAVL administrative legal liability for inter alia the
deeds indicated in Paragraph 1 of this Article was established;
moreover, the person who is held administratively legally
liable according to Paragraph 6 of Article 163² (wording of 4
July 2003) of the CAVL, had to be imposed an administrative
penalty for the administrative violations of law indicated in
Paragraphs 2, 3, 4, 5 or 6 of the said article.
Thus, the legal regulation, established in Paragraph 5 of
Article 163² (wording of 5 July 2002) of the CAVL and that
established in Paragraph 6 of Article 163² (wording of 4 July
2003) of the CAVL which caused the doubts of the petitioner on
whether it is not in conflict with the Constitution, are
essentially analogous: in Paragraph 5 of Article 163² (wording
of 5 July 2002) of the CAVL as well as in Paragraph 6 of
Article 163² (wording of 4 July 2003) of the CAVL a sanction-a
monetary fine of twenty thousand to fifty thousand Litas-is
established for respective administrative violations of law.
9. The District Court of Panevėžys City, the petitioner,
formulates its petition as a request to investigate whether
"Article 163² and separately its Paragraph 6" of the CAVL are
not in conflict with the Constitution. However, the arguments
indicated in the petition on the compliance with the
Constitution are provided only as regards the compliance with
the Constitution of Paragraph 6 of the said article (wording of
4 July 2003).
10. Even though the District Court of Panevėžys City, the
petitioner, requests to investigate whether Paragraph 6 of
Article 163² of the CAVL is not in conflict with the
Constitution, from the arguments of the request of the
petitioner, as well as from the material of the administrative
case investigated by the court, it is clear that the
petitioner's doubts were caused not only as to the compliance
of the legal regulation established in Paragraph 6 of Article
163² (wording of 4 July 2003) of the CAVL, but also as regards
the compliance of the legal regulation established in Paragraph
5 of the said article (wording of 5 July 2002) (which was in
effect when the administrative violation investigated by court
was committed) with the Constitution.
11. It is also clear from the arguments of the request of
the petitioner that its doubts were caused not as regards the
compliance of the whole legal regulation established in Article
163² (wordings of 5 July 2002 and 4 July 2003) of the CAVL with
the Constitution, and not as regards the compliance of the
whole legal regulation established in Paragraph 5 of the said
article (wording of 5 July 2002) and in Paragraph 6 (wording of
4 July 2003) of the said article with the Constitution, but
only whether the provision "The actions indicated in Paragraph
<...> of this Article, which are performed by a person, who has
already been imposed an administrative penalty for the
violation indicated in Paragraph <...> of this Article, shall
incur a fine of twenty thousand to fifty thousand Litas" of
Paragraph 5 of the said article (wording of 5 July 2002) was
not in conflict with the Constitution and whether an
essentially analogous provision of Paragraph 6 of the said
Article (wording of 4 July 2003) is not in conflict with the
Constitution.
12. In the constitutional justice case at issue the
Constitutional Court will investigate whether the provision
"The actions indicated in Paragraph <...> of this Article,
which are performed by a person, who has already been imposed
an administrative penalty for the violation indicated in
Paragraph <...> of this Article, shall incur a fine of twenty
thousand to fifty thousand Litas" of Paragraph 5 of Article
163² (wording of 5 July 2002) of the CAVL was not in conflict
with Paragraph 1 of Article 29, Paragraph 5 of Article 31 of
the Constitution and the constitutional principle of a state
under the rule of law, as well as whether the provision "The
actions indicated in Paragraph <...> of this Article, which are
performed by a person, who has already been imposed an
administrative penalty for the violations indicated in
Paragraph <...> of this Article, shall incur a fine of twenty
thousand to fifty thousand Litas" of Paragraph 6 of Article
163² (wording of 4 July 2003) of the CAVL is not in conflict
with the said articles (paragraphs thereof) of the Constitution
and the constitutional principle of a state under the rule of
law.
III
1. In Article 163² (wordings of 5 July 2002 and 4 July
2003) of the CAVL liability for storage, transportation, usage
or realization of excised goods in violation of the established
procedure, trading in such goods without labels or any other
specific markings, or with old sample labels is established.
2. In Paragraph 5 of Article 163² (wording of 5 July 2002)
of the CAVL a reference was made to Paragraphs 2, 3 and 4 of
the said article, while in their turn, these paragraphs made
references to Paragraph 1 of this article.
It is to be held that in Paragraph 5 of Article 163²
(wording of 5 July 2002) of the CAVL inter alia an
administrative penalty-a fine of twenty thousand to fifty
thousand Litas-was consolidated, which was to be imposed on the
persons:
- who have already been imposed an administrative penalty
(fine) for storage, transportation, usage or realization of
excised goods in violation of the established procedure,
trading in such goods without labels or any other specific
markings, or with old sample labels, when the value of the
illegally stored, transported, used or realized goods is two to
ten minimum subsistence levels (MSL) (i.e. for the
administrative violation of law established in Paragraph 2 of
Article 163² (wording of 5 July 2002) of the CAVL) and who have
repeatedly committed the same deeds;
- who have already been imposed an administrative penalty
(fine) for storage, transportation, usage or realization of
excised goods in violation of the established procedure,
trading in such goods without labels or any other specific
markings, or with old sample labels, when the value of the
illegally stored, transported, used or realized goods is ten to
fifty minimum subsistence levels (MSL) (i.e. for the
administrative violation of law established in Paragraph 3 of
Article 163² (wording of 5 July 2002) of the CAVL) and who have
repeatedly committed the same deeds;
- who have already been imposed an administrative penalty
(fine) twice or more times for storage, transportation, usage
or realization of excised goods in violation of the established
procedure, trading in such goods without labels or any other
specific markings, or with old sample labels, when the value of
the illegally stored, transported, used or realized goods is up
to two minimum subsistence levels (MSL) (i.e. for the
administrative violation of law established in Paragraph 4 of
Article 163² (wording of 5 July 2002) of the CAVL) and who have
repeatedly committed the same deeds.
3. In Paragraph 6 of Article 163² (wording of 4 July 2003)
of the CAVL a reference was made to Paragraphs 1, 2, 3, 4, 5
and 6 itself of the said article.
In Paragraph 6 of Article 163² (wording of 4 July 2003) of
the CAVL inter alia the administrative penalty-a fine of twenty
thousand to fifty thousand Litas-was consolidated, which was to
be imposed on the persons:
- who have already been imposed an administrative penalty
(fine) for storage, transportation, usage or realization of
excised goods in violation of the established procedure,
trading in such goods without labels or any other specific
markings, or with old sample labels, when the value of the
illegally stored, transported, used or realized goods is two to
ten minimum subsistence levels (MSL) (i.e. for the
administrative violation of law established in Paragraph 2 of
Article 163² (wording of 4 July 2003) of the CAVL) and who have
again violated the established procedure for storing,
transporting, using or realizing excised goods or who have
traded in such goods without labels or any other specific
markings, or with old sample labels, regardless of the value of
the illegally stored, transported, used or realized goods;
- who have already been imposed an administrative penalty
(fine) for storage, transportation, usage or realization of
excised goods in violation of the established procedure,
trading in such goods without labels or any other specific
markings, or with old sample labels, when the value of the
illegally stored, transported, used or realized goods is ten to
fifty minimum subsistence levels (MSL) (i.e. for the
administrative violation of law, established in Paragraph 3 of
Article 163² (wording of 4 July 2003) of the CAVL) and who have
violated the established procedure again while storing,
transporting, using or realizing excised goods or who have
traded such goods without labels or any other specific
markings, or with old sample labels, regardless of the value of
the illegally stored, transported, used or realized goods;
- who have already been imposed an administrative penalty
(fine) for storage, transportation, usage or realization of
excised goods in violation of the established procedure,
trading in such goods without labels or any other specific
markings, or with old sample labels, when the value of the
illegally stored, transported, used or realized goods exceeds
fifty minimum subsistence levels (MSL) (i.e. for the
administrative violation of law, established in Paragraph 4 of
Article 163² (wording of 4 July 2003) of the CAVL) and who have
again violated the established procedure for storing,
transporting, using or realizing excised goods or who have
traded in such goods without labels or any other specific
markings, or with old sample labels, regardless of the value of
the illegally stored, transported, used or realized goods;
- who have already been imposed an administrative penalty
(fine) twice or more times for storage, transportation, usage
or realization of excised goods in violation of the established
procedure, trading in such goods without labels or any other
specific markings, or with old sample labels, when the value of
the illegally stored, transported, used or realized goods is up
to two minimum subsistence levels (MSL) (i.e. for the
administrative violation of law established in Paragraph 5 of
Article 163² (wording of 4 July 2003) of the CAVL) and who have
again violated the established procedure for storing,
transporting, using or realizing excised goods or who have
traded such goods without labels or any other specific
markings, or with old sample labels, regardless of the value of
the illegally stored, transported, used or realized goods;
- who have been imposed an administrative penalty (fine)
established in Paragraph 6 itself of Article 163² (wording of 4
July 2003) of the CAVL for storage, transportation, usage or
realization of excised goods in violation of the established
procedure, trading in such goods without labels or any other
specific markings, or with old sample labels, and who have
violated the established procedure again while storing,
transporting, using or realizing excised goods or who have
traded such goods without labels or any other specific
markings, or with old sample labels, regardless of the value of
the illegally stored, transported, used or realized goods.
4. In Paragraph 2 of Article 9 (wording of 26 May 1992) of
the CAVL it is established that administrative liability for
the violations of law provided in this code appears when, under
the existing laws, these violations by their nature do not
incur criminal liability.
In the context of the constitutional justice case at
issue, it is to be stated that by Article 8 of the Republic of
Lithuania Law on the Amendment and Supplement of Articles 48,
60, 145, 147, 157, 212, 213, 214, 215, 226, 249, 251, 252, 256,
267, 270, 272, 274, 280 and the Annex of the Criminal Code and
on the Supplement of the Same Code with Articles 147¹, 199¹,
199², 267¹, 270¹, 308¹ which was adopted by the Seimas on 23
June 2005 and which came into effect on 30 June 2005, the
Criminal Code of the Republic of Lithuania was supplemented
with Article 199², under which those who have violated the
established procedure while purchasing, storing, transporting,
sending, using or realizing the excised goods when their value
exceeds 250 MSL shall be imposed a fine or imprisonment for up
to seven years.
IV
On the compliance of the provision "The actions indicated
in Paragraph <...> of this Article, performed by a person, who
has already been imposed an administrative penalty for the
violation indicated in Paragraph <...> of this Article, shall
incur a fine of twenty thousand to fifty thousand Litas" of
Paragraph 5 of Article 163² (wording of 5 July 2002) of the
CAVL and of the provision "The actions indicated in Paragraph
<...> of this Article, performed by a person, who has already
been imposed an administrative penalty for the violations
indicated in Paragraph <...> of this Article, shall incur a
fine of twenty thousand to fifty thousand Litas" of Paragraph 6
of the said article (wording of 4 July 2003) with Paragraph 5
of Article 31 of the Constitution.
1. Paragraph 5 of Article 31 of the Constitution provides:
"No one may be punished a second time for the same crime."
2. In Paragraph 5 of Article 31 of the Constitution the
principle non bis in idem is consolidated. This constitutional
principle means prohibition of punishment a second time for the
same deed that is contrary to law, i.e. for the same crime, as
well as for the same violation of law which is not a crime
(Constitutional Court rulings of 7 May 2001 and 2 October
2001).
The above-mentioned constitutional principle does not mean
that different kinds of liability may not be applied to the
person for a violation of law (Constitutional Court ruling of 7
May 2001).
In itself, the constitutional principle non bis in idem
does not deny a possibility for the same violation to apply
more than one sanction of the same kind (i.e. defined by the
norms of the same branch of law) to a person, i.e. the main and
additional punishment or the main and additional administrative
penalty.
The constitutional principle non bis in idem also inter
alia means that if a person, who has committed a deed which is
contrary to law, has been held administratively but not
criminally liable, i.e. he was imposed a sanction-a penalty not
for a crime but for an administrative violation of law-he
cannot be held criminally liable for the said deed.
It is also to be mentioned that the constitutional
principle non bis in idem may not be construed that,
purportedly, it does not allow to persecute and punish a person
for a violation of law for which legal persecution in respect
of that person was started but dismissed on the grounds which
under procedure established by laws were later recognised as
groundless and/or illegal and the person was not held legally
liable-no sanction (imposed punishment or penalty) was applied
to him.
In itself, the exemption of a person from one kind of
legal liability on the grounds and procedure established in
laws cannot be an obstacle for solving the issue on bringing
him to legal liability of another kind on the grounds and
procedure established in laws.
3. In the context of the constitutional justice case at
issue, it is to be held that the principle non bis in idem
consolidated in the Constitution does not mean that the
repetition institute cannot be consolidated in the legal
system; it is also to be noted that the repetition institute
also includes such legal regulation, where to a person, who has
committed the same or different violation of law of the same
branch, i.e. who has violated the same or different legal norm,
which, according to the law, belongs to the same branch of law,
the circumstance that this violation of law was committed
repeatedly (therefore, it certifies that the person is more
inclined to disregard legal requirements) is incriminated as a
circumstance, under which the person for the repeatedly
committed violation of law can be brought to another, more
severe legal liability of the same kind, i.e. for this
violation another, stricter sanction can be applied to him,
i.e. a different, stricter punishment or penalty can be imposed
on him than on a person, who has committed the same deed for
the first time.
However, it is to be emphasized that the constitutional
principle non bis in idem does not allow to treat repetition
(in the aspect discussed) as a circumstance, under which the
kind of administrative legal liability established for certain
violations of law can be replaced by criminal liability due to
the fact that the person who has already been punished by an
administrative penalty for a respective violation of law, has
again committed an administrative violation of law.
4. In a democratic state under the rule of law the
legislator has the right and duty to prohibit by means of laws
such deeds that may essentially harm people, society or
interests of the state or there might be a threat of such harm
to appear (Constitutional Court rulings of 8 May 2000, 10 June
2003 and 29 December 2004).
While establishing in laws the kind of deeds which are
contrary to law, as well as establishing legal liability for
the deeds that are contrary to law, the legislator enjoys broad
discretion. This discretion also includes the discretion to
establish the circumstances that would determine the sanctions
to be applied for violations of law. In the context of the
constitutional justice case at issue, it is to be emphasized
that the legislator, while consolidating the repetition (in the
aspect discussed) institute and paying heed to the
Constitution, may choose various ways to design the legal text.
For instance, legal regulation can be established in laws,
where the repetition (in the aspect discussed) is treated as an
aggravating circumstance for corresponding legal liability for
a repeatedly committed violation of law which is formally the
same as the former, while a corresponding article (part
thereof) of the law does not specify a formally different
violation of law of the same kind. However, the legislator is
not prohibited from legislatively establishing such legal
regulation, where the repetition (in the aspect discussed)
would be treated as a circumstance formally qualifying another
violation of law of the same kind (i.e. defined by the norms of
the same branch of law) and the repeatedly committed violation
of law of the same kind (the same as the previous violation or
as another violation, which is defined by means of norms of law
of the same branch) would be formally named in a corresponding
article (part thereof) as another violation of law of the same
kind.
Thus, the constitutional principle non bis in idem does
not mean that by means of a law it is impossible to establish
any such legal regulation whereby a person, who has already
been punished for a violation of law, commits the same
violation of law again, and this violation would be qualified
according to another norm of the same branch of law, formally
treating it as another violation of law, while the person who
has repeatedly committed the same deed that is contrary to law,
would be imposed another, stricter sanction than a person, who
has committed the same deed for the first time. Such legal
regulation established by the law, when the repeated commission
of violation of law of the same kind (violation of the same or
another provision which, according to the law, belongs to law
of the same branch) is treated as a circumstance formally
qualifying another deed that is contrary to law, which
determines that the person can be brought to another, stricter
legal liability, i.e. for this violation another, stricter
sanction can be applied to him-different, stricter punishment
or penalty can be imposed on him than on a person, who has
committed the same deed for the first time, is not to be
considered as creating legal pre-conditions to punish the
person for the same deed-a violation of law previously done-for
the second time.
It is also to be emphasized that it is not permitted to
legislatively establish any such legal regulation whereby when
holding a person legally liable for a repeatedly committed
violation of law, the repetition (in the aspect discussed)
would be treated both as a circumstance formally qualifying
another violation of law of the same kind and as a circumstance
aggravating the legal liability for the said, formally another,
violation of law. Such legal regulation would deviate from the
non bis in idem principle consolidated in Paragraph 5 of
Article 31 of the Constitution.
5. In the Code of Administrative Violations of Law the
repetition is treated as grounds to impose a stricter penalty
on the person who has repeatedly committed the violation of law
of the same kind than on a person who has committed a violation
of law of the same kind for the first time. For instance, under
Paragraph 1 of Article 32 (wording of 17 February 2000) of the
CAVL, one of the circumstances aggravating an administrative
violation of law is a violation of law of the same kind
repeatedly committed within one year, for which an
administrative penalty was already imposed (item 5). On the
other hand, the repetition is not treated as a non-vanishing
circumstance: when a person, who was imposed an administrative
penalty, does not commit a new administrative violation of law
within a year from the day when the execution of the penalty is
over, it is considered that no administrative penalty was
imposed on him (Article 36 of the CAVL). It is also to be
mentioned that in Paragraph 3 of Article 32 (wording of 17
February 2000) of the CAVL it is established that the
aggravating circumstances (therefore, including repetition)
indicated in Paragraph 1 of this article and in other laws are
not applied in cases when in the disposition of the article
they are specified as circumstances qualifying the violation of
law.
While construing these provisions in a systemic manner,
one is to hold that the CAVL prohibits from applying the same
liability aggravating circumstance, the repetition, twice: in
cases where repetition is treated as a circumstance formally
qualifying another administrative violation of law (in the
article (paragraph thereof) of the respective law indicating
the body of the repeatedly committed administrative violation
of law as another administrative violation of law and having
made the administrative legal liability for the said new
administrative violation of law as stricter one), the
repetition is not allowed also to be treated as a circumstance
aggravating the administrative legal liability.
6. While deciding whether the provision "The actions
indicated in Paragraph <...> of this Article, which are
performed by a person, who has already been imposed an
administrative penalty for the violation indicated in Paragraph
<...> of this Article, shall incur a fine of twenty thousand to
fifty thousand Litas" of Paragraph 5 of Article 163² (wording
of 5 July 2002) of the CAVL was not in conflict with Paragraph
5 of Article 31 of the Constitution, it is to be noted that in
this provision another administrative violation of law is
formally indicated, whose subject is the person who has been
punished for a certain previously committed administrative
violation of law specified in Paragraphs 2, 3 and 4 of Article
163² of the CAVL.
Thus, the legal regulation established in Paragraph 4 of
Article 163² (wording of 5 July 2002) of the CAVL does not mean
that the person is punished twice for the same violation of
law, for which he has already been punished by an
administrative penalty.
7. Taking account of the arguments set forth, a conclusion
is to be made that the provision "The actions indicated in
Paragraph <...> of this Article, which are performed by a
person, who has already been imposed an administrative penalty
for the violation indicated in Paragraph <...> of this Article,
shall incur a fine of twenty thousand to fifty thousand Litas"
of Paragraph 5 of Article 163² (wording of 5 July 2002) of the
CAVL was not in conflict with Paragraph 5 of Article 31 of the
Constitution.
8. It was noted that the legal regulation established in
Paragraph 5 of Article 163² (wording of 5 July 2002) of the
CAVL and that established in Paragraph 6 of Article 163²
(wording of 4 July 2003), whose compliance with the
Constitution is doubted by the petitioner, are essentially
analogous.
9. Having made a conclusion that the provision "The
actions indicated in Paragraph <...> of this Article, which are
performed by a person, who has already been imposed an
administrative penalty for the violation indicated in Paragraph
<...> of this Article, shall incur a fine of twenty thousand to
fifty thousand Litas" of Paragraph 5 of Article 163² (wording
of 5 July 2002) of the CAVL was not in conflict with Paragraph
5 of Article 31 of the Constitution and on the grounds of
analogous arguments, a conclusion is to be made that the
provision "The actions indicated in Paragraph <...> of this
Article, which are performed by a person, who has already been
imposed an administrative penalty for the violation indicated
in Paragraph <...> of this Article, shall incur a fine of
twenty thousand to fifty thousand Litas" of Paragraph 6 of
Article 163² (wording of 4 July 2004) of the CAVL is not in
conflict with Paragraph 5 of Article 31 of the Constitution,
either.
V
On the compliance of the provision "The actions indicated
in Paragraph <...> of this Article, which are performed by a
person, who has already been imposed an administrative penalty
for the violation indicated in Paragraph <...> of this Article,
shall incur a fine of twenty thousand to fifty thousand Litas"
of Paragraph 5 of Article 163² (wording of 5 July 2002) of the
Code of Administrative Violations of Law and of the provision
"The actions indicated in Paragraph <...> of this Article,
which are performed by a person, who has already been imposed
an administrative penalty for the violations indicated in
Paragraph <...> of this Article, shall incur a fine of twenty
thousand to fifty thousand Litas" of Paragraph 6 of the said
article (wording of 4 July 2003) with Paragraph 5 of Article 31
of the Constitution and the constitutional principle of a state
under the rule of law.
1. Paragraph 1 of Article 29 of the Constitution provides:
"All persons shall be equal before the law, the court, and
other State institutions and officials."
While construing the principle of equal rights of persons
established in the Constitution, in its rulings the
Constitutional Court has held more than once that the said
principle should be complied with when passing laws, as well as
applying them and when administering justice. The
above-mentioned constitutional principle means the innate human
right to be treated equally with others and consolidates formal
equality of all persons, obliges to legally assess the same
facts in the same manner and prohibits from arbitrary
assessment of the facts that are essentially the same in a
varied manner, it does not allow to discriminate persons, nor
grant them any privileges. On the other hand, it was more than
once held that the constitutional principle of equal rights of
persons does not deny a possibility to establish different
(differentiated) legal regulation in the law with respect to
the categories of certain persons which are in different
situations; however, this constitutional principle would be
violated, if certain persons, to whom corresponding legal
regulation is designated, if compared with other persons to
whom corresponding legal regulation is designated, were treated
differently, even though there are no such differences between
them so that such different treatment would be objectively
justifiable.
2. The constitutional principle of equal rights of persons
is to be construed inseparably from other provisions of the
Constitution, inter alia from the provisions establishing the
rights and freedoms of the person as well as from the
constitutional principle of a state under the rule of law,
which, as it was more than once held by the Constitutional
Court, is a universal principle upon which the Lithuanian legal
system and the Constitution itself are grounded.
3. It was mentioned that the legislator has the right and
duty at the same time to prohibit by laws the deeds that may
essentially harm the interests of persons, society or the state
or by which it is threatened that such harm could appear, as
well as to establish legal liability for such deeds.
It is to be noted that the constitutional principle of a
state under the rule of law would be violated if: (1) legal
liability was established in the law for such a deed that is
not dangerous to society, therefore not to be prohibited; (2) a
strict sanction (legal liability) was established in the law
for a deed which is contrary to law, under which the punishment
or penalty imposed on the violator would obviously be too big
because disproportionate (inadequate) for the committed
violation of law, therefore, unjust; (3) the persons who are
held liable were not able to make use of certain rights (inter
alia the right to due legal process) which they enjoy according
to the Constitution, and/or were not able to make use of
certain rights which, according to the laws, are enjoyed by
other persons who are in an analogous situation, while in the
latter case the constitutional principle of equal rights of
persons, thus, Paragraph 1 of Article 29 of the Constitution as
well, would be violated.
4. In order to prevent illegal deeds, it is not always
expedient to consider certain deeds as crimes and for them to
impose the most severe measures-criminal punishments; every
time, when it is necessary to decide whether to consider a
certain deed as a crime or as other violation of law, it is
very important to assess what results may be achieved while
applying other means (which are not linked with application of
criminal punishments), inter alia administrative sanctions
(Constitutional Court ruling of 13 November 1997).
Thus, the legislator, paying heed to the Constitution,
inter alia to the imperatives of consistency of the legal
system that arises from it and of internal non-contradiction,
may choose by what norms of a particular branch of law to
define certain violations of law and what sanctions (criminal,
administrative, etc.) to establish for them.
While assessing whether the legal liability is to
attributed to administrative or criminal law, one is to
emphasize that there are a number of similarities between the
administrative and criminal legal liability, though there are
essential differences as well. The danger of administrative
violations of law and criminal deeds is not the same, the
consequences of holding one the administratively or criminally
liable are different, too. Administrative penalties may be
similar to criminal punishments (Constitutional Court ruling of
13 November 1997). However, it is to be emphasized that the
legislator must seek to achieve the inter-branch compatibility
of administrative and criminal sanctions.
The legal situation of the persons who are held
administratively legally liable and of those who are held
criminally legally liable may not be the same, because the
grounds themselves of this legal liability are different: the
former have committed administrative violations of law,
established inter alia in the CAVL, while the latter-crimes or
other violations of law, established in the penal law. In
itself, establishment of legal liability of various kinds for
violations of law cannot be the grounds to question the
compliance of corresponding legal regulation established in
laws with the constitutional principles of equal rights of
people and a state under the rule of law. Thus, even though
under the laws certain deeds which are contrary to law are
defined as administrative violations of law (even though the
administrative penalties established for them amount to
criminal punishments), while others-as crimes or other deeds
violating penal laws, it does not mean that the constitutional
principles of equal rights of persons and a state under the
rule of law are deviated from.
While deciding whether the provision "The actions
indicated in Paragraph <...> of this Article, which are
performed by a person, who has already been imposed an
administrative penalty for the violation indicated in Paragraph
<...> of this Article, shall incur a fine of twenty thousand to
fifty thousand Litas" of Paragraph 5 of Article 163² (wording
of 5 July 2002) of the CAVL was not in conflict with Paragraph
1 of Article 29 of the Constitution and the constitutional
principle of a state under the rule of law in the aspect
whether the administrative legal liability under this paragraph
was not established for the deed, for which it should not be
established according to the Constitution, as well as whether
in the said aspect the provision "The actions indicated in
Paragraph <...> of this Article, which are performed by a
person, who has already been imposed an administrative penalty
for the violations indicated in Paragraph <...> of this
Article, shall incur a fine of twenty thousand to fifty
thousand Litas" of Paragraph 6 of the said article (wording of
4 July 2003) is not in conflict with Paragraph 1 of Article 29
of the Constitution and the constitutional principle of a state
under the rule of law, one is to hold that the deeds
established in Paragraph 5 of Article 163² (wording of 5 July
2002) of the CAVL and Paragraph 6 of the said article (wording
of 4 July 2003) are to be considered as dangerous to society
for which the legislator may establish administrative legal
liability-monetary fines. Storage, transportation, usage or
realization of excised goods in violation of the established
procedure, trading in such goods without labels or any other
specific markings, or with old sample labels, regardless of the
value of the illegally stored, transported, used or realized
goods, are to be considered as harmful to the economic system
of the state, financial order and they are to be legally
persecuted, by inter alia establishing administrative legal
liability for them.
5. The fine established in Paragraph 5 of Article 163²
(wording of 5 July 2002) of the CAVL is to be considered as a
big one-strict for the violators of law.
5.1. While establishing sanctions for violations of law,
one must respect the constitutional principle of a state under
the rule of law, inter alia the requirements of reasonableness,
justice and proportionality. The principle of proportionality
that arises from the Constitution means that the established
legal means must be necessary in a democratic society and
adequate for the legitimate and universally important
objectives sought (there must be a balance between the
objectives and means), they should not restrict the rights of
the person more than it is necessary to reach these objectives,
and if these legal means are related to sanctions for a
violation of law, the said sanctions must be proportionate to
the committed violation (Constitutional Court rulings of 13
December 2004 and 29 September 2005). For violations of law it
is not permitted to establish such punishments or penalties
(inter alia such sizes thereof), which would obviously be
disproportionate (inadequate) to the violations of law and the
purpose of the punishment or penalty. Thus, in the laws
sanctions should be designed in such a way so that in the
course of their application it would be possible to take
account of the nature of the violation of law and the liability
mitigating or other circumstances so that the punishment or
penalty would not be unjust or inadequate to the committed
violation of law.
5.2. It is to be noted that in itself consolidation of
strict sanctions (for the violators of law) for violations of
law (inter alia big monetary fines for administrative
violations of law) in the law cannot be simply (without
assessing the character of the violation of law, its danger
(gravity), scale and other features and circumstances)
construed as unjust or inadequate to those violations of law.
5.3. There are no legal arguments, under which the
legislator could not establish the fines of the indicated size
for the dangerous to society deeds established in Paragraph 5
of Article 163² (wording of 5 July 2002) of the CAVL or
Paragraph 6 of the said article (wording of 4 July 2003),
because the character, danger (gravity), scale, other features
and other circumstances (without ignoring mitigating
circumstances) of a corresponding administrative violation of
law, for which the fine established in Paragraph 5 of Article
163² (wording of 5 July 2002) of the CAVL or Paragraph 6 of the
said article (wording of 4 July 2003) had to be (must be)
imposed, could (can) determine that on the grounds of the
criteria of justice and reasonableness and with regard to all
the circumstances, the violator of law had to be (must be)
imposed a fine of exactly the size that was established in
Paragraph 5 of Article 163² (wording of 5 July 2002) of the
CAVL or is established in Paragraph 6 of the said article
(wording of 4 July 2003).
5.4. The imposed punishment or penalty must be just.
According to the Constitution, while imposing a sanction for a
violation of law, a court should have a possibility to take
account of all the mitigating circumstances, as well as of
those that are not expressis verbis established in the law and
to impose a sanction-punishment or penalty-which would be
milder than that established in the law, upon the violator.
Having chosen such a way of design of the sanction-a fine for
commission of the deed that is contrary to law-where in the
article establishing the legal liability for the said deed
contrary to law, such a fine is established that is really big,
i.e. such a sanction which is strict to the violators of law,
the legislator must, together with the law, establish also such
legal regulation under which a court, while applying the
sanction for this deed contrary to law, i.e. imposing a
monetary fine, might be able to take account of all liability
mitigating circumstances, as well as of those that are not
expressis verbis specified in the law, and if there are any
such liability mitigating and other circumstances, under which
a respective fine for the violator of law would obviously be
too big, because disproportionate (inadequate) to the committed
violation of law and, therefore, unjust and to impose on him a
smaller fine than the minimum monetary fine (the lowest level
of the sanction) or the fine of strictly determined size
established in the law (Constitutional Court rulings of 10 June
2003 and 3 November 2005). Imposition of a smaller monetary
fine than that established in the law must not be the rule, but
an exception-it can be imposed by the court only under special
liability mitigating circumstances, or other circumstances,
disregarding which the fine established in the law, in case it
was imposed, would obviously be too big. The court, while
imposing smaller fines than those established in the law, must
do that extremely carefully and attentively, in order not to
violate the interests of the person, society and the state.
5.5. According to Paragraph 1 of Article 301 (wording of
11 November 1999) of the CAVL, the body (official), while
investigating cases of administrative violations of law, taking
account of inter alia the mitigating circumstances of the
liability for an administrative violation of law established in
the CAVL and other mitigating circumstances which are not
established in the law, by following the criteria of justice
and reasonableness, may impose a smaller penalty than the
minimum one provided for in the sanction, or not impose an
administrative penalty at all.
Thus, while deciding whether the provision "The actions
indicated in Paragraph <...> of this Article, which are
performed by a person, who has already been imposed an
administrative penalty for the violation indicated in Paragraph
<...> of this Article, shall incur a fine of twenty thousand to
fifty thousand Litas" of Paragraph 5 of Article 163² (wording
of 5 July 2002) of the CAVL was not in conflict with Paragraph
1 of Article 29 of the Constitution and the constitutional
principle of a state under the rule of law in the aspect
whether in this paragraph such strict sanction (legal
liability) for an administrative violation of law was not
established, according to which the monetary fine imposed on
the violator of law would obviously be too big, because
disproportionate (inadequate) to the committed violation of
law, therefore unjust, also whether in the same aspect the
provision "The actions indicated in Paragraph <...> of this
Article, which are performed by a person, who has already been
imposed an administrative penalty for the violations indicated
in Paragraph <...> of this Article, shall incur a fine of
twenty thousand to fifty thousand Litas" of Paragraph 6 of the
said article (wording of 4 July 2003) is not in conflict with
Paragraph 1 of Article 29 of the Constitution and the
constitutional principle of a state under the rule of law, one
is to hold that a court, while adopting a decision on
imposition of a monetary fine for the administrative violation
of law established in Paragraph 5 of Article 163² (wording of 5
July 2002) of the CAVL or Paragraph 6 of the same article
(wording of 4 July 2003), had (has) the empowerments
established in the CAVL to impose on the person a smaller
monetary fine than the minimum monetary fine (the lowest level
of the sanction) consolidated in these paragraphs, if there are
such liability mitigating or other circumstances due to which
the aforesaid minimum monetary fine would obviously be too big
to the violator of law, because disproportionate (inadequate)
to the committed violation of law, therefore, unjust.
6. According to the Constitution, every person who is held
legally liable has the right to a fair trial. The Constitution
Court has stated that, according to the Constitution, a person,
who thinks that his rights and freedoms are being violated, has
the right to defend his rights and freedoms in court
(Constitutional Court rulings of 2 July 2002, 4 March 2003, 17
August 2004 and 7 February 2005); the right of the person to an
independent, impartial, and just court which would solve the
dispute, cannot be denied (Constitutional Court ruling of 13
December 2004).
6.1. 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 the provisions
of which cannot be construed as being designed only to the
persons who are held criminally liable) to persons, who are
held legally liable under corresponding laws (Constitutional
Court ruling of 3 November 2005). The said procedural
guarantees that arise from the Constitution are the
independence and impartiality of the court, presumption of
innocence, prohibition to compel to give testimony against
oneself, one's family members or close relatives, application
of the sanction (imposition of punishment or penalty) only on
the basis of the law, prohibition of punishing twice for the
same deed that is contrary to law (non bis in idem), the right
of the person to defence from the moment of detention or the
first interrogation, the right to have an advocate, the
principle of contest in the trial, the right of a person, who
does not know Lithuanian, to participate in judicial actions
through a translator, etc.
6.2. It is to be stated that the essential procedural
requirements of administrative violations of law, inter alia
procedural and other guarantees to the persons who are being
held administratively legally liable according to the CAVL, are
established not only in the CAVL but also in the Republic of
Lithuania Law on the Proceedings of Administrative Cases.
Procedural and other guarantees to the persons who are being
held criminally liable are established in the Code of Criminal
Procedure of the Republic of Lithuania. Procedural and other
guarantees to the persons who are being held administratively
or criminally liable are also established in the Republic of
Lithuania Law on State Guaranteed Legal Aid, other laws,
international treaties of the Republic of Lithuania, European
Union law.
The legal regulation established in the above-mentioned
laws is not a subject matter in the constitutional justice case
at issue where it is investigated whether the provision "The
actions indicated in Paragraph <...> of this Article, which are
performed by a person, who has already been imposed an
administrative penalty for the violation indicated in Paragraph
<...> of this Article, shall incur a fine of twenty thousand to
fifty thousand Litas" of Paragraph 5 of Article 163² (wording
of 5 July 2002) of the CAVL and the provision "The actions
indicated in Paragraph <...> of this Article, which are
performed by a person, who has already been imposed an
administrative penalty for the violations indicated in
Paragraph <...> of this Article, shall incur a fine of twenty
thousand to fifty thousand Litas" of Paragraph 6 of the said
article (wording of 4 July 2003) both establishing
administrative legal liability for respective violations of
law, was (is) not in conflict with the Constitution. These
provisions do not regulate the relationships related to
procedural or other guarantees to persons who for certain
administrative violations of law are being held
administratively liable.
Thus, in the discussed aspect, the aforesaid provisions
cannot be in conflict with the constitutional principles of
equality of persons and a state under the rule of law.
7. Taking account of the arguments set forth, the
following conclusions are to be made:
- the provision "The actions indicated in Paragraph <...>
of this Article, which are performed by a person, who has
already been imposed an administrative penalty for the
violation indicated in Paragraph <...> of this Article, shall
incur a fine of twenty thousand to fifty thousand Litas" of
Paragraph 5 of Article 163² (wording of 5 July 2002) of the
CAVL was not in conflict with Paragraph 1 of Article 29 of the
Constitution and the constitutional principle of a state under
the rule of law;
- the provision "The actions indicated in Paragraph <...>
of this Article, which are performed by a person, who has
already been imposed an administrative penalty for the
violations indicated in Paragraph <...> of this Article, shall
incur a fine of twenty thousand to fifty thousand Litas" of
Paragraph 6 of the Article 163² (wording of 4 July 2003) of the
CAVL is not in conflict with Paragraph 1 of Article 29 of the
Constitution and the constitutional principle of a state under
the rule of law.
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 recognize that the provision "The actions indicated
in Paragraph <...> of this Article, which are performed by a
person, who has already been imposed an administrative penalty
for the violation indicated in Paragraph <...> of this Article,
shall incur a fine of twenty thousand to fifty thousand Litas"
of Paragraph 5 of Article 163² (wording of 5 July 2002) of the
Code of Administrative Violations of Law of the Republic of
Lithuania was not in conflict with the Constitution of the
Republic of Lithuania.
2. The provision "The actions indicated in Paragraph <...>
of this Article, which are performed by a person, who has
already been imposed an administrative penalty for the
violations indicated in Paragraph <...> of this Article, shall
incur a fine of twenty thousand to fifty thousand Litas" of
Paragraph 6 of Article 163² (wording of 4 July 2003) of the
Code of Administrative Violations of Law of the Republic of
Lithuania is not in conflict with of the Constitution of the
Republic of Lithuania.
This ruling of the Constitutional Court 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
Romualdas Kęstutis Urbaitis