Lietuviškai
Case No. 23/04
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 3 OF ARTICLE 3 (WORDING
OF 13 MARCH 2001) AND PARAGRAPH 7 OF ARTICLE 7
(WORDING OF 13 MARCH 2001) OF THE REPUBLIC OF
LITHUANIA LAW ON COMPENSATION FOR DAMAGE INFLICTED BY
UNLAWFUL ACTIONS OF INTERROGATORY AND INVESTIGATORY
BODIES, THE PROSECUTOR'S OFFICE AND COURT, WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA
19 August 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 hearingDaiva Pitrėnaitė,
in the presence of the representative of the Seimas of
the Republic of Lithuania, the party concerned, who was Gediminas
Sagatys, senior 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 8 August 2006 heard case No. 23/04 subsequent to the
petition of the Vilnius Regional Court, the petitioner,
requesting to investigate whether Paragraph 3 of Article 3 of the
Republic of Lithuania Law on Compensation for Damage Inflicted by
Unlawful Actions of Interrogatory and Investigatory Bodies, the
Prosecutor's Office and Court was not in conflict with Paragraphs
2 and 3 of Article 5, Paragraphs 1 and 2 of Article 23, Paragraph
2 of Article 30 and Paragraphs 1 and 2 of Article 38 of the
Constitution of the Republic of Lithuania, as well as, according
to the petitioner, with the provisions of justice and a state
under the rule of law entrenched in the Preamble of the
Constitution of the Republic of Lithuania, and whether Paragraph
7 of Article 7 of the same law was not in conflict with
Paragraphs 2 and 3 of Article 5 and Paragraphs 1 and 2 of Article
38 of the Constitution of the Republic of Lithuania, as well as,
according to the petitioner, with the provisions of justice and a
state under the rule of law entrenched in the Preamble of the
Constitution, and with the provisions of administration of
justice entrenched in Article 109 of the Constitution of the
Republic of Lithuania.
The Constitutional Court
has established:
I
1. The Vilnius Regional Court, the petitioner, was
considering a civil case. By its ruling, the said court suspended
the consideration of the case and applied to the Constitutional
Court with a petition requesting to investigate whether Paragraph
3 of Article 3 of the Law on Compensation for Damage Inflicted by
Unlawful Actions of Interrogatory and Investigatory Bodies, the
Prosecutor's Office and Court (hereinafter also referred to as
the Law) was not in conflict with Paragraphs 2 and 3 of Article
5, Paragraphs 1 and 2 of Article 23, Paragraph 2 of Article 30
and Paragraphs 1 and 2 of Article 38 of the Constitution, as well
as, according to the petitioner, with the provisions of justice
and a state under the rule of law entrenched in the Preamble of
the Constitution, and whether Paragraph 7 of Article 7 of the
same law was not in conflict with Paragraphs 2 and 3 of Article 5
and Paragraphs 1 and 2 of Article 38 of the Constitution, as well
as, according to the petitioner, with the provisions of justice
and a state under the rule of law entrenched in the Preamble of
the Constitution, and with the provisions of administration of
justice entrenched in Article 109 of the Constitution.
Even though the said ruling of the Vilnius Regional Court
was adopted on 5 December 2002, the petition was received at the
Constitutional Court only on 22 April 2004.
2. By Ordinance of the President of the Constitutional
Court No. 2B-73 "On the Admission of the Petition of a
Petitioner" of 29 April 2004, subsequent to this petition of the
Vilnius Regional Court, the petitioner, the preparation of case
No. 23/04 for the Constitutional Court hearing was begun.
II
The petition of the petitioner is based on the following
arguments.
1. The Constitution guarantees the right to inheritance,
meanwhile, under Paragraph 3 of Article 3 of the Law, the right
to compensation for damage inflicted by unlawful actions of
interrogation, investigation, prosecutor's office and court shall
not be subject to transfer or inheritance. It does not allow a
person to enjoy his constitutional right to compensation for
damage entrenched in the Law. Due to this, members of the family
lose the right of inheritance as the entirety of property and
non-property rights, though, after the death of the person in
whose respect the corresponding violation of law was committed,
it is this right that is the only satisfaction of the family for
the sustained damage (upon the loss of the husband or father).
Moreover, the obligation to compensate for damage is entrenched
in Paragraph 2 of Article 30 of the Constitution; it may be
regulated by law, but it may not be denied in essence. However,
in the legal regulation of Paragraph 3 of Article 3 of the Law
this obligation is denied in essence.
2. Under Paragraph 7 of Article 7 of the Law, the size of
the moral damage subject to compensation may not exceed ten
thousand litas. Thus, the established responsibility of the state
is limited, these limits may not be overstepped even by court,
which, under Article 109 of the Constitution, administers
justice. However, the powers of the state are very big in respect
of a natural person, thus, the obligation to compensate for moral
damage in a limited manner to the person who sustained it, which
is established by the state itself, does not conform to the
damage that the state is able to inflict upon the natural person.
In this aspect, the legal situation of the state differs from the
legal situation of other subjects, who have the duty to fully
compensate for the inflicted damage. This is not in line with the
constitutional principles of justice and a state under the rule
of law.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations from G.
Sagatys, a representative of the Seimas, the party concerned,
were received in which it is maintained that the disputed
provisions of the Law were not in conflict with the Constitution.
The position of the representative of the party concerned is
grounded on the following arguments.
1. The right to compensation for damage as the property
right of the person is to be considered the right to property
provided for in Article 23 of the Constitution only from the
moment when the obligation to compensate for damage appears, i.e.
from a corresponding legal fact. The right of the person that his
property (including property rights as well) would be inherited
after his death is to be considered as a constituent part of the
constitutional right of the person to property. Thus, the legal
regulation established in Paragraph 3 of Article 3 of the Law in
fact limits the property right of the person (inviolability of
property). However, the limitation of the constitutional right of
the person is to be considered as grounded inasmuch as it is
proportionate to the legitimate objective sought. The validity of
the prohibition to inherit the right to compensation for damage
entrenched in Paragraph 3 of Article 3 of the Law is determined,
first of all, by the fact that the right to compensation for
damage arises from the obligation which is inseparably related to
the person of the creditor, second, by the fact that the right to
compensation for damage to all other persons who indirectly
suffered from actions of the judicial institutions against the
person who, under Paragraph 1 of Article 3 of the Law, has the
right to compensation for damage (to his near and dear, his
relatives, etc.), appears on the general basis established in the
Civil Code of the Republic of Lithuania (hereinafter also
referred to as CC). Thus, the prohibition to inherit the right to
compensation for damage is grounded inasmuch as it prevents other
persons from getting double satisfaction from the state when the
person who has the right to compensation for damage under
Paragraph 1 of Article 3 of the Law, dies.
2. Under the Law, state responsibility is limited only
while compensating moral damage, while a different damage is
compensated without application of any limitations. Additionally,
the Law was not much different from the then legal environment;
taking account of the social legal context (which was very
different from the one of today), when the Law was adopted and in
effect, inter alia of the fact that at that time the Lithuanian
legal system was undergoing reforms and the procedure for
establishing and calculating the moral damage had not been
"purified", the limitation established in Paragraph 7 of Article
7 of the Law to a certain extent protected from groundless
attempts to gain profit.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations from P.
Koverovas, State Secretary of the Ministry of Justice of the
Republic of Lithuania, were received.
V
At the hearing of the Constitutional Court, G. Sagatys,
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 Vilnius Regional Court, the petitioner, requests
to investigate whether Paragraph 3 of Article 3 of the Law was
not in conflict with Paragraphs 2 and 3 of Article 5, Paragraphs
1 and 2 of Article 23, Paragraph 2 of Article 30 and Paragraphs 1
and 2 of Article 38 of the Constitution, as well as, according to
the petitioner, with the provisions of justice and a state under
the rule of law entrenched in the Preamble of the Constitution,
and whether Paragraph 7 of Article 7 of the Law was not in
conflict with Paragraphs 2 and 3 of Article 5 and Paragraphs 1
and 2 of Article 38 of the Constitution, as well as, according to
the petitioner, with the provisions of justice and a state under
the rule of law entrenched in the Preamble of the Constitution,
and with the provisions of administration of justice entrenched
in Article 109 of the Constitution.
2. The Constitutional Court has held in its acts more
than once that the constitutional principles of justice and a
state under the rule of law may not be construed as those
entrenched only in the Preamble of the Constitution, nor
identified only with the striving for an open, just and
harmonious civil society and state under the rule of law
proclaimed in the Preamble of the Constitution, and that the
constitutional principle of a state under the rule of law is
inseparable from the imperative of justice and integrates various
values, entrenched in and protected and defended by the
Constitution, as well as those that are expressed by the said
objective.
It needs to be held that the petition of the petitioner
requesting to investigate whether Paragraph 3 of Article 3 and
Paragraph 7 of Article 7 of the Law was not in conflict inter
alia, according to the petitioner, with the provisions of justice
and a state under the rule of law entrenched in the Preamble of
the Constitution is to be considered as a petition requesting to
investigate whether these paragraphs were not in conflict with
the constitutional principles of justice and a state under the
rule of law.
3. It is established in Article 109 of the Constitution
that in the Republic of Lithuania, justice shall be administered
solely by courts (Paragraph 1), while administering justice, the
judge and courts shall be independent (Paragraph 2), while
considering cases, judges shall obey only the law (Paragraph 3)
and that the court shall adopt decisions in the name of the
Republic of Lithuania (Paragraph 4).
It is to be held that the petition of the petitioner
requesting to investigate whether Paragraph 7 of Article 7 of the
Law was not in conflict inter alia, according to the petitioner,
with the provisions of administering justice entrenched in the
Constitution, is to be considered as a petition requesting to
investigate whether this paragraph was not in conflict with
Article 109 of the Constitution.
4. On 4 November 1997, the Seimas adopted the Law on
Compensation for Damage Inflicted by Unlawful Actions of
Interrogatory and Investigatory Bodies, the Prosecutor's Office
and Court. In Article 1 of this law, it was inter alia
established that it regulates the compensation for damage
inflicted upon the natural person due to the unlawful conviction,
unlawful temporary detention, unlawful detention, unlawful
arrest, administrative arrest or imposition of correctional work
and that this damage shall be compensated by the state.
The Law came into force on 19 November 1997.
5. On 30 June 2000, the Constitutional Court, in the
constitutional justice case subsequent to the petition of the
Kaunas Regional Court, the petitioner, requesting to investigate
whether Item 1 of Paragraph 1 of Article 4 of the Law on
Compensation for Damage Inflicted by Unlawful Actions of
Interrogatory and Investigatory Bodies, the Prosecutor's Office
and Court was not in conflict with Paragraph 2 of Article 20,
Article 29 and Paragraph 1 of Article 31 of the Constitution, and
subsequent to the petition of the Court of Appeal of Lithuania,
the petitioner, requesting to investigate whether Paragraph 1 of
Article 3 and Paragraph 1 of Article 4 of this law were not in
conflict with Paragraphs 1 and 2 of Article 21, Paragraph 1 of
Article 29 and Paragraph 1 of Article 30 of the Constitution,
adopted the Ruling "On Compensation for Damage Inflicted by
Unlawful Actions of Interrogatory and Investigatory Bodies, the
Prosecutor's Office and Court with the Constitution of the
Republic of Lithuania" wherein it recognised that Paragraph 1 of
Article 3 and Item 1 of Paragraph 1 of Article 4 of the Law to
the extent that, as defined in that Constitutional Court ruling,
"the right of compensation for damage is denied for the persons
regarding whom the judgement of conviction has been reversed
prior to its going into effect and the case has been dismissed or
the convicted person acquitted on the ground that a new or newly
discovered circumstance shows conclusively that there has been a
miscarriage of justice unless it is proved that the non-
disclosure of the said circumstance in time is wholly or partly
attributable to the convicted person, and the criminal procedure
has been completed" were in conflict with Paragraph 1 of Article
29 and Paragraphs 1 and 2 of Article 30 of the Constitution.
In the Constitutional justice case, wherein the ruling of
30 June 2000 was adopted, the Constitutional Court did not
investigate whether Paragraph 3 of Article 3 and Paragraph 7 of
Article 7 of the Law, whose compliance with the Constitution is
disputed by the Vilnius Regional Court, the petitioner, in this
constitutional justice case, were not in conflict with the
Constitution.
6. The Law was amended and supplemented by the Republic
of Lithuania Law on Amending and Supplementing Articles 3, 4, 5,
6 and 7 of the Law on Compensation for Damage Inflicted by
Unlawful Actions of Interrogatory and Investigatory Bodies, the
Prosecutor's Office and Court, which was adopted by the Seimas on
13 March 2001, which came into force on 30 March 2001, however,
Paragraph 3 of Article 3 (wording of 4 November 1997) and
Paragraph 7 of Article 7 (wording of 4 November 1997) of the Law
were not amended and/or supplemented.
7. In Article 3 (wording of 13 March 2001) of the Law it
was established:
"1. The persons, who experienced unlawful temporary
detention, unlawful detention, unlawful arrest, administrative
arrest or imposition of correctional work, shall have the right
to compensation for damage, provided there are grounds specified
in Article 4 of this law.
2. Also the persons, who have been adjudicated
compensation for damage by the European Court of Human Rights,
and the persons with whom a friendly agreement specified in
Paragraph 2 of Article 4 of this Law has been reached, shall have
the right to compensation for damage.
3. This right shall not be subject to transfer or
inheritance."
8. In Article 7 (wording of 13 March 2001) of the Law it
was established:
"1. The person, who has the right to compensation for
damage under this law, the real damage shall be compensated, i.e.
the expenses incurred due to unlawful actions of interrogatory
and investigatory bodies, the prosecutor's office and court
(judge), as well as the property damage or loss, non-received
remuneration for work, allowances, pensions or other work income
and moral damage, as well as working and professional rights
shall be returned.
2. A person, who worked under the labour contract, shall
be compensated for every day of unlawful imprisonment, unlawful
temporary detention, unlawful detention, unlawful arrest or
unlawfully imposed administrative arrest. The size of damage
shall be calculated according to his average monthly remuneration
for work under the procedure established by the Government of the
Republic of Lithuania.
3. A person, who was engaged in individual business or
professional activity, shall be compensated for every day of
unlawful imprisonment, unlawful temporary detention, unlawful
detention, unlawful arrest or unlawfully imposed administrative
arrest. The size of damage shall be calculated according to the
average taxed income of the 12 last months before the suspension
of business or professional activity, which shall be divided into
the number of calendar days of these 12 months and multiplied by
the number of calendar days, spent by the person, when he was
unlawfully imprisoned, unlawfully temporally detained, unlawfully
detained, unlawfully arrested or unlawfully arrested under the
administrative procedure. If the person was engaged in individual
business or professional activity for less than 12 months, the
size of damage shall be calculated under the same procedure for
the whole period of time of business or professional activity.
4. In the case that due to unlawful imprisonment,
unlawful temporary detention, unlawful detention, unlawful arrest
or unlawfully imposed administrative arrest to the owner of the
individual (personal) enterprise the activity of his enterprise
stops, the size of damage shall be calculated according to the
reporting indicators of his enterprise of the previous last
calendar year, by dividing the taxed income (the income which
remained after deducting for taxes) of the enterprise into the
number of the calendar days of last year and multiplying from the
number of the calendar days spent by the person, when he was
unlawfully imprisoned, unlawfully temporally detained, unlawfully
detained, unlawfully arrested or unlawfully arrested under the
administrative procedure. If the individual (personal) enterprise
was engaged in the activity for less than one calendar year, the
size of damage shall be calculated under the same procedure for
the whole period of time of the activity of the enterprise.
5. A person who is engaged in studies (pupil, student,
etc.) and a person who did not work under a labour contract, who
was not engaged in individual business or professional activity
but who had registered himself at the state labour exchange shall
be compensated for every day of unlawful imprisonment, unlawful
temporary detention, unlawful detention, unlawful arrest or
unlawfully imposed administrative arrest. The size of damage
shall be calculated according to the minimal monthly salary
established by the Government of the Republic of Lithuania, which
is divided into 30 and multiplying from the calendar days spent
by the person, when he was unlawfully imprisoned, unlawfully
temporally detained, unlawfully detained, unlawfully arrested or
unlawfully arrested under the administrative procedure.
6. A person, who has been imposed correctional work,
shall be compensated for damage that appeared due to the
deduction of part of his remuneration to the income of the state.
7. The moral damage to be compensated shall be
established taking account of the gravity of the accusation, the
size of the imposed punishment or fine, the period of time of the
unlawful imprisonment, unlawful temporary detention, unlawful
detention, unlawful arrest or unlawfully imposed administrative
arrest, of the imparting of information to the public regarding
the imposition of administrative arrest, temporary detention,
detention, arrest or conviction, however, it may not exceed ten
thousand litas.
8. The size of the compensation for damage to the persons
specified in Paragraph 2 of Article 3 of this Law shall be
established by a decision of the European Court of Human Rights
or by a friendly agreement specified in Paragraph 2 of Article 4
of this Law. The decision of the European Court of Human Rights
or the friendly agreement specified in Paragraph 2 of Article 4
of this Law must be implemented by paying monetary compensation
within 3 months of the day when the decision of the court of the
friendly agreement is received by the representative of the
Government of the Republic of Lithuania at the European Court of
Human Rights."
9. Even though the Vilnius Regional Court, the
petitioner, requests to investigate whether whole Paragraph 3 of
Article 3 (wording of 13 March 2001) and whole Paragraph 7 of
Article 7 (wording of 13 March 2001) of the Law were not in
conflict with the Constitution, it is obvious from the arguments
of the petition of the petitioner, as well as from the material
of the civil case considered by the Vilnius Regional Court, in
which the ruling was adopted on the application to the
Constitutional Court and by which this constitutional justice
case was initiated that the petitioner had doubts only on the
fact whether the provision "this right shall not be subject <
>
to inheritance" of Paragraph 3 of Article 3 (wording of 13 March
2001) and the provision "the moral damage to be compensated <
>
may not exceed ten thousand litas" of Paragraph 7 of Article 7
(wording of 13 March 2001) of the Law were not in conflict with
the Constitution.
10. On 21 May 2002, the Seimas adopted the Law on
Compensation for Damage Which Appeared Due to Unlawful Actions of
State Institutions, under Article 7 of which, after the entry
into force of this law, the Law on Compensation for Damage
Inflicted by Unlawful Actions of Interrogatory and Investigatory
Bodies, the Prosecutor's Office and Court (wording of 4 November
1997 with subsequent amendments and supplements) had to become no
longer effective. The Law on Compensation for Damage Which
Appeared Due to Unlawful Actions of State Institutions came into
force on 7 June 2002. Thus, on that day, the Law on Compensation
for Damage Inflicted by Unlawful Actions of Interrogatory and
Investigatory Bodies, the Prosecutor's Office and Court (wording
of 4 November 1997 with subsequent amendments and supplements)
became no longer effective.
The Law on Compensation for Damage Which Appeared Due to
Unlawful Actions of State Institutions (inter alia its title) has
been amended and/or supplemented more than once.
It needs to be noted that the provisions, which were
entrenched in Paragraph 3 of Article 3 (wording of 13 March 2001)
and Paragraph 7 of Article 7 (wording of 13 March 2001) of the
Law and whose compliance with the Constitution is disputed by the
Vilnius Regional Court, the petitioner, in this constitutional
justice case, were no longer present in the Law on Compensation
for Damage Inflicted by the State Institutions (wording of 21 May
2002, with subsequent amendments and supplements).
II
Having adopted the Constitution, the legal act of the
supreme legal power, by referendum, the Lithuanian Nation formed
the standardised basis for the common life of its own, as the
state communitythe civil Nation, and consolidated the state as
the common good of the entire society. The Constitution is based
on universal, unquestionable values, inter alia the respect for
law and the rule of law, limitation of the scope of powers, the
duty of state institutions to serve the people and their
responsibility for society, justice, striving for an open, just
and harmonious society and state under the rule of law, the
recognition of human rights and freedoms and their respect
(Constitutional Court ruling of 25 May 2004). In this context, it
is to be noted that it is established in Article 18 of the
Constitution that human rights and freedoms shall be innate. The
recognition of the human rights as innate means inter alia the
fact that the rights and freedoms which cannot be separated from
his person and which cannot be deprived from him, belong to the
person ipso facto. The innate human rights are innate
opportunities of an individual which ensure his human dignity in
the spheres of social life (Constitutional Court rulings of 9
December 1998 and 29 December 2004). One of the most important
obligations of a democratic state based on law and justice is to
respect, defend and protect the values, as well as human rights
and freedoms, upon which the Constitution itself adopted by the
Nation is based and whose real assessment, defence and protection
is raison d'?tre of the state itself; otherwise, one would not be
able to consider the state as the common good of the whole
society.
Constitution is an anti-majoritarian act; it protects the
individual. As the Constitutional Court has held, the state is
constitutionally obliged to ensure the protection of human rights
and freedoms from any unlawful attempt or limitation by legal,
material or organisational means and to establish sufficient
means for defence and protection of human rights and freedoms
(Constitutional Court rulings of 30 June 2000 and 29 December
2004).
2. Under the Constitution, the state must not only ensure
the protection of human rights and freedoms from unlawful
attempts of other persons but also not permit in any manner that
state institutions or officials themselves unlawfully encroach
upon them or violate them (Constitutional Court rulings of 30
June 2000, 13 December 2004 and 29 December 2004). In this
context, it is to be emphasised that people may reasonably
consider the state institutions and officials as expressers or
executors of the will of the state (both, when they execute the
functions entrusted to them and when they do not implement any of
their powers). State institutions and officials in no
circumstances may act ultra vires, nor violate human rights and
freedoms by unlawful actions. Otherwise, the confidence of people
in state power, laws and the law would be ruined and legal
nihilism would flourish. Tolerance towards unlawful actions of
state institutions and officials by which human rights and
freedoms are violated and failure to prevent them would lead to a
huge social disbalance, the basic balance would be violated, when
the human being virtually has no means and possibilities to
resist the arbitrariness of the statea powerful mechanism, and,
when he is left with no effective institutionalized help, he is
trampled by the whole power of the state mechanism.
3. In the course of protection and defence of the human
rights and freedoms (and, in general, personal onesnot only
those of a natural but also legal person), a particular
importance falls on the institute of compensation for damage. It
is established in Paragraph 2 of Article 30 of the Constitution
that compensation for material and moral damage inflicted upon a
person shall be established by law. Thus, the necessity to
compensate material and moral damage inflicted upon a person is a
constitutional principle (Constitutional Court rulings of 20
January 1997 and 13 December 2004). This constitutional principle
is inseparable from the principle of justice entrenched in the
Constitution: all the necessary legal preconditions must be
created by laws in order to justly compensate for the inflicted
damage. Thus, the Constitution imperatively requires to establish
by law such legal regulation that a person, who was inflicted
damage by unlawful actions, would be able in all cases to claim
for just compensation for that damage and to receive that
compensation. In the context of the constitutional justice case
at issue, it is to be emphasized that it does not follow from the
Constitution that it is possible by laws to establish some
exceptions, under which the moral and/or material damage
inflicted upon the person is not compensated, for example,
because of the reason that it was inflicted by unlawful actions
of officials or institutions of the state itself. If the law, let
alone other legal act, established such legal regulation whereby
the state would fully or partially avoid the duty to justly
compensate for material and/or moral damage inflicted by unlawful
actions of state institution or officials, it would mean not only
that the constitutional concept of compensation for damage is
disregarded and that this is not line with the Constitution
(inter alia Paragraph 2 of Article 30 thereof), but it would also
undermine the raison d'?tre of the state itself, as the common
good of the whole society.
4. It is to be noted that the legislator, while
regulating by law the relations linked to the compensation for
material and/or moral damage inflicted upon the person, has
certain discretion, inasmuch as it is not restricted by the
Constitution. Thus, the legal regulation established in laws may
be differentiated according to whether the damage inflicted by
unlawful actions is compensated by judicial or non-judicial
procedure, however, in any case, one may not establish any such
legal regulation that the right of a person to apply to court and
to claim for just compensation for damage inflicted by unlawful
actions would be denied. By regulating the said relations by law,
it is also necessary to heed the constitutional principles of
equality of persons, the inviolability and protection of
property, the independence of court, the proper legal process and
other constitutional principles.
In the context of the constitutional justice case at
issue, it is to be particularly emphasized that the Constitution
does not tolerate any such legal regulation, when a person, who
was inflicted material and/or moral damage by unlawful actions of
state institutions and officials, may not claim in court for just
compensation of this damage, or when the court, which, under the
Constitution (inter alia Article 109 thereof) must administer
justice, may not, while taking account of all the significant
circumstances of the case, establish for the person the size of
the material and/or moral damage inflicted by the said unlawful
actions, and, by following law, inter alia not violating the
imperatives of justice, reasonableness and proportionality,
adjudicate just compensation for that material and/or moral
damage sustained by a person.
It is also to be emphasized that the institute of
compensation for damage inflicted by unlawful actions of state
institutions and officials implies inter alia the fact that the
right of a person for compensation for damage inflicted by
unlawful actions of state institutions and officials appears only
when it is held by the procedure established by laws (meeting the
requirements of the proper legal process) that the state
institutions, officials performed unlawful actions and that there
appeared damage to the person namely due to the unlawful actions
of these state institutions, officials.
5. The discretion of the legislator, which may be used by
him while regulating the relations linked to compensation for
material and/or moral damage inflicted upon the person by
unlawful actions of the state institutions and officials, may not
be interpreted as including his free discretion to establish some
comprehensive (finite) list of cases in which such damage must be
compensated, or to establish that in certain cases the damage
inflicted by the said unlawful actions may be not subject to
compensation.
Under the Constitution, neither does the legislator enjoy
the freedom to establish any minimum limits of damage inflicted
upon the person by the state institutions or officials which
would not be subject to compensation. The legislator also has no
constitutional powers to establish any maximum limits of damage
inflicted upon the person by the state institutions or officials
to be compensated, which would restrict the court and would
prevent it from adjudicating just compensation for that material
and/or moral damage sustained by the person.
It needs also to be mentioned that, while regulating the
relations of compensation for damage inflicted by the unlawful
actions by the state institutions and officials, one may not
establish such legal regulation that the compensation for damage
would depend on the fact, whether the decision of the court by
which a person was unlawfully sentenced (and which was abolished
later), was appealed under appeal and cassation procedure
(Constitutional Court ruling of 30 June 2000).
If all the said imperatives were disregarded,
preconditions would be created for appearance of legal
situations, where the damage inflicted upon the person by
unlawful actions of state institutions and officials would be
compensated partially or not compensated at all and the
constitutional powers of the court to administer justice would be
limited. It would mean that also the constitutional concept of
compensation for damage is disregarded and that one deviates from
the constitutional principles of justice and a state under the
rule of law.
In this context, it is to be noted that, under the
Constitution, the person has the right to claim for compensation
for damage inflicted by unlawful actions of state institutions
and officials, also when the case of the corresponding
compensation for damage is not specified in any law, while the
courts, deciding such cases according to their competence, have
constitutional powers, by applying the Constitution directly (the
principles of justice, legal certainty and legal security,
proportionality, proper legal process, equality of persons and
protection of legitimate expectations, other provisions of the
Constitution), as well as general principles of law, pursuing
inter alia the principle of reasonableness etc., to adjudicate
the corresponding compensation for damage.
6. In Paragraph 2 of Article 30 of the Constitution, two
kinds of damage are mentioned expressis verbis: material and
moral damage, i.e. (respectively) property losses and spiritual
(non-property) offences (they may also be caused by physical
pain), which may be assessed and compensated materially only on
condition. The legislator must pay heed to this constitutional
distinction.
Alongside, it also needs to be noted that treating the
requirement to describe the same phenomena in laws and other
legal acts always in the same words and formulas unreservedly
would mean not only the seeking to artificially restrict and stop
the development of language, inter alia legal terminology, when
not only words (formulas) describing the same phenomena, which
are different from the text of the Constitution, are used in the
laws and other legal acts, but new terms (formulas) in general,
which were not yet created at the time of drawing the text of the
Constitution, but it might also provoke to correct the text of
the Constitution according to the terminology (words, formulas)
entrenched in the laws and other legal acts also in such cases,
when the intervention into the text of the Constitution, which as
the supreme law must be a permanent act, is not legally
necessary. 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 (Constitutional Court ruling of 16
January 2006). Thus, the kinds of damage mentioned in Paragraph 2
of Article 30 of the Constitution may also be named in the laws
by different terms only if these terms do not deny (distort) the
constitutional concept of these kinds of damage.
7. The grouping of damage (which is subject to
compensation) inflicted upon the person into material and moral
one entrenched in Paragraph 2 of Article 30 of the Constitution
determines the peculiarities of the legal regulation of the
relations linked to the compensation for damage of a
corresponding kind. One of these peculiarities is related to the
establishment (assessment) of the size of the inflicted damage
and with the form of compensation for that damage. While
compensating for material damage, in all cases it is possible to
follow the principle of full (adequate) compensation for damage
(restitutio in integrum), when the size of the inflicted damage
may be expressed in a monetary equivalent and the damage may be
compensated with money (it does not deny the possibility to
compensate for material damage also by means of other property or
otherwise); thus, material losses are compensated with material
assets. Meanwhile, as it was mentioned, moral damage is a
spiritual offence which can only be assessed and compensated
materially on condition; quite often the inflicted moral damage,
as the sustained moral offence by the person, cannot be in
general replaced, because it is impossible to return back the
emotional and other condition of the person, which had existed
before the spiritual offence took placesuch condition sometimes
(at best) can be newly created while using inter alia material
(first of all, monetary) compensation for that moral damage
(however, sometimes, moral satisfaction alone for the sustained
moral damage is not impossible). The material (monetary)
compensation for moral damage, as the material equivalent of that
moral damage, must also be paid by following the principle of the
full (adequate) compensation for damage, for whose application in
such cases there are typical important peculiarities, since such
material compensation virtually differs by its content from the
content of the moral damage itself which was inflicted and for
which it is compensated and thus (its size is not important)
according to its nature, it cannot (or is not always able to)
replace the sustained moral offence. The purpose of such material
(first of all, monetary) compensation for moral damage is to
create material preconditions to newly create what is impossible
to return, and to compensate as justly as possible for the person
something that often may not in general be replaced by anything
neither money nor any material property.
8. The grouping of the damage (subject to compensation)
inflicted upon the person into material and moral one in itself
is not identical to the grouping of the damage into the damage
for which material compensation may be claimed not only by the
person who sustained the corresponding damage, but also by
certain other persons, and into the damage for which material
compensation may be claimed only by the person who sustained the
damage, as the possibility to materially compensate for it is
itself related only to that person and may not be related to any
other person. For instance, while heeding the constitutional
imperative of the protection and defence of ownership (and
property rights linked to it), it needs to be held that usually
the right to claim for compensation for certain material damage
is to be inherited or transferred in any other way; however, also
such legal situations are possible, when the right to claim for
compensation for certain material damage is inseparably related
only to the person who sustained that damage and it may not be
related to any other person. Also the right to claim for material
compensation for the moral damage inflicted upon the person in
some cases may be related only to the person who sustained that
damage, however, under the Constitution, legal situations, where
this right may be transferred to certain other persons, are also
possible.
It is to be noted that by no means does it follow from
the Constitution that compensation for material and/or moral
damage inflicted upon a person must in all cases be paid (or
compensated otherwise) namely to the person upon whom it was
inflicted, and that corresponding compensation may not in general
be paid to any other person (persons). In particular, legal
situations are to be mentioned, where the person, upon whom
damage was inflicted, has died, and even more, when the fact that
he was deprived of his life constitutes the content of the
inflicted damage. In the constitutional justice case at issue, it
is necessary to emphasize that the Constitution requires to
establish by law such legal regulation so that the state could
not avoid the duty to pay compensation, when such compensation is
reasonably claimed for the damage inflicted by the unlawful
actions of its institutions and officials, and in the cases when
it is not possible to pay the compensation for that damage to the
same person, in whose respect these unlawful actions were
performed namely because of the fact that he is dead, moreover,
if by the said unlawful actions, the content of the damage
inflicted upon the person included the fact that he was deprived
of his life. Thus, the state may not avoid compensating for such
damage in all cases, when it is reasonably claimed by other
persons and when the person, in whose respect the unlawful
actions of the state institutions and officials were performed,
and upon whom by these actions the corresponding material and/or
moral damage was inflicted, cannot claim himself to compensate
for it because of the fact that the unlawfulness of the actions
of the state institutions and officials was established already
after the death of the person (the cause of which sometimes may
be the said unlawful actions), or because of the fact that even
though the unlawfulness of the actions of the state institutions
and officials was established when the person was alive, he died
earlier than he could (during the reasonable term established in
the law) enjoy his right to claim for the compensation for damage
or when he enjoyed this right, but died before the decision of
the corresponding state institution (inter alia the court) was
adopted and/or executed.
If the legal regulation were established that it would be
possible to pay the said compensation for damage inflicted by
unlawful actions of the state institutions and officials only to
the person who sustained that damage, and under no circumstances
would it be possible to pay the compensation for that damage to
other persons, even though the claims of other persons to
compensate for the said damage inflicted not directly upon them
would be most possibly reasoned by the imperatives of justice,
reasonableness and proportionality that arise from the
Constitution and by other provisions of the Constitution, it
would mean that the state, using the formal clause created by
itself, in certain cases tries to avoid its obligation and not to
execute the constitutional duty to compensate for the damage,
which was inflicted by unlawful actions of its own institutions
and officials; one would have to hold that the state tries not to
execute the said constitutional obligation even when the person
has died namely due to unlawful actions of state institutions and
officials, and that it was due to these unlawful actions that the
person no longer exists, to whom, should he have survived, the
damage would have been compensated. Such stance of the state, if
it were entrenched in legal acts, would be incompatible not only
with various provisions of the Constitution (inter alia which
consolidate the family as the basis of society and the state,
which protects and defends family, motherhood, fatherhood,
childhood, and other social relations which are constitutionally
valued), but also with the essence of the State of Lithuania
itself, as a democratic state based on law and justice, with its
constitutional purpose and nature.
9. A mere fact that the person in whose respect some
state institutions and officials directly performed certain
unlawful actions and, therefore, inflicted damage upon that
person, enjoys the right to claim for compensation for that
damage (and receives it) does not mean that other persons are in
general (in all cases) prevented from claiming (by applying to
court) for compensation for damage (both material and moral)
sustained by them due to the same unlawful actions, even though
these actions were not performed directly in their respect (for
example, the dependants of the person in whose respect the
unlawful actions were directly performed may enjoy an independent
right to claim (while applying to court) for compensation for
damage inflicted upon them, regardless of whether the other
person has made use of his right for the claim or not).
Otherwise, one would diverge from the principles of justice and a
state under the rule of law which are entrenched in the
Constitution, inter alia the powers of the court to administer
justice entrenched in Article 109 of the Constitution would be
limited and the constitutional concept of compensation for
damage, which is inter alia entrenched in Paragraph 2 of Article
30 of the Constitution, would be disregarded.
10. Alongside, it is to be noted that no prohibition
arises from the Constitution for the legislator to establish,
while heeding the norms and principles of the Constitution,
reasonable and grounded criteria while regulating the relations
linked to the compensation of damage inflicted by unlawful
actions of state institutions and officials in the law under
which it would be possible to establish (assess) the size of the
damage that is to be compensated. Such criteria may be very
different, they may be differentiated according to the nature,
peculiarities and other circumstances of the inflicted damage.
The Constitutional Court held in its ruling of 30 June 2000 that
compensation for damage in various areas of discharge of
functions of the state may be regulated in a different manner.
Thus, also a separate special legal regulation may be
established, intended to such legal situations, when the damage
is inflicted upon the person not by any subjects, but only by
unlawful actions of state institutions and officials, and even
more special legal regulation, intended to such legal situations,
when the damage is inflicted upon the person not by any, but by
certain unlawful actions of state institutions and officials;
such differentiation of legal regulation may also include the
said criteria, under which it would be possible to establish
(assess) the size of the damage which is subject to compensation.
However, as it has been held in this Constitutional Court ruling,
the overall legal regulation of the relations linked to the
compensation for the material and/or moral damage inflicted upon
the person by unlawful actions of state institutions and
officials, may not be such that its differentiation would create
preconditions to interpret that legal regulation as imposing the
establishment of a comprehensive (finite) list of the cases, as
to when the damage inflicted upon the person must be compensated.
It is also to be emphasized that no criteria, expressis
verbis specified in the laws, referring to which it would be
possible to establish (assess) the size of the damage which needs
to be compensated, should impede the court to administer
justicetaking account of all the significant circumstances of
the case, to establish the size of the material and/or moral
damage inflicted upon the person by unlawful actions of state
institutions and officials, and, following the law, inter alia
without trespassing the imperatives of justice, reasonableness
and proportionality, to adjudicate just compensation for that
material and/or moral damage sustained by the person.
III
On the compliance of the provision "the moral damage to
be compensated <
> may not exceed ten thousand litas" of
Paragraph 7 of Article 7 (wording of 13 March 2001) of the Law on
Compensation for Damage Inflicted by the Unlawful Actions of
Interrogatory, Investigatory Bodies, the Prosecutor's Office and
Court with Paragraphs 2 and 3 of Article 5, Paragraphs 1 and 2 of
Article 38 and Article 109 of the Constitution, with the
constitutional principles of justice and a state under the rule
of law.
1. The petitioner has doubts on whether the provision
"the moral damage to be compensated <
> may not exceed ten
thousand litas" of Paragraph 7 of Article 7 (wording of 13 March
2001) of the Law was not in conflict with the Constitution.
2. While construing the disputed provision of Paragraph 7
of Article 7 (wording of 13 March 2001) of the Law in the context
of the whole legal regulation established in the Law, it needs to
be held that by the provision the maximum limit was entrenched
which under no circumstances can be exceeded while under the
judicial procedure compensating for moral damage inflicted upon a
natural person by unlawful actions of state officials and
institutions (interrogator, investigator, prosecutor, court
(judge)) specified in same Paragraph 4 (by the decision on
temporary detention, detention, arrest, sentence or imposition of
correctional work upon the person) of Article 2 of the Law. It is
to be emphasized that this limit was absolute in the aspect that
even if the natural person, according to the court, had sustained
the moral damage whose monetary equivalent (having in mind the
clause of the impossibility to fully replace the sustained moral
damage) was rather larger than the said ten thousand litas and
the adjudication of such allowed maximum sum of money would have
been obviously disproportionate to the moral damage sustained by
that natural person and, thus, unjust, the court still could not
adjudicate to that person a larger sum of money or other material
compensation, whose monetary equivalence would be larger than the
established maximum. It also needs to be noted that the said
maximum sum of ten thousand litas used to be fixed and stable and
that it did not depend on any changes in the financial and
economic situation, or those in the level of subsistence, nor on
other factors.
3. It has been held in this Constitutional Court ruling
that the legislator has no constitutional powers to establish any
maximum sizes of damage inflicted upon the person by the state
institutions or officials, which is subject to compensation,
which would restrict the court and would prevent it from
adjudicating just compensation for that material and/or moral
damage sustained by the person. If such legal regulation were
established, the powers of the court to administer justice
entrenched inter alia in Article 109 of the Constitution were
limited and the constitutional concept of compensation for
damage, which is entrenched inter alia in Paragraph 2 of Article
30 of the Constitution, as well as the constitutional principles
of justice and a state under the rule of law would be
disregarded.
4. Taking account of the arguments set forth, a
conclusion is to be made that the provision "the moral damage to
be compensated <
> may not exceed ten thousand litas" of
Paragraph 7 of Article 7 (wording of 13 March 2001) of the Law
was in conflict with Paragraph 2 of Article 30 and Article 109 of
the Constitution, with the constitutional principles of justice
and a state under the rule of law.
5. It was mentioned that under the Law, the moral damage
inflicted upon a natural person by unlawful actions of
interrogatory, investigatory bodies, the prosecutor's office and
court had to be compensated. These actions were defined in
Paragraph 4 of Article 2 of the Law, wherein it was established:
"The unlawful actions are violations of the Code of Criminal
Procedure of the Republic of Lithuania or the Code of
Administrative Violations of Law, established by an effective
court decision or by other competent official under the procedure
established by laws, which were committed by the interrogator,
investigator, prosecutor, court (judge) while adopting the
decision on temporary detention, detention, arrest, sentence a
person and to impose him an administrative arrest or correctional
work." It is to be held that such definition of unlawful actions,
when a comprehensive (finite) list of unlawful actions of
interrogatory, investigatory bodies, the prosecutor's office and
court by which damage can be inflicted upon a natural person is
introduced is legally incorrect as it does not include all the
persons, upon whom damage can be inflicted by unlawful actions of
state institutions and officials, nor does it include all
possible unlawful actions that can be committed and by which
damage (also the moral one) can be inflicted upon the person.
However, the entirety of the state officials and institutions as
the subjects by whose unlawful actions damage can be inflicted
upon a natural person, as well as the entirety of the unlawful
actions that may be committed by them, are not the matter of
investigation in this constitutional justice case. The fact, what
personsnatural or legal, or both natural and legal, as well as
whether only the persons who sustained damage directly or also
other persons as well had to be compensated for damage under the
Law and the then overall legislative regulation, is not the
matter of investigation in this constitutional justice case,
either.
6. Having held that the provision "the moral damage to be
compensated <
> may not exceed ten thousand litas" of Paragraph 7
of Article 7 (wording of 13 March 2001) of the Law was in
conflict with Paragraph 2 of Article 30 and Article 109 of the
Constitution, with the constitutional principles of justice and a
state under the rule of law, the Constitutional Court will no
longer investigate in this constitutional justice case whether
this provision was not in conflict with Paragraphs 2 and 3 of
Article 5 and Paragraphs 1 and 2 of Article 38 of the
Constitution.
IV
On the compliance of the provision "this right shall not
be subject <
> to inheritance" of Paragraph 3 of Article 3
(wording of 13 March 2001) of the Law on Compensation for Damage
Inflicted by the Unlawful Actions of Interrogatory, Investigatory
Bodies, the Prosecutor's Office and Court with Paragraphs 2 and 3
of Article 5, Paragraphs 1 and 2 of Article 23, Paragraph 2 of
Article 30 and Paragraphs 1 and 2 of Article 38 of the
Constitution, with the constitutional principles of justice and a
state under the rule of law.
1. The petitioner doubts whether the provision "this
right shall not be subject <
> to inheritance" of Paragraph 3 of
Article 3 (wording of 13 March 2001) of the Law was not in
conflict with the Constitution.
2. While construing the disputed provision of Paragraph 3
of Article 3 (wording of 13 March 2001) of the Law in the context
of the whole legal regulation established in the Law (inter alia
in Article 3 thereof), it needs to be held that this provision
entrenched the absolute prohibition to inherit the right of the
natural person to compensation for damage (both material and
moral), which was inflicted upon the person by unlawful actions
of state officials and institutions (interrogator, investigator,
prosecutor, court (judge)) defined in same Paragraph 4 of Article
2 of the Law.
3. It has been held in this Constitutional Court ruling
that it does not follow from the Constitution that compensation
for material and/or moral damage inflicted upon a person must in
all cases be paid (or compensated otherwise) namely to the person
upon whom it was inflicted, and that the corresponding
compensation may not in general be paid to any other person
(persons), also that if the legal regulation were established
that it would be possible to pay the said compensation for damage
inflicted by unlawful actions of the state institutions and
officials only to the person who sustained that damage, and under
no circumstances would it be possible to pay the compensation for
that damage to other persons, even though the claims of other
persons to compensate for the said damage inflicted not directly
upon them would be most possibly reasoned by the imperatives of
justice, reasonableness and proportionality that arise from the
Constitution and by other provisions of the Constitution, it
would mean that the state, using the formal clause created by
itself, in certain cases tries to avoid its obligation and not to
execute the constitutional duty to compensate for the damage,
which was inflicted by unlawful actions of its own institutions
and officials. It was also mentioned that in such cases one would
have to hold that the state tries not to execute the said
constitutional obligation even when the person has died namely
due to the unlawful actions of state institutions and officials,
and that it was due to these unlawful actions that the person no
longer exists, to whom, should he have survived, the damage would
have been compensated, also that such stance of the state, if it
were entrenched in legal acts, would be incompatible not only
with various provisions of the Constitution.
4. It is to be held that the absolute prohibition to
inherit the right of the natural person to compensation for
damage, which was inflicted by certain unlawful actions of the
interrogator, investigator, prosecutor, and court limits inter
alia the powers of the court to administer justice, which are
entrenched in Article 109 of the Constitution, deviates from the
constitutional concept of compensation for damage, which is inter
alia entrenched in Paragraph 2 of Article 30 of the Constitution,
and violates the constitutional principles of justice and a state
under the rule of law.
5. Taking account of the arguments set forth, a
conclusion is to be made that the provision "this right shall not
be subject <
> to inheritance" of Paragraph 3 of Article 3
(wording of 13 March 2001) of the Law was in conflict with
Paragraph 2 of Article 30 and Article 109 of the Constitution,
with the constitutional principles of justice and a state under
the rule of law.
6. Having held that the provision "this right shall not
be subject <
> to inheritance" of Paragraph 3 of Article 3
(wording of 13 March 2001) of the Law was in conflict with
Paragraph 2 of Article 30 and Article 109 of the Constitution,
with the constitutional principles of justice and a state under
the rule of law, the Constitutional Court will no longer
investigate in this constitutional justice case, whether this
provision was not in conflict with Paragraphs 2 and 3 of Article
5, Paragraphs 1 and 2 of Article 23 and Paragraphs 1 and 2 of
Article 38 of the Constitution.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that the provision "this right shall not
be subject <
> to inheritance" of Paragraph 3 of Article 3
(wording of 13 March 2001, Official Gazette Valstybės žinios,
2001, No. 28-895) of the Law on Compensation for Damage Inflicted
by the Unlawful Actions of Interrogatory, Investigatory Bodies,
the Prosecutor's Office and Court was in conflict with Paragraph
2 of Article 30 and Article 109 of the Constitution, with the
constitutional principles of justice and a state under the rule
of law.
2. To recognise that the provision "the moral damage to
be compensated <
> may not exceed ten thousand litas" of
Paragraph 7 of Article 7 (wording of 13 March 2001, Official
Gazette Valstybės žinios, 2001, No. 28-895) of the Law on
Compensation for Damage Inflicted by the Unlawful Actions of
Interrogatory, Investigatory Bodies, the Prosecutor's Office and
Court was in conflict with Paragraph 2 of Article 30 and Article
109 of the Constitution, with the constitutional principles of
justice and a state under the rule of law.
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