Lietuviškai
Case No. 45/04
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 148 (WORDING
OF 5 JULY 2004), PARAGRAPH 3 OF ARTICLE 168 (WORDING OF 26
SEPTEMBER 2000), PARAGRAPH 4 OF ARTICLE 182 (WORDING OF 5 JULY
2004), PARAGRAPH 5 OF ARTICLE 183 (WORDING OF 26 SEPTEMBER
2000), PARAGRAPH 4 OF ARTICLE 186 (WORDING OF 10 APRIL 2003)
AND PARAGRAPH 4 OF ARTICLE 187 (WORDING OF 10 APRIL 2003) OF
THE CRIMINAL CODE OF THE REPUBLIC OF LITHUANIA WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA
15 June 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, Vytautas
Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of the representatives of a group of
Members of the Seimas of the Republic of Lithuania, the
petitioner, who were Raimondas Šukys, a Member of the Seimas,
and Gytis Kaminskas, an advocate;
in the presence of the representative of the Seimas of the
Republic of Lithuania, the party concerned, who was Girius
Ivoška, advisor of the Law Department of the Office of the
Seimas,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its
public hearing on 13 June 2006 heard case No. 45/04 subsequent
to the petition of a group of the Members of the Seimas of the
Republic of Lithuania, the petitioner, which was composed of
Eligijus Masiulis, Gintaras Steponavičius, Dalia Teišerskytė,
Arminas Lydeka, Raimundas Palaitis, Algis Kašėta, Jonas
Čekuolis, Saulius Lapėnas, Raimundas Šukys, Gintaras Šileikis,
Stanislovas Buškevičius, Sergejus Dmitrijevas, Klemensas
Rimšelis, Nikolajus Medvedevas, Artūras Melianas, Vasilijus
Popovas, Dobilas Jonas Kirvelis, Julius Sabatauskas, Gražina
Šmigelskienė, Alfonsas Pulokas, Rimantas Sinkevičius, Sigita
Burbienė, Giedrė Purvaneckienė, Janė Narvilienė, Irena
Šiaulienė, Romanas Algimantas Sedlickas, Jurgis Razma, Justinas
Karosas, Antanas Valys, Artūras Vazbys and Jonas Korenka,
requesting to investigate whether the provisions of Paragraph 2
of Article 148, Paragraph 3 of Article 168, Paragraph 4 of
Article 182, Paragraph 5 of Article 183, Paragraph 4 of Article
186 and Paragraph 4 of Article 187 of the Criminal Code of the
Republic of Lithuania that a person is held liable for the
criminal deeds specified in these paragraphs only if there is a
complaint of the victim or an application of his legitimate
representative, or a demand of the prosecutor, are not in
conflict with the constitutional principle of a state under the
rule of law.
The Constitutional Court
has established:
I
A group of Members of the Seimas of the Republic of
Lithuania, the petitioner, applied to the Constitutional Court
with a petition, requesting to investigate whether the
provisions of Paragraph 2 of Article 148, Paragraph 3 of
Article 168, Paragraph 4 of Article 182, Paragraph 5 of Article
183, Paragraph 4 of Article 186 and Paragraph 4 of Article 187
of the Criminal Code (hereinafter also referred to as the CC or
the new CC) that a person is held liable for the criminal deeds
specified in these paragraphs only if there is a complaint of
the victim or an application of his legitimate representative,
or a demand of the prosecutor, are not in conflict with the
constitutional principle of a state under the rule of law. The
petition was received at the Constitutional Court on 12
November 2004.
II
The petition of the petitioner is based on the fact that,
according to the petitioner, the disputed provisions mean that
the pre-trial investigation subsequent to a demand of the
prosecutor may also be instituted when there is no victim.
Thus, corresponding deeds may be criminalised (groundlessly and
disproportionately) and criminal liability for them may be
applied namely because of the fact that the prosecutor has
discretion either to institute or not to institute pre-trial
investigation concerning them.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations from G.
Ivoška, a representative of the Seimas, the party concerned,
were received in which it is held that the disputed provisions
are not in conflict with the constitutional principle of a
state under the rule of law. The position of the representative
of the party concerned is grounded on the following arguments.
1. The provisions which are analogous to those whose
compliance is disputed by the petitioner, are also included in
Paragraph 3 of Article 139, Paragraph 3 of Article 140,
Paragraph 3 of Article 145, Paragraph 5 of Article 149,
Paragraph 5 of Article 150, Paragraph 3 of Article 151,
Paragraph 2 of Article 152, Paragraph 3 of Article 154,
Paragraph 3 of Article 155, Paragraph 2 of Article 165,
Paragraph 5 of Article 178, Paragraph 5 of Article 179,
Paragraph 5 of Article 184, Paragraph 3 of Article 188,
Paragraph 3 of Article 294 and Paragraph 3 of Article 313 of
the CC, however, their compliance with the Constitution is not
questioned by the petitioner.
2. In the theory of criminal law, criminalisation of deeds
is defined as selection of the signs which constitute the body
of the criminal deed and their consolidation in the penal law
while constructing dispositions of the articles. Under the
Constitution, not the prosecutor, but the legislator has
discretion to consolidate the signs, which form the body of the
criminal deed in the penal law.
3. In the law of criminal procedure, the notion "victim"
describes the natural person, upon whom physical, material or
moral damage was inflicted and it is recognised by a decision
of the official of pre-trial investigation, the prosecutor or
the court (Paragraph 1 of Article 28 of the Code of the
Criminal Procedure of the Republic of Lithuania (hereinafter
also referred to as the CCP or the new CCP)). In criminal law,
the notion "victim" defines any private or public, natural or
legal person or group of them, whose rights, freedoms and
interests are violated by a criminal deed.
4. The demand of the prosecutor specified in the
provisions disputed by the petitioner is a form of institution
of criminal proceedings for defending the public interest,
while an application of the victim or a complaint of his
legitimate representative are meant for defending the private
interest. These legitimate forms for instituting criminal
proceedings should not be understood as denying each other, as
they are meant for defending the rights and freedoms of a human
being and a person, as well as the interests of society and the
state.
5. The criminal proceedings concerning certain criminal
deeds (inter alia provided for in the articles of the CC
specified by the petitioner) are instituted only if there is a
complaint of the victim or an application of his legitimate
representative, or a demand of the prosecutor. Under Article
167 and articles of Chapter XXX of the CCP, the victim has the
right to decide whether to institute the criminal proceedings,
or to resort to the measures which are established in other
branches of law in order to defend his violated rights or
interests.
6. The prosecutor may demand to institute the criminal
proceedings concerning the said deeds when they are of public
importance or when they inflict damage upon a person who cannot
defend his rights and legitimate interests due to his helpless
condition, physical or mental disabilities, official or
material dependence on the culprit or other important reasons.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations from A.
Klimavičius, Prosecutor General of the Republic of Lithuania,
and A. Čepas, Director of the Law Institute, were received.
V
1. At the hearing of the Constitutional Court, R. Šukys
and G. Kaminskas, the representatives of a group of Members of
the Seimas, the petitioner, repeated the arguments set forth in
their written explanations and gave additional explanations.
They inter alia explained that they doubt the constitutionality
of the disputed provisions to the extent that the prosecutor
has discretion to decide whether or not to institute the
criminal proceedings concerning corresponding criminal deeds
not only in the cases when these deeds are of public importance
or when the victim (his representative) cannot defend his
legitimate interests due to physical or mental disability or
other important reasons, but also in the cases when such
important reasons are absent. The representatives of the
petitioner also held that even though, under the Constitutional
Court 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
(wording 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 the 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 the Criminal Procedure of the
Republic of Lithuania is not in conflict with the Constitution
of the Republic of Lithuania" of 16 January 2006, also in cases
of private accusation the prosecutor has a duty to demand to
bring the person to criminal liability, if there is a need to
defend the public interest or if the person himself cannot
defend his violated rights due to his disability, mental
condition or other reasons, in its activity the prosecutor's
office continues to adhere to the view that, under the disputed
legal regulation, the prosecutor has broad discretion to decide
whether to demand that a person would be brought to criminal
liability for corresponding criminal deeds also in such cases,
when there is no complaint of the victim or application of his
legitimate representative.
2. At the hearing of the Constitutional Court, G. Ivoška,
the representative of the Seimas, the party concerned,
virtually repeated the arguments set forth in his written
explanations.
The Constitutional Court
holds that:
I
1. The petitioner applied to the Constitutional Court with
a petition requesting to investigate, whether the provisions of
Paragraph 2 of Article 148, Paragraph 3 of Article 168,
Paragraph 4 of Article 182, Paragraph 5 of Article 183,
Paragraph 4 of Article 186 and Paragraph 4 of Article 187 of
the CC that a person is held liable for the criminal deeds
specified in these paragraphs only if there is a complaint of
the victim or an application of his legitimate representative,
or a demand of the prosecutor, are not in conflict with the
constitutional principle of a state under the rule of law.
2. On 26 September 2000, the Seimas adopted the Law on the
Confirmation and Entry into Force of the Criminal Code of the
Republic of Lithuania, whose Article 1 approved the new CC and
under Article 2 of which the date of the entry into force of
the new CC had to be established by an individual law.
On 29 October 2002, the Seimas adopted the Republic of
Lithuania Law on the Procedure of Entry into Effect and
Implementation of the Criminal Code as Confirmed by Law No.
VIII-1968 of 26 September 2000, of the Code of Criminal
Procedure as Confirmed by Law No. IX-785 of 14 March 2002, and
of the Code of Execution of Punishments as Confirmed by Law No.
IX-994 of 27 June 2002, under Article 1 of which, the new CC
had to enter into force on 1 May 2003, while under Paragraph 1
of Article 47 of which after the entry into force of the new
CC, the Criminal Code, which was in effect till then, had to
become no longer valid. The new CC came into force at this
established time.
3. The new CC was amended and/or supplemented by the
following laws: the Republic of Lithuania Law on Amending and
Supplementing Articles 4, 7, 9, 23, 25, 37, 39, 44, 46, 47, 48,
51, 61, 62, 65, 67, 74, 75, 90, 92, 95, 97, 102, 105, 118, 119,
143, 175, 178, 186, 187, 188, 189, 199, 202, 212, 213, 215,
227, 249, 250, 251, 257, 260, 263, 272, 281, 291 of the Law on
the Procedure of Entry into Effect and Implementation of the
Criminal Code as Confirmed by Law No. VIII-1968 of 26 September
2000 and Supplementing the Code with Articles 39¹ and 306¹,
which was adopted by the Seimas on 10 April 2003, the Law on
Amending and Supplementing Articles 139, 140, 176, 180, 181,
190, 201, 212, 249 and 281 of the Criminal Code of the Republic
of Lithuania, which was adopted by the Seimas on 4 July 2003,
the Law on Amending and Supplementing Articles 13, 162, 191,
196, 197, 203, 206, 216, 219, 221 and 309 of the Criminal Code
of the Republic of Lithuania and Supplementing the Code with
Articles 198¹ and 198², which was adopted by the Seimas on 29
January 2004, the Law on Amending and Supplementing Articles
233 and 235 of the Criminal Code of the Republic of Lithuania,
which was adopted by the Seimas on 30 March 2004, the Law
Supplementing Article 1 of the Criminal Code of the Republic of
Lithuania and Supplementing the Code by with Articles 9¹ and
123² and Annex, which was adopted by the Seimas on 27 April
2004, the Law on Amending and Supplementing Articles 20, 42,
63, 67, 68, 72, 75, 77, 82, 90, 91, 92, 95, 97, 128, 144, 148,
150, 178, 182, 194, 195, 201, 204, 205, 210, 211, 212, 220,
221, 222, 223, 230,236, 246, 248, 260, 263, 287 and 306 of the
Criminal Code of the Republic of Lithuania and Supplementing
the Code with Article 228¹, which was adopted by the Seimas on
5 July 2004, the Law on Amending the Title of Chapter XXXVI of
the Criminal Code of the Republic of Lithuania and
Supplementing the Code with Article 253¹, which was adopted by
the Seimas on 28 October 2004, the Law Supplementing the
Criminal Code of the Republic of Lithuania with Article 250¹,
which was adopted by the Seimas on 11 November 2004, the Law on
Amending Article 292 and Supplementing the Annex of the
Criminal Code of the Republic of Lithuania, which was adopted
by the Seimas on 22 December 2004, the Law on Amending and
Supplementing Articles 48, 60, 145, 147, 157, 212, 213, 214,
215, 226, 249, 251, 252, 256, 267, 270, 272, 274 and 280 and
the Annex of the Criminal Code of the Republic of Lithuania and
Supplementing the Code with Articles 147¹, 199¹, 199², 267¹,
270¹ and 308¹, which was adopted by the Seimas on 23 June 2005
and the Law on Amending Articles 300 and 302 of the Criminal
Code of the Republic of Lithuania and Supplementing the Code
with Article 302¹, which was adopted by the Seimas on 20
January 2006.
4. At the time of submission of the petition of the
petitioner at the Constitutional Court, the Articles of the CC
specified by the petitioner were set forth as follows:
- Article 148 titled "Restriction of Freedom of the
Actions of the Human Being" of the CC-wording of 5 July 2004;
it reads:
"1. Those, who required from a person to perform unlawful
actions or to restrain from performing lawful actions or to
behave in a different way according to the order of the culprit
while using a psychological coercion on the victim or his
relatives,
shall be imposed a fine or restriction of freedom, or
arrest or imprisonment for up to three years.
2. A person shall be held liable for the criminal deed
specified in Paragraph 1 of this Article only in the case when
there is a complaint of the victim or an application of his
legitimate representative, or a demand of the prosecutor.
3. A legal person shall also be held liable for the deed
provided for in this Article."
- Article 168 titled "Unlawful Disclosure or Use of
Information on Private Life of a Person" of the CC-wording of
26 September 2000; it reads:
"1. Those, who announced in public, used or used for the
good of other persons the information on the private life of
other human being without an assent of that person, if he found
out that information because of his office or profession or
while performing a temporary task, or collected it while
committing the deed provided for in Articles 165-167 of this
Code,
shall be imposed public works or a fine, or restriction of
freedom, or arrest, or imprisonment of up to three years.
2. A legal person shall also be held liable for the deed
provided for in this Article.
3. A person shall be held liable for the criminal deed
specified this Article only in the case when there is a
complaint of the victim or an application of his legitimate
representative, or a demand of the prosecutor."
- Article 182 titled "Fraud" of the CC-wording of 5 July
2004; it reads:
"1. Those, who acquired other person's property or
property right for their benefit or the benefit of other
persons, avoided the property liability or eliminated it by
fraud,
shall be imposed public works or a fine, or restriction of
freedom, or arrest, or imprisonment of up to three years.
2. Those, who acquired other person's property of big
value or property right for their benefit or the benefit of
other persons, avoided the property liability or eliminated it
by deception,
shall be imposed imprisonment of up to eight years.
3. Those, who acquired other person's property or property
right for their benefit or the benefit of other persons of
small value, avoided the property liability of small value or
eliminated it by fraud, committed a criminal misdemeanour and
shall be imposed public works or a fine, or restriction of
freedom, or arrest.
4. A person shall be held liable for the criminal deed
specified Paragraphs 1 and 3 of this Article only in the case
when there is a complaint of the victim or an application of
his legitimate representative, or a demand of the prosecutor.
5. Legal persons shall also be held liable for the deeds
provided for in Paragraphs 1 and 2 of this Article."
- Article 183 titled "Conversion of Property" of the
CC-wording of 26 September 2000; it reads:
"1. Those, who converted someone else's property or
property right that was entrusted to them or at his disposal,
shall be imposed public works or a fine, or imprisonment
for up to three years.
2. Those, who converted someone else's property or
property right of big value that was entrusted to them or at
their disposal,
shall be imposed imprisonment for up to ten years.
3. Those, who converted someone else's property or
property right of small value that was entrusted to him or at
his disposal, committed a criminal misdemeanour and
shall be imposed public works or a fine, or arrest.
4. Legal persons shall also be held liable for the deeds
provided for in Paragraphs 1 and 2 of this Article.
5. A person shall be held liable for the criminal deeds
specified in Paragraphs 1 and 3 of this Article only in the
case when there is a complaint of the victim or an application
of his legitimate representative, or a demand of the
prosecutor."
- Article 186 titled "Property Damage Inflicted by Fraud"
of the CC-wording of 10 April 2003; it reads:
"1. Those, who avoided to pay for the done works, received
goods, provided services or avoided the obligatory fees by
fraud, and thus, inflicted property damage upon other person,
shall be imposed public works or a fine, or restriction of
freedom, or imprisonment of up to two years.
2. Those, who inflicted small property damage upon other
person by fraud, committed a criminal misdemeanour and
shall be imposed public works, or a fine, or restriction
of freedom, or arrest.
3. Legal persons shall also be held liable for the deeds
provided for in Paragraph 1 of this Article.
4. A person shall be held liable for the criminal deed
specified in Paragraphs 1 and 3 of this Article only in the
case when there is a complaint of the victim or an application
of his legitimate representative, or a demand of the
prosecutor."
- Article 187 titled "Destruction or Damaging of Property"
of the CC-wording of 10 April 2003; it reads:
"1. Those, who destroyed or damaged someone else's
property,
shall be imposed public works or a fine, or restriction of
freedom, or imprisonment of up to two years.
2. Those, who destroyed or damaged someone else's property
in a publicly dangerous way or while disassembling or
destroying the equipment or aggregate, if people could suffer
from that, or destroyed or damaged someone else's property of
big value or the values that are of much scientific, historical
or cultural importance,
shall be imposed arrest or imprisonment for up to five
years.
3. Those, who destroyed or damaged someone else's property
of small value, committed a criminal misdemeanour and
shall be imposed public works or a fine, or restriction of
freedom, or arrest.
4. A person shall be held liable for the criminal deed
specified in Paragraphs 1 and 3 of this Article only in the
case when there is a complaint of the victim or an application
of his legitimate representative, or a demand of the
prosecutor."
5. It is obvious from the arguments of the petition of the
group of Members of the Seimas, the petitioner, as well as from
the explanations of the representatives of the petitioner at
the Constitutional Court hearing that the petitioner had doubts
and the Constitutional Court is requested to investigate
whether Paragraph 2 of Article 148 (wording of 5 July 2004),
Paragraph 3 of Article 168 (wording of 26 September 2000),
Paragraph 4 of Article 182 (wording of 5 July 2004), Paragraph
5 of Article 183 (wording of 26 September 2000), Paragraph 4 of
Article 186 (wording of 10 April 2003) and Paragraph 4 of
Article 187 (wording of 10 April 2003) of the CC to the extent
that they establish that a person shall be held liable for the
criminal deed specified in these paragraphs not only in the
case when there is a complaint of the victim or an application
of his legitimate representative, not only in the case, when
the prosecutor demands so, as the corresponding deed is of
public importance and/or there are important reasons due to
which the victim or his representative cannot defend his rights
and legitimate interests, but, according to the petitioner,
also in the case when there is a demand of the prosecutor, even
though the corresponding deed is not of public importance and
there are no important reasons due to which the victim or his
representative cannot defend his rights and legitimate
interests, are not in conflict with the constitutional
principle of a state under the rule of law.
It needs to be held that the petitioner had no doubts on
the establishment of the criminal liability for the criminal
deeds provided for in his specified articles of the CC or on
the size of the sanctions for these deeds, for the attribution
of these criminal deeds to crimes or criminal misdemeanours,
also on whether other articles (parts thereof) of the CC, which
were not specified by the petitioner, including the provisions,
which are analogous to those that are disputed by the
petitioner, are not in conflict with the Constitution. Nor did
the petitioner have doubts on the legal regulation which
entrenches the subjects of criminal liability for corresponding
criminal deeds; in this context, it is to be noted that the
criminal liability of legal persons is a new institute in
criminal law of Lithuania, which has not been investigated in
the jurisprudence of the Constitutional Court so far; when the
compliance of the disputed legal regulation with the
Constitution is investigated in the aspect specified by the
petitioner, the provisions linked thereto regarding the
subjects of criminal liability for corresponding criminal deeds
is not the matter of investigation.
6. While deciding, whether the provisions disputed by the
petitioner are not in conflict with the constitutional
principle of a state under the rule of law, one must take
account of the constitutional status of the prosecutor, of the
powers that he, under the Constitution, has in criminal
proceedings, and of how they have been construed in the
official constitutional doctrine.
In this context, it is to be noted that that the institute
of the prosecutor entrenched in the Constitution (inter alia
Article 118 thereof) is linked to the constitutional right of a
person to the proper legal process and with other
constitutional values. Under Article 118 of the Constitution,
the prosecutors shall perform the following functions: organise
and direct the pre-trial investigation, as well as uphold
charges on behalf of the state in criminal cases (Paragraph 1),
in cases established by law, defend the rights and legitimate
interests of the person, society and the state (Paragraph 2).
In Paragraph 3 of Article 118 of the Constitution, it is
entrenched that when performing his functions, the prosecutor
shall be independent and shall obey only the law.
It is to be emphasized that, subsequent to the provision
of Paragraph 2 of Article 118 of the Constitution, under which,
in cases established by law, the prosecutor shall defend the
rights and legitimate interests of the person, society and the
state, a duty arises for the legislator to establish such legal
regulation that the prosecutor could and would have to defend
the rights and legitimate interests of the person, society and
the state in reality: 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, must be
ensured (Constitutional Court ruling of 16 January 2006).
7. In the articles of the CC, whose compliance with the
Constitution is disputed by the petitioner, criminal liability
is established for certain criminal deeds: restriction of
freedom of actions of a human being, unlawful disclosure or use
of information on private life of a person, fraud, conversion
of property, property damage inflicted by fraud, destruction or
damaging of property. The disputed provisions of the CC are to
be construed while taking account of certain provisions of the
CC on such kinds of the criminal proceedings that are different
from the constitutional model of general criminal procedure. In
this context, it needs to be noted that, as the Constitutional
Court held in its ruling of 16 January 2006, the Constitution
does not prevent from entrenching by law various kinds of the
criminal procedure, which are different from the constitutional
model of the general criminal procedure, but establishment of
different kinds of the criminal procedure must be
constitutionally grounded, one must pay heed to the norms and
principles of the Constitution, inter alia entrenching the
constitutional status of the prosecutors. It is also to be
emphasized that, while establishing such exceptions of the
constitutional model of the general criminal procedure, one
must pay heed to the consistency of the legal system and of
internal harmony imperatives that arise from the Constitution.
In the constitutional justice case at issue, it is to be
noted that the legislator has discretion to establish that for
certain criminal deeds the person is held liable only in the
case when there is an application (request, statement,
complaint, etc.) of the victim (or his representative)
concerning the corresponding criminal deed, and that in such
cases the pre-trial investigation is not carried out and the
prosecutor does not uphold charges on behalf of the sate in
court (Constitutional Court ruling of 16 January 2006).
However, also in such cases, the prosecutor (who, under the
Constitution, must, in cases provided by law, defend the rights
and legitimate interests of the person, society and the state)
must, if it is provided for by law, institute the criminal
proceedings even if there is no application (request,
statement, complaint, etc.) of the victim (or his
representative) concerning the corresponding criminal deed. The
said duty of the prosecutor to institute the criminal
proceedings is linked to the public importance of the
corresponding deed and/or to the fact that by this deed the
rights of the person were violated where the said person, due
to important reasons, cannot defend his rights and legitimate
interests. The legislator may by law also establish such legal
regulation that for certain criminal deeds, a person shall be
held liable only in the cases, when there is an application
(request, statement, complaint, etc.) of the victim (or his
representative) concerning the criminal deed, but the pre-trial
investigation is carried out in such case, and the prosecutor
upholds charges on behalf of the sate in court; also in this
case, the legislator may establish cases, when the prosecutor
must institute the criminal proceedings, even though there is
no application (request, statement, complaint, etc.) of the
victim (or his representative); such duty of the prosecutor is
also to be linked to the public importance of the corresponding
criminal deed and/or to the fact that by this deed the rights
and legitimate interests of the person were violated where the
said person, due to important reasons, cannot defend his rights
and legitimate interests.
Summing up, it must be noted that in all cases, when the
criminal liability appears on the grounds of an application
(request, statement, complaint, etc.) of the victim (or his
representative) concerning the criminal deed, the institution
of the pre-trial investigation and/or the appearance of the
criminal liability are linked to the fact how the corresponding
criminal deed or the damage inflicted by it is assessed by the
person whose rights and legitimate interests were violated; it
is obvious that there exists some subjectivity of such
assessment. While the duty of the prosecutor to institute the
criminal proceedings concerning the said criminal deeds (i.e.
such deeds, for which a person is held liable only in the case
when there is an application (request, statement, complaint,
etc.) of the victim (or his representative)), the institution
of the pre-trial investigation and/or the appearance of the
criminal liability are related to the fact that the
corresponding criminal deed is of public importance or that by
this deed the rights and legitimate interests of the person
were violated where the said person, due to important reasons,
cannot defend his rights and legitimate interests. Even though
in some of such cases, the decisions of the prosecutor,
grounded on the assessment of all the important circumstances,
may depend on various factors, under the Constitution, the
prosecutor has no discretion in this field. In this context, it
is to be emphasized that, as it was held by the Constitutional
Court, 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 not only can but also must
implement if there are corresponding conditions established in
laws (Constitutional Court ruling of 16 January 2006).
8. The disputed provisions of the CC, as the whole legal
regulation entrenched in the specified articles of the CC, are
to be construed while taking account of:
- the provisions of Chapter XXX titled "Proceedings of
Cases of Private Accusation" of the CCP (Articles 407-417,
wording of 14 March 2002 with subsequent amendments and
supplements made by the Law on Amending and Supplementing
Articles 151, 168, 276, 407 and 409 of the Code of the Criminal
Procedure of the Republic of Lithuania, which was adopted by
the Seimas on 19 June 2003, and by the Law on Amending 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, 457 and 458 and the Title of Chapter XXXV of the Code of
the Criminal Procedure of the Republic of Lithuania, which was
adopted by the Seimas on 8 July 2004) concerning the
proceedings of cases of private accusation-one must take
account of these provisions while construing Paragraph 2 of
Article 148 (wording of 5 July 2004), Paragraph 3 of Article
168 (wording of 26 September 2000) and Paragraph 4 of Article
187 (wording of 10 April 2003) of the CC, inter alia the
disputed provisions of these paragraphs;
- the provisions of Paragraph 2 (wording of 14 March 2002)
of Article 166 titled "Beginning of the Pre-trial
Investigation" and of Article 167 titled "Beginning of the
Pre-trial Investigation Only Subsequent to a Complaint of the
Victim or an Application of his Legitimate Representative, or a
Demand of the Prosecutor" (wording of 14 March 2002) of the CCP
concerning certain peculiarities of the beginning of the
pre-trial investigation-one must take account of these
provisions while construing Paragraph 4 of Article 182 (wording
of 5 July 2004), Paragraph 5 of Article 183 (wording of 26
September 2000) and Paragraph 4 of Article 186 (wording of 10
April 2003) of the CC, inter alia the disputed provisions of
these paragraphs.
9. The proceedings of cases of private accusation
regulated in Chapter XXX titled "Proceedings of Cases of
Private Accusation" (Articles 407-417; wording of 14 March 2002
with subsequent amendments and supplements) of the CCP is one
of specific kinds of the criminal procedure, i.e. such 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 institute the
criminal proceedings so that the criminal proceedings would be
instituted when a person, who has committed a criminal deed, is
accused not by the prosecutor who upholds the accusation on
behalf of the state, but by the victim (his representative)
himself, 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. In this context, it is to be noted that the proceedings
of the criminal cases 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 and 313 of the CC are instituted
only in the case when there is a complaint of the victim or an
application of his legitimate representative; in these cases
the pre-trial investigation is not carried out, save the cases
provided for in Article 409 of the CCP (Article 407 (wording of
19 June 2003) of the CCP). If the corresponding criminal deeds
regarding which the procedure of criminal cases must be carried
out under the rules of the proceedings of cases of private
accusation are of public importance or if they inflicted damage
upon the person, who, due to important reasons, cannot defend
his rights and legitimate interests, also the prosecutor shall
have the right (powers) to institute the criminal proceedings
regarding these deeds (Paragraph 1 (wording of 19 June 2003) of
Article 49 of the CCP).
9.1. The criminal deeds specified in Article 407 (wording
of 19 June 2003) of the CCP also include the criminal deeds
specified in Articles 148 and 168 and Paragraphs 1 and 3 (there
is a reference to them in Paragraph 4 of this article, whose
provision is disputed by the petitioner in this constitutional
justice case) of Article 187 of the CC, whose provisions are
disputed by the petitioner in this constitutional justice case.
9.2. While construing the legal regulation established in
Chapter XXX titled "Proceedings of Cases of Private Accusation"
(Articles 407-417; wording of 14 March 2002, with subsequent
amendments and supplements) of the CCP, the Constitutional
Court inter alia held in its ruling of 16 January 2006:
- 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 (as
mentioned, they also include the criminal deeds specified in
Paragraph 2 of Article 148 (wording of 5 July 2004), Paragraph
3 of Article 168 (wording of 26 September 2000) and Paragraph 4
(in which there is a reference to Paragraphs 1 and 3 of this
Article) of Article 187 (wording of 10 April 2003 of the CC,
whose provision is disputed by the petitioner in this
constitutional justice case), which are of public importance,
or if they inflicted damage upon the person who, due to
important reasons, cannot defend his legitimate interests;
- the formula "due to important reasons, cannot defend his
legitimate interests" of Paragraph 1 (wording of 19 June 2003)
of Article 409 of the CCP describes such situations, 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.);
- the formula "criminal deeds are of public importance" of
Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP
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, the state and the legal system could appear, if the
criminal proceedings regarding this deed and other analogous
deeds were not instituted;
- the provision "also the prosecutor shall have the right
to institute 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 proceedings
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 damage 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 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 damage 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 damage 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;
- 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 damage 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. 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 damage 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.
9.3. It was mentioned that the criminal deeds specified in
Article 407 (wording of 19 June 2003) of the CCP also include
the criminal deeds specified in Paragraph 2 of Article 148
(wording of 5 July 2004), Paragraph 3 of Article 168 (wording
of 26 September 2000) and Paragraph 4 (in which there is a
reference to Paragraphs 1 and 3 of this Article) of Article 187
(wording of 10 April 2003 of the CC), whose provisions are
disputed by the petitioner in this constitutional justice case.
Thus, the provisions of the listed paragraphs disputed by
the petitioner, as regards the aspect specified by the
petitioner, are also to be construed as consolidating the
unquestioned duty of the prosecutor, who has the constitutional
obligation to defend inter alia the rights and legitimate
interests of the person, to institute the criminal proceedings
in all cases, when: (1) the corresponding criminal deed 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 corresponding criminal deed, damage
is inflicted upon the person, who 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 regardless of whether or not there is a
complaint of the victim or an application of his legitimate
representative; (3) by the corresponding criminal deed, damage
is 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. The disputed
provisions may not be construed as consolidating the powers of
the prosecutor to institute the criminal proceedings concerning
the corresponding criminal deeds when there is not a single one
of the specified circumstances-constitutionally grounded
conditions. While construing the provisions of Paragraph 2 of
Article 148 (wording of 5 July 2004), Paragraph 3 of Article
168 (wording of 26 September 2000), and Paragraph 4 of Article
187 (wording of 10 April 2003) of the CC precisely this way,
they may not be assessed as being in conflict with the
Constitution in the aspect specified by the petitioner, inter
alia with the constitutional principle of a state under the
rule of law.
10. Certain peculiarities of the beginning of the
pre-trial investigation concerning certain criminal deeds,
which is to be attributed to the model of criminal procedure
which has the features of both the model of proceedings of
cases of private accusation and the constitutional model of
general criminal procedure are established in Paragraph 2
(wording of 14 March 2002) and Article 167 (wording of 14 March
2002) of the CCP: in this model of criminal procedure the
giving juridical basis to (criminalization of) a certain
conflict and a person's prosecution are, as a rule, determined
by the will of the victim or his representative to apply to
competent state institutions in order to institute the criminal
proceedings, however, it differs from the model of the
proceedings of cases of private accusation inter alia by the
fact that the pre-trial investigation is always carried out and
the criminal proceedings are carried out under the general
procedure (the accusation on behalf of the state is upheld in
court by the prosecutor). In this context, it needs to be noted
that it is entrenched in Paragraph 2 (wording of 14 March 2002)
of Article 166 of the CCP that in the cases established in the
CCP the pre-trial investigation is begun only in the case when
there is a complaint of the victim; it is established in
Paragraph 1 (wording of 14 March 2002) of Article 167 of the
CCP that the pre-trial investigation concerning the criminal
deeds provided for in Article 145, Paragraph 1 of Article 149,
Paragraph 1 of Article 150, Paragraph 1 of Article 151,
Paragraphs 1 and 4 of Article 178, Paragraphs 1 and 3 of
Article 179, Paragraphs 1 and 3 of Article 182, Paragraphs 1
and 3 of Article 183, Paragraphs 1 and 3 of Article 184,
Article 186 and Paragraph 1 of Article 294 of the CC is begun
only in the case when there is a complaint of the victim or an
application of his legitimate representative, and that in these
cases the proceedings are carried out under the general
procedure; it is established in Paragraph 2 (wording of 14
March 2002) of Article 167 of the CCP that in the cases
provided for in Paragraph 1 of this article, the pre-trial
investigation may be begun upon a demand of the prosecutor.
10.1. The criminal deeds specified in Paragraph 1 (wording
of 14 March 2002) of Article 167 of the CCP also include the
criminal deeds specified in Paragraphs 1 and 3 (to which there
is a reference in Paragraph 4 of this article, whose provision
is disputed by the petitioner in this constitutional justice
case) of Article 182, Paragraphs 1 and 3 (to which there is a
reference in Paragraph 5 of this article, whose provision is
disputed by the petitioner in this constitutional justice case)
of Article 183 and Article 186 of the CC, whose provisions are
disputed by the petitioner in this constitutional justice case.
10.2. The powers of the prosecutor to institute the
criminal proceedings entrenched in Paragraph 4 of Article 182
(wording of 5 July 2004), Paragraph 5 of Article 183 (wording
of 26 September 2000) and Paragraph 4 of Article 186 (wording
of 10 April 2003) of the CC, whose provisions are disputed by
the petitioner in this constitutional justice case, and the
powers of the prosecutor established in Article 167 (wording of
14 March 2002) of the CCP in themselves may not raise doubts on
their compliance with the Constitution, since, as it was
mentioned, under the Constitution, the prosecutor has the
obligation to defend inter alia the rights and legitimate
interests of the person, and he has the unquestioned duty to
institute the criminal proceedings inter alia in the cases when
the corresponding criminal deed is of public importance, when
it inflicts damage upon the person who 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. However, it needs to be emphasized that,
under Paragraph 2 of Article 118 of the Constitution, it is in
cases established by law when the prosecutor shall defend the
rights and legitimate interests of the person, society and the
state; it was mentioned that subsequent to this provision, a
duty arises for the legislator to establish such legal
regulation that the prosecutor could and would have to defend
the rights and legitimate interests of the person, society and
the state in reality. It is to be noted in the constitutional
justice case at issue that the said provision implies the legal
regulation where the cases when the prosecutor has the powers
to institute the criminal proceedings must be clearly defined
in the law.
10.3. Among the provisions of the CCP that regulate the
model of criminal procedure which is entrenched in Paragraph 2
(wording of 14 March 2002) and Article 167 (wording of 14 March
2002) of the CCP and which has the features of both the model
of proceedings of cases of private accusation and the
constitutional model of general criminal procedure, there are
no such, which would define the cases, when the prosecutor has
the powers to institute the criminal proceedings concerning the
corresponding criminal deeds on his own initiative. Due to
that, as well as due to the laconism and certain
indetermination of Paragraph 4 of Article 182 (wording of 5
July 2004), Paragraph 5 of Article 183 (wording of 26 September
2000) and Paragraph 4 of Article 186 (wording of 10 April 2003)
of the CC, whose provisions are disputed by the petitioner in
this constitutional justice case, certain legal preconditions
appear also to such interpretation of this legal regulation and
such application of the corresponding provisions, when the
powers of the prosecutor to institute the criminal proceedings
or to not institute them on his own initiative are also
considered as a subject of his discretion-subjective
right-which may be implemented by the prosecutor at his own
discretion. Such practice of application of law would be
deficient and constitutionally groundless. Thus, the legal
regulation due to which the said preconditions for the
deficient practice of law appear, are to be corrected.
However, the fact that also when the discussed model of
criminal procedure was chosen, the cases when the prosecutor
has the powers to institute the criminal procedure on his own
initiative, under the Constitution, must be clearly determined
in the law, does not mean that the corresponding legal
regulation must be entrenched namely in Paragraph 4 of Article
182 (wording of 5 July 2004), Paragraph 5 of Article 183
(wording of 26 September 2000) and Paragraph 4 of Article 186
(wording of 10 April 2003) of the CC, whose provisions are
disputed by the petitioner in this constitutional justice case.
Rather, one should, by taking account of the consistency and
internal harmony of the legal system, establish the
corresponding legal regulation in the law of the criminal
procedure (CCP).
10.4. Thus, the fact that among the provisions of the CCP
that regulate the model of criminal procedure, which is
entrenched in Paragraph 2 (wording of 14 March 2002) of Article
166 and Article 167 (wording of 14 March 2002) of the CCP and
which has the features of both the model of proceedings of
cases of private accusation and the constitutional model of
general criminal procedure, there are no such, which would
define the cases when the prosecutor has the powers to
institute the criminal proceedings concerning the corresponding
criminal deeds on his own initiative and the said laconism and
certain indetermination of Paragraph 4 of Article 182 (wording
of 5 July 2004), Paragraph 5 of Article 183 (wording of 26
September 2000) and Paragraph 4 of Article 186 (wording of 10
April 2003) of the CC, whose provisions are disputed by the
petitioner in this constitutional justice case may not in
itself be the grounds to recognise, in the aspect specified by
the petitioner, Paragraph 4 of Article 182 (wording of 5 July
2004), Paragraph 5 of Article 183 (wording of 26 September
2000) and Paragraph 4 of Article 186 (wording of 10 April 2003)
of the CC as being in conflict with the Constitution, inter
alia with the constitutional principle of a state under the
rule of law.
11. Taking account of the arguments set forth, a
conclusion is to be made that Paragraph 2 of Article 148
(wording of 5 July 2004), Paragraph 3 of Article 168 (wording
of 26 September 2000), Paragraph 4 of Article 182 (wording of 5
July 2004), Paragraph 5 of Article 183 (wording of 26 September
2000), Paragraph 4 of Article 186 (wording of 10 April 2003)
and Paragraph 4 of Article 187 (wording of 10 April 2003) of
the CC are not in conflict with the constitutional principle of
a state under the rule of law.
12. It needs to be noted that certain provisions disputed
by the petitioner were entrenched in the CC yet before Article
118 of the Constitution was set forth in its present wording
(that of 20 March 2003) and before the corresponding amendment
of the Constitution came into force (21 April 2003). Before
this amendment of the Constitution came into force, certain
provisions, which are construed and referred in this
Constitutional Court ruling, had been entrenched in the CCP as
well. On the other hand, the new CC, as well as the new CCP
which came into force together with it, came into force when
Article 118 (wording of 20 March 2003) of the Constitution was
already in force. The relation of the provisions of the CC with
the Constitution when Article 118 of the Constitution was set
forth in the previous wording (2 November 1992) is not the
matter of investigation in this constitutional justice case.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
To recognise that Paragraph 2 of Article 148 (wording of 5
July 2004, Official Gazette Valstybės žinios, 2000, No.
89-2741; 2004, No. 108-4030), Paragraph 3 of Article 168
(wording of 26 September 2000, Official Gazette Valstybės
žinios, 2000, No. 89-2741), Paragraph 4 of Article 182 (wording
of 5 July 2004, Official Gazette Valstybės žinios, 2000, No.
89-2741; 2004, No. 108-4030), Paragraph 5 of Article 183
(wording of 26 September 2000, Official Gazette Valstybės
žinios, 2000, No. 89-2741), Paragraph 4 of Article 186 (wording
of 10 April 2003, Official Gazette Valstybės žinios, 2000, No.
89-2741; 2003, No. 38-1733) and Paragraph 4 of Article 187
(wording of 10 April 2003, Official Gazette Valstybės žinios,
2000, No. 89-2741; 2003, No. 38-1733) of the Criminal Code of
the Republic of Lithuania are not in conflict with the
Constitution of the Republic of Lithuania.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis