Lietuviškai
Case No. 7/03-41/03-40/04-46/04-5/05-7/05-17/05
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 4 (WORDING OF 11 SEPTEMBER
2001) OF ARTICLE 131 OF THE CODE OF CRIMINAL PROCEDURE OF THE
REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA, ON THE COMPLIANCE OF PARAGRAPH 5 (WORDINGS OF 10
APRIL 2003 AND 16 SEPTEMBER 2003) OF ARTICLE 234, PARAGRAPH 2
(WORDINGS OF 10 APRIL 2003 AND 16 SEPTEMBER 2003) OF ARTICLE
244, ARTICLE 407 (WORDING OF 19 JUNE 2003), PARAGRAPH 1
(WORDING OF 14 MARCH 2002) OF ARTICLE 408, PARAGRAPHS 2 AND 3
(WORDING OF 14 MARCH 2002) OF ARTICLE 412, PARAGRAPH 5 (WORDING
OF 14 MARCH 2002) OF ARTICLE 413 AND PARAGRAPH 2 (WORDING OF 14
MARCH 2002) OF ARTICLE 414 OF THE CODE OF CRIMINAL PROCEDURE OF
THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC
OF LITHUANIA AND ON THE PETITIONS OF THE ŠIAULIAI DISTRICT
LOCAL COURT, THE PETITIONER, REQUESTING TO INVESTIGATE WHETHER
ARTICLE 410 (WORDING OF 14 MARCH 2002) OF THE CODE OF CRIMINAL
PROCEDURE OF THE REPUBLIC OF LITHUANIA IS NOT IN CONFLICT WITH
THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA
16 January 2006
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, Stasys
Stačiokas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of the representative of the Third Vilnius
City Local Court, the petitioner, who was the judge Olegas
Šibkovas,
in the presence of the representatives of the Seimas of
the Republic of Lithuania, the party concerned, who were
Raimondas Šukys, a Member of the Seimas, Mindaugas Girdauskas,
senior advisor of the Law Department of the Office of the
Seimas, and Girius Ivoška, advisor of the said 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, in its
public hearing on 15 December 2005 heard case No.
7/03-41/03-40/04-46/04-5/05-7/05-17/05 subsequent to the
following petitions:
1) the 23 December 2002 petition of the Second Vilnius
City Local Court, the petitioner, requesting to investigate
whether Paragraph 4 (wording of 11 September 2001) of Article
131 of the Code of Criminal Procedure of the Republic of
Lithuania to the extent that, according to the petitioner, it
limits the right of the person in whose respect it was decided
not to institute a criminal case after the term of prescription
of bringing one to criminal liability has passed, to appeal
against the prosecutor's ruling in court is not in conflict
with Paragraph 1 of Article 30 of the Constitution of the
Republic of Lithuania;
2) the 27 October 2003 petition of the Third Vilnius City
Local Court, the petitioner, requesting to investigate whether
Item 3 (wording of 10 April 2003) of Paragraph 5 of Article 234
and Paragraph 2 (wording of 10 April 2003) of Article 244 of
the Code of Criminal Procedure of the Republic of Lithuania are
not in conflict with Paragraph 2 of Article 110 of the
Constitution of the Republic of Lithuania, whether Article 407
(wording of 19 June 2003), Paragraph 1 (wording of 14 March
2002) of Article 408, Paragraph 2 (wording of 14 March 2002) of
Article 412 of the Code of Criminal Procedure of the Republic
of Lithuania are not in conflict with Paragraph 1 of Article 29
of the Constitution of the Republic of Lithuania, whether
Paragraph 3 (wording of 14 March 2002) of Article 412 of the
Code of Criminal Procedure of the Republic of Lithuania is not
in conflict with Paragraph 1 of Article 29 and Paragraph 1 of
Article 30 of the Constitution of the Republic of Lithuania,
whether Paragraph 5 (wording of 14 March 2002) of Article 413
of the Code of Criminal Procedure of the Republic of Lithuania
is not in conflict with Paragraph 2 of Article 109 of the
Constitution of the Republic of Lithuania, and whether
Paragraph 2 (wording of 14 March 2002) of Article 414 of the
Code of Criminal Procedure of the Republic of Lithuania is not
in conflict with Paragraph 2 of Article 31, Paragraph 1 of
Article 109 and Paragraph 1 of Article 118 of the Constitution
of the Republic of Lithuania;
3) the 6 October 2004 petition of the Second Vilnius City
Local Court, the petitioner, requesting to investigate whether
Article 407 (wording of 19 June 2003), Paragraph 1 (wording of
14 March 2002) of Article 408, Paragraph 2 (wording of 14 March
2002) of Article 412 of the Code of Criminal Procedure of the
Republic of Lithuania are not in conflict with Paragraph 1 of
Article 29 of the Constitution of the Republic of Lithuania,
whether Paragraph 3 (wording of 14 March 2002) of Article 412
of the Code of Criminal Procedure of the Republic of Lithuania
is not in conflict with Paragraph 1 of Article 29 and Paragraph
1 of Article 30 of the Constitution of the Republic of
Lithuania, whether Paragraph 5 (wording of 14 March 2002) of
Article 413 of the Code of Criminal Procedure of the Republic
of Lithuania is not in conflict with Paragraph 2 of Article 109
of the Constitution of the Republic of Lithuania, and whether
Paragraph 2 (wording of 14 March 2002) of Article 414 of the
Code of Criminal Procedure of the Republic of Lithuania is not
in conflict with Paragraph 2 of Article 31, Paragraph 1 of
Article 109 and Paragraph 1 of Article 118 of the Constitution
of the Republic of Lithuania;
4) the 29 October 2004 petition of the Panevėžys City
Local Court, the petitioner, requesting to investigate whether
Item 3 (wording of 10 April 2003) of Paragraph 5 of Article 234
and Paragraph 2 (wording of 10 April 2003) of Article 244 of
the Code of Criminal Procedure of the Republic of Lithuania are
not in conflict with Paragraph 2 of Article 110 of the
Constitution of the Republic of Lithuania, and whether Article
407 (wording of 19 June 2003), Paragraph 2 (wording of 14 March
2002) of Article 412 and Paragraph 5 (wording of 14 March 2002)
of Article 413 of the Code of Criminal Procedure of the
Republic of Lithuania are not in conflict with Paragraph 1 of
Article 29 of the Constitution of the Republic of Lithuania;
5) the 14 February 2005 petition of the Šiauliai District
Local Court, the petitioner, requesting to investigate whether
Item 3 of Paragraph 5 of Article 234 and Paragraph 2 of Article
244 of the Code of Criminal Procedure of the Republic of
Lithuania are not in conflict with Paragraph 2 of Article 110
of the Constitution of the Republic of Lithuania, and whether
Article 407, Article 410, Paragraph 2 of Article 412 and
Paragraph 5 of Article 413 of the Code of Criminal Procedure of
the Republic of Lithuania are not in conflict with Paragraph 1
of Article 29 of the Constitution of the Republic of Lithuania;
6) the 25 February 2005 petition of the Šiauliai District
Local Court, the petitioner, requesting to investigate whether
Item 3 of Paragraph 5 of Article 234 and Paragraph 2 of Article
244 of the Code of Criminal Procedure of the Republic of
Lithuania are not in conflict with Paragraph 2 of Article 110
of the Constitution of the Republic of Lithuania, and whether
Article 407, Article 410, Paragraph 2 of Article 412 and
Paragraph 5 of Article 413 of the Code of Criminal Procedure of
the Republic of Lithuania are not in conflict with Paragraph 1
of Article 29 of the Constitution of the Republic of Lithuania;
7) the 29 August 2005 petition of the Šiauliai District
Local Court, the petitioner, requesting to investigate whether
Item 3 of Paragraph 5 of Article 234 and Paragraph 2 of Article
244 of the Code of Criminal Procedure of the Republic of
Lithuania are not in conflict with Paragraph 2 of Article 110
of the Constitution of the Republic of Lithuania, and whether
Article 407, Article 410, Paragraph 2 of Article 412 and
Paragraph 5 of Article 413 of the Code of Criminal Procedure of
the Republic of Lithuania are not in conflict with Paragraph 1
of Article 29 of the Constitution of the Republic of Lithuania.
By the Constitutional Court decision of 6 January 2004,
the 23 December 2002 petition of the Second Vilnius City Local
Court and the Third Vilnius City Local Court were joined into
one case it was given reference No. 7/03-41/03.
By the Constitutional Court decision of 10 October 2005,
the petitions of the Second Vilnius City Local Court and the
Third Vilnius City Local Court, which had been joined into case
No. 7/03-41/03, and the 6 October 2004 petition of the Second
Vilnius City Local Court, the 29 October 2004 petition of the
Panevėžys City Local Court, the 14 February 2005, 25 February
2005 and 29 August 2005 petitions of the Šiauliai District
Local Court were joined into one case and it was given
reference No. 7/03-41/03-40/04-46/04-5/05-7/05-17/05.
The Constitutional Court
has established:
I
1. The Second Vilnius City Local Court, the petitioner,
was investigating a complaint requesting to rescind part of a
ruling of the prosecutor whereby it refused to institute a
criminal case after the term of prescription of bringing one to
criminal liability had passed. By its ruling of 23 December
2002, the said court suspended the investigation of the case
and applied to the Constitutional Court with a petition
requesting to investigate whether Paragraph 4 (wording of 11
September 2001) of Article 131 of the then valid Code of
Criminal Procedure (hereinafter also referred to as the
formerly valid CCP) to the extent that, according to the
petitioner, it limited the right of the person in whose respect
it was decided not to institute a criminal case after the term
of prescription of bringing one to criminal liability has
passed, to appeal against the prosecutor's ruling in court was
not in conflict with Paragraph 1 of Article 30 of the
Constitution. The petition was received at the Constitutional
Court on 8 January 2003.
2. The Third Vilnius City Local Court, the petitioner, was
investigating a criminal case. By its ruling of 27 October
2003, the said court postponed the consideration of the case
and applied to the Constitutional Court requesting to
investigate whether Item 3 (wording of 10 April 2003) of
Paragraph 5 of Article 234 and Paragraph 2 (wording of 10 April
2003) of Article 244 of the Code of Criminal Procedure
(hereinafter also referred to the CCP or the new CCP) are not
in conflict with Paragraph 2 of Article 110 of the
Constitution, whether Article 407 (wording of 19 June 2003),
Paragraph 1 (wording of 14 March 2002) of Article 408,
Paragraph 2 (wording of 14 March 2002) of Article 412 of the
Code of Criminal Procedure are not in conflict with Paragraph 1
of Article 29 of the Constitution, whether Paragraph 3 (wording
of 14 March 2002) of Article 412 of the Code of Criminal
Procedure is not in conflict with Paragraph 1 of Article 29 and
Paragraph 1 of Article 30 of the Constitution, whether
Paragraph 5 (wording of 14 March 2002) of Article 413 of the
Code of Criminal Procedure is not in conflict with Paragraph 2
of Article 109 of the Constitution, and whether Paragraph 2
(wording of 14 March 2002) of Article 414 of the Code of
Criminal Procedure is not in conflict with Paragraph 2 of
Article 31, Paragraph 1 of Article 109 and Paragraph 1 of
Article 118 of the Constitution. The petition was received at
the Constitutional Court on 18 November 2003.
3. The Second Vilnius City Local Court, the petitioner,
was investigating a criminal case. By its ruling of 6 October
2004, the said court postponed the investigation of the case
and applied to the Constitutional Court requesting to
investigate whether Article 407 (wording of 19 June 2003),
Paragraph 1 (wording of 14 March 2002) of Article 408,
Paragraph 2 (wording of 14 March 2002) of Article 412 of the
Code of Criminal Procedure are not in conflict with Paragraph 1
of Article 29 of the Constitution, whether Paragraph 3 (wording
of 14 March 2002) of Article 412 of the Code of Criminal
Procedure is not in conflict with Paragraph 1 of Article 29 and
Paragraph 1 of Article 30 of the Constitution, whether
Paragraph 5 (wording of 14 March 2002) of Article 413 of the
Code of Criminal Procedure is not in conflict with Paragraph 2
of Article 109 of the Constitution, and whether Paragraph 2
(wording of 14 March 2002) of Article 414 of the Code of
Criminal Procedure is not in conflict with Paragraph 2 of
Article 31, Paragraph 1 of Article 109 and Paragraph 1 of
Article 118 of the Constitution. The petition was received at
the Constitutional Court on 11 October 2004.
4. The Panevėžys City Local Court, the petitioner, was
investigating a criminal case. By its ruling of 29 October
2004, the said court postponed the investigation of the case
and applied to the Constitutional Court requesting to
investigate whether Item 3 (wording of 10 April 2003) of
Paragraph 5 of Article 234 and Paragraph 2 (wording of 10 April
2003) of Article 244 of the Code of Criminal Procedure are not
in conflict with Paragraph 2 of Article 110 of the Constitution
and whether Article 407 (wording of 19 June 2003), Paragraph 2
(wording of 14 March 2002) of Article 412 and Paragraph 5
(wording of 14 March 2002) of Article 413 of the Code of
Criminal Procedure are not in conflict with Paragraph 1 of
Article 29 of the Constitution. The petition was received at
the Constitutional Court on 30 November 2005.
5. The Šiauliai District Local Court, the petitioner, was
investigating a criminal case. By its ruling of 14 February
2005, the said court postponed the investigation of the case
and applied to the Constitutional Court requesting to
investigate whether Item 3 of Paragraph 5 of Article 234 and
Paragraph 2 of Article 244 of the Code of Criminal Procedure
are not in conflict with Paragraph 2 of Article 110 of the
Constitution and whether Article 407, Article 410, Paragraph 2
of Article 412 and Paragraph 5 of Article 413 of the Code of
Criminal Procedure are not in conflict with Paragraph 1 of
Article 29 of the Constitution. The petition was received at
the Constitutional Court on 14 March 2005.
6. The Šiauliai District Local Court, the petitioner, was
investigating a criminal case. By its ruling of 25 February
2005, the said court postponed the investigation of the case
and applied to the Constitutional Court requesting to
investigate whether Item 3 of Paragraph 5 of Article 234 and
Paragraph 2 of Article 244 of the Code of Criminal Procedure
are not in conflict with Paragraph 2 of Article 110 of the
Constitution and whether Article 407, Article 410, Paragraph 2
of Article 412 and Paragraph 5 of Article 413 of the Code of
Criminal Procedure are not in conflict with Paragraph 1 of
Article 29 of the Constitution. The petition was received at
the Constitutional Court on 23 March 2005.
7. The Šiauliai District Local Court, the petitioner, was
investigating a criminal case. By its ruling of 29 August 2005,
the said court postponed the investigation of the case and
applied to the Constitutional Court requesting to investigate
whether Item 3 of Paragraph 5 of Article 234 and Paragraph 2 of
Article 244 of the Code of Criminal Procedure are not in
conflict with Paragraph 2 of Article 110 of the Constitution,
and whether Article 407, Article 410, Paragraph 2 of Article
412 and Paragraph 5 of Article 413 of the Code of Criminal
Procedure are not in conflict with Paragraph 1 of Article 29 of
the Constitution. The petition was received at the
Constitutional Court on 21 September 2005.
II
1. The petition of the Second Vilnius City Local Court,
the petitioner, requesting to investigate whether Paragraph 4
(wording of 11 September 2001) of Article 131 of the formerly
valid CCP to the extent that, according to the petitioner, it
limited the right of the person in whose respect it was decided
not to institute a criminal case after the term of prescription
of bringing one to criminal liability has passed, to appeal
against the prosecutor's ruling in court was not in conflict
with Paragraph 1 of Article 30 of the Constitution, is grounded
on the following arguments.
Under Paragraph 4 (wording of 11 September 2001) of
Article 131 of the formerly valid CCP, it was only the
petitioner who could lodge a complaint against the prosecutor's
ruling to refuse to institute a criminal case, while the person
against whom it would be refused to institute a criminal case
did not have this right. Meanwhile, Paragraph 1 of Article 30
of the Constitution provides that the person whose
constitutional rights or freedoms are violated shall have the
right to apply to court, therefore, the petitioner had doubts
whether Paragraph 4 (wording of 11 September 2001) of Article
131 of the formerly valid CCP to the extent that, according to
the petitioner, it limited the right of the person in whose
respect it was decided not to institute a criminal case after
the term of prescription of bringing one to criminal liability
had passed, to appeal against the prosecutor's ruling in court
was not in conflict with Paragraph 1 of Article 30 of the
Constitution.
2. The 27 October 2003 petition of the Third Vilnius City
Local Court, the petitioner, to the extent that it requests to
investigate whether Article 407 (wording of 19 June 2003),
Paragraph 1 (wording of 14 March 2002) of Article 408,
Paragraphs 2 and 3 (wording of 14 March 2002) of Article 412,
Paragraph 5 (wording of 14 March 2002) of Article 413 and
Paragraph 2 (wording of 14 March 2002) of Article 414 of the
CCP are not in conflict with the Constitution and the 6 October
2004 petition of the Second Vilnius City Local Court, the
petitioner, to the extent that it requests to investigate
whether Article 407 (wording of 19 June 2003), Paragraph 1
(wording of 14 March 2002) of Article 408, Paragraphs 2 and 3
(wording of 14 March 2002) of Article 412, Paragraph 5 (wording
of 14 March 2002) of Article 413 and Paragraph 2 (wording of 14
March 2002) of Article 414 of the CCP are not in conflict with
the Constitution are based on the following arguments.
2.1. Article 407 (wording of 19 June 2003) of the CCP
provides that the procedure shall be instituted regarding the
criminal cases on the criminal deeds provided for in Paragraph
1 of 139 Article, Paragraph 1 of Article 140, Articles 148,
152, 154, 155, 165, 168, Paragraphs 1 and 3 of Article 187, and
Articles 188, 313 of the Criminal Code of the Republic of
Lithuania (hereinafter also referred to as the CC) only if
there is a complaint of the victim or an application of his
legitimate representative, and that pre-trial investigation is
not carried out in such cases save the cases provided for in
Article 409 of the CCP. Paragraph 1 (wording of 14 March 2002)
of Article 408 of the CCP provides that in cases of private
accusation it is the victim who files the complaint and upholds
the accusation in court, who in court acquires the status of a
private accuser. Paragraph 2 (wording of 14 March 2002) of
Article 412 of the CCP provides what data must be specified in
the complaint filed by the victim or in the application of his
legitimate representative.
According to the petitioners, stricter requirements are
raised in regard of the persons who suffered from the deeds
specified in Article 407 (wording of 19 June 2003) of the CCP
and who intend to file a complaint about it, than in regard of
those who suffered from other deeds. For instance, Paragraph 1
of Article 166 of the CCP raises no requirements with respect
to a complaint, application or report subsequent to which
pre-trial investigation is begun, thus, in order to begin
pre-trial investigation it is sufficient to inform in a certain
way the establishment of pre-trial investigation about the
criminal deed. After the pre-trial investigation is begun,
officials of pre-trial investigation must establish the guilty
person and prove his guilt. Meanwhile, in the proceedings of
cases of private accusation the victim or his legitimate
representative must themselves establish the person who
committed the criminal deed, the circumstances of committing of
this deed, the witnesses etc., since under Paragraph 2 (wording
of 14 March 2002) of Article 414 of the CCP, the complaint or
application filed under procedure of private accusation must,
along with other data, specify the place, time and consequences
of the committed deed, other essential circumstances, as well
as the names, surnames and place of residence of the suspect
and witnesses.
Under Paragraph 1 of Article 29 of the Constitution, all
persons shall be equal before the law, the court, and other
state institutions and officials. Articles 21, 22, 23 and 24 of
the Constitution ensure the rights of the human being to
inviolability of the person, private life, property and home
regardless of the amount of the damage inflicted upon the
person. In the opinion of the petitioners, the requirement that
the persons who suffered from certain deeds specified (and
singled out from other criminal deeds (by which one encroaches
upon the person, his private life, property, home)) in Article
407 (wording of 19 June 2003) of the CCP should themselves
collect the data about the criminal deed, establish the guilty
person and possible witnesses, determines the fact that these
persons find themselves in an unequal situation if compared to
that of persons who suffered from other criminal deeds, since,
as the petitioners note, the rights and possibilities of
persons who suffered from the criminal deeds to establish the
circumstances of the criminal deed, especially the guilty
person, if compared to those of officials of pre-trial
investigation, are limited ones. Therefore the petitioners had
doubts whether the aforesaid provisions of Article 407 (wording
of 19 June 2003), Paragraph 1 (wording of 14 March 2002) of
408, and of Paragraph 2 (wording of 14 March 2002) of Article
412 of the CCP are not in conflict with the principle of
equality of persons entrenched in Paragraph 1 of Article 29 of
the Constitution.
2.2. It is noted in the petitions of the petitioners that
Paragraph 2 (wording of 14 March 2002) of Article 412 of the
CCP which establishes the requirements for the content of the
complaint filed under procedure of private accusation is linked
with Paragraph 3 (wording of 14 March 2002) of the same
article, under which a complaint, which does not meet the
requirements of this article, is not admitted and returned to
the person who has filed it. In the opinion of the petitioners,
due to the legal regulation established in Paragraph 3 (wording
of 14 March 2002) of Article 412 of the CCP the persons who
suffered from the criminal deeds specified in Article 407
(wording of 19 June 2003) of the CCP find themselves in an
unequal situation if compared with the persons suffered from
other criminal deeds, upon reception of whose complaint the
prosecutor or the official of pre-trial investigation can
refuse to begin the pre-trial investigation by a reasoned
ruling only in case when the facts which are specified in the
complaint about the committed criminal deed are clearly false
(Paragraphs 1 and 2 of Article 168 of the CCP). The legal
regulation established in Articles 166 and 168 of the CCP
ensures that a procedural decision will be adopted in regard of
the filed complaint, application or report, which, by the way,
can be appealed against, and that, in case there are grounds,
pre-trial investigation will be begun. Meanwhile, the persons
who suffered from the criminal deeds specified in Article 407
(wording of 19 June 2003) of the CCP cannot even file a
complaint about the criminal deed if they do not know who
committed that deed, since under Paragraph 3 (wording of 14
March 2002) of Article 412 of the CCP, the complaint or
application which do not specify, for example, the name and
surname of the suspect, is not accepted and returned to the
person who filed it. Therefore, the petitioners think that
Paragraph 3 (wording of 14 March 2002) of Article 412 of the
CCP is in conflict with the principle of equality of persons
before the laws entrenched in Paragraph 1 of Article 29 of the
Constitution.
Besides, the petitioners doubt whether Paragraph 3
(wording of 14 March 2002) of Article 412 of the CCP is not in
conflict with Paragraph 1 of Article 30 of the Constitution
which provides that the person whose constitutional rights or
freedoms are violated shall have the right to apply to court.
According to the petitioners, a person, whose rights or
freedoms have been violated by committing the criminal deeds
against him, listed in Article 407 (wording of 19 June 2003) of
the CCP, but who cannot specify the identification of the
suspect or the circumstances of commission of the criminal
deed, virtually loses an opportunity to apply to court to
protect his violated right, since the court must return the
complaint that does not meet the requirements and no
opportunity is provided for appeal against such court decision.
Such person cannot apply to the establishment of pre-trial
investigation, either, so that his application could be
investigated and referred to court under general procedure,
since under Paragraph 1 of Article 417 of the CCP, if during
pre-trial investigation it transpires that that the deed of the
suspect has the signs of the criminal deeds specified in
Article 407 of the same code, the official who conducts the
investigation explains the right to the victim to apply to
court under procedure of private accusation and dismisses the
pre-trial investigation. According to the petitioners, the
provision of Paragraph 2 of Article 409 of the CCP that the
prosecutor has the right at any time of the case of private
accusation until the beginning of investigation of the evidence
to submit a written application to the court that he will
uphold the charge of the state and that in such situation the
case is referred to the prosecutor does not change the essence
of the matter, since the prosecutor can join the case only
after its investigation has been started in court, i.e. after
the court has accepted the complaint of private accusation,
and, in addition, this is a right of the prosecutor, but not
his duty.
2.3. The petitioners also faced doubts whether Paragraph 5
(wording of 14 March 2002) of Article 413 of the CCP is not in
conflict with the principle of independence of courts
entrenched in Paragraph 2 of Article 109 of the Constitution.
Paragraph 5 (wording of 14 March 2002) of Article 413 of the
CCP provides that if victim and/or his legitimate
representative and the person accused of commission of the
criminal deed do not reach conciliation, the judge passes a
ruling to refer the complaint of the victim for consideration
in trial hearing. Thus, if the victim and the accused do not
reach conciliation, the court has no other choice but to refer
the case of private accusation for consideration in trial
hearing. Meanwhile, under Article 232 of the CCP which
establishes what rulings can be passed when ordinary criminal
cases are prepared for investigation in court, the judge has
more opportunities: (1) he can refer the case for consideration
in trial hearing; (2) he can refer the case to subsequent
consideration according to its cognizance; (3) he can refer the
case to the prosecutor; (4) he can separate the case into
several cases, or join several cases into one case; (5) he can
postpone the consideration of the case; (6) he can dismiss the
case. Thus, in the opinion of the petitioners, Paragraph 5
(wording of 14 March 2002) of Article 413 of the CCP under
which the judge must refer any complaint of private accusation,
even if the accusation is clearly groundless, for consideration
in trial hearing and cannot adopt any other decision, violates
the independence of the court.
In addition, according to the petitioners, the court
cannot adopt the other decisions which are provided for in
Article 232 of the CCP, either, after the case of private
accusation is referred for consideration in trial hearing,
since under Article 254 of the CCP, at the time of
consideration of the case in court the case may be dismissed
only if the circumstances provided for in Items 2-9 of
Paragraph 1 of Article 3 of the CCP, or the bases provided for
in Articles 36-40, 93, Paragraph 3 of Article 114, Paragraph 3
of Article 259 and Paragraphs 2 and 3 of Article 291 of the CC
are established. According to Article 254 of the CCP, the
consideration of the case cannot be dismissed according to the
basis provided for in Item 1 of Paragraph 1 of Article 3 of the
CCP, either, i.e. if the deed with signs of crime or criminal
offence, has not been committed. Thus, in the opinion of the
petitioners, even if the private accusation complaint or
application is clearly groundless or simply absurd, the court
cannot dismiss the consideration of such a case during the
entire process of consideration of this case of private
accusation and can only end it by adopting a judgement.
2.4. Paragraph 2 (wording of 14 March 2002) of Article 414
of the CCP provides that the judge, while adopting a ruling to
refer the complaint of the victim or the application of his
legitimate representative for consideration in trial hearing,
has the right to request that the establishment of pre-trial
investigation investigate the circumstances of the case within
the established period, which the court is unable to establish,
and to postpone the case for the said period. The doubts of the
petitioners as regards the compliance of this provision with
Paragraph 2 of Article 31, Paragraph 1 of Article 109 and
Paragraph 1 of Article 118 of the Constitution on the fact
that, in their opinion, this provision creates preconditions
for the court to discharge functions, which are not
characteristic of it.
According to the petitioners, the possibilities of the
victim to submit the needed evidence to the court are limited
ones, therefore, the right of the court to apply to the
establishment of pre-trial investigation, which is provided for
in Paragraph 2 (wording of 14 March 2002) of Article 414 of the
CCP, virtually becomes a duty to the court itself to collect
all the necessary evidence in order to adopt a decision. In the
opinion of the petitioners, the instruction by the court to the
establishment of pre-trial establishment to investigate the
circumstances of the case is to be assessed as discharging of a
function not characteristic of the court, which is collection
of evidence, i.e., it is not administration of justice, but
criminal persecution. The petitioners assert that depending on
what evidence will be presented, preconditions could be created
to assume that the court is in favour of one or another party
to the case; this could be grounds for the other party to doubt
the impartiality and independence of the court.
According to the petitioners, the prosecutor enjoys
procedural measures to control pre-trial investigation. Under
Paragraph 1 (wording of 20 March 2003) of Article 118 of the
Constitution, pre-trial investigation shall be organised and
directed, and charges on behalf of the state shall be upheld by
the prosecutor. In the opinion of the petitioners, as the
prosecutor does not participate in the proceedings of private
accusation, the court, when it issues instruction to the
establishment of pre-trial investigation, it discharges a
function which is characteristic of the prosecutor; this
permits to assume that in the actions of the court there appear
elements of criminal persecution, which are not characteristic
of administration of justice, which creates preconditions to
doubt the impartiality of the court.
3. The 29 October 2004 petition of the Panevėžys City
Local Court, the petitioner, to the extent that it requests to
investigate whether Article 407 (wording of 19 June 2003),
Paragraph 2 (wording of 14 March 2002) of Article 412 and
Paragraph 5 (wording of 14 March 2002) of Article 413 of the
CCP are not in conflict with the Constitution and the 14
February 2005, 25 February 2005 and 29 August 2005 petitions of
the Šiauliai District Local Court, the petitioner, to the
extent that they request to investigate whether Articles 407,
410, Paragraph 2 of Article 412 and Paragraph 5 of Article 413
of the CCP are not in conflict with the Constitution are
grounded on the following arguments.
3.1. According to the petitioners, by the legal regulation
established in Article 407 (wording of 19 June 2003) and
Paragraph 2 (wording of 14 March 2002) of Article 412 of the
CCP, while in the opinion of the Šiauliai District Local Court,
also in Article 410 of the CCP, the persons who suffered from
the criminal deeds specified in Article 407 of the CCP are
distinguished from the persons who suffered from all the rest
of criminal deeds, bigger requirements are raised to them when
they apply to corresponding state institutions on investigation
into the criminal deeds and on bringing the guilty persons to
criminal liability. The law demands that the victim, when
applying to court under procedure of private accusation,
collect himself and point out in his complaint the data about
the circumstances of the committing of the criminal deed and
about the accused person, however, it does not grant him any
procedural possibilities to get such data. Thus, in the opinion
of the petitioners, the persons who have suffered from the
criminal deeds provided for in Article 407 of the CCP find
themselves in an unequal situation, if compared with the
persons who suffered from other criminal deeds, since the
legislator has deprived them of the opportunity to make use of
certain procedural rights.
3.2 According to the petitioners, Paragraph 5 (wording of
14 March 2002) of Article 413 of the CCP, which provides for
only one possible procedural decision to be adopted in case the
victim who filed a complaint of private accusation and the
person who is accused of committing the criminal deed do not
reach conciliation, implies that the situation of the victims
and the accused in cases of private accusation and of those in
cases where charges are upheld by the state is different with
respect to possible procedural decisions which can be adopted
in their cases. Therefore, the petitioners doubt whether
Paragraph 5 (wording of 14 March 2002) of Article 413 of the
CCP is not in conflict with Paragraph 1 of Article 29 of the
Constitution.
4. The 27 October 2003 petition of the Third Vilnius City
Local Court, the petitioner, and the 29 October 2004 petition
of the Panevėžys City Local Court, the petitioner, to the
extent that they request to investigate whether Item 3 (wording
of 10 April 2003) of Paragraph 5 of Article 234 and Paragraph 2
(wording of 10 April 2003) of Article 244 of the CCP with the
Constitution, the 14 February 2005, 25 February 2005 and 29
August 2005 petitions of the Šiauliai District Local Court, the
petitioner, to the extent that they request to investigate
whether Item 3 of Paragraph 5 of Article 234 and Paragraph 2 of
Article 244 of the CCP are not in conflict with the
Constitution, are grounded on the following arguments.
Item 3 (wording of 10 April 2003) of Paragraph 5 of
Article 234 of the CCP provides that the consideration of the
case shall be postponed when one applies to the Constitutional
Court in cases provided for in laws until the ruling of the
Constitutional Court is received; Paragraph 2 (wording of 10
April 2003) of Article 244 of the CCP provides that the
investigation of the case provided for in Item 3 of Paragraph 5
of Article 234 of this code shall be postponed. Meanwhile,
Paragraph 2 of Article 110 of the Constitution provides that in
cases when there are grounds to believe that the law or other
legal act which should be applied in a concrete case is in
conflict with the Constitution, the judge shall suspend the
consideration of the case and shall apply to the Constitutional
Court requesting it to decide whether the law or other legal
act in question is in compliance with the Constitution. In the
opinion of the petitioners, the notions "postponement of the
consideration of a case" and "suspension of the consideration
of a case" are not identical. Upon postponement of the
consideration of a case, procedural terms are counted, court
sittings can be arranged and other procedural actions can be
done. The new CCP does not contain the notion "suspension of
the consideration of a case", however, in the opinion of the
petitioners, if the consideration of the case is suspended, the
procedural terms would not be counted and no procedural actions
would be done. Since the CCP does not provide for a possibility
to suspend the consideration of the case, courts, when they
apply to the Constitutional Court, cannot suspend cases of
private accusation; this, in their opinion, is in conflict with
Paragraph 2 of Article 110 of the Constitution.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representatives of the Seimas, the party
concerned, who were G. Ivoška, the Chief Advisor of the Legal
Department of the Office of the Seimas, and M. Girdauskas, a
senior advisor of the same department, as well as a letter of
R. Šukys, a Member of the Seimas, which assents to the
explanations presented by M. Girdauskas. The explanations
maintain that the disputed articles (parts thereof) are not in
conflict with the Constitution.
1. The position of G. Ivoška regarding the compliance of
Paragraph 4 (wording of 11 September 2001) of Article 131 of
the formerly valid CCP with Paragraph 1 of Article 30 of the
Constitution is based on these arguments.
1.1. Under the formerly valid CCP the case could not be
instituted, while an instituted case had to be dismissed if the
terms of prescription had passed (Item 3 of Paragraph 1 of
Article 5). The legal meaning of prescription of bringing one
to legal liability (adoption of the judgement of conviction) is
that after the term of prescription has passed the application
of legal liability for the criminal deed to a person becomes
meaningless, since the person, who conforms to the conditions
specified in the criminal law, is considered not to be
dangerous to society. The prescription of adoption of the
judgement of conviction is the time period during which the
pre-trial investigation of the deed must be over and the
judgement of conviction must be adopted.
Paragraph 1 of Article 131 of the formerly valid CCP used
to provide that if there are no grounds for institution of a
criminal case, also if there are circumstances which make the
case impossible, the prosecutor, the investigator, the
investigatory body, the judge or the court shall refuse to
institute a criminal case. According to G. Ivoška, when the
term of prescription of a judgement of conviction is applied,
the principle of justice is implemented and the legitimate
expectations of the person who meets all the conditions that he
cannot be brought to criminal liability are implemented as
well. According to the representative of the party concerned,
if the term of prescription has passed during pre-trial
investigation, the law and order institutions have a duty to
dismiss this investigation (to refuse to institute a criminal
case or to dismiss it) even in the case where the suspect (the
accused) does not agree with this and is willing that the final
decision in his case be adopted by the court; in such cases
continuance of the pre-trial investigation would be
meaningless, as the procedural actions for which work and
financial input are necessary, would be done knowing in advance
that the person would not be punished by criminal punishment.
According to G. Ivoška, the seeking of the person in whose
regard a decision is adopted to refuse to institute a criminal
case to achieve that a judgement of acquittal be adopted is
unreasonable from the standpoint of economy of the criminal
procedure; besides, upon reaching prescription terms the
legitimate expectations are implemented by not instituting a
criminal case (by dismissing the pre-trial investigation), but
not by further investigating the deed in whose regard the
judgement of conviction would not be adopted anyway. Therefore,
in the opinion of the representative of the party concerned,
Paragraphs 3 and 4 of Article 131 of the formerly valid CCP
reasonably did not provide for the right of the person in whose
regard one refused to institute a criminal case to appeal
against such ruling.
1.2. According to the representative of the representative
of the party concerned, the fact that Article 131 of the
formerly valid CCP did not indicate a person from among the
listed subjects who had the right to appeal against the ruling
to refuse to institute a criminal case, in whose regard one
refused to institute the criminal case, is to be regarded as a
coincidental gap in the law, which could be removed by the
court investigating the case, inter alia by applying analogy.
For example, Paragraph 3 of Article 5 of the formerly valid CCP
used to establish the right of the accused to contradict to the
case being dismissed after the terms of prescription have
passed; thus, the accused could seek to achieve that a
judgement of acquittal be adopted and be held indisputably that
he was not guilty, and not that he evaded the punishment only
because the term of prescription had passed. In this context
the representative of the party concerned noted that although
criminal law does not permit analogy of the law, in other
branches of public law, to which criminal procedure law is also
attributable, the court is not permitted to apply analogy and
thus fill legal gaps only when this is related with restriction
of the basic human rights and freedoms, therefore, in the case
at issue this prohibition is not to be applied.
1.3. Under Article 6 of the Constitution, everyone may
defend his rights by invoking the Constitution. Thus, according
to the representative of the party concerned, although
Paragraph 4 of Article 131 of the formerly valid CCP did not
provide for the right of the person in whose regard one refused
to institute a criminal case to appeal against such a ruling,
he was able to defend his right indirectly by invoking
Paragraph 1 of Article 30 of the Constitution which provides
that the person whose constitutional rights or freedoms are
violated shall have the right to apply to court.
2. The position of M. Girdauskas regarding the compliance
of Item 3 (wording of 10 April 2003) of Paragraph 5 of Article
234, Paragraph 2 (wording of 10 April 2003) of Article 244,
Article 407 (wording of 19 June 2003), Paragraph 1 (wording of
14 March 2002) of Article 408, Article 410 (wording of 14 March
2002), Paragraphs 2 and 3 (wording of 14 March 2002) of Article
412, Paragraph 5 (wording of 14 March 2002) of Article 413, and
Paragraph 2 (wording of 14 March 2002) of Article 414 of the
CCP with the Constitution is based upon the following
arguments.
2.1. Private accusation is an institute of criminal
procedure, which has century-old traditions and is known in a
great many of European states. The peculiarities of regulation
of cases of private accusation are determined by the fact that
in this procedure first of all one seeks to reconcile persons,
who are in conflict with each other. Another purpose of
criminal procedure is to establish whether the suspect or the
accused person is guilty of committing the criminal deed and,
providing there are grounds, to justly punish him, is
implemented only if one fails to reconcile them.
In the opinion of the representative of the party
concerned, a possibility of non-state, i.e. private, accusation
also stems from Article 118 of the Constitution, which, inter
alia, provides that pre-trial investigation shall be organised
and directed, and charges on behalf of the state in criminal
cases shall be upheld by prosecutors. However, the procedure of
private accusation must be applied only in cases when there are
no grounds to believe that pre-trial investigation should be
performed and the state charges upheld the necessity of which
is determined by the protection of the public interest.
According to M. Girdauskas, the CCP provides for a possibility
of private accusation only in cases of not grave criminal deeds
and in case of one deed of medium gravity (Paragraph 2 of
Article 152 of the CC).
According to the representative of the party concerned,
the right entrenched in Paragraph 1 of Article 30 of the
Constitution, as well as in criminal procedure, to apply to
court cannot be implemented in any way; the law can and must
entrench grounded requirements which the person must perform so
that he could implement his right to apply to court. In itself,
different legal regulation in respect of certain persons who
are in different situations does not violate the constitutional
principle of equality of persons.
Under Paragraph 3 (wording of 8 July 2004) of Article 409
of the CCP, pre-trial investigation concerning the criminal
deeds specified in Article 407 of this code shall be carried
out under general procedure, if the person suspected of
commission of the criminal deed is not known. Thus, the
disputed provisions of the CCP provide for a duty for the
persons who have suffered from the criminal deeds specified in
Article 407 of the CCP and who seek to institute criminal
proceedings under procedure of private accusation, to specify
the suspected person only when he is known to them. In the
opinion of M. Girdauskas, such requirement is a grounded one.
In addition, under Paragraph 2 of Article 412 of the CCP, it is
required to specify in the complaint the essential
circumstances of the commission of the criminal deed and the
witnesses, thus, one does not require absolutely comprehensive
and accurate data. In assessing whether the complaint of the
victim is line with the requirements of the law, one must
follow also the principle of reasonableness. Thus, according to
the representative of the party concerned, the legal regulation
established in disputed Article 407 (wording of 19 June 2003),
Paragraph 1 (wording of 14 March 2002) of Article 408, and
Paragraph 2 (wording of 14 March 2002) of Article 412, of the
CCP does not prevent the persons who suffered from the criminal
deeds specified in Article 407 of the CCP to institute criminal
proceedings.
The representative of the party concerned drew one's
attention to the fact that the person who thinks that he has
suffered from the deed specified in Article 407 of the CCP and
who wishes to institute criminal proceedings due to this, has
the right to an advocate's assistance. The advocate, by making
use of inter alia the rights established in Article 44 of the
Republic of Lithuania Law on the Bar, may collect the data
which, under Article 412 of the CCP, must be specified in the
complaint; besides, his rights are ensured by Article 231 of
the CC which establishes liability for any hindrance to the
advocate to perform the duties related to the investigation of
the criminal case.
On the other hand, Article 409 of the CCP also provides
that if the criminal deeds specified in Article 407 of the CCP
are of public importance, or if they inflicted harm upon the
person who, due to important reasons, cannot defend his
legitimate interests, the prosecutor also has the right to
institute criminal proceedings in regard of these deeds; in
such a case the pre-trial investigation and consideration of
the case in court take place according to general procedure.
The Republic of Lithuania Law on the Prosecutor's Office
entrenches the powers of the prosecutor's office to defend the
public interest. In the opinion of M. Girdauskas, pre-trial
investigation must be started concerning the private interest
where a person, who has suffered from the criminal deeds
specified in Article 407 of the CCP, cannot submit any
essential data necessary for institution of proceedings of
private accusation, since he, as he does not enjoy the right to
use procedural coercive measures, does not know such data, nor
can he collect them; such reasons are to be considered as
important, which are provided for in Paragraph 1 of Article 409
of the CCP, and constitute grounds to institute criminal
proceedings in defence of the public interest. The person who
thinks that he has suffered from the deeds specified in
Paragraph 1 of Article 409 of the CCP, but who is unable to
submit the said data, has the right to apply to the prosecutor
so that pre-trial investigation would be started; refusal of
the prosecutor to start pre-trial investigation can be appealed
before the judge of pre-trial investigation (Paragraph 4 of
Article 168 of the CCP).
According to the assessment of the representative of the
party concerned, the provisions of Articles 407, 408, and 412
of the CCP provide for objectively justifiable requirements for
the persons who seek to implement the right to apply to court
under procedure of private accusation and these provisions do
not violate the constitutional principle of equality of
persons, nor the constitutional right to apply to court.
2.2. The representative of the party concerned does not
agree with the opinion, either, that Paragraph 5 of Article 413
of the CCP, which provides that if the victim and the person
accused of commission the criminal deed do not reach
conciliation, the judge must refer the case of private
accusation for consideration in trial hearing, is in conflict
with the principles of independence of judges and of equality
of persons, since it does not provide for the right of the
judge to adopt a different decision (for example, to dismiss
the proceedings of private accusation when the complaint is
clearly not valid). The establishment of validity of a
complaint filed under procedure of private accusation is an
assessment, which the court must perform while following the
proper legal process, inter alia the principles of equality
before the court, publicity, and contention, and by paying heed
to the right to be heard in court; therefore the question of
validity of the complaint must be decided when the case is
being considered in trial hearing; in case the court assessed
the validity of the accusation before the trial hearing, it
would have to form a preconceived attitude on the guilt of the
person in regard of commission of the criminal deed, and this
might be not in line with impartiality of the court.
Besides, if the complaint is clearly invalid from the
standpoint of law-if the deed specified in the complaint of
private accusation is not criminal, or if it is such which is
not provided for in Article 407 of the CCP-the court enjoys
powers not to institute the proceedings of private accusation,
i.e. to adopt a decision, which is analogous to that of
dismissing (not instituting) of the proceedings in the cases
where state charges are upheld, in case a deed with signs of a
crime or criminal offence has not been committed (Item 1 of
Paragraph 1 of Article3 of the CCP). If this transpires later,
the court can dismiss the case after it adopts a ruling to
refer the case for consideration in trial hearing (Paragraph 1
of Article 411, Item 7 of Article 232, Item 1 of Paragraph 1 of
Article 3 of the CCP). In addition, the court enjoys powers not
to institute the proceedings of private accusation also in
certain cases when the complaint is clearly not valid in regard
of the fact, since under Article 412 of the CCP the complaint
must be returned to the petitioner if it does not specify the
data confirming the circumstances of the criminal deed.
In the opinion of M. Girdauskas, although the provisions
of the CCP regulating the proceedings of cases of private
accusation obligate the court to refer the case for
consideration in trial hearing when the persons fail to reach
conciliation, they do not prohibit to adopt other decisions,
which are analogous to those which can be adopted in cases, in
which state charges are upheld (for instance, to separate the
case into several cases, to join several cases into one case,
to postpone the consideration of the case, to commission that
the judge of pre-trial investigation perform the procedural
action provided for in Sections 2, 3, 4 and 5 of Chapter XIV of
the CCP or to organise the performance of the action of these
proceedings, or to dismiss the case if the circumstances
provided for in Paragraph 1 of Article 3 of the CCP are
established).
2.3. In the opinion of the representative of the party
concerned, the powers of the court entrenched in Paragraph 2 of
Article 414 of eth CCP to collect, in case of need and upon it
own initiative, the significant evidence in order to justly
solve the criminal case, in themselves cannot be regarded as
being in conflict with the right to an impartial court. The
powers of the court to collect data are not limited only by
collecting the evidence, or the data aggravating liability, or
the data acquitting or mitigating liability. The court must
make use of all opportunities in order to establish the truth
in a criminal case, to comprehensively and impartially
investigate all circumstances of the criminal case, to
establish the actual circumstances of the case correctly, and
to justly apply criminal laws. If the court limited itself only
on the data submitted by the parties of the proceedings,
certain significant circumstances for just solution of the case
might remain not established or could be established not
precisely, in other words, the actual circumstances of the case
would not be established. Due to this one would fail to achieve
the main constitutional objective of criminal proceedings-by
means of legal measures, speedily and thoroughly to detect
crimes and the persons who committed them, to imprison the
culprits and, by properly applying the criminal law, to punish
them justly by ensuring, alongside, that an innocent person is
not held criminally liable nor convicted.
Due to the same reasons, it is impossible to regard the
said powers of the court as incompatible with the provisions of
Paragraph 1 of Article 118 of the Constitution as well, which
cannot be opposed to the provisions of Articles 109 and 31 of
the Constitution. The prosecutor's being in charge of pre-trial
investigation and its organising do not deny the powers of the
court to collect, in case of need and upon its own initiative,
the evidence which are significant in order to solve the case
justly. Pre-trial investigation is designated for forming the
certitude of the prosecutor that is it necessary to apply to
court by upholding charges on behalf of the state. Meanwhile,
the purpose of collection of evidence performed by the court is
different-it is to ensure that a really just decision is
adopted, i.e. to implement justice.
Besides, pre-trial investigation is not carried out in
cases of private accusation. Therefore, the commissioning by
the judge that the establishment of pre-trial investigation
investigate during the established period into the
circumstances of the case that the court is unable to establish
itself, which is provided for in Paragraph 2 of Article 414 of
the CCP, cannot be regarded as organising of pre-trial
investigation and being in charge of it, i.e. as taking over of
the functions of the prosecutor provided for in Paragraph 1 of
Article 118 of the Constitution.
Therefore, according to the assessment of the
representative of the party concerned, Paragraph 2 of Article
414 of the CCP is not in conflict with Paragraph 2 of Article
31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118
of the Constitution.
2.4. In the opinion of the representative of the party
concerned, the arguments of the petitioners regarding the
conflict of Article 410 of the CCP with Paragraph 1 of Article
29 of the Constitution are not related with the matter of
regulation of this article of the CCP.
2.5. When assessing the compliance of Item 3 of Paragraph
5 of Article 234 and Paragraph 2 of Article 244 of the CCP with
Paragraph 2 of Article 110 of the Constitution, the
representative of the party concerned noted that a law can be
regarded as conflicting with the Constitution only when it is
impossible to remove the doubts concerning its compliance with
the Constitution by construing the law and revealing such its
content which could be in line with the Constitution.
Meanwhile, neither the disputed nor other norms of the CCP
obligate the court to arrange court hearings after the case is
postponed, nor to perform other procedural actions in the case,
while in respect with the norms establishing calculation of
terms of the consideration of the case the disputed norms are
to be held special norms. Therefore, according to M.
Girdauskas, under the disputed norms by postponing the
consideration of the case procedural actions cannot be
performed in it nor the terms of consideration of the case may
be calculated. Such construction is in line with the provision
of Paragraph 2 of Article 110 of the Constitution that the
court, when it applies to the Constitutional Court, suspends
the consideration of the case.
IV
In the course of the preparation of the case for the
judicial consideration, written explanations were received from
G. Švedas, Vice-minister of Justice of the Republic of
Lithuania, G. Jasaitis, Deputy Prosecutor General of the
Republic of Lithuania, Dr. R. Merkevičius, assistant of the
Department of Criminalistics and Criminal Procedure of the
Faculty of Law of Vilnius University, Dr. R. Ažubalytė, Head of
the Department of Criminal Procedure of the Faculty of Law of
Mykolas Romeris University and S. Jazukonis and R. Jurka,
lecturers of the same department.
V
1. At the constitutional court hearing, the judge O.
Šibkovas, the representative of the Third Vilnius City Local
Court, virtually reiterated the arguments set forth in the 27
October 2003 ruling of the same court.
2. At the Constitutional Court hearing, R. Šukys, M.
Girdauskas and G. Ivoška, representatives of the party
concerned, the Seimas, virtually reiterated the arguments set
forth in the written explanations of M. Girdauskas and G.
Ivoška.
The Constitutional Court
holds that:
I
1. On 14 March 2002, the Seimas adopted the Republic of
Lithuania Law on the Approval, Entry into Force and
Implementation of the Code of Criminal Procedure by Article 1
whereof it approved the Code of Criminal Procedure of the
Republic of Lithuania. Under Paragraph 2 of the Law on the
Approval, Entry into Force and Implementation of the Code of
Criminal Procedure, the date of entry into force of the Code of
Criminal Procedure had to be established by a separate law.
On 29 October 2002, the Seimas adopted the Republic of
Lithuania Law on the Procedure for Entry into Force and
Implementation of the Criminal Code Approved by Law No.
VIII-1968 of 26 September 2000, the Code of Criminal Procedure
Approved by Law No. IX-785 of 14 March 2002 and the Code of
Execution of Punishments Approved by Law No. IX-994 of 27 June
2002, in which it inter alia established that the Code of
Criminal Procedure shall come into force as from 1 May 2003
(Article 1), and that after the new Code of Criminal Procedure
comes into force, the old Code of Criminal Procedure shall
become no longer valid (Paragraph 2 of Article 47).
The new Code of Criminal Procedure was amended and/or
supplemented by the Republic of Lithuania Law on Amending and
Supplementing the Law on Courts, the Law on the Legal
Proceedings of Administrative Cases, the Code of Civil
Procedure and the Code of Criminal Procedure, which was adopted
by the Seimas on 8 April 2003, the Republic of Lithuania Law on
Amending and Supplementing Articles 21, 48, 50, 52, 127, 142,
143, 151, 158, 161, 163, 165, 212, 217, 232, 233, 234, 237,
244, 254, 255, 256, 266, 276, 287, 303, 318, 319, 322, 323,
326, 327, 329, 332, 342, 351, 353, 362, 375, 380, 397, 421,
440, 458, 459 of the Code of Criminal Procedure Approved by Law
No. IX-785 of 14 March 2002 and Supplementing the Code with
Article 3621, which was adopted by the Seimas on 10 April 2003,
by the Republic of Lithuania Law on Amending and Supplementing
Articles 151, 168, 186, 276, 407 and 409 of the Code of
Criminal Procedure, which was adopted by the Seimas on 19 June
2003, the Republic of Lithuania Law on Amending Articles 1 and
2 of the Fourth Chapter of the Law on Amending and
Supplementing the Law on Courts, the Law on the Legal
Proceedings of Administrative Cases, the Code of Civil
Procedure and the Code of Criminal Procedure, which was adopted
by the Seimas on 16 September 2003, the Republic of Lithuania
Law on Supplementing and Amending Article 154 of the Code of
Criminal Procedure, which was adopted by the Seimas on 29
January 2004, the Republic of Lithuania Law on Amending and
Supplementing Articles 1, 51, 70, 72, 73, 74, 75, 76, 122, 437
of the Code of Criminal Procedure and Supplementing the Code
with Articles 171, 691, 711, 771 and an Annex, which was
adopted by the Seimas on 27 April 2004, the Republic of
Lithuania Law on the Amendment and Supplementing Articles 65,
94, 103, 109, 139, 151, 154, 158, 168, 181, 218, 220, 225, 232,
237, 239, 240, 306, 313, 346, 360, 364, 370, 377, 403, 409,
418, 421, 422, 425, 426, 429, 446, 456, 457, 458 and Amending
the Title of Chapter XXXV of the Code of Criminal Procedure,
which was adopted by the Seimas on 8 July 2004, the Republic of
Lithuania Law on amending Articles 120, 121, and 126 of the
Code of Criminal Procedure and Supplementing It with Article
1321, which was adopted by the Seimas on 9 November 2004, the
Republic of Lithuania Law on Amending Articles 50, 51, 103,
104, 106, 118, 361 and 431 of the Code of Criminal Procedure,
which was adopted by the Seimas on 20 January 2005, and by the
Republic of Lithuania Law on Amending Articles 210, 263, 269,
and 277 of the Code of Criminal Procedure, which was adopted by
the Seimas on 22 November 2005.
2. The petitioners request to investigate whether one of
the paragraphs of an article of the formerly valid CCP, which
used to regulate the relations linked with refusal to institute
a criminal case, was not in conflict with the provision of the
Constitution which establishes the right of persons to apply to
court, also whether certain articles (parts thereof) of the new
CCP which regulate the relations of the procedure of cases of
private accusation and also the relations linked with
postponement of consideration of a case, are not in conflict
with the provisions of the Constitution consolidating equal
rights of persons, the right to apply to court, the right to a
fair and impartial court, the independence of the judge and
courts when they administer justice, the duty of the judge to
suspend the consideration of the case when he applies to the
Constitutional Court, as well as the constitutional status of
prosecutors.
3. The Constitution shall be an integral and directly
applicable act (Paragraph 1 of Article 6 of the Constitution).
The Constitutional Court has held many a time that all
provisions of the Constitution are interrelated and constitute
a single and harmonious system, that there is a balance among
the values consolidated in the Constitution, that it is not
permitted to construe any provision of the Constitution so that
the content of another provision of the Constitution is
distorted or denied, since thus the essence of the entire
constitutional legal regulation would be distorted and the
balance of constitutional values would be disturbed.
The provisions of the Constitution entrenching the equal
rights of persons, the right to apply to court, the right to a
fair and impartial court, the independence of the judge and
courts when they administer justice, the duty of the judge to
suspend the consideration of the case when he applies to the
Constitutional Court, as well as the constitutional status of
prosecutors, are related with one another and with other norms
and principles of the Constitution.
4. The said constitutional provisions are to be construed
also in the context of the constitutional principle of a state
under the rule of law, which is a universal principle and upon
which the entire legal system of Lithuania and the Constitution
of the Republic of Lithuania itself are based.
The essence of the constitutional principle of a state
under the rule of law is the rule of law. The constitutional
imperative of the rule of law means that the freedom of power
is limited by law which must be obeyed by all entities of legal
relations. The Constitutional Court has held that the
constitutional principle of a state under the rule of law must
be followed both in law-making and in implementation of law
(Constitutional Court ruling of 6 December 2000). In its
rulings the Constitutional Court has held more than once that
the principle of a state under the rule of law entrenched in
the Constitution implies, along with the other requirements,
also that human rights and freedoms must be ensured, that all
institutions implementing state power as well as other state
and municipal institutions, all officials must act by following
law, by obeying the Constitution and law, that the Constitution
has the supreme legal power and that all legal acts must be in
compliance with the Constitution.
The constitutional principle of a state under the rule of
law implies various requirements for the legislator and other
law-making entities: the law-making entities may pass legal
acts only without exceeding their powers; the requirements
established in legal acts must be based on the provisions of
general type (legal norms and principles) which can be applied
in regard to all the specified subjects of respective legal
relations; the differentiated legal regulation must be based
only on objective differences of the situation of subjects of
public relations regulated by respective legal acts; in order
to ensure that the subjects of legal relations are aware of
requirements put forward to them by legal norms, the legal
norms must be established in advance, the legal acts must be
published officially, they must be public and accessible; the
legal regulation established in laws and other legal acts must
be clear, easy to understand, consistent, formulas in the legal
acts must be explicit, consistency and internal harmony of the
legal system must be ensured, the legal acts may not contain
any provisions, which at the same time regulate the same public
relations in a different manner; in order that subjects of
legal relations could orient their behaviour according to the
requirements of law, the legal regulation must be relatively
stable; the legal acts may not require the impossible (lex non
cogit ad impossibilia); the power of the legal acts is
prospective, while retrospective validity of the laws and other
legal acts is not permitted (lex retro non agit) unless the
legal act mitigates the situation of the subject of legal
relations and does not injure other subjects of legal relations
by the same (lex benignior retro agit); violations of law, for
which liability is established in legal acts, must be clearly
defined; when setting legal restrictions and liability for
violations of law, one must pay heed to the requirement of
reasonableness and the principle of proportionality, according
to which the established legal measures are to be necessary in
a democratic society and suitable for achieving legitimate and
universally important objectives (there must be a balance
between the objectives and measures), they may not restrict the
rights of the person more than it is necessary in order to
achieve the said objectives, and if these legal measures are
related to the sanctions for the violation of law, in such case
the aforementioned sanctions must be proportionate to the
committed violation of law; when legally regulating public
relations it is compulsory to pay heed to the requirements of
natural justice comprising inter alia the necessity to ensure
the equality of persons before the law, the court and state
institutions and officials; when issuing legal acts, one must
pay heed to procedural law-making requirements, including those
established by the law-making entity itself; etc.
(Constitutional Court rulings of 13 December 2004, 29 December
2004, and 29 September 2005).
The constitutional principle of a state under the rule of
law must be followed when applying law as well. The
constitutional principle of a state under the rule of law
implies the right of a person to proper legal process. When
applying law, one must inter alia pay heed to the following
requirements originating from the constitutional principle of a
state under the rule of law, for example: the law-applying
institutions must follow the requirement of equal rights of
persons; it is not permitted to punish for the same violation
of law twice (non bis in idem); liability (sanction,
punishment) for violations of law must be established in
advance (nullum poena sine lege); an act is not considered to
be criminal, if it is not provided for in the law (nullum
crimen sine lege), etc. In this context it is worth mentioning
also that the constitutional principle of a state under the
rule of law requires that the jurisdictional and other
institutions which apply law be impartial, independent, that
they seek to establish the objective truth and that they adopt
their decisions only on the grounds of law (Constitutional
Court rulings of 11 May 1999, 19 September 2000, 24 January
2003, 13 December 2004, and 29 December 2004).
The constitutional principle of a state under the rule of
law obliges that the institutions that apply law not deviate
from general legal principles consolidated in the jurisprudence
of democratic states under the rule of law.
5. In the context of the constitutional justice case at
issue, it needs to be noted that the strife for an open, just,
and harmonious civil society and a state under the rule of law
established in the Preamble to the Constitution pre-supposes
that every individual and the whole society must be safe from
unlawful attempts against them (Constitutional Court ruling of
8 May 2000).
Crimes are violations of law by which human rights and
freedoms as well as other values protected and defended by the
Constitution are especially grossly violated, negative impact
is made on the living conditions, the subsistence level of
people, and by which the fundamentals of life of the state and
society are encroached upon (Constitutional Court rulings of 8
May 2000 and 29 December 2004). The purpose of the state as a
political organisation of the entire society is to ensure human
rights and freedoms and to guarantee the public interest,
therefore, while exercising its functions and acting in the
interests of the entire society, the state has the obligation
to efficiently ensure effective protection of human rights and
freedoms, other values protected and defended by the
Constitution, of every individual and the whole society from
inter alia criminal attempts (Constitutional Court ruling of 29
December 2004). If the state did not resort to proper actions
attempting to prevent crimes, the trust in the state power and
laws would be ruined, disrespect for the legal order and
various social institutes would increase. Therefore, under the
Constitution, the state, as the organisation of the entire
society, which must guarantee the public interest, not only has
the right but also an obligation to resort to various lawful
measures, which prevent crimes and limit and decrease
criminality (Constitutional Court ruling of 8 May 2000).
The measures established and applied by the state, which
prevent crimes and limit and decrease criminality must be
efficient (Constitutional Court ruling of 8 May 2000). One is
also to note that, as held by the Constitutional Court, in the
Constitution one has consolidated the concept of a democratic
state, where the state not only seeks to protect and defend the
person and society from crimes and other dangerous violations
of law, but also is able to do this efficiently (Constitutional
Court ruling of 29 December 2004).
The resources (material, human, etc.) allocated for
protection of the person and society against criminal attempts
must be distributed and used rationally.
6. In a democratic state under the rule of law the
legislator has a right as well as a duty to legislatively
prohibit deeds, by which essential harm is inflicted upon
interests of persons, society or of the state or which pose
threat that such harm will appear. Under the Constitution, only
by means of a law is it permitted to define what deeds are
criminal ones, and to establish legal liability for such deeds
is permitted by means of a law as well. Only such deeds may
legislatively be recognised criminal ones, which are really
dangerous and by which harm is really inflicted upon the
interests of the person, society and of the sate, or due to
such deeds there is a threat that such harm will be inflicted
(Constitutional Court ruling of 8 May 2000).
7. When regulating the relations linked with the
establishment of criminal liability for criminal deeds, the
legislator enjoys broad discretion, he, inter alia, may, while
taking account of the nature, danger (gravity), scale and other
signs of the criminal deeds, consolidate differentiated legal
regulation and establish different legal liability for
corresponding criminal deeds. However, this discretion of the
legislator is not absolute: the legislator must pay heed to the
norms and principles of the Constitution, inter alia the
imperatives of regularity and inner consistency of the legal
system, which arise from the Constitution.
8. An obligation of the sate, which arises from the
Constitution, to ensure the security of each person and all
society from criminal attempts implies not only the right and
duty of the legislator to define criminal deeds and establish
criminal liability for them by means of laws, but also his
right and duty to regulate relations linked with detection of
and investigation onto criminal deeds and consideration of
criminal cases, i.e. the relations of criminal procedure. The
relations of criminal procedure must be regulated by means of a
law in a way that legal pre-conditions might be created to
speedily detect and thoroughly investigate criminal deeds, to
punish the persons who committed the criminal deeds justly (or
to decide the issue of their criminal liability by law
otherwise), as well as legal pre-conditions to ensure that no
one who is innocent is punished. It is necessary to seek to
achieve that the protection of rights of the persons who
suffered from criminal deeds, also that the rights of the
persons who committed criminal deeds are not unreasonably
restricted. The legal regulation of criminal procedure should
not create any pre-conditions to procrastinate the
investigation into criminal deeds nor consideration of criminal
cases, nor should it create any pre-conditions for participants
of the criminal procedure to abuse their procedural and other
rights. Otherwise, the constitutional obligations of the state
to ensure by legal measures the security of each person and the
entire society and the implementation of the legal order based
on the constitutional values would become more difficult.
The aforementioned imperatives that arise from the
Constitution have been mentioned in the jurisprudence of the
Constitutional Court more than once, in which the official
constitutional doctrine is formulated. For instance, the
Constitutional Court has held that the legislator must
establish such procedure of proceedings of criminal cases,
which could create pre-conditions to detect crimes and persons
who committed them promptly by legal measures, to incarcerate
the culprits and to punish them justly by proper application of
the criminal law (Constitutional Court ruling of 19 September
2000). The Constitutional Court has also noted many a time that
to ensure protection of the rights of the person who is
suspected of committing a crime, and to avoid unreasonable
criminal persecution of the person, as well as unjust
punishment, since an innocent person may not be brought to
criminal liability and convicted, is of no less importance
(Constitutional Court rulings of 5 February 1999, 8 May 2000
and 19 September 2000).
9. When he regulates relations of criminal procedure, the
legislator enjoys rather broad discretion. For instance, the
legislator may establish, by means of a law, different kinds of
criminal procedure, as well as peculiarities of criminal
procedure in the investigation of certain criminal deeds and/or
in the consideration of criminal cases of individual
categories, inter alia different rules of investigation of
certain criminal deeds, the peculiarities of the legal status
of participants of the criminal procedure etc.
However, when implementing the said discretion, the
legislator must pay heed to the norms and principles of the
Constitution, inter alia the provisions of the Constitutions,
which are pointed out by the petitioner, and which consolidate
the equal rights of persons, the right to apply to court, the
right to a fair and impartial court, the independence of the
judge and courts when they administer justice, the duty of the
judge to suspend the consideration of the case when he applies
to the Constitutional Court, as well as the constitutional
status of prosecutors.
For example, as held by the Constitutional Court, the
legal regulation of criminal procedure must be based on the
constitutional principles of lawfulness, equality before the
law and the court, presumption of innocence, public and fair
trial, impartiality and independence of the court and the
judge, separation of the functions of the court and other state
institutions (officials) which participate in the criminal
procedure, the guarantee of the right to defence as well as on
other principles (Constitutional Court rulings of 5 February
1999, 8 May 2000 and 19 September 2000).
10. When relations of criminal procedure are regulated,
one must also pay heed to the fact that the Constitution
entrenches institutes of pre-trial investigation, of
consideration of criminal cases in court, and of upholding of
charges on behalf of the state in criminal cases. These
constitutional institutes imply the following general
constitutional model of criminal procedure: pre-trial
investigation and consideration of the criminal case in court
are different stages in criminal procedure; during the
pre-trial investigation one collects and assess the information
necessary so that it would be possible to decide whether the
pre-trial investigation must be continued and whether, after it
is completed, the criminal case must be referred to court, also
whether it is possible to consider the case in court to solve
it justly; charges on behalf of the state are upheld in the
course of consideration of the case in court.
In itself, the constitutional entrenchment of the said
general model of criminal procedure does not eliminate an
opportunity to regulate the relations of criminal procedure so
that in certain cases (especially when one takes account of the
nature, danger (gravity), scale, other signs of criminal deeds
as well as other circumstances of importance) pre-trial
investigation is not conducted and/or charges on behalf the
state are not upheld in court. Thus, the Constitution does not
prevent the legislative consolidation of also such kinds of
criminal procedure which are more or less different from the
general constitutional model of criminal procedure. However,
such kinds of criminal procedure are to be treated as
exceptions to the general constitutional model of criminal
procedure; their establishment must be constitutionally
grounded.
11. When relations of criminal procedure are regulated,
one must pay heed to the constitutional principle of equal
rights of persons. In its acts the Constitutional Court has
held more than once that the constitutional principle of equal
rights of persons must be followed in passing of laws and in
their implementation as well as in administration of justice,
that this constitutional principle obliges to legally assess
homogeneous facts in the same manner and prohibits to
arbitrarily assess the same facts in a varied manner, that the
constitutional principle of equal rights of persons means the
innate human right to be treated equally with others, it
consolidates the formal equality of all persons, also that
person may not be discriminated and that they may not be
granted privileges.
The constitutional principle of equal rights of persons
would be violated if a certain group of persons to whom the
legal norm is designed would, if compared with the other
addressees of the same norm, be treated differently, even
though there are not any differences between these groups so
that such unequal treatment would be objectively justified
(Constitutional Court rulings of 20 November 1996, 30 December
2003 and 13 December 2004).
As the Constitutional Court held many a time in its acts,
the constitutional principle of equal rights of persons does
not deny a possibility to establish different (differentiated)
legal regulation in respect to certain categories of persons
who are in different situations. It has been held in this
Ruling of the Constitutional Court that, in itself, the
constitutional entrenchment of the said general model of
criminal procedure does not eliminate an opportunity to
regulate the relations of criminal procedure so that in certain
cases pre-trial investigation is not conducted and/or charges
on behalf the state is not upheld in court and that the
Constitution does not prevent the legislative consolidation of
also such kinds of criminal procedure which are more or less
different from the general constitutional model of criminal
procedure, but such kinds of criminal procedure are to be
treated as exceptions to the general constitutional criminal
procedure; their establishment must be constitutionally
grounded.
In the context of the constitutional justice case at issue
one is also to note that under the Constitution, the legal
regulation must be such so that participants of criminal
procedure who enjoy the same procedural status (the victims,
the persons suspected of commission of the criminal deed, the
accused, witnesses, counsel for the defence etc.) would be
treated equally. Thus, the participants of criminal procedure
who enjoy the same procedural status must also have the same
rights and duties, unless there are differences of such
character and scale that unequal treatment would be objectively
justified. Otherwise, one would deviate from the constitutional
principles of a state under the rule of law and equality of
persons.
Alongside, it needs to be noted that by such
differentiated regulation of legal relations of criminal
procedure the rights of participants of criminal procedure
which stem from the Constitution, or their implementation
cannot be burdened so that it becomes impossible.
12. When regulating the relations of criminal procedure,
the right of the person to apply to court consolidated in the
Constitution may not be violated in any respect.
12.1. The provision of Paragraph 1 of Article 30 of the
Constitution that the person whose constitutional rights or
freedoms are violated shall have the right to apply to court
means that in Lithuania, as a state under the rule of law,
everyone must be ensured an opportunity to defend his rights in
court against unlawful actions of other persons as well as
against those of state institutions or officials
(Constitutional Court rulings of 1 October 1997, 4 March 2003
and 17 August 2004). A person must be guaranteed the right to
an independent and impartial arbiter of the dispute, which,
under the Constitution and laws, would in essence solve the
dispute at law; every person who believes that his rights and
freedoms have been violated enjoys the right to defend his
rights and freedoms in court-the implementation of the right to
apply to court is determined by realisation of the person
himself that his rights or freedoms are violated; the defence
of the violated rights is guaranteed to the person regardless
of his legal status; the violated rights, inter alia acquired
rights, and legitimate interests of the person must be defended
in court regardless of whether they are directly entrenched in
the Constitution; the rights of the person must be defended
against unlawful actions of other persons as well as against
those of state institutions or officials not formally, but
efficiently and in reality (Constitutional Court rulings of 1
October 1997, 8 May 2000, 12 July 2001, 17 August 2004 and 7
February 2005). The constitutional right of the person to apply
to court, when construed in the context of other provisions of
the Constitution, also implies that the law must establish such
legal regulation so that it would be possible to appeal against
a final act adopted by a court of general jurisdiction or a
specialised court established under Paragraph 2 of Article 111
of the Constitution at least in one court of higher instance.
The guarantee of the judicial protection of rights and
freedoms of the person is a guarantee of procedural character,
an essential element of the constitutional institute of the
rights and freedoms of the person and an inseparable element of
the content of the constitutional principle of a state under
the rule of law (Constitutional Court rulings of 30 June 2000,
17 August 2004, and 13 December 2004). The right of the person
to apply to court also implies his right to proper legal
process (Constitutional Court rulings of 13 December 2004 and
29 December 2004).
The right to apply to court is absolute; the right of a
person to apply to court cannot be artificially restricted, nor
its implementation may be unreasonably burdened (Constitutional
Court rulings of 30 June 2000, 17 August 2004, 13 December 2004
and 7 February 2005). Otherwise, one would have to state
pretentious character of this constitutional right
(Constitutional Court rulings of 14 February 1994 and 22
February 2001).
Thus, under the Constitution, the legislator has a duty to
establish such legal regulation by means of law so that it
would be possible to solve all disputes concerning violation of
the rights and freedoms of the person, including acquired
rights, in court (Constitutional Court rulings of 2 July 2002,
4 March 2003, 17 August 2004, 29 December 2004 and 7 February
2005). Alongside, it needs to be noted that the constitutional
right of the person to apply to court cannot be construed as
meaning that, purportedly, the legislator may establish only
such legal regulation whereby a person, who seeks to defend the
rights and freedoms which, in his opinion, were violated, would
be able to apply to court only directly. In its acts the
Constitutional Court has held many a time that legal acts can
also establish a procedure of out-of-court settlement of
disputes, however, it is not permitted to establish any such
legal regulation which would deny the right of a person, who
thinks that his rights or freedoms have been violated, to
defend his rights or freedoms in court (Constitutional Court
rulings of 2 July 2002, 4 March 2003, 17 August 2004, 29
December 2004 and 7 February 2005).
12.2. In the context of the constitutional justice case at
issue, it needs to be noted that the obligation of the state,
which arises from the Constitution, to protect each person and
the entire society form criminal attempts and the right of the
person to proper legal process imply the right of each person,
who thinks that his rights have been violated because of a
criminal deed, to defend his rights in court and a duty of the
state to ensure an efficient mechanism of implementation of
this right of the person. In this area the legislator enjoys
rather broad discretion: he can provide for the grounds
according to which investigation into the criminal deed is
commenced, for entities (institutions), which commence the
investigation into the criminal deed, etc. In the context of
the constitutional justice case at issue, it needs to be noted
that the legislator, while regulating the relations of criminal
procedure, while taking account of the nature, danger
(gravity), scale, other signs of criminal deeds as well as
other circumstances of importance, may consolidate such legal
regulation so that a mere application (petition, statement,
complaint, etc.) from a victim (of his representative)
concerning a criminal deed may serve as the grounds for
commencement of investigation into a certain criminal deed.
However, by establishing such legal regulation, the legislator
may not create any legal pre-conditions to deny the obligation
of the state, which arises from the Constitution and inter alia
the principle of a state under the rule of law, to protect each
person and the entire society form criminal attempts, nor
artificially or unreasonably burden the implementation of the
right of the person to defend his rights in court.
In the context of the constitutional justice case at
issue, it needs to be noted that the constitutional right of
the person to apply to court does not mean that in the
procedural laws, inter alia the laws regulating the relations
of criminal procedure, the legislator cannot establish a
procedure of application to court and certain formal
requirements, which the application filed to the court must
conform. It also needs to be noted that the constitutional
right of the person to apply to court does not prevent the
legislator from establishing also the formal requirements
applied to the application of the person, subsequent to which
investigation into a criminal deed or consideration of a
criminal case in court can be commenced. In itself, the
establishment of such formal requirements does not mean that
the constitutional right of the person to apply to court has
been artificially restricted or that the implementation of this
right has been burdened unreasonably. However, the legislator,
when regulating the procedure for application to court and
while establishing certain requirements which an application
filed to court must conform, inter alia the requirements
applied to the application to court subsequent to which to
which investigation into a criminal deed or consideration of a
criminal case in court is commenced, may not establish any such
legal regulation whereby the implementation of a certain
constitutional right or legitimate interest of the person,
inter alia the right of the person to judicial defence as well,
would be burdened unreasonably or its implementation would
altogether become impossible. Otherwise, the Constitution would
be violated, inter alia the right of the person to judicial
defence consolidated in Paragraph 1 of Article 30 of the
Constitution, the right of the person and society to safety
from criminal attempts and the right of the person to proper
legal process, which arise from the principle of a state under
the rule of law.
In the context of the constitutional justice case at
issue, it also needs to be noted that, under the Constitution,
one must legislatively regulate the relations of criminal
procedure in a way that the entities of the relations of
criminal procedure, who think that their rights have been
violated, would enjoy the right to defend their rights in court
regardless of their legal status in criminal proceedings.
Otherwise, pre-conditions would be created to violate the
constitutional right of the person to judicial defence, thus,
also Paragraph 1 of Article 30 of the Constitution.
In this context one is also to note that the legislator,
when regulating the relations of criminal procedure, may also
establish such legal regulation, so that no person is allowed
to abuse the constitutional right to apply to court, in case
there are not any grounds for such application.
13. When regulating the relations of criminal procedure,
one must also pay heed to the imperative of presumption of
innocence entrenched in the Constitution. One must follow this
constitutional imperative not only in the course of
consideration of a criminal case in court, but also during
pre-trial investigation. As the Constitutional Court has noted
more than once, the presumption of innocence is one of the most
important guarantees of administration of justice in a
democratic state under the rule of law and, alongside, an
important guarantee for human rights and freedoms
(Constitutional Court rulings of 12 April 2001 and 29 December
2004). Paragraph 1 of Article 31 of the Constitution provides
that a person shall be presumed innocent until proved guilty
according to the procedure established by law and declared
guilty by an effective court judgement. In its ruling of 29
December 2004, the Constitutional Court emphasised that it is
especially important that state institutions and officials
follow the presumption of innocence, that public persons should
in general restrain from referring to a person as a criminal
until the guilt of the person in committing the crime is proven
upon the procedure established by the law and recognised guilty
by an effective court judgement, otherwise, human honour and
dignity could become violated and human rights and freedoms
could be undermined.
14. It has been mentioned that the institutes of pre-trial
investigation and upholding of charges on behalf of the state
in criminal cases entrenched in the Constitution imply the
general constitutional model of criminal procedure, according
to which pre-trial investigation and consideration of the
criminal case in court are different stages in criminal
procedure.
As mentioned, during the pre-trial investigation one
collects and assess the information necessary so that it would
be possible to decide whether the pre-trial investigation must
be continued and whether, after it is completed, the criminal
case must be referred to court, also whether it is possible to
consider the case in court to solve it justly.
14.1. While legislatively regulating pre-trial
investigation and executing it, one must follow the norms and
principles of the Constitution, which inter alia consolidate
equal rights of persons, inviolability of freedom of the human
being, prohibition to degrade human dignity, inviolability of
the person, private life and home of the human being,
presumption of innocence, the right of the person to judicial
defence and the right to have an advocate.
Pre-trial investigation must be carried out objectively,
in a qualified manner, impartially, comprehensively, and the
amount of information must be collected during this
investigation so that it would be sufficient in order to solve
the criminal case in court.
Pre-trial investigation cannot be such that its
deficiencies could hinder the court to justly solve the issue
of a person's guilt of commission of a criminal deed. The
legislator, while paying heed to the Constitution, must
establish such legal regulation so that if pre-trial
investigation is performed in an non-qualified manner, not
comprehensively or has other faults, it might be possible to
carry out the pre-trial investigation (or its separate actions)
repeatedly.
One must especially underline that the decisions adopted
during pre-trial investigation must be clear and based on legal
arguments. The clarity of these decisions and their grounding
on legal arguments is an important guarantee of the
constitutional rights and freedoms of the person, inter alia
the right to just legal process, as well as the right to
judicial defence.
Under the Constitution, it is not permitted to establish
any such legal regulation whereby appealing against decisions
adopted during pre-trial investigation at court is not allowed.
14.2. As mentioned, in itself, the constitutional
entrenchment of the said general model of criminal procedure
does not eliminate an opportunity to regulate the relations of
criminal procedure so that in certain cases (especially when
one takes account of the nature, danger (gravity), scale, other
signs of criminal deeds as well as other circumstances of
importance) pre-trial investigation is not conducted. However,
the legislator, when consolidating such legal regulation
whereby pre-trial investigation is not conducted when criminal
cases of individual categories are investigated, may not create
any legal pre-conditions burdening administration of justice or
violating the interests of the person and society in the aspect
that the right of the person and of the entire society, which
arises from the Constitution, to security from criminal
attempts is denied. In this case a duty appears to the
legislator to provide for other legal measures ensuring a
possibility to collect all the necessary information necessary
in order to adopt a just court decision. In the context of the
constitutional justice case at issue it needs to be noted that
the legislator, while regulating the relations of criminal
procedure, under the Constitution is not permitted to
consolidate any such legal regulation which prevents
performance of pre-trial investigation or separate procedural
actions in order to establish the person who is suspected of
committing the criminal deed, or the circumstances of
commission of such deed if it is impossible to achieve this
without conducting pre-trial investigation or performance of
certain procedural actions. Otherwise, one would disregard the
imperatives of protection of the person and the entire society
from criminal attempts and the right of the person to proper
legal process, which arise from the constitutional principle of
a state under the rule of law.
15. Under the Constitution, pre-trial investigation shall
be organised and directed by the prosecutor. The constitutional
status of prosecutors is defined in Article 118 of the
Constitution (wording of 20 March 2003).
15.1. On 20 March 2003, the Seimas adopted the Republic of
Lithuania Law on the Alteration of Article 118 of the
Constitution. This law came into force on 21 April 2003.
In its ruling of 13 May 2004, the Constitutional Court
held that upon the entry of Law on the Alteration of Article
118 of the Constitution, the Constitutional Court formulates
the official constitutional doctrine on the basis of the new
wording set forth in Article 118 of the Constitution; that only
the Constitutional Court has powers, in each case, after an
amendment to the Constitution has gone into effect, to hold
that it is impossible, while construing the Constitution, to
base oneself (and to which extent) on the doctrine formulated
by the Constitutional Court on the grounds of the former
provisions of the Constitution. This can also be said about the
constitutional doctrinal statements defining the legal status
of prosecutors, their relations with officials of pre-trial
investigation and their powers in court.
15.2. It was held in the Constitutional Court ruling of 13
May 2004 that under the Constitution, the Prosecutor's Office
of the Republic of Lithuania is a centralised state institution
with specific authoritative powers, it is not ascribed to the
institutions executing state power, which are indicated in
Paragraph 1 of Article 5 of the Constitution, that it is not a
constituent part of the judicial power, also that the
prosecutor is a state official enjoying specific authoritative
powers and that his functions are different from administration
of justice. The functions of prosecutors are entrenched in
Article 118 (wording of 20 March 2003) of the Constitution: the
prosecutor organises and directs pre-trial investigation and
upholds charges on behalf of the state in criminal cases
(Paragraph 1); in cases established by law, the prosecutor
defends the rights and legitimate interests of the person,
society and the state (Paragraph 2). It is established in
Paragraph 3 of Article 118 of the Constitution that when
performing his functions, the prosecutor shall be independent
and shall obey only the law.
15.3. Under the Constitution, no one else but the
prosecutor can organise and direct pre-trial investigation
(Constitutional Court ruling of 13 May 2004). The provision of
Paragraph 1 of Article 118 of the Constitution that pre-trial
investigation shall be organised and directed by the
prosecutor, obliges the legislator to establish the powers of
prosecutors in organising and direction of pre-trial
investigation. While regulating this, the legislator enjoys
rather broad discretion: when taking account of the nature,
danger (gravity), scale, other signs of criminal deeds as well
as other circumstances of importance, he can establish various
forms of organisation and direction of pre-trial investigation
as well as certain powers of prosecutors in this procedure,
etc. However, in this case the legislator is bound by the norms
and principles of the Constitution, inter alia by the
obligation stemming from the Constitution to ensure the
security of each person and the entire society from criminal
attempts. From the said provision of Paragraph 1 of Article 118
of the Constitution arises a duty to the prosecutors to
organise and direct pre-trial investigation so that objective
and comprehensive information would be collected about the
criminal deed and the person who is suspected of commission of
this deed, which inter alia would create legal pre-conditions
to the court to establish the objective truth in the criminal
case and adopt a just decision concerning the guilt of the
person who is accused of commission of the criminal deed.
Under the Constitution, no one else but the prosecutor may
uphold charges on behalf of the state in criminal cases
(Constitutional Court ruling of 13 May 2004). In the context of
the constitutional justice case at issue, it needs to be noted
that the provision of Paragraph 1 of Article 118 of the
Constitution that the prosecutor upholds charges on behalf of
the state in criminal cases inter alia means that in the course
of criminal procedure in court charges on behalf of the state
are upheld and that upholding of criminal charges on behalf of
the state is a function of the state which can be implemented
only through certain officials-the prosecutors. However, the
said provision of the Constitution does not prevent the
legislator, when he takes account of whose interests have been
violated, of the nature, danger (gravity), scale, other signs
of the criminal deeds, the will of the victim as well as other
circumstances of importance etc., to establish such legal
regulation whereby in certain case provided for in the law
charges on behalf of the sate are not upheld during the
consideration of the case in court. However, every case when it
is established that charges on behalf of the state are not
upheld must constitutionally be grounded, inter alia no
pre-conditions may be created to burden the implementation of
the constitutional rights and freedoms of the person
unreasonably or deny them altogether. Thus, under the
Constitution, the legislator can establish also such legal
regulation whereby private persons (their representatives) but
not prosecutors uphold the charges in certain criminal cases;
in itself, such legal regulation does not create pre-conditions
to violate the rights of the person to judicial defence.
However, there may not be any such legal situations where the
prosecutor does not have a duty to upholds charges on behalf of
the state also in cases where a private person (his
representative), when he uphold charges in a criminal case, is
not able to efficiently defend his rights and legitimate
interests (or those of the person that he represents).
The Constitutional Court has noted that the independence
of the prosecutor in organising pre-trial investigation and
being in charge of it, in upholding charges on behalf of the
state is a constitutional value; under the Constitution, it is
not permitted to establish any such legal regulation whereby
this constitutional value would be denied or the independence
of the prosecutor would otherwise be restricted when he
organises pre-trial investigation and directs it and when he
upholds charges on behalf of the state (Constitutional Court
ruling of 13 May 2004). However, the independence of the
prosecutor consolidated in the Constitution cannot be
interpreted as meaning that, purportedly, in the criminal
procedure prosecutors do not have to follow laws and/or
instructions of the court (the judge).
15.4. It needs to be emphasised that from the provision of
Paragraph 2 of Article 118 of the Constitution that in cases
established by law, the prosecutor shall defend the rights and
legitimate interests of the person, society and the state stems
a duty to the legislator to legislatively establish the cases
when the prosecutor must defend the rights and legitimate
interests of the person, society and the state. Also such legal
situations are possible, where the rights and legitimate
interests of the person, society and the state are defended
without participation of the prosecutor. However, under the
Constitution, there cannot be any such legal situations where
the person, whose rights and legitimate interests have been, or
are violated, or if they are attempted to be violated, would
not be able to defend their rights either in courts, or with
the assistance of prosecutors, or by means of any other legal
instruments. Thus, the Constitution, inter alia Paragraph 2 of
Article 118 thereof, implies a duty of the legislator to
establish such legal regulation whereby in all cases when the
rights or legitimate interests of the person, society or the
state have been violated, or when it is attempted to violate
them, the efficient defence and protection of such rights and
legitimate interests, inter alia against criminal attempts,
would be ensured.
In the context of the constitutional justice case at
issue, it needs to be noted that the provisions of Paragraphs 1
and 2 of Article 118 of the Constitution imply that the
prosecutor, when it defends the rights and legitimate interests
of the person, society and the state must organise pre-trial
investigation and direct it, and to uphold charges on behalf of
the state in criminal cases. Under the Constitution, the
legislator has a duty to legislatively establish the legal
regulation whereby prosecutors and the Prosecutor's Office of
the Republic of Lithuania would be able to efficiently
implement this constitutional obligation.
16. Under the Constitution, the prosecutor does not
administer justice; nor is justice administered at the stage of
pre-trial investigation, either. Administration of justice is a
function of courts, determining the place of this branch of
power in the system of institutions of state power and the
status of judges. No other state institution or official may
discharge this function (Constitutional Court rulings of 21
December 1999 and 13 May 2004).
16.1. Under the Constitution, inter alia Article 109 of
the Constitution, and under the principles of a state under the
rule of law and justice, in the course of criminal procedure
the court has a duty to make use of all possibilities in order
to establish the objective truth in the criminal case and adopt
a just decision in respect of the person who is accused of
committing the criminal deed. A court of first instance also
has such a duty. The Constitutional Court has held that in
criminal procedure law the provision of Paragraph 1 of Article
109 of the Constitution that justice is administered only by
the court inter alia means that during the trial, a court of
first instance, implementing this function, must thoroughly,
fully and objectively investigate all the circumstances of the
criminal case and decide the case in essence (Constitutional
Court ruling of 5 February 1999).
Under Paragraph 1 of Article 111 of the Constitution, the
courts of the Republic of Lithuania shall be the Supreme Court
of Lithuania, the Court of Appeal of Lithuania, regional courts
and local courts. Paragraph 2 of Article 111 of the
Constitution provides that for the consideration of
administrative, labour, family and cases of other categories,
specialised courts may be established according to law. Thus,
the instance court system is established in the Constitution,
inter alia in the said provisions of Paragraphs 1 and 2 of
Article 111 of the Constitution. The purpose of this instance
court system is to remove mistakes of courts of lower
instances, not to permit that injustice is executed, and thus
to protect the rights and legitimate interests of the person,
society and the state.
The legislator must legislatively establish such powers of
all courts of general jurisdiction of all instances and of all
specialised courts established under Paragraph 2 of Article 111
of the Constitution, which would be constitutionally grounded.
In this context it needs to be noted that the constitutional
concept of administration of justice also implies that courts
must solve cases only by strictly following procedural and
other requirements, which are established in laws, and by not
overstepping the limits of their jurisdiction, nor exceeding
their other powers.
16.2. In the context of the constitutional justice case at
issue it needs to be noted that the necessity to protect the
rights and legitimate interests of the person, also the fact
that the court is a state institution, which, administering
justice, helps the state ensure security of the person and all
society from criminal attempts, determine certain powers of the
court in the criminal procedure. In the criminal procedure the
court must also be an impartial arbiter, who objectively
assesses the data (evidence) of the circumstances of commission
of a criminal deed, which are in the criminal case, and who
adopts a just decision concerning the guilt of the person who
is accused of committing the criminal deed, and, alongside, the
court, in attempting to establish the objective truth, has to
participate in the criminal procedure actively-to define the
limits of consideration of the criminal case, to perform
certain procedural actions, not to permit that the persons who
participate in the court process abuse their rights or powers,
to solve other issues related with consideration of the
criminal case in court. While considering the criminal case,
the court must act so that the objective truth is established
in the criminal case and the issue of guilt of the person
accused of committing the criminal deed is justly decided. The
court must also be equally just to all persons who participate
in the criminal procedure.
Thus, the norms and principles entrenched in the
Constitution, inter alia the right of the person to a public
and fair hearing of his case by an independent and impartial
court, the principles of a state under the rule of law and
justice, imply the model of the court as an institution
administering justice, where the court cannot be understood as
a "passive" observer of the process of cases, and that
administration of justice cannot depend only upon the material
submitted to the court. The court, seeking to investigate all
circumstances of the case objectively and comprehensively and
to establish the truth in the case, enjoys powers to perform
procedural actions either by itself or to commission certain
institutions (officials), inter alia prosecutors, that they
perform corresponding actions.
In this context it needs to be noted that the principle of
separation of powers entrenched in the Constitution determines
the relations of the court with other state institutions or
officials and the character of its actions in the criminal
procedure. Courts are the only state institution that
administers justice. It is administered by the court following
a certain procedural order, which is regulated by the law. It
also needs to be mentioned that the constitutional function of
the court-administration of justice-is essentially different
from being in charge of pre-trial investigation of the case,
the control of this investigation, upholding of charges on
behalf of the state etc. When administering justice, the court
considers the case that is already prepared, solves the issue
of guilt of the defendant and either imposes punishment upon
him or acquits him (Constitutional Court rulings of 5 February
1999 and 8 May 2000).
16.3. Various aspects of independence of the judge and
courts, which stems from the Constitution, have been revealed
in the jurisprudence of the Constitutional Court
(Constitutional Court rulings of 6 December 1995, 21 December
1999, 12 February 2001, 12 July 2001, 13 May 2004 etc.).
In the context of the constitutional justice case at
issue, it needs to be noted that the function of administration
of justice determines the independence of the judge and courts
(Constitutional Court rulings of 12 July 2001 and 13 May 2004).
The independence of judges and courts is a necessary condition
of protection of human right and freedoms. Alongside, this is
not a privilege, but one of the most important duties of judges
and courts, ensuing from the human right to an impartial
arbiter in a dispute guaranteed by the Constitution and a
necessary condition for impartial and just consideration of the
case, thus, also that of trust in the court (Constitutional
Court rulings of 6 December 1999, 21 December 1999, and 12
February 2001). The independence of judges and courts is one of
essential principles of a democratic state under the rule of
law (Constitutional Court rulings of 21 December 1999, 12
February 2001, and 13 May 2004). The judge can administer
justice only in case he is independent from the parties to the
case, institutions of state power, officials, political and
public associations, natural and legal persons (Constitutional
Court rulings of 12 July 2001 and 13 May 2004).
In the context of the constitutional justice case at
issue, it also needs to be noted that an important aspect of
the independence of the judge and the court in the criminal
procedure is the independence of the court in decision of all
issues related with the case that it is considering. Only the
court itself decides how the criminal case is to be considered.
The court is independent during the whole criminal procedure
when it considers the criminal case. From the standpoint of the
independence of the court, in itself the fact that the court is
following corresponding norms of the CCP does not mean any
denial of its independence. As noted by the Constitutional
Court, the constitutional right to an impartial court inter
alia also means that during the court process one must follow
the principles and norms of criminal procedure law
(Constitutional Court ruling of 10 June 2003).
16.4. An important condition to solve the case justly is
proper court process (Constitutional Court ruling of 5
February).
It has been mentioned that the constitutional principle of
a state under the rule of law implies the right of the person
to proper legal process. One of legal processes is a court
process. Thus, from the constitutional principle of a state
under the rule of law arises also the right of the person to
proper court process.
Certain requirements for a court process arise form
Paragraph 2 of Article 31 of the Constitution, too, in which it
is established that a person charged with the commission of a
crime shall have the right to a public and fair hearing of his
case by an independent and impartial court.
As held by the Constitutional Court, the principle of the
right of the person to a proper court process entrenched in
Paragraph 2 of Article 31 of the Constitution means, inter
alia, that the court must unconditionally follow the
constitutional principles and the requirements of laws
establishing them as regards the equality of the parties of
criminal proceedings before the law and the court, and be
impartial and independent. These are the most important
pre-conditions ensuring that the circumstances of the case be
investigated thoroughly, completely and objectively and the
truth be established, as well as that penal laws be applied
correctly (Constitutional Court ruling of 19 September 2000).
In the context of the constitutional justice case at
issue, it needs to be noted that the right of the person to a
proper court process, which is an important condition for just
solution of the case and which arises from Paragraph 2 of
Article 31 of the Constitution and the principle of a state
under the rule of law, means that in criminal procedure in
court one must pay heed to clarity of the process, the equal
rights of participants of the process, their participation in
the procedure of proving, their right to a translator, the
contention and other principles, so that the circumstances of
committing the criminal deed would be investigated
comprehensively, objectively and impartially and a just
decision would be adopted in the criminal case. The
Constitution obliges the legislator to establish, while
regulating the relations of criminal procedure, such legal
regulation so that the rights of participants of criminal
procedure could be ensured as well: the procedure must be such
so that the efficient protection of the rights of the person
who has suffered from the criminal deed and that such person
would be able to make use of all the rights arising from the
Constitution. The criminal procedure must be such so that the
constitutional rights of the person suspected of committing a
criminal deed are not violated: his rights to defence, his
right to have an advocate, his right to know what he is accused
of, etc., must be ensured. As the Constitutional Court has
held, when guaranteeing the rights of the person in the
judicial process, one must ensure that the process takes place
in an honest and qualified manner, that the rights of the
parties to the procedure are respected and that a neutral judge
considers the case (Constitutional Court ruling of 5 February
1999).
When regulating the relations of criminal procedure, the
legislator, when taking account of the character of criminal
deeds, their danger (gravity), scale, other signs and other
circumstances of importance, enjoys discretion to establish
also such legal regulation so that the victim (his
representative) and the person who is accused of committing the
criminal deed, would have an opportunity to reach conciliation
and this conciliation would be the basis for dismissing the
criminal procedure. The conciliation is also possible in the
cases in which the charges in court are upheld by the victim
(his representative) himself and in those in which the charges
are upheld by the prosecutor. However, when regulating the
conditions and bases of the said institute of conciliation, the
legislator cannot establish any such legal regulation, where
the said conciliation could be possible in cases on all
criminal deeds. While regulating the institute of conciliation
of the victim (his representative) and the person who is
accused of committing a criminal deed, the legislator must
establish also clear procedures of application of this
institute.
The constitutional right to a fair court and to a proper
court process, when interpreted in the context of other
provisions of the Constitution, inter alia means that during
the court process, when a criminal case is investigated, the
principles and norms of the criminal procedure must be followed
(Constitutional Court ruling of 10 June 2003).
The necessity that arises from the Constitution to follow,
during consideration of a criminal case, the principles and
norms of the criminal procedure, does not mean that other legal
norms and principles, which do not belong to the criminal
procedure, but which can be significant during the
consideration of a corresponding criminal case. One is to
emphasise especially that a duty to pay heed to the principles
and norms of criminal procedure law during consideration of a
criminal case cannot be interpreted as permitting to raise the
principles and norms of criminal procedure law or of criminal
procedure above the principles and norms of the Constitution,
to construe the principles and norms of criminal procedure law
or of criminal procedure so that the meaning of the provisions
of the Constitution is denied, distorted or ignored, to oppose
the principles and norms of criminal procedure law or of
criminal law against general principles of law. In the course
of consideration of criminal case, one must follow the
principles of justice, honesty, reasonableness,
proportionality, lawfulness and other general principles of
law, as for example res iudicata, nemo iudex in propria causa,
audiatur et altera pars, ubi ius ibi remedium, onus probandi,
immpossibilium nulla obligatio est, etc. One must also pay heed
to the canons of construction of law.
While administering justice, the court must follow only
the laws and legal acts that are not in conflict with the
Constitution, it may not apply a law, which is in conflict with
the Constitution. When account is taken of the hierarchy of
legal acts which originates from the Constitution, this
provision of the Constitution means that the judge may not
apply a substatutory legal act, which is in conflict with the
Constitution, too. Moreover, he may not apply such a
substatutory legal act, which is in conflict with the law. On
the other hand, the aforementioned provision of the
Constitution reflects the constitutional principle, one of the
basic elements of the enshrined in the Constitution principle
of a state under the rule of law, that a legal act, which is in
conflict with a legal act of greater power, may not be applied
(Constitutional Court ruling of 13 December 2004). Under
Paragraph 2 of Article 110 of the Constitution, if there are
doubts as regards the compliance of the law applicable in the
case with the Constitution, the judge must suspend the
consideration of the case and apply to the Constitutional
Court.
If the court, after it has faced doubts as regards the
compliance of the law applicable in the case with the
Constitution, did not suspend the consideration of the case and
did not apply to the Constitutional Court so that these doubts
could be removed, and if the legal act the compliance of which
with the Constitution is doubtful was applied in the case, the
court would take a risk to adopt such a decision, which would
not be a just one.
16.5. The constitutional imperatives that only the courts
administer justice, that law cannot be not public, as well as
the requirement arising from the Constitution to consider the
case justly, also imply that every court judgement (or another
final act of the court) must be based on legal arguments
(reasoning). The argumentation must be rational: the court
judgement (or another final act of the court) must contain as
many arguments so that it is sufficient to ground the court
judgement (or another final act of the court). In this context
it needs to be noted that the requirement of legal clarity,
which arises from the constitutional principle of a state under
the rule of law, inter alia means that a court judgement (or
another final act of the court) cannot contain any concealed
arguments, nor any non-specified circumstances, which are
important for the adoption of a just court judgement (or
another final act of the court). Court judgements (other final
acts of the court) must be clear to the persons participating
in the case as well as other persons. If this requirement is
disregarded, then this is not the administration of justice
which is entrenched in the Constitution.
While construing Article 109 of the Constitution in the
context of the requirements of legal clarity, legal certainty,
and legal publicity, as well as the requirement to ensure human
rights and freedoms, which arise from the constitutional
principle of a state under the rule of law, it needs to be
noted that administration of justice implies also that a court
judgement (or another final act of the court) is an integral
legal act in which the ruling part is grounded on the arguments
set forth in the part of reasoning. This inter alia means that
when the court judgement (or another final act of the court) is
officially published, it must contain all arguments upon which
it is grounded, that the arguments (or part thereof) of a court
judgement (or another final act of the court) cannot be
submitted by the court after the official publishing of the
court judgement (or another final act of the court), and that
after the official publishing of the court judgement (or
another final act of the court), the court may not change or
otherwise correct its arguments.
In this context it needs to be noted that if a court
judgement (or another final act of the court) was published
officially, which is not grounded on legal arguments or which
is grounded only on certain part of the arguments, and the
remaining part of the arguments is made public after the
official publishing of the court judgement (or another final
act of the court), justice would not be administered-there
would always be a reasonable doubt that such arguments only
seek to justify the court judgement (or another final act of
the court) that was adopted a priori.
Under the Constitution, the legislator enjoys powers to
establish reasonable terms within which a reasoned court
judgement (or another final act of the court) must be
published, and, if necessary, to establish exceptions to the
establishment of general rules.
It needs to be noted that the said requirements concerning
the reasoning of the judgement (or another final act of the
court), its publishing and terms are applicable mutatis
mutandis not only to the criminal procedure, but also to other
types of legal proceedings.
16.6. It has been mentioned that pre-trial investigation
and consideration of the criminal case in court are different
stages in criminal procedure, that in itself, the
constitutional entrenchment of the said general model of
criminal procedure does not eliminate an opportunity to
regulate the relations of criminal procedure so that in certain
cases (especially when one takes account of the nature, danger
(gravity), scale, other signs of criminal deeds as well as
other circumstances of importance) pre-trial investigation is
not conducted, that the Constitution does not prevent the
legislative consolidation of also such kinds of criminal
procedure which are more or less different from the general
constitutional model of criminal procedure, however, the
establishment of any exceptions to this model must be
constitutionally grounded.
However, it is not permitted to oppose the constitutional
general model of criminal procedure, under which pre-trial
investigation and consideration of the criminal case in court
are different stages of criminal procedure, against the types
of criminal procedure, where pre-trial investigation is not
conducted. In the context of the constitutional justice case at
issue, it needs to be noted that legal situations are possible,
where during consideration of a criminal case in court an issue
of necessity of performance of pre-trial investigation or
certain procedural actions occurs.
The obligation of the court to establish the objective
truth and to solve the case justly, which arises from the
Constitution, implies that in case the court thinks that
without pre-trial investigation or certain procedural actions,
which are impossible to perform in court, it will not be able
to consider the criminal court justly, nor to adopt a just
decision (for example, because the information held by the
court is insufficient, contradictory, etc.), the court must
have powers to decide that pre-trial investigation or separate
procedural actions should be conducted in the said case and
corresponding entities must be given certain instructions; such
court instructions must be compulsory to all persons
(officials, institutions) to whom they are addressed.
A court decision commissioning performance of pre-trial
investigation and a court decision commissioning separate
procedural actions give rise to different legal effects.
In the case where the court decides to commission
performance of pre-trial investigation, under the Constitution
the criminal case must be referred to the prosecutor-the
official specified in Article 118 of the Constitution-with the
exception of whom, under the Constitution, no one else can
organise pre-trial investigation and direct it. While
organising and/or controlling pre-trial investigation under a
court's instruction, the prosecutor must ensure that the
court's instruction is carried out properly and in time and he
acts as an amicus curiae. When the court adopts a decision to
commission performance of pre-trial investigation, the
consideration of the criminal case in court is stopped until
the pre-trial investigation is over and, if one decides so,
until the indictment with the case material is referred to the
court.
In the course of construction of how instructions must be
given in cases where the court decides to commission one to
perform separate procedural actions (the performance of which
in court is impossible), it needs to be noted that in such a
case the legislator, under the Constitution, enjoys broad
discretion: he inter alia may establish a procedure according
to which one gives instructions for performance of separate
procedural actions, as well as corresponding institutions
(officials) to which such court instructions are given. It
needs to be noted that the court may also commission that
establishments (officials) of pre-trial investigation perform
separate procedural actions; this cannot be interpreted as
court's direction of pre-trial investigation. The law may also
establish the legal regulation under which the court enjoys
powers to obligate the prosecutors to conduct control of how
such court instructions are performed. In case the court
decides to commission certain officials or institutions to
perform separate procedural actions, but not whole pre-trial
investigation, the criminal case remains in court.
While regulating the relations of criminal procedure
linked with court powers to give the said instructions, the
legislator must pay heed to the Constitution, inter alia the
principles of a state under the rule of law, justice and
separation of powers.
The Constitution, inter alia the principles of a state
under the rule of law, justice and separation of powers, which
are entrenched therein, imply that the court, when giving the
said instructions, must act so that no pre-conditions are
created for consideration that the court is partial. In this
context it is to be underlined that the court, when giving
instructions to perform pre-trial investigation or separate
procedural actions (the performance of which in court is
impossible), may not point out as to how such instruction must
be conducted, what result is intended etc.
II
On the compliance of Paragraph 4 (wording of 11 September
2001) of Article 131 of the formerly valid CCP with Paragraph 1
of Article 30 of the Constitution.
1. The Second Vilnius City Local Court, the petitioner,
had doubts whether Paragraph 4 (wording of 11 September 2001)
of Article 131 of the formerly valid CCP to the extent that,
according to the petitioner, it limited the right of the person
in whose respect it was decided not to institute a criminal
case after the term of prescription of bringing one to criminal
liability has passed to appeal against the prosecutor's ruling
in court, was not in conflict with Paragraph 1 of Article 30 of
the Constitution.
2. In Paragraph 4 (wording of 11 September 2001) of
Article 131 of the formerly valid CCP it was established:
"The petitioner can lodge a complaint against the ruling
of the prosecutor, the investigator or the investigatory body
whereby it refuses to institute a criminal case accordingly to
the corresponding prosecutor or in court, while against the
ruling of a judge or court-in higher court. If the prosecutor,
after he has investigated the complaint, does not rescind the
ruling which refuses to institute a criminal case, a complaint
may be lodged against such ruling of the prosecutor in the
local court. The ruling of the local court on the ruling of the
prosecutor and the ruling of the higher court shall be final
and not subject to appeal".
3. The petitioner's doubts on the compliance of Paragraph
4 (wording of 11 September 2001) of Article 131 of the formerly
valid CCP with Paragraph 1 of Article 30 of the Constitution,
which provides that the person, whose constitutional rights or
freedoms are violated, shall have the right to apply to court
is grounded on the fact that, in his opinion, a certain legal
regulation was not established in Paragraph 4 (wording of 11
September 2001) of Article 131 of CCP which, as stated by the
petitioner, had to be established-the right of the person in
whose respect it was decided not to institute a criminal case
to appeal against such prosecutor's ruling in court was not
expressis verbis provided for. Thus, the petitioner virtually
disputes not the legal regulation expressis verbis established
in Paragraph 4 (wording of 11 September 2001) of Article 131 of
the formerly valid CCP, but, in his opinion, the legislative
omission of this paragraph, i.e. something that was not
established in the specified paragraph, although, in the
opinion of the petitioner, had to be established by the
legislator according to the Constitution, i.e. in the petition
such gap of the legal regulation is disputed that, in the
opinion of the petitioner, is forbidden by the Constitution.
4. In the context of the constitutional justice case at
issue, it is to be noted that the disputed provision of
Paragraph 4 (wording of 11 September 2001) of Article 131 of
the formerly valid CCP was directly related to Paragraph 1
(wording of 26 June 1961) of this article which provided that
if there are no grounds for institution of a criminal case,
also if there are circumstances which make the case impossible,
the prosecutor, the investigator, the investigatory body, the
judge or the court shall refuse to institute a criminal case,
and was directly related to Paragraph 3 (wording of 11
September 2001), under which the citizen, enterprise,
establishment or public organization, from which the statement
or report had been received, had to be informed on the refusal
to institute a criminal case and explained about the right to
appeal against this ruling.
The disputed provision of Paragraph 4 (wording of 11
September 2001) of Article 131 of the formerly valid CCP was
directly related to the provisions, entrenched in other
articles of this code, inter alia to the provisions of
Paragraph 1 (wording of 10 June 1993) of Article 125, according
to which, a criminal case could be instituted after verbal or
written statements from citizens have been received (Item1),
reports from state and public enterprises, establishments,
organizations and officials have been received (Item 2), after
the perpetrator has arrived and confessed to having committed
the crime (Item 3) or after the investigatory body,
investigator, prosecutor, judge or court has directly revealed
the signs of the crime (Item 4), with the provision of
Paragraph 2 (wording of 26 June 1961) of Article 125, under
which a criminal case could be instituted only in the cases,
when there were enough data, showing that there existed signs
of a crime, and with the provisions of Paragraph 1 (wording of
30 November 1983) of Article 5 in which the circumstances were
provided, making the criminal case impossible, when a criminal
case could not be instituted, and the instituted case had to be
dismissed: if there is no crime event (Item 1), if there is no
body of crime (Item 2), after the terms of prescription have
passed (Item 3), because of the act on amnesty if it annuls the
imposition of punishment for the deed, as well as because of
the forgiveness of the punishment to separate persons according
to the procedure of clemency (Item 4); to the person, who
before the moment of committing a dangerous to society deed was
not of the age, for which criminal liability is possible under
the law (Item 5); if the victim conciliated with the accused in
the cases provided for in Article 126 of this code
("Institution of a criminal case according to the mere
complaint of the victim") (Item 6); if there is no complaint of
the victim when the case may be instituted according to his
complaint alone (Item 7); regarding a deceased, save the cases
when the case is needed for the rehabilitation of the deceased
or for renewal of the case in regard of other persons because
of newly emerged circumstances (Item 8); regarding a person, in
whose respect a decision of the court on the same accusation or
ruling to dismiss the case on the same grounds is effective
(Item 9); regarding a person, in whose respect the ruling of
the investigatory body, investigator or prosecutor to dismiss
the case on the same accusation is not reversed, save the
cases, when the necessity to institute a case was recognized by
the court at whose disposal is the criminal case (Item 10).
5. It is to be noted that the ruling to refuse to
investigate a criminal case, provided for in the formerly valid
CCP, is a certain legal fact on the grounds of which various
legal relationships could appear, change and/or end. Paragraph
4 (wording of 11 September 2001) of Article 131 of the formerly
valid CCP was meant to regulate the relationships related to an
opportunity for a person, who had provided information about
the crime, to lodge a complaint against the ruling of the state
institution (official) refusing to institute a criminal case
and was not meant to regulate other relationships, which could
appear, change and/or end on the grounds of the said legal
fact. Thus, it was not obligatory that the right of other
persons to lodge a complaint against the ruling to refuse to
institute a criminal case was to be provided for in Paragraph 4
(wording of 11 September 2001) of Article 131 of the formerly
valid CCP.
6. In the constitutional justice case at issue it is to be
emphasized that in the formerly valid CCP, inter alia in its
Article 131 (wording of 11 September 2001), the provided
institute of refusal to institute a criminal case in itself did
not create any pre-conditions to violate the rights or
legitimate interests of other persons who were not subjects of
the relationships related to an opportunity of a person, who
had provided information about the crime, to lodge a complaint
against the ruling of the state institution (official) refusing
to institute a criminal case.
7. Thus, in Paragraph 4 (wording of 11 September 2001) of
Article 131 of the formerly valid CCP there was no legislative
omission-such gap of legal regulation, which is forbidden by
the Constitution-which is specified by the petitioner. Thus,
there are no grounds to state that Paragraph 4 (wording of 11
September 2001) of Article 131 of the formerly valid CCP was in
conflict with Paragraph 1 of Article 30 of the Constitution.
8. In this Constitutional Court ruling it was held that
state institutions, officials and public persons must in
general restrain from referring to a person as a criminal until
the guilt of the person in committing the crime is proven under
the procedure established by the law and the person is
recognized guilty by an effective court judgement.
In the constitutional justice case at issue, it is to be
noted that if the formulas used in the procedural documents
were such that they would create pre-conditions to violate the
constitutional rights or freedoms of a person, inter alia his
presumption of innocence, such person must have the right to
protect his violated rights and legitimate interests in court.
9. Taking account of the arguments set forth, a conclusion
is to be made that Paragraph 4 (wording of 11 September 2001)
of Article 131 of the formerly valid CCP was not in conflict
with Paragraph 1 of Article 30 of the Constitution.
III
On the compliance of Article 407 (wording of 19 June
2003), Paragraph 1 (wording of 14 March 2002) of Article 408,
Paragraphs 2 and 3 (wording of 14 March 2002) of Article 412 of
the CCP with Paragraph 1 of Article 29 and Paragraph 1 of
Article 30 of the Constitution, on the compliance of Paragraph
5 (wording of 14 March 2002) of Article 413 of the CCP with
Paragraph 1 of Article 29 and Paragraph 2 of Article 109 of the
Constitution and on the compliance of Paragraph 2 (wording of
14 March 2002) of Article 414 of the CCP with Paragraph 2 of
Article 31, Paragraph 1 of Article 109 and Paragraph 1 of
Article 118 of the Constitution.
1. The Second Vilnius City Local Court and the Third
Vilnius City Local Court, the petitioners, request to
investigate, whether inter alia Article 407 (wording of 19 June
2003), Paragraph 1 (wording of 14 March 2002) of Article 408
and Paragraph 2 (wording of 14 March 2002) of Article 412 of
the CCP are not in conflict with Paragraph 1 of Article 29 of
the Constitution, whether Paragraph 3 (wording of 14 March
2002) of Article 412 of the CCP is not in conflict with
Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the
Constitution, whether Paragraph 5 (wording of 14 March 2002) of
Article 413 of the CCP is not in conflict with Paragraph 2 of
Article 109 of the Constitution, and whether Paragraph 2
(wording of 14 March 2002) of Article 414 of the CCP is not in
conflict with Paragraph 2 of Article 31, Paragraph 1 of Article
109 and Paragraph 1 of Article 118 of the Constitution.
The Panevėžys City Local Court, the petitioner, requests
to investigate whether inter alia Article 407 (wording of 19
June 2003), Paragraph 2 (wording of 14 March 2002) of Article
412 and Paragraph 5 (wording of 14 March 2002) of Article 413
of the CCP are not in conflict with Paragraph 1 of Article 29
of the Constitution.
The Šiauliai District Local Court, the petitioner,
requests to investigate whether inter alia Article 407,
Paragraph 2 of Article 412 and Paragraph 5 of Article 413 of
the CCP are not in conflict with Paragraph 1 of Article 29 of
the Constitution.
2. Although the Šiauliai District Local Court, the
petitioner, did not specify the wording of Article 407 of the
CCP whose compliance with the Constitution it requests to
investigate, from the arguments of the petitions and other
material of this constitutional justice case it is obvious that
this petitioner, as well as other petitioners-the Second
Vilnius City Local Court, the Third Vilnius City Local Court
and the Panevėžys City Local Court-had doubts whether Article
407 (wording of 19 June 2003) of the CCP was not in conflict
with the Constitution.
3. Although the Second Vilnius City Local Court, the Third
Vilnius City Local Court, the Panevėžys City Local Court and
the Šiauliai District Local Court, the petitioners, request to
investigate the compliance of entire Article 407 (wording of 19
June 2003) of CCP with the Constitution, it is obvious from the
arguments of the petitions that the petitioners doubted on the
compliance of this article with the Constitution only to the
extent that it provides that the criminal cases' proceedings
shall be instituted only if there is a complaint of the victim
or an application of his legitimate representative, and that
pre-trial investigation is not carried out in such cases save
the cases provided for in Article 409 of the CCP.
It is to be noted that the petitioners do not ask to
investigate whether Article 407 (wording of 19 June 2003) of
the CCP is not in conflict with the Constitution to the extent
that it specifies the criminal deeds in this article, for which
criminal cases are investigated under the proceedings of cases
of private accusation-these criminal deeds are provided for in
the corresponding articles (parts thereof) of the CC, referred
to in Article 407 (wording of 19 June 2003) of the CCP.
4. Although the Second Vilnius City Local Court, the Third
Vilnius City Local Court, the Panevėžys City Local Court and
the Šiauliai District Local Court, the petitioners, dispute the
compliance of Article 407 (wording of 19 June 2003) (to the
extent that it provides that the criminal cases' proceedings
shall be instituted only if there is a complaint of the victim
or an application of his legitimate representative, and that
pre-trial investigation is not carried out in such cases save
the cases provided for in Article 409 of the CCP) and Paragraph
2 (wording of 14 March 2002) of Article 412 of the CCP with
Paragraph 1 of Article 29 of the Constitution, and although the
Second Vilnius City Local Court and the Third Vilnius City
Local Court, the petitioners, dispute the compliance of
Paragraph 1 (wording of 14 March 2002) of Article 408 with
Paragraph 1 of Article 29 of the Constitution, which provides
that all persons shall be equal before the law, the court, and
other state institutions and officials, it is obvious from the
arguments of the petitions that the petitioners had doubts on
the compliance of the said articles (parts thereof) of the CCP
with Paragraph 1 of Article 29 of the Constitution because, in
their opinion, these articles (parts thereof) are in conflict
with Paragraph 1 of Article 30 of the Constitution, which
provides that a person, whose constitutional rights or freedoms
are violated, shall have the right to apply to the court.
5. In this case, subsequent to the petitions of the Second
Vilnius City Local Court, the Third Vilnius City Local Court,
the Panevėžys City Local Court and the Šiauliai District Local
Court, the petitioners, the Constitutional Court will
investigate:
- whether Article 407 (wording of 19 June 2003) of CCP to
the extent that it provides that the criminal cases'
proceedings shall be instituted only if there is a complaint of
the victim or an application of his legitimate representative,
and that pre-trial investigation is not carried out in such
cases save the cases provided for in Article 409 of the CCP, is
not in conflict with Paragraph 1 of Article 29 and Paragraph 1
of Article 30 of the Constitution;
- whether Paragraph 1 (wording of 14 March 2002) of
Article 408 of the CCP is not in conflict with Paragraph 1 of
Article 29 and Paragraph 1 of Article 30 of the Constitution;
- whether Paragraphs 2 and 3 (wording of 14 March 2002) of
Article 412 of the CCP are not in conflict with Paragraph 1 of
Article 29 and Paragraph 1 of Article 30 of the Constitution;
- whether Paragraph 5 (wording of 14 March 2002) of
Article 413 of the CCP is not in conflict with Paragraph 1 of
Article 29 and Paragraph 2 of Article 109 of the Constitution;
- whether Paragraph 2 (wording of 14 March 2002) of
Article 414 is not in conflict with Paragraph 2 of Article 31,
Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of
the Constitution.
6. The articles (parts thereof) of the CCP which are
disputed by the petitioners, are set forth in Chapter XXX
(Articles 407-417) of this code which regulates the proceedings
of cases of private accusation and after some provisions of the
CCP were amended and supplemented by the Law on Amending and
Supplementing of Articles 151, 168, 186, 276, 407 and 409 of
the Code of Criminal Procedure, adopted by the Seimas on 19
June 2003 (came into force on 9 July 2003), was set forth as
follows:
"CHAPTER XXX. THE PROCEEDING OF CASES OF PRIVATE
ACCUSATION
Article 407. Cases of private accusation
The criminal cases' proceedings shall be instituted
regarding the criminal deeds provided for in Paragraph 1 of
Article 139, Paragraph 1 of Article 140, Articles 148, 152,
154, 155, 165, 168, Paragraphs 1 and 3 of Article 187, and
Articles 188, 313 of the Criminal Code of the Republic of
Lithuania only in the case when there is a complaint of the
victim or an application of his legitimate representative. The
pre-trial investigation is not carried out in such cases save
the cases provided for in Article 409 of this Code.
Article 408. Persons who have the right to file a
complaint or application and to uphold an accusation in court
1. In cases of private accusation it is the victim who
shall file the complaint and uphold the accusation. He shall
acquire the status of a private accuser in court.
2. If due to infancy, physical or mental disabilities the
victim may not use all of his rights of the victim, a complaint
may be filed and an accusation upheld in court by his
legitimate representative.
3. If the proceedings have been started subsequent to the
application of the legitimate representative of the victim,
such a representative shall acquire the status of a private
accuser in court and uphold the accusation in court alone or
together with the victim.
Article 409. Switching from private accusation into State
charges
1. If the criminal deeds specified in Article 407 of this
Code are of public importance, or if they inflicted harm upon
the person who, due to important reasons, cannot defend his
legitimate interests, also the prosecutor shall have the right
to institute criminal proceedings regarding these deeds,
regardless of whether or not there is a complaint of the victim
or an application of the legitimate representative.
2. At any time of the case of private accusation until the
beginning of investigation of the evidence, the prosecutor
shall also have the right to submit a written application to
the court that he will uphold State charges. In such situation
the case shall be referred to the prosecutor. The pre-trial
investigation and consideration of the case in court shall take
place under the general procedure.
3. If, in the course of the investigation of the case of
private accusation in court, it transpires that the accused has
committed the criminal deed for which State charges should be
upheld, the procedure of private accusation shall be dismissed
and the material of the case shall be referred to the
prosecutor.
Article 410. Consideration of counter complaint
1. In the case of private accusation, the accused shall
have the right to submit a complaint against the victim until
the beginning of investigation of the evidence, accusing him of
committing the criminal deed that is being investigated under
the proceedings of private accusation, if this deed is related
to the charge filed on him. If such persons do not conciliate,
the accusations shall be investigated in the same case.
2. While investigating the counter accusations in the
case, the accused who was the first to file the complaint,
shall be the first to ask questions, give explanations and give
the final speech. He shall also be granted the final word
first.
Article 411. Joining to a private accusation
In the cases investigated under the proceedings of private
accusation, the persons who suffered from the criminal deeds
related to the already filed private accusation shall have the
right to join, until the beginning of investigation, to the
accusation which is already being investigated. If such persons
do not conciliate, the accusations/charges shall be
investigated in the same case.
Article 412. The contents of a complaint of the victim or
application of the legitimate representative
1. A complaint or application shall be submitted in
writing under the procedure of private accusation.
2. In the complaint or application the following must be
specified: the name of the court under the jurisdiction of
which the case comes; the place, time, effects and other
essential circumstances of the criminal deed, of which the
person is accused; the data that confirm the circumstances set
forth in the complaint or application, the names, surnames and
places of births of the victim, the person who is suspected of
commission of a criminal deed and the witnesses. The complaint
must be signed by the victim, and, as established in Paragraph
2 of Article 408, the application-by the legal representative
of the victim.
3. The complaint that does not meet the requirements of
this Article shall not be accepted but returned to the person
who filed it.
4. The requirements set forth in Paragraph 2 of this
Article shall also be applied to the application of the legal
representative of the victim.
Article 413. Conciliation hearing
1. When the complaint of the victim or an application of
his legitimate representative has been received in the court
under the procedure of private accusation, the victim and/or
his legitimate representative, as well as the person who is
accused of the criminal deed shall be summoned by the
prosecutor for conciliation. Together with the summons, the
accused person shall also be sent a copy of the complaint.
2. The conciliation hearing shall start by a report of the
judge on the contents of the complaint of the victim or
application of his legitimate representative and an invitation
to conciliate. Then the victim and/or his legitimate
representative shall speak, and afterwards the person accused
of the criminal deed. If the persons conciliate, the
proceedings on the complaint shall be dismissed.
3. While conciliating, the victim and/or his legitimate
representative, and the person accused of the criminal deed may
conclude an agreement on the compensation for damages. Under
the agreement, later an executive document may be issued on the
compensation of damages.
4. The opinions on the conciliation, as well as the
agreement on the compensation of damages, shall be signed in
the minutes of the conciliation hearing by the victim and/or
his legitimate representative, and the person accused of the
criminal deed.
5. If the victim and/or his legitimate representative, and
the person accused of the criminal deed do not conciliate, the
judge shall adopt a ruling to refer the complaint of the victim
to the trial hearing for investigation.
6. If the victim and/or his legitimate representative have
not appeared in the conciliation hearing without a serious
reason, it shall be presumed that the private accuser refused
the accusation. In such case, the proceedings on the complaint
shall be dismissed.
7. If the person accused of the criminal deed has not
appeared in the conciliation hearing without a serious reason,
the judge shall refer the complaint of the victim, or the
application of his legitimate representative to the trial
hearing for investigation.
Article 414. Court actions before the trial hearing
1. The court actions after the complaint of the victim has
been referred to the trial hearing for investigation shall be
established by the rules of Chapter XVIII of this Code,
together with the exceptions provided for in this Article.
2. The judge, while adopting a ruling on referring the
complaint of the victim, or the application of his legitimate
representative to the trial hearing for investigation, shall
have the right to request the establishment of pre-trial
investigation to investigate the circumstances of the case that
the court cannot establish within the established time period
and to postpone the case for that period of time.
3. In the cases of private accusation, the accused must be
provided with a copy of the complaint of the victim, or the
application of his legitimate representative not later than
three days before the trial hearing.
4. It is decided on the reference of the complaint of the
victim, or the application of his legitimate representative for
investigation in the trial procedure within twenty days from
the day when the complaint or application was received, and the
consideration of the case shall begin in the trial hearing not
later than within fourteen days from the adoption of the ruling
of the judge on referring the complaint or application to the
trial hearing for investigation.
Article 415. Investigation of cases of private accusation
in court
1. The consideration of cases of private accusation in
court shall be carried out under the rules, established in Part
V of this Code, save the exceptions provided for in Articles
415-417 of this Code.
2. The private accuser shall have the rights provided for
in Article 34 of this Code.
3. In the cases of private accusation the investigation of
evidences shall be started by announcement of the complaint of
the victim or the application of his legitimate representative.
It is read aloud by the private accuser or his representative.
Article 416. Refusing of the accusation
1. The private accuser shall have the right to refuse the
accusation or to conciliate with the accused before the end of
the final speeches.
2. If the private accuser does not appear in the trial
hearing without a serious reason, it shall be considered that
he refuses the accusation.
3. If the private accuser refused the accusation or
conciliated with the defendant, the proceedings of the case
shall be dismissed by a ruling of the court.
Article 417. Switching from private accusation into State
charges
1. If during the pre-trial investigation it transpires
that the deed of the suspect has signs of the criminal deeds
specified in Article 407 of this Code, the official who carries
out the investigation shall explain the victim about his right
to apply to court under the proceedings of private accusation.
The pre-trial investigation started on this criminal deed under
the general procedure shall be dismissed.
2. When the case is considered in court, and when there
are grounds to think that the deed of the defendant may be
requalified from a criminal deed considered under proceedings
of state charges into a criminal deed considered under
proceedings of private accusation, the chairman of the trial
hearing shall ask the victim before the end of the
investigation of the evidence whether he would not conciliate
with the accused in case the deed were requalified under the
articles of the Criminal Code of the Republic of Lithuania
specified in Article 407 of this Code.
3. When there is a possibility to requalify the criminal
deed and the victim requests that the accused be sentenced for
the criminal deed considered under the proceedings of private
accusation, the court shall pass a judgement on this deed in
its deliberation room in case there are other conditions
provided by the laws."
7. The proceedings of cases of private accusation
entrenched in the new CCP are neither legal novels of the
Lithuanian criminal procedure, nor novels of the Lithuanian
legal system in general. The proceedings of cases of private
accusation were also provided for in the formerly valid CCP
(Articles 126 and 261) and in the laws of criminal procedure of
the pre-war Lithuania.
The proceedings of cases of private accusation, as a
specific criminal procedure, are also typical of law of most of
European states.
The proceedings of cases of private accusation is a
specific legal way of resolving conflicts when the giving
juridical basis to (criminalization of) a certain conflict and
a person's prosecution are determined not by the will of state
institutions (officials), but by the will of the victim to
apply to competent state institutions in order to start the
criminal proceedings, and when the parties of the conflict have
a possibility to conciliate and thus establish legal
pre-conditions to dismiss the instituted criminal proceedings
till the very moment when the person, who is accused of
commission of the criminal deed, is recognised as guilty or not
guilty. The proceedings of cases of private accusation are such
proceedings, when a person is accused of certain criminal deeds
not by the state institution (official), but by the victim (or
his representative). This, however, does not mean that if the
victim (or his representative) does not accuse a person of the
criminal deeds, for which one is normally prosecuted under the
proceedings of private accusation, this person in general may
not be prosecuted, though this procedure is not proceedings of
cases of private accusation.
8. It was mentioned that a general model of criminal
procedure is entrenched in the Constitution that pre-trial
investigation and consideration of the criminal case in court
are different stages of criminal procedure.
It is to be emphasized that the model of criminal
procedure entrenched in the CCP (and other laws) is virtually
in line with the general constitutional model of criminal
procedure to the extent that the model of criminal procedure
entrenched in the laws includes two different stages-pre-trial
investigation and consideration of the criminal case in court.
8.1. While performing various procedural actions during
the pre-trial investigation, a person is established who is
suspected of commission of a criminal deed and the
circumstances of commission of such deed are investigated. The
pre-trial investigation is instituted on the decision of the
prosecutor, the head of the establishment of pre-trial
investigation or his authorized person, after the complaint,
application or announcement on the criminal deed is received or
if the prosecutor or the official of pre-trial investigation
himself establishes signs of a criminal deed and draws up an
official report. The pre-trial investigation is performed by
officials of investigation establishments (the police, the
State Border Guard Service, the military police, the State
Security Department, etc.), and pre-trial investigation is
organized and directed by prosecutors. Moreover, under the CCP,
the prosecutor may decide to perform all the pre-trial
investigation or part thereof himself. Sometimes certain
actions of pre-trial investigation are performed by a judge of
pre-trial investigation (such official was not provided for in
the formerly valid CCP). After a decision to institute
pre-trial investigation has been adopted, the judge of
pre-trial investigation, the prosecutor or the official of the
establishment of pre-trial investigation may question the
suspect, witness, victim, to verify their testimonies on the
spot, carry out a search, seizure or perform other procedural
actions. A person, who is arrested after he has been suspected
of commission of a criminal deed, or a person, who is
questioned about the deed, of the commission of which he is
suspected, or a person, who is summoned for questioning, to
whom a report on the suspicion is drawn up, is recognized as a
suspect. The pre-trial investigation is either finished by
dismissing the pre-trial investigation or by drawing up an
indictment and referring the material of the case to court. A
person, in whose regard the prosecutor has adopted the
indictment is considered to be the accused.
8.2. When the court receives the indictment (together with
the material of the case), another stage of the criminal
proceedings begins, which is consideration of the criminal case
in court. In this stage of the criminal proceedings the court,
after it has assessed the material collected during the
pre-trial investigation and consideration of the case in court,
decides on the question of guilt of the person who is accused
of commission of a criminal deed and adopts a decision. During
the consideration of the case in court state charges are upheld
by the prosecutor. The CCP provides for the proceedings of
cases in courts of first instance, those of appeal and of
cassation. It is to be noted that the jurisdiction and other
powers of the courts of first instance, appeal and cassation
are different. This determines the peculiarities of the
criminal procedure in the course of consideration of cases in
the first instance and instances of appeal and cassation as
well as the legal meaning of decisions of corresponding courts.
9. It was mentioned that the Constitution does not prevent
legislative consolidation of also such kinds of criminal
procedure which are more or less different from the general
constitutional model of criminal procedure. It was also
mentioned that establishment of any exceptions to the general
constitutional model of criminal procedure must be
constitutionally grounded.
For instance, the CCP, together with the general model of
criminal procedure, establishes peculiarities of the criminal
procedure (some of which are equal to specific types of
criminal procedure), when pre-trial investigation is instituted
only subsequent to the complaint of the victim or application
of his legitimate representative or upon a request of the
prosecutor when the cases on the criminal deeds committed by
legal persons are considered, when coercive medical measures
are applied, when the proceedings of cases take place under
summary procedure (summary proceedings of cases), when the
proceedings of cases take place without participation of the
accused, etc. One kind of the specific criminal procedure
provided for in the new CCP is proceedings of cases of private
accusation, the compliance of certain provisions regulating it
with the Constitution is the subject of investigation in the
constitutional justice case at issue.
It is to be emphasized that in this constitutional justice
case at issue the compliance of certain articles (paragraphs
thereof) of the new CCP, which regulate the proceedings of
cases of private accusation, with the Constitution is
investigated in the aspects specified by the petitioners and
one does not investigate whether other articles (paragraphs
thereof) of the CCP, inter alia regulating the general criminal
procedure, save such articles (paragraphs thereof) of the CCP,
regulating the general criminal procedure the compliance of
which with the Constitution is expressis verbis disputed by the
petitioners, are not in conflict with the Constitution. Neither
does this constitutional justice case at issue investigate into
the compliance of such peculiarities of the criminal procedure
established in the CCP (specific kinds of the criminal
procedure) with the Constitution, whose compliance with the
Constitution is not disputed by the petitioners.
10. The main peculiarities of the institute of the
proceedings of cases of private accusation entrenched in the
CCP, if compared with other proceedings of cases established in
the CCP, i.e. with the general model of criminal procedure when
pre-trial investigation is performed and state charges during
the court process are upheld by the prosecutor as well as with
various specific kinds of criminal procedure, are as follows:
(1) the criminal procedure on the criminal deeds provided for
in corresponding articles of the CC, which are enumerated in
the CCP is instituted only in the case when there is a
complaint of the victim or an application of his legitimate
representative; (2) the complaint of the victim or the
application of his legitimate representative, regarding which
the proceedings of cases of private accusation are instituted,
is referred to the court; (3) concrete requirements are
established for the contents of the complaint (application)
regarding which the proceedings of cases of private accusation
are instituted; (4) in these proceedings of cases pre-trial
investigation is not carried out; (5) in the proceedings of
cases of private accusation in court the victim (his legitimate
representative) himself upholds the accusation as a private
accuser; (6) there is a particular stage in these proceedings
of cases-the conciliation hearing: the victim (his legitimate
representative) and the person accused of commission of a
criminal deed, may conciliate in the conciliation court hearing
that takes place before the trial hearing, and if they reach
conciliation, the proceedings regarding the complaint are
dismissed.
11. Attention is to be paid to the fact that Chapter XXX
titled "Proceedings of cases of private accusation" of the CCP
provides for cases where one switches from private accusation
to state charges and, vice versa, from state charges to private
accusation.
11.1. If corresponding criminal deeds, regarding which the
proceedings of criminal cases must take place under the rules
of proceedings of cases of private accusation, are of public
importance or by which harm has been inflicted upon the person
who cannot defend his legitimate interests due to important
reasons, also the prosecutor has the right to institute the
criminal proceedings regarding these deeds (Paragraph 1
(wording of 19 June 2003) of Article 409 of the CCP). The
prosecutor also has the right to submit, at any time of the
case of private accusation until the beginning of investigation
of the evidence, a written application to the court that he
will uphold state charges (Paragraph 2 (wording of 14 March
2002) of Article 409 of the CCP).
11.2. If during pre-trial investigation it transpires that
the deed of the suspect has signs of the criminal deeds
specified in Article 407 of this Code, the official who carries
out the investigation explains the victim about his right to
apply to court under proceedings of private accusation. The
pre-trial investigation instituted regarding this criminal deed
under the general procedure is dismissed (Paragraph 1 (wording
of 14 March 2002) of Article 417 of the CCP). If this
transpires at the time of the consideration of the case in
court, the chairman of the trial hearing asks the victim,
before the end of the investigation of the evidence, whether he
would not conciliate with the accused in case the deed were
requalified under the articles of the CC, which are specified
in Article 407 (Paragraph 2 (wording of 14 March 2002) of
Article 417 of the CCP).
12. While deciding whether Article 407 (wording of 19 June
2003) of the CCP is not in conflict with Paragraph 1 of Article
29 and Paragraph 1 of Article 30 of the Constitution to the
extent that it provides that the proceedings of criminal cases
are instituted only in the case when there is a complaint of
the victim or an application of his legitimate representative,
and that pre-trial investigation is not carried out in such
cases save the cases provided for in Article 409, it is to be
noted that, as it is held in this Constitutional Court ruling,
the legislator, while taking account of the nature, danger
(gravity), scale, other signs, as well as other circumstances
of importance of the criminal deeds, may, while paying heed to
the Constitution, consolidate such legal regulation under which
a mere application (petition, statement, complaint, etc.) from
a victim (of his representative) concerning a criminal deed may
serve as the grounds for commencement of investigation into the
criminal deed, and that the constitutional entrenchment of the
said general model of criminal procedure does not eliminate an
opportunity to regulate the relations of criminal procedure so
that in certain cases the pre-trial investigation is not
conducted, however, also in such cases one must pay heed to the
Constitution, one must inter alia provide for other legal
measures, ensuring the possibility to collect all the necessary
information needed in order for the court to adopt a just
decision.
13. While deciding, whether Article 407 (wording of 19
June 2003) of the CCP in not in conflict with Paragraph 1 of
Article 29 and Paragraph 1 of Article 30 of the Constitution to
the extent that it provides that the proceedings of criminal
cases are instituted only in the case when there is a complaint
of the victim or an application of his legitimate
representative, and that pre-trial investigation is not carried
out in such cases, save the cases provided for in Article 409,
it is also to be noted that the legal regulation consolidated
in Article 407 (wording of 19 June 2003) of the CCP is
inseparable from the legal regulation established in Article
409 of the CCP.
As mentioned, it was established in Article 409 (wording
of 19 June 2003) of the CCP that if the criminal deeds
specified in Article 407 of this Code are of public importance,
or if they inflicted harm upon the person who, due to important
reasons, cannot defend his legitimate interests, also the
prosecutor has the right to institute the criminal proceedings
regarding these deeds, regardless of whether or not there is a
complaint of the victim or an application of his legitimate
representative (Paragraph 1), that the prosecutor has also the
right to submit, at any time of the case of private accusation
until the beginning of investigation of the evidence, a written
application to the court that he will uphold state charges and
in such situation the case is referred to the prosecutor and
the pre-trial investigation and consideration of the case in
court take place according to the general procedure (Paragraph
2) and that if while investigating the case of private
accusation in court it transpires that the accused has
committed the criminal deed for which state charge must be
upheld, the procedure of private accusation is dismissed and
the material of the case is referred to the prosecutor
(Paragraph 3).
14. It is to be held that under Article 407 (wording of 19
June 2003) of the CCP and Article 409 (wording of 19 June 2003)
of the CCP:
- the criminal proceedings regarding the criminal deeds
specified in Article 407 (wording of 19 June 2003) of the CCP
are instituted: (1) when there is a complaint from the victim
(an application of his legitimate representative); (2) when,
under Article 409 of the CCP, the prosecutor institutes the
criminal proceedings regarding the criminal deeds, specified in
Article 407 (wording of 19 June 2003) of the CCP, which are of
public importance, or if they inflicted harm upon the person
who, due to important reasons, cannot defend his legitimate
interests;
- when the criminal proceedings regarding the criminal
deeds specified in Article 407 (wording of 19 June 2003) of the
CCP are instituted subsequent to a complaint of the victim (an
application of his legal representative) and during the
proceedings of cases of private accusation (until the beginning
of investigation of the evidence) the prosecutor does not
submit an application to the court that he will uphold state
charges, pre-trial investigation is not carried out.
- when the criminal proceedings regarding the criminal
deeds specified in Article 407 (wording of 19 June 2003) of the
CCP are instituted by the prosecutor, pre-trial investigation
is carried out.
- pre-trial investigation is carried out also in the cases
when, under Article 409 of the CCP, during the proceedings of
cases of private accusation in court (until the beginning of
investigation of the evidence) the prosecutor submits a written
application to the court that he will uphold state charges in
the criminal cases regarding the criminal deeds specified in
Article 407 (wording of 19 June 2003) of the CCP, which are of
public importance, or if they inflicted harm upon the person
who, due to important reasons, cannot defend his legitimate
interests;
- pre-trial investigation is also carried out in such
cases, when it transpires during the consideration of a case of
private accusation in court that the defendant has committed a
criminal deed for which state charges must be upheld and the
court, after it has dismissed the proceedings of private
accusation, refers the material of the case to the prosecutor.
15. Under Paragraph 1 (wording of 19 June 2003) of Article
409 of the CCP, even if there is no complaint of the victim or
application of his legitimate representative, the prosecutor
has the power to institute the criminal proceedings regarding
the criminal deeds specified in Article 407 of the CCP, which
are of public importance, or if they inflicted harm upon the
person who, due to important reasons, cannot defend his
legitimate interests.
These provisions, their formulas are not to be construed
literally but by taking account of the purpose and meaning of
the institute of private accusation, as an institute of
specific criminal proceedings, of the overall legal regulation
of the proceedings of cases of private accusation in the new
CCP, of the principles and purposes of the criminal procedure
as well as of the constitutional status of the prosecutor.
15.1. The formula "due to important reasons, cannot defend
his legitimate interests" used in Paragraph 1 (wording of 19
June 2003) of Article 409 of the CCP is very capacious. It
describes very different situations, namely those when the
person cannot in general (himself or through his legitimate
representative) express his will to defend his legitimate
interests and/or cannot (himself or through his legitimate
representative) perform certain actions (take other measures),
by which he would defend these legitimate interests (for
example, due to physical or psychological disability, absence
of legal subject, etc.) and such, when even if the person can
(himself or through his legitimate representative) express his
will to defend his legitimate interests and can (himself or
through his legitimate representative) perform certain actions
by which he would defend these legitimate interests, though
these actions (other measures) may not objectively be enough
for these interests to be defended (for example, due to
impossibility to receive the necessary information, absence of
the right to perform certain actions of the proceedings, etc.).
15.2. The formula "criminal deeds which are of public
importance" used in Paragraph 1 (wording of 19 June 2003) of
Article 409 of the CCP is also very capacious. It is not to be
related to one or several signs of a criminal deed (for
example, to the position or social status of the victim, to the
response of the society regarding the criminal deed, etc.) but
with various signs of the criminal deed and circumstances under
which it was committed. While deciding, whether the criminal
deed is of public importance, in every case it is necessary to
assess what consequences for the society, state and legal
system could appear, if the criminal proceedings regarding this
deed and other analogous deeds were not instituted.
15.3. The provision "also the prosecutor shall have the
right to institute the criminal proceedings regarding these
deeds" of Paragraph 1 (wording of 19 June 2003) of Article 409
of the CCP cannot be construed as allowing the prosecutor to
decide at his discretion whether or not to institute the
criminal procedure regarding the criminal deed specified in
Article 407 (wording of 19 June 2003) of the CCP when there are
not any conditions specified in Paragraph 1 (wording of 19 June
2003) of Article 409 of the CCP (i.e. when this deed is of
public importance or if it inflicted harm upon the person who,
due to important reasons, cannot defend his legitimate
interests). While construing this provision in the context of
the overall legal regulation of the proceedings of cases of
private accusation in the new CCP, the principles and purposes
of the criminal procedure as well as the provisions,
consolidating the constitutional status of the prosecutor, it
is to be held that it consolidates the unquestionable duty of
the prosecutor, who has the constitutional obligation to defend
inter alia the rights and legitimate interests of the person
(Paragraph 2 of Article 118 of the Constitution), to institute
criminal proceedings in all cases when: (1) the criminal deed
specified in Article 407 (wording of 19 June 2003) of the CCP
is of public importance, regardless of whether or not there is
a complaint of the victim or an application of his legitimate
representative; (2) by the criminal deed specified in Article
407 (wording of 19 June 2003) of the CCP harm was inflicted
upon the person who in general cannot (himself or through his
legitimate representative) express his will to defend his
legitimate interests and/or cannot (himself or through his
legitimate representative) perform certain actions (take other
measures), by which he would defend these legitimate interests,
regardless of whether or not there is a complaint of the victim
or an application of his legitimate representative; (3) by the
criminal deed specified in Article 407 (wording of 19 June
2003) of the CCP harm was inflicted upon the person who can
(himself or through his legitimate representative) express his
will to defend his legitimate interests and has (himself or
through his legitimate representative) expressed it (he has
himself or through his legal representative applied to the
competent institution or official under the procedure
established by the laws), though the actions that he (himself
or through his legitimate representative) can perform (other
measures that he can take) in order to defend his legitimate
interests objectively may not be enough for these interests to
be defended.
It is also to be noted that under Paragraph 4 (wordings of
14 March 2002 and 8 July 2004) of Article 168 of the CCP, the
ruling of the official the pre-trial investigation to refuse to
institute pre-trial investigation may be appealed against with
the prosecutor, and the ruling of the prosecutor-with the judge
of pre-trial investigation; if the prosecutor does not rescind
the ruling refusing to initiate pre-trial investigation, his
decision may be appealed against with the judge of the
pre-trial investigation.
15.4. It is to be emphasized that, under Paragraph 1
(wording of 19 June 2003) of Article 409 of the CCP, the
prosecutor does not have powers to institute criminal
proceedings regarding the criminal deed specified in Article
407 (wording of 19 June 2003) of the CCP when there is not a
single condition (this deed is not of public importance and it
has not inflicted harm upon the person who, due to important
reasons, cannot defend his legitimate interests), specified in
Paragraph 1 (wording of 19 June 2003) of Article 409 of the
CCP.
15.5. Under Paragraph 1 (wording of 19 June 2003) of
Article 409 of the CCP, neither does the prosecutor have the
powers to institute criminal proceedings regarding the criminal
deed specified in Article 407 (wording of 19 June 2003) of the
CCP when by the criminal deed that is not of public importance
harm was inflicted upon the person who can (himself or through
his legitimate representative) express his will to defend his
legitimate interests, but he neither himself nor through his
legitimate representative expresses such a will, i.e. there is
no complaint of the victim or application of his legitimate
representative.
16. Analogically, not literally, but taking into account
the purpose and meaning of the institute of private accusation,
as an institute of specific criminal proceedings, the overall
legal regulation of the proceedings of cases of private
accusation in the new CCP, the principles and purposes of the
criminal procedure as well as the constitutional status of the
prosecutor, one is also to construe Paragraph 2 (wording of 14
March 2002, which remained unchanged also after Paragraph 1 of
this article was set forth as new and wording of 19 June 2003)
of Article 409 of the CCP, under which the prosecutor has the
right to submit, at any time of the case of private accusation
until the beginning of investigation of the evidence, a written
application to the court that he will uphold state charges and
the case is referred to the prosecutor while the pre-trial
investigation and consideration of the case in court take place
according to the general procedure.
16.1. The provisions of Paragraph 2 (wording of 14 March
2002) of Article 409 of the CCP may not be construed as
allowing the prosecutor to decide at his discretion whether or
not to submit to the court a written application that in a
certain case he will uphold state charges if there is at least
one of the conditions provided for in the CCP, to which such a
possibility of submission the written application to the court
is related. These provisions are to be construed as
consolidating the unquestionable duty of the prosecutor to
submit the said written application to the court.
16.2. It is particularly to be emphasized that while
construing Paragraph 2 (wording of 14 March 2002) of Article
409 of the CCP it is necessary to take account of the
provisions of Paragraph 1 (wording of 19 June 2003) of this
article.
In Paragraph 2 (wording of 14 March 2002) of Article 409
of the CCP such a legal regulation is established that the
prosecutor, after he has found out (i.e. from the court that
investigates the case) that the proceedings of the case of
private investigation take place in court on such criminal
deed, which specified in Article 407 (wording of 19 June 2003)
of the CCP and which is of public importance, or by which harm
was inflicted upon the person who, due to important reasons,
cannot defend (himself or through his legitimate
representative) his legitimate interests; i.e. on such deed
that meets at least one of the conditions, specified in
Paragraph 1 (wording of 19 June 2003) of Article 409 of the
CCP, must submit a written application to the court, stating
that he will uphold state charges in this case, save the
exceptions arising from the laws.
In this context, it is to be noted that under Paragraph 2
(wording of 14 March 2002) of Article 409 of the CCP, neither
does the prosecutor have the powers to submit a written
application to the court, stating that he will uphold state
charges regarding such a criminal deed, specified in Article
407 (wording of 19 June 2003) of the CCP when by the criminal
deed that is not of public importance harm has been inflicted
upon the person who (his legitimate representative) can express
his will and has expressed his will to defend his legitimate
interests under the proceedings of cases of private accusation
(either himself or through his legitimate representative), even
though, whatever actions that person (his legitimate
representative) would perform (whatever measures he would
take), these actions (other measures) objectively will not be
sufficient to defend those interests.
16.3. It needs to be held that if Paragraph 2 (wording of
14 March 2002) of Article 409 of the CCP is construed in such a
way, the legal regulation established therein can be assessed
as that whereby one seeks to ensure that prosecutors fulfil
their constitutional obligation to protect the rights and
legitimate interests of the person, society and the state
(Paragraph 2 of Article 118 of the Constitution).
16.4. It needs to be emphasised that under Paragraph 2
(wording of 14 March 2002) of Article 409 of the CCP the
prosecutor does not enjoy powers to submit a written statement
to the court that he is going to uphold charges on behalf of
the state in connection of the criminal deed specified in
Article 407 (wording of 19 June 2003), when one of the
conditions (the said deed is of no public importance and it did
not inflict harm upon the person who cannot, due to important
reasons, defend his legitimate interests) specified in
Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP
is absent.
17. It needs to be noted that in all cases when the
prosecutor implements his powers established in Paragraph 1
(wording of 19 June 2003) or Paragraph 2 (wording of 14 March
2002) of Article 409 of the CCP, also in all cases when the
prosecutor refuses to implement these powers (i.e. when he
refuses to institute the criminal proceedings regarding such
criminal deed due to which the criminal proceedings are, as a
rule, conducted according to the proceedings of cases of
private accusation, or when he, during the proceedings of a
case of private accusation, refuses to submit to the court a
written statement that in the said case he is going to uphold
charges on behalf of the state, although he has learned (from,
for example, the court which is investigating the case) that
the case is conducted regarding such a criminal deed, which is
specified in Article 407 (wording of 19 June 2003) of the CCP,
which is of public importance or by which damage was inflicted
upon the person who, due to important reasons, cannot defend
his legitimate interests), his decision must be grounded on
legal arguments.
18. In this context attention is to be paid to the fact
that the formula "also the prosecutor shall have the right to
institute the criminal proceedings" of Paragraph 1 (wording of
19 June 2003) and the formula "the prosecutor shall also have
the right" of Paragraph 2 (wording of 14 March 2002) of Article
409 of the CCP are not without faults from the legal point of
view, and are to be corrected, since the powers of prosecutors
as state officials may not be defined in legal acts as their
subjective right, which they can implement at their own
discretion, i.e. such right which they either can use or can
decide not to use. Such powers are also the duties which the
prosecutors (other state officials) not only can but also must
implement if corresponding conditions are established in laws.
However, the mere legal incorrectness of the formula "also
the prosecutor shall have the right to institute the criminal
proceedings" of Paragraph 1 (wording of 19 June 2003) and the
formula "the prosecutor shall also have the right" of Paragraph
2 (wording of 14 March 2002) of Article 409 of the CCP are not
sufficient grounds to recognise that these paragraphs (to a
certain extent) are in conflict with the Constitution.
One is also to note that the rule that the powers of state
officials cannot be defined in legal acts as their subjective
right is to be applied mutatis mutandis not only to prosecutors
but also to other state officials, inter alia judges, as well
as municipal officials and institutions of public power.
19. By Article 26 of the Law on the Amendment and
Supplementing Articles 65, 94, 103, 109, 139, 151, 154, 158,
168, 181, 218, 220, 225, 232, 237, 239, 240, 306, 313, 346,
360, 364, 370, 377, 403, 409, 418, 421, 422, 425, 426, 429,
446, 456, 457, 458 and Amending the Title of Chapter XXXV of
the Code of Criminal Procedure, which was adopted by the Seimas
on 8 July 2004 and which went into effect on 24 July 2004)
Article 409 (wording of 19 June 2003) of the CCP was
supplemented by new Paragraph 3; former Paragraph 3 became
Paragraph 4.
19.1. Paragraph 3 (wording of 8 July 2004) of Article 409
of the CCP provides that pre-trial investigation regarding the
criminal deeds provided for in Article 407 of this code is
conducted according to the general procedure, if the person
suspected of committing the criminal deed is not known.
19.2. Under Article 409 (wording of 19 June 2003) of the
CCP, the victim (his representative) who is unable to point out
the person who is suspected of commission of the criminal deed
specified in Article 407 (wording of 19 June 2003) of the CCP
had to be treated as a person, who, due to important reasons,
cannot defend his legitimate interests and after such a person
(his representative) had filed a complaint (application) to the
prosecutor, the latter had a duty to institute the criminal
proceedings.
If the legal regulation entrenched in Article 409 (wording
of 8 July 2004) of the CCP is compared with the legal
regulation entrenched in Article 409 (wording of 19 June 2003)
of the CCP, it becomes clear that after Article 409 (wording of
19 June 2003) of the CCP had been supplemented with new
Paragraph 3, one did not consolidate any virtually new
provision in Article 409 (wording of 8 July 2004) of the CCP,
which could not be derived from the previous formulas of this
article, but the legal regulation was particularised in the
aspect that it specified expressis verbis one of important
reasons due to which the person cannot defend his legitimate
interests and, due to this, the prosecutor, upon receiving the
complaint of the victim or a statement from his legitimate
representative, must institute the criminal proceedings on the
criminal deed specified in Article 407 (wording of 19 June
2003) of the CCP.
20. Thus, one is to hold that the legal regulation was
established in Article 407 (wording of 19 June 2003) of the CCP
and Article 409 (wordings of 19 June 2003 and 8 July 2004) of
the CCP which permits (used to permit) the victim (his
representative) to defend his rights or legitimate interests
violated by the criminal deed specified in Article 407 (wording
of 19 June 2003) of the CCP either according to the procedure
for the proceedings of cases of private accusation (i.e. when
the victim or his legitimate representative applies to court),
or according to the general procedure (i.e. when the victim or
his legitimate representative applies to the prosecutor).
Therefore, the legal regulation established in Article 407
(wording of 19 June 2003) of the CCP does not violate the
constitutional right of the persons who suffered from the
aforesaid criminal deeds to apply to court-this constitutional
right is not artificially restricted, nor is its implementation
unreasonably burdened.
Alongside, it needs to be held that although certain
peculiarities are characteristic of the legal regulation of the
judicial defence of the rights and legitimate interests of the
persons who suffered from the deeds specified in Article 407
(wording of 19 June 2003) of the CCP, it does not mean that the
constitutional principle of equal rights of persons is deviated
from.
21. Taking account of the arguments set forth, one is to
draw a conclusion that Article 407 (wording of 19 June 2003) of
the CCP to the extent that it provides that the proceedings of
criminal cases is instituted only in case there is a complaint
or an application from his legitimate representative and that
in these cases pre-trial investigation is not conducted save
the cases provided for in Article 409 of the CCP is not in
conflict with Paragraph 1 of Article 29 and Paragraph 1 of
Article 30 of the Constitution.
22. When deciding whether Paragraph 1 (wording of 14 March
2002) of Article 408 of the CCP, which provides that in cases
of private accusation the complaint is filed and the accusation
in court is upheld by the victim and that in court he acquires
the status of private accuser, is not in conflict with
Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the
Constitution, one is to hold that:
- as mentioned, under the Constitution the legislator can
also establish such legal regulation whereby in certain
criminal cases charges are upheld not by prosecutors, but by
private persons (their representatives), and in itself such
legal regulation does not create pre-conditions to violate the
right of the person to judicial defence;
- the fact that in certain criminal cases victims (their
representatives) uphold the charges, is a specific form of
implementation of the constitutional right of the person to
defend his rights and freedoms as well as legitimate interests
in court and, in itself, it does not mean that the
constitutional right of the person to apply to court is
artificially restricted nor that its implementation is
unreasonably burdened;
- the legal regulation established in Paragraph 1 (wording
of 14 March 2002) of Article 408 of the CCP is applicable to
all persons who suffered from the deeds specified in Article
407 (wording of 19 June 2003) of the CCP, thus, although
certain peculiarities, which are consolidated inter alia in
Paragraph 1 (wording of 14 March 2002) of Article 408 of the
CCP, are characteristic of the legal regulation of the judicial
defence of the rights and legitimate interests of the persons
who suffered from the deeds specified in Article 407 (wording
of 19 June 2003) of the CCP, it does not mean that the
constitutional principle of equal rights of persons is deviated
from.
23. Taking account of the arguments set forth, one is to
conclude that Paragraph 1 (wording of 14 March 2002) of Article
408 of the CCP is not in conflict with Paragraph 1 of Article
29 and Paragraph 1 of Article 30 of the Constitution.
24. When deciding whether Paragraph 2 (wording of 14 March
2002) of Article 412 of the CCP, under which a written
complaint or application filed to court according to the
procedure of private accusation, must contain the title of the
court whose jurisdiction covers the case, the place, time and
consequences of the criminal deeds of which the person is
accused, other essential circumstances, the data that confirm
the circumstances set forth in the complaint or application,
the names, surnames and place of residence of the victim, the
person who is suspected of commission of the criminal deed and
of witnesses, and the complaint must be signed by the victim,
while in the case provided for in Paragraph 2 of Article 408-by
the legitimate representative of the victim, is not in conflict
with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of
the Constitution, one is to hold that:
- as mentioned, the constitutional right of the person to
apply to court does not prevent the legislator from
establishing certain formal requirements applied to the
application filed by a person to court, under which one may
start investigation into the criminal deed and/or consideration
of the criminal case in court and, in itself, the establishment
of such formal requirements yet do not mean that the
constitutional right of the person to apply to court is
restricted or that implementation of this right is unreasonably
burdened, however, when establishing such requirements the
legislator may not burden the implementation of the right of
the person to judicial defence unreasonably, nor may he make
such implementation impossible at all;
- the requirement established in Paragraph 2 (wording of
14 March 2002) of Article 412 of the CCP that a written
complaint or application filed to court according to the
procedure of private accusation must contain the title of the
court whose jurisdiction covers the case, the place, time and
consequences of the criminal deeds of which the person is
accused, other essential circumstances, the data that confirm
the circumstances set forth in the complaint or application,
the names, surnames and place of residence of the victim, the
person who is suspected of commission of the criminal deed and
of witnesses, is necessary so that one might be able to
institute the proceedings of cases of private accusation, and
due to this such requirement is to be assessed as grounded and
rational;
- the said requirements for the complaint (application)
filed to court according to the procedure of private accusation
are bigger than the requirements for the application according
to which pre-trial investigation is commenced (Articles 166,
167 and 168 of the CCP);
- the differences of the requirements established for the
complaint (application) subsequent to which the proceedings of
cases of private accusation is begun from the requirements of
the applications under which pre-trial investigation is begun
are grounded, since, unlike than the application subsequent to
which pre-trial investigation is begun, the purpose and
function of a written complaint or application filed to court
according to the procedure of private accusation are not only
the report (information to the competent institution or
official) about the criminal deed, but also accusation of the
person: by means of such a complaint (application) an
accusation is brought against the person in order to be
considered in court (in a similar manner as by an indictment in
the cases in which pre-trial investigation is conducted),
therefore bigger formal requirements are to be raised to such
complaints (applications) than to the requirements subsequent
to which pre-trial investigation will be conducted;
- Paragraph 2 (wording of 14 March 2002) of Article 412 of
the CCP does not establish anything as to what should be done
with the complaint (application) that does not meet the
requirements established in this paragraph.
25. Thus, in itself, the fact that bigger requirements are
established to a complaint (application) subsequent to which
pre-trial investigation is begun does not mean that the
constitutional right of the person to apply to court has been
artificially restricted or that the implementation of this
right has been burdened unreasonably, nor that the
constitutional principle of equal rights of persons is deviated
from.
26. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 2 (wording of 14 March 2002)
of Article 412 of the CCP is not in conflict with Paragraph 1
of Article 29 and Paragraph 1 of Article 30 of the
Constitution.
27. While deciding whether Paragraph 3 (wording of 14
March 2002) of Article 412 of the CCP under which the complaint
which does not meet the requirements of Paragraph 2 (wording of
14 March 2002) of Article 412 of the CCP is not accepted and is
returned to the person that has filed it is not in conflict
with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of
the Constitution, one is to hold that:
- the provision of Paragraph 3 (wording of 14 March 2002)
of Article 412 of the CCP that the complaint which does not
meet the requirements of Paragraph 2 (wording of 14 March 2002)
of Article 412 of the CCP is not accepted and is returned to
the person that has filed it implies that the deficiencies in
the complaint must be pointed out to the person whose complaint
is not accepted, which must be removed;
- the legal regulation consolidated in Paragraph 3
(wording of 14 March 2002) of Article 412 of the CCP
encompasses various legal situations, in the presence of which
the complaint that does not meet the requirements of Paragraph
2 (wording of 14 March 2002) of Article 412 of the CCP is not
accepted and is returned to the person that has filed it: (1)
the complaint may be not accepted and returned to the person
that has filed it due to such deficiencies of this complaint,
which must be removed by the person that has filed it himself;
(2) the complaint may be not accepted and returned to the
person that has filed it due to such deficiencies of the
complaint, which cannot be removed by the person that has filed
it-they can be removed only by conducting pre-trial
investigation or individual procedural actions;
- the fact that the complaint is not accepted and returned
to the person who has filed it, the deficiencies of which can
be removed by the person who filed it himself, is completely
grounded and justified, since, as held in the ruling of the
Constitutional Court, a written complaint filed according to
the procedure of private accusation also performs the function
of an indictment, therefore bigger formal requirements are to
be raised to it than to an application subsequent to which
pre-trial investigation will be conducted;
- the fact that the complaint is not accepted and returned
to the person who has filed it, the deficiencies of which
cannot be removed by the person who filed it, since they can be
removed only by conducting pre-trial investigation or
individual procedural actions, implies that there exists one of
the conditions-damage was inflicted upon a person, who, due to
important reasons, cannot defend his legitimate
interests-specified in Paragraph 1 (wording of 19 June 2003) of
Article 409 of the CCP in the presence of which the criminal
proceedings regarding the criminal deeds established in of
Article 409 (wording of 19 June 2003) of the CCP must be
instituted by the prosecutor in case there is a complaint of
the victim or an application of his legitimate representative;
- thus, neither a situation, where, under Paragraph 3
(wording of 14 March 2002) of Article 412 of the CCP, the
complaint is not accepted and is returned to the person because
of such deficiencies of the complaint, which can be removed by
the person who has filed it himself, nor a situation, where,
under the same paragraph, the complaint is not accepted and is
returned to the person who has filed it because of such
deficiencies of this complaint, which cannot be removed by the
person who filed it, since they can be removed only by
conducting pre-trial investigation or separate procedural
actions, the person who suffered from the criminal deed
specified in Article 407 (wording of 19 June 2003) (or his
representative) is not prevented from defending his violated
rights or legitimate interests in court-in the first case the
person who suffered from the criminal deed (or his
representative), after he has removed the specified
deficiencies, may once again apply to court according to the
procedure for the proceedings of cases of private accusation,
while in the second case, the person who suffered from the
criminal deed (or his representative) may defend his violated
rights or legitimate interests by applying to the prosecutor;
- Paragraph 3 (wording of 14 March 2002) of Article 412 of
the CCP, if construed not only literally, but also by taking
account of the purpose and the meaning of the institute of
private accusation as a specific institute of criminal
procedure, as well as of the principles and objectives of the
criminal procedure, does not mean that provided the complaint
filed according to the procedure of private accusation contains
only small, not essential, formal deviances from the
established requirements, the court does not enjoy powers to
accept such a complaint altogether.
28. Thus, the provision of Paragraph 3 (wording of 14
March 2002) of Article 412 of the CCP that the complaint which
does not meet the requirements of Paragraph 2 (wording of 14
March 2002) of Article 412 of the CCP is not accepted and is
returned to the person that has filed it does not mean that the
constitutional right of the person to apply to court has been
artificially restricted or that the implementation of this
right has been burdened unreasonably, nor that the
constitutional principle of equal rights of persons is deviated
from.
29. Taking account of the arguments set forth, one is to
conclude that Paragraph 3 (wording of 14 March 2002) of Article
412 of the CCP is not in conflict with Paragraph 1 of Article
29 and Paragraph 1 of Article 30 of the Constitution.
30. When deciding whether Paragraph 5 (wording of 14 March
2002) of Article 412 of the CCP, which provides that if the
victim and/or his legitimate representative, and the person who
is accused of commission of the criminal deed, fail to reach
conciliation, the judge adopts a ruling to refer the case for
consideration in trial hearing, is not in conflict with
Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the
Constitution, one is to hold that:
- as mentioned, the proceedings of cases of private
accusation are proceedings in which until the very moment when
the person accused of commission of the criminal deed is
recognised either guilty or not guilty, the parties of the
conflict have an opportunity to reach conciliation and thus to
create legal pre-conditions to dismiss the instituted legal
proceedings;
- Paragraph 5 (wording of 14 March 2002) of Article 412 of
the CCP is designated to regulate a special stage of the
proceedings of cases of private accusation-the conciliatory
hearing-the purpose of which is to grant an opportunity to the
victim (his legitimate representative) and the person who is
accused of commission of the criminal deed, to reach
conciliation so that the criminal proceedings might be
dismissed;
- if the victim (his legitimate representative) and the
person who is accused of commission of the criminal deed fail
to reach conciliation, the complaint is referred to
consideration in trial hearing, in which it must be decided in
essence;
- the fact that the court follows the articles (parts
thereof) of the CCP cannot in general mean that the
independence of the judge or the court is denied.
31. Thus, the legal regulation established in Paragraph 5
(wording of 14 March 2002) of Article 413 of the CCP violates
neither the right of the person to an independent court nor the
constitutional principle of equal rights of persons.
32. Taking account of the fact set forth, one is to draw a
conclusion that Paragraph 5 (wording of 14 March 2002) of
Article 413 of the CCP is not in conflict with Paragraph 1 of
Article 29 and Paragraph 2 of Article 109 of the Constitution.
33. While deciding whether Paragraph 2 (wording of 14
March 2002) of Article 414 of the CCP which provides that the
judge, while adopting a ruling to refer the complaint of the
victim or application of his legitimate representative for
consideration in trial hearing, has the right to request that
the establishment of pre-trial investigation investigate,
within the established time period, the circumstances of the
case, which cannot be established by the court, and to postpone
the case for some period, is not in conflict with Paragraph 2
of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of
Article 118 of the Constitution, it needs to be noted that, as
held in this ruling of the Constitutional Court: such legal
situations are possible, where in the course of consideration
of a criminal case in court, in which pre-trial investigation
had not been conducted, there appears an issue of necessity of
pre-trial investigation or performance of certain procedural
actions; the obligation of the court to establish the objective
truth and to justly solve the case, which arises from the
Constitution, implies that if the court considers that without
conducting pre-trial investigation, or without performance of
certain procedural actions, which are impossible to be
performed in court, it will not be able to consider the case
correctly nor adopt a just decision, the court should enjoy
powers to decide also that pre-trial investigation be conducted
in the case or separate procedural actions and instructions to
certain entities be given; such court instructions are
compulsory to all persons (officials, institutions) to which
they are addressed; the fact that the court can instruct that
separate procedural actions be preformed by establishments
(officials) of pre-trial investigation cannot be interpreted as
the court's direction of pre-trial investigation; the law may
also establish such legal regulation whereby the court would
enjoy powers to oblige the prosecutors to control as to how
such instructions of the court are carried out; in the case
where the court decides to instruct that certain officials or
institutions perform separate procedural actions, but not
entire pre-trial investigation, the criminal case remains in
court. In this ruling of the Constitutional Court it was also
held that by giving the said instructions the court must act so
that no pre-conditions are created for the court to become
partial (for instance, by giving an instruction to perform
separate procedural actions, the court may not point out in
what manner such instruction is to be performed, what result is
expected, etc.).
It was also held that a court decision commissioning
performance of pre-trial investigation and a court decision
commissioning separate procedural actions give rise to
different legal effects; in the case where the court decides to
commission performance of pre-trial investigation, under the
Constitution the criminal case must be referred to the
prosecutor, with the exception of whom, under the Constitution,
no one else cannot organise pre-trial investigation and direct
it; when the court adopts a decision to commission performance
of pre-trial investigation, the consideration of the criminal
case in court is stopped until the pre-trial investigation is
over and, if one decides so, the indictment with the case
material are referred to the court.
34. When deciding whether Paragraph 2 (wording of 14 March
2002) of Article 414 of the CCP is not in conflict with
Paragraph 2 of Article 31, Paragraph 1 of Article 109, and
Paragraph 1 of Article 118 of the Constitution, one is to hold
that:
- Paragraph 2 (wording of 14 March 2002) of Article 414 of
the CCP establishes the legal regulation whereby the court
applies to the establishment of pre-trial investigation with a
request to investigate the circumstances of the case within the
established time period only in cases when the court cannot
establish these circumstances by itself;
- the request of the judge to the establishment of
pre-trial investigation, provided for Paragraph 2 (wording of
14 March 2002) of Article 414 of the CCP, asking to investigate
the circumstances of the case within the established time
period, which cannot be established by the court itself, is not
organisation of pre-trial investigation which, under the
Constitution, is ascribed to the competence of prosecutors;
- under Paragraph 2 (wording of 14 March 2002) of Article
414 of the CCP, the establishment (official) of pre-trial
investigation, after it has received a court's request to
investigate, within the established time, the circumstances of
the case, which the court is unable to establish by itself,
must accomplish this instruction properly and within the term
established by the court.
35. Under the Constitution, a court, which is
investigating a case, is judicial power-one of the branches of
state power.
In this context one is to draw attention to the fact that
the formula "the judge <...> shall have the right to request
the establishment of pre-trial investigation" of Paragraph 2
(wording of 14 March 2002) of Article 414 of the CCP is not
without faults from the legal point of view and is to be
corrected, since, as mentioned, under the Constitution,
instructions of the court, thus, also those of the judge
considering the case, are compulsory to all persons (officials,
institutions), thus, also to establishments of pre-trial
investigation, to whom they are addressed; such instructions
cannot be treated as requests, which might either be carried
out or not, or carried out not within the established term, at
the discretion of the persons to whom corresponding
instructions were sent or who can otherwise diverge from the
tasks formulated in the instructions.
However, the mere legal incorrectness of the formula "the
judge <...> shall have the right to request the establishment
of pre-trial investigation" of Paragraph 2 (wording of 14 March
2002) of Article 414 of the CCP does not provide with
sufficient grounds to recognise this paragraph (to any extent)
as being in conflict with the Constitution.
It needs also to be noted that the rule that the powers of
the court, thus, also those of the judge who is considering the
case to give instructions to establishments of pre-trial
investigation, cannot be defined as requests which might either
be carried out or not, or carried out not within the
established term, at the discretion of the persons to whom
corresponding instructions were sent or who can otherwise
diverge from the tasks formulated in the instructions, is to be
applied mutatis mutandis also for the regulation of relations
linked with giving instructions by the court (judge) (by paying
heed to the Constitution, inter alia the constitutional
principle of separation of powers) to other institutions or
officials.
Under the Constitution, the legislator must establish such
legal regulation, under which it might be possible to ensure
that the said instructions of the court (judge) are executed in
time and properly.
36. Thus, the powers of the court which are established in
Paragraph 2 (wording of 14 March 2002) of Article 414 of the
CCP to request that the establishment of pre-trial institution
investigate the circumstances of the case, which the court is
unable to establish, do not mean that the court is ascribed
with the function that is ascribed to the prosecutor by the
Constitution and which is not characteristic of the court, i.e.
the function of organising of pre-trial investigation.
Alongside, it needs to be held that the legal regulation
established in Paragraph 2 (wording of 14 March 2002) of
Article 414 of the CCP does not mean that certain preconditions
are created for the court not to be independent or impartial,
or that the court, when implementing the powers established in
this part, will not administer justice.
37. Taking account of the arguments set forth, one is to
conclude that Paragraph 2 (wording of 14 March 2002) of Article
414 of the CCP is not in conflict with Paragraph 2 of Article
31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118
of the Constitution.
IV
On the compliance of Item 3 (wordings of 10 April 2003 and
16 September 2003) of Paragraph 5 of Article 234 and Paragraph
2 (wordings of 10 April 2003 and 16 September 2003) of the CCP
with Paragraph 2 of Article 110 of the Constitution.
1. The Third Vilnius Local Court and the Panevėžys City
Local Court, the petitioners, request to investigate whether
Item 3 (wording of 10 April 2003) of Paragraph 5 of Article 234
and Paragraph 2 (wording of 10 April 2003) of the CCP are not
in conflict with Paragraph 2 of Article 110 of the
Constitution.
The Šiauliai District Local Court, the petitioner,
requests to investigate whether inter alia Item 3 of Paragraph
5 of Article 234 and Paragraph 2 of Article 244 of the CCP are
not in conflict with Article 110 of the Constitution.
2. It is clear from the petitions of the petitioners that
one doubts wither the provision "the consideration of the case
shall be postponed when: <...> (3) one applies to the
Constitutional Court in cases provided for in laws until the
ruling of the Constitutional Court is received" of Item 3
(wordings of 10 April 2003 and 16 September 2003) of Paragraph
5 of Article 234, the provision "the consideration of the case
<...> shall be postponed in the cases provided for in Item 3 of
Paragraph 5 of Article 234 of this Code" of Paragraph 2
(wording of 10 April 2003) of Article 244 of the CCP and an
analogous provision "the consideration of the case <...> shall
be postponed in the cases provided for in Items 3 <...> of
Paragraph 5 of Article 234 of this Code" of Paragraph 2
(wording of 16 September 2003) of Article 244 of the CCP are
not (were not) in conflict with Article 110 of the
Constitution.
3. Paragraph 2 of Article 110 of the Constitution
provides: "In cases when there are grounds to believe that the
law or other legal act which should be applied in a concrete
case is in conflict with the Constitution, the judge shall
suspend the consideration of the case and shall apply to the
Constitutional Court requesting it to decide whether the law or
other legal act in question is in compliance with the
Constitution."
Paragraph 2 of Article 110 of the Constitution is to be
construed while taking account of Paragraph 1 of the same
article that provides that the judge may not apply a law, which
is in conflict with the Constitution. When construing these
provisions in a systemic manner, it needs to be noted that in
cases where a court, which is considering a case, faces doubts
whether a law (other legal act) applicable in the case is not
in conflict with the Constitution, it must apply to the
Constitutional Court and request to decide whether this law
(other legal act) is in compliance with the Constitution, and
until the Constitutional Court decides this issue, the
consideration of the case in court may not be continued, i.e.
it must be suspended. It needs to be noted that neither
Paragraph 2 of Article 110 of the Constitution, nor any other
part of the Constitution establishes expressis verbis by what
procedural decision the consideration of the case must be
suspended. The establishment of this must be specified by the
legislator.
It needs to be noted that the legal regulation established
by the legislator must be such so that the suspended case from
which the circumstances are seen due to which the disputed
legal act is to be applied in the said case, must be accessible
to the Constitutional Court. Only in this way the necessary
conditions can be created in order that the Constitutional
Court might administer constitutional justice and decide
whether the law or other legal act which must be applied in the
case considered by the court is not in conflict with the
Constitution (while a substatutory legal act of the Seimas, an
act of the President of the Republic or an act of the
Government-with the Constitution and/or laws).
It has been held in this Constitutional Court ruling that
if the court, after it has faced doubts as regards the
compliance of the law applicable in the case with the
Constitution, did not suspend the consideration of the case and
did not apply to the Constitutional Court so that these doubts
could be removed, and if the legal act the compliance of which
with the Constitution is doubtful was applied in the case, the
court would take a risk to adopt such a decision, which would
not be a just one.
4. The doubts of the petitioners as regards the compliance
of the provision "the consideration of the case shall be
postponed when: <...> (3) one applies to the Constitutional
Court in cases provided for in laws until the ruling of the
Constitutional Court is received" of Item 3 (wordings of 10
April 2003 and 16 September 2003) of Paragraph 5 of Article
234, the provision "the consideration of the case <...> shall
be postponed in the cases provided for in Item 3 of Paragraph 5
of Article 234 of this Code" of Paragraph 2 (wording of 10
April 2003) of Article 244 of the CCP and an analogous
provision "the consideration of the case <...> shall be
postponed in the cases provided for in Items 3 <...> of
Paragraph 5 of Article 234 of this Code" of Paragraph 2
(wording of 16 September 2003) of Article 244 of the CCP with
the Constitution are based on the fact that, according to the
petitioners, these provisions, unlike Paragraph 2 of Article
110 of the Constitution, provide for postponement of the case,
but not for its suspension. In the opinion of the petitioners,
the notions "postponement of the consideration of the case" and
"suspension of the consideration of the case" are not
identical. The petitioners explain their differences by
invoking the notions "postponement of the consideration of the
case" and "suspension of the consideration of the case" which
are employed in procedural laws.
5. While deciding whether the provision "the consideration
of the case shall be postponed when: <...> (3) one applies to
the Constitutional Court in cases provided for in laws until
the ruling of the Constitutional Court is received" of Item 3
(wordings of 10 April 2003 and 16 September 2003) of Paragraph
5 of Article 234, the provision "the consideration of the case
<...> shall be postponed in the cases provided for in Item 3 of
Paragraph 5 of Article 234 of this Code" of Paragraph 2
(wording of 10 April 2003) of Article 244 of the CCP and an
analogous provision "the consideration of the case <...> shall
be postponed in the cases provided for in Items 3 <...> of
Paragraph 5 of Article 234 of this Code" of Paragraph 2
(wording of 16 September 2003) of Article 244 of the CCP are
not (were not) in conflict with Paragraph 2 of Article 110 of
the Constitution, it needs to be noted that the Constitution
does not prevent usage of other words or formulas in laws and
other legal acts than those used in the text of the
Constitution.
6. The Constitution as a legal act is expressed in a
certain textual form, it has certain linguistic expression,
however, as it is not permitted to treat law as a mere text,
thus it is not permitted to treat the Constitution only as its
textual form (Constitutional Court ruling of 25 May 2004). In
this context it is to be mentioned that language, inter alia
legal terminology, are constantly changing. Thus the
requirement that the same phenomena be always defined only by
the same words and formulas as they are defined in the
Constitution, if such requirement was made absolute, it would
mean that, on the one hand, one seeks to artificially restrict
and even stop such development of language, inter alia legal
terminology, where not only other words (formulas) are employed
in laws and other legal acts than those used in the
Constitution, which define the same phenomena, but also new
terms (formulas) in general, which did not exist at the time
when the text of the Constitution was being drafted. On the
other hand, such a requirement, if it was made absolute, might
provoke correction of the text of the Constitution according to
the terminology (words, formulas) established in laws and other
legal acts even in cases when the intervention into the text of
the Constitution which, as supreme law, must be a stable act,
is not legally necessary.
In its acts the Constitutional Court has held more than
once that it is not permitted to construe the Constitution only
literally, by applying only the linguistic (verbal) method. The
same can be said about construction of all legal acts of lower
power.
7. Under Paragraph 5 (wordings of 10 April 2003 and 16
September 2003) of Article 234 and Paragraph 2 (wordings of 10
April 2003 and 16 September 2003) of Article 244 of the CCP,
the consideration of the case had (has) to be postponed until
reception of a ruling of the Constitutional Court on the
constitutionality of the legal act applicable in the said case.
The formula "the consideration of the case shall be postponed"
of Item 3 (wordings of 10 April 2003 and 16 September 2003) of
Paragraph 5 of Article 234 and the provision "the consideration
of the case <...> shall be postponed" of Paragraph 2 (wording
of 10 April 2003) of Article 244 of the CCP are to be construed
while taking account of the fact that under these paragraphs
the consideration of the case is postponed precisely because of
the fact that a ruling of the Constitutional Court would be
received whereby it is decided whether the law or other legal
act which must be applied in the case considered by the court
is in compliance with the Constitution.
Thus, these formulas virtually mean the same as the
formula "shall suspend the consideration of the case" of
Paragraph 2 of Article 110 of the Constitution, since under
Paragraph 2 of Article 110 of the Constitution the
consideration of the case is suspended precisely because of the
fact that a decision of the Constitutional Court would be
received whether the law or other legal act which must be
applied in the case considered by the court and the compliance
of which with the Constitution was doubted by the court is not
in conflict with the Constitution.
8. Taking account of the arguments set forth, the
following conclusions are to be made:
- the provision "the consideration of the case shall be
postponed when: <...> (3) one applies to the Constitutional
Court in cases provided for in laws until the ruling of the
Constitutional Court is received" of Item 3 (wording of 10
April 2003) of Paragraph 5 of Article 234 of the CCP and the
provision "the consideration of the case <...> shall be
postponed in the cases provided for in Item 3 of Paragraph 5 of
Article 234 of this Code" of Paragraph 2 (wording of 10 April
2003) of Article 244 of the CCP were not in conflict with
Paragraph 2 of Article 110 of the Constitution;
- the provision "the consideration of the case shall be
postponed when: <...> (3) one applies to the Constitutional
Court in cases provided for in laws until the ruling of the
Constitutional Court is received" of Item 3 (wording of 16
September 2003) of Paragraph 5 of Article 234 and the provision
"the consideration of the case <...> shall be postponed in the
cases provided for in Items 3 <...> of Paragraph 5 of Article
234 of this Code" of Paragraph 2 (wording of 16 September 2003)
of Article 244 of the CCP are not in conflict with Paragraph 2
of Article 110 of the Constitution.
V
On the petitions of the Šiauliai District Local Court, the
petitioner, requesting to investigate whether Article 410
(wording of 14 March 2002) of the CCP is not in conflict with
Paragraph 1 of Article 29 of the Constitution.
1. The Šiauliai Local District Court, the petitioner, by
its 14 February 2005 petition (received at the Constitutional
Court on 14 March 2005), the 25 February 2005 petition
(received at the Constitutional Court on 23 March 2005) and the
29 August 2005 petition (received at the Constitutional Court
on 21 September 2005) requests to investigate whether inter
alia Article 410 of the new CCP is not in conflict with
Paragraph 1 of Article 29 of the Constitution.
2. It must be held that none of these petitions contain
clearly formulated legal arguments upon which the doubt of the
petitioner as regards the constitutionality of this article of
the CCP is grounded.
3. Under Item 5 of Paragraph 2 of Article 67 of the Law on
the Constitutional Court, the ruling by means of which a court
applies to the Constitutional Court must contain legal
arguments presenting the opinion of the court on the conflict
of a law or other legal act with the Constitution.
The requirement to indicate the legal arguments presenting
the opinion of the court on the conflict of a law or other
legal act with the Constitution arising from Item 5 of
Paragraph 2 of Article 67 of the Law on the Constitutional
Court, means that the courts that apply to the Constitutional
Court with the request to investigate whether the law or other
legal act (part thereof) is not in conflict with the
Constitution, while arguing their opinion presented in the
petition that the law or other legal act (part thereof) is in
conflict with the Constitution, may not confine themselves to
general reasoning or statements that the law or other legal act
(part thereof), in their opinion, is in conflict with the
Constitution, but must clearly indicate which disputed articles
(paragraphs, items thereof) and to what extent, in their
opinion, are in conflict with the Constitution, and to reason
their position on the compliance of every disputed provision of
the legal act (part thereof) with the Constitution with clearly
formulated legal arguments; otherwise, the petition of the
court requesting to investigate into the compliance of the law
or other legal act (part thereof) with the Constitution is to
be considered as not meeting the requirements of Article 67 of
the Law on the Constitutional Court (Constitutional Court
ruling of 12 December 2005).
4. Under Article 70 of the Law on the Constitutional
Court, in the case that a petition or attachments thereto fail
to comply with the requirements set forth in inter alia Article
67 of the Law on the Constitutional Court, the petition is to
be returned to the petitioner. The return of a petition shall
not take away the right to apply to the Constitutional Court
according to the common procedure after removal of the
deficiencies thereof.
5. Taking account of the arguments set forth, the part of
the case concerning the compliance of Article 410 (wording of
14 March 2002) of the CCP with the Constitution is to be
dismissed and to this extent the 14 February 2005, 25 February
2005 and 29 August 2005 petitions (respectively received at the
Constitutional Court on 14 March 2005, 23 March 2005 and 21
September 2005) of the Šiauliai Local District Court, the
petitioner, are to be returned to the petitioner.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania, and Articles 1, 53, 54, 55, 56, 67
and 70 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 Paragraph 4 (wording of 11 September
2001; Official Gazette Valstybės žinios, 2001, No. 82-2830) of
Article 131 of the Code of Criminal Procedure of the Republic
of Lithuania was not in conflict with the Constitution of the
Republic of Lithuania.
2. To recognise that the provision "the consideration of
the case shall be postponed when: <...> (3) one applies to the
Constitutional Court in cases provided for in laws until the
ruling of the Constitutional Court is received" of Item 3
(wording of 10 April 2003; Official Gazette Valstybės žinios,
2003, No. 38-1734) of Paragraph 5 of Article 234 of the Code of
Criminal Procedure of the Republic of Lithuania and the
provision "the consideration of the case <...> shall be
postponed in the cases provided for in Item 3 of Paragraph 5 of
Article 234 of this Code" of Paragraph 2 (wording of 10 April
2003; Official Gazette Valstybės žinios, 2003, No. 38-1734) of
Article 244 of the Code of Criminal Procedure of the Republic
of Lithuania were not in conflict with of the Constitution of
the Republic of Lithuania.
3. To recognise that the provision "the consideration of
the case shall be postponed when: <...> (3) one applies to the
Constitutional Court in cases provided for in laws until the
ruling of the Constitutional Court is received" of Item 3
(wording of 16 September 2003; Official Gazette Valstybės
žinios, 2003, No. 38-1734, No. 92-4138) of Paragraph 5 of
Article 234 of the of Criminal Procedure of the Republic of
Lithuania and the provision "the consideration of the case
<...> shall be postponed in the cases provided for in Items 3
<...> of Paragraph 5 of Article 234 of this Code" of Paragraph
2 (wording of 16 September 2003; Official Gazette Valstybės
žinios, 2003, No. 92-4138) of Article 244 of the of Criminal
Procedure of the Republic of Lithuania, Article 407 (wording of
19 June 2003; Official Gazette Valstybės žinios, 2003, No.
68-3070) to the extent that it provides that the proceedings of
criminal cases is instituted only in case there is a complaint
or an application from his legitimate representative and that
in these cases pre-trial investigation is not conducted save
the cases provided for in the same code, Paragraph 1 (wording
of 14 March 2002; Official Gazette Valstybės žinios, 2002, No.
37-1341) of Article 408, Paragraphs 2 and 3 (wording of 14
March 2002; Official Gazette Valstybės žinios, 2002, No.
37-1341), Paragraph 5 (wording of 14 March 2002; Official
Gazette Valstybės žinios, 2002, No. 37-1341) of Article 413,
and Paragraph 2 (wording of 14 March 2002; Official Gazette
Valstybės žinios, 2002, No. 37-1341) of Article 414 of the Code
of Criminal Procedure are not in conflict with the Constitution
of the Republic of Lithuania.
4. To dismiss the part of the case as regards the
compliance of Article 410 (wording of 14 March 2002; Official
Gazette Valstybės žinios, 2002, No. 37-1341) of the Code of
Criminal Procedure of the Republic of Lithuania with the
Constitution of the Republic of Lithuania and to this extent to
return the 14 February 2005, 25 February 2005 and 29 August
2005 petitions to the petitioner.
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
Stasys Stačiokas
Romualdas Kęstutis Urbaitis