Lietuviškai
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON THE PETITION OF THE ŠIAULIAI DISTRICT LOCAL COURT, THE
PETITIONER, REQUESTING TO INVESTIGATE THE COMPLIANCE OF
PARAGRAPH 4 OF ARTICLE 225 (WORDING OF 26 SEPTEMBER 2000)
AND PARAGRAPH 2 (WORDING OF 26 SEPTEMBER 2000) OF ARTICLE
227 (WORDING OF 10 APRIL 2003) OF THE CRIMINAL CODE OF THE
REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC
OF LITHUANIA
27 June 2007
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,
at a procedural sitting of the Constitutional Court
considered the petition (No. 1B-27/2007) of the Šiauliai District
Local Court, the petitioner, requesting to investigate whether
Paragraph 4 of Article 225 (wording of 26 September 2000) and
Paragraph 2 (wording of 26 September 2000) of Article 227
(wording of 10 April 2003) of the Criminal Code of the Republic
of Lithuania are not in conflict with Article 29 of the
Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
The Šiauliai District Local Court, the petitioner, was
investigating a criminal 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 4 of Article 225 (wording of 26 September 2000)
and Paragraph 2 (wording of 26 September 2000) of Article 227
(wording of 10 April 2003) of the Criminal Code (hereinafter also
referred to as the CC) are not in conflict with Article 29 of the
Constitution.
This petition of the petitioner was received at the
Constitutional Court on 11 June 2007.
II
The petition of the petitioner is based on the provisions of
the official constitutional doctrine which construe the
constitutional principles of a state under the rule of law and of
equal rights of all persons, inter alia the provisions that
differentiated legal regulation must be based only upon objective
differences of subjects of social relations which are regulated
by corresponding legal acts and that when a certain group of
people to which the legal norm is ascribed, if compared to other
addressees of the same legal norm, were treated differently, even
though there are not any differences in their character and
extent between these groups that such an uneven treatment would
be objectively justified, the constitutional principle of equal
rights of all persons would be violated. According to the
petitioner, the fact that under Paragraph 2 (wording of 26
September 2000) of Article 227 (wording of 10 April 2003) of the
CC, a deed of the person who gives a bribe to a state servant and
who seeks for an unlawful deed of the bribed state servant is a
crime and the punishment of confinement for up to four years is
provided for it, while Paragraph 4 of Article 225 (wording of 26
September 2000) of the CC provides for the responsibility for a
state servant who made an "analogous" unlawful deed while
implementing his authorities only as for a criminal offence, is
not objectively justified.
The Constitutional Court
holds that:
I
1. The Šiauliai District Local Court, the petitioner,
requests to investigate whether Paragraph 4 of Article 225
(wording of 26 September 2000) and Paragraph 2 (wording of 26
September 2000) of Article 227 (wording of 10 April 2003) of the
CC are not in conflict with Article 29 of the Constitution.
2. Paragraph 4 of Article 225 titled "Bribery" (wording of
26 September 2000) of the CC provides:
"A state servant or a person likened to him, who, either in
his favour or in the favour of someone else, directly or
indirectly accepted, promised or agreed to accept a bribe, the
value of which is less than 1 MSL, who demanded or provoked to
give it for either a lawful or an unlawful action or failure to
act while implementing his authorities, has made a criminal
offence and
shall be punished by deprivation of his right to perform
certain work or to be engaged in a certain activity."
3. Paragraph 2 (wording of 26 September 2000) of Article 227
titled "Bribing" (wording of 10 April 2003) of the CC provides:
"Anyone who performed the actions specified in Paragraph 1
of this Article while offering or promising to give or while
giving a bribe, the value of which is more than 250 MSL, or who
performed such actions while seeking for an unlawful deed by the
bribed state servant or a person likened to him when the latter
implements his authorities,
shall be punished by confinement for up to four years."
II
1. Under Item 2 of Paragraph 3 of Article 67 of the Law on
the Constitutional Court, a duplicate of the whole text of the
disputed legal act shall be attached to the court ruling. Under
Paragraph 1 (wording of 7 July 2005) of Article 2 of the Republic
of Lithuania Law on the Procedure of Publication and Coming into
Force of Laws and Other Legal Acts, the official announcement of
the laws shall be their announcement in the official publication
"Valstybės žinios". Under Item 15 of Section 1 of Chapter 6 of
the Rules of the Constitutional Court, the text of the legal act
which is announced in the official gazette "Valstybės žinios" is
to be considered such a duplicate (if the said legal act is
announced in the official gazette "Valstybės žinios").
2. It is not the copies of the text of the disputed articles
(paragraphs thereof) of the CC which were officially announced in
the official gazette "Valstybės žinios", but other copies of the
text of these articles (paragraphs thereof) that have been
attached to the petition of the Šiauliai District Local Court,
the petitioner.
3. Article 70 of the Law on the Constitutional Court
provides that in the case that a petition or attachments thereto
fail to comply with the requirements set forth in Articles 66 and
67, the President of the Constitutional Court shall return the
petition to the petitioner on his own initiative or on the
initiative of the justice (Paragraph 1) and that the return of a
petition shall not take away the right to apply to the
Constitutional Court according to the common procedure after
removal of the deficiencies thereof (Paragraph 2).
III
1. It is clear from the petition of the petitioner and the
annexed criminal case that it is requested to investigate whether
the provisions of Paragraph 4 of Article 225 (wording of 26
September 2000) of the CC, i.e. the provisions which should not
be applied in the criminal case which is considered by the
Šiauliai District Local Court, the petitioner, are not in
conflict with the Constitution.
2. Under Paragraph 2 of Article 110 of the Constitution, in
cases when there are grounds to believe that the law or other
legal act which should be applied in a concrete case is in
conflict with the Constitution, the judge shall suspend the
consideration of the case and shall apply to the Constitutional
Court requesting it to decide whether the law or other legal act
in question is in compliance with the Constitution.
Under Paragraph 1 of Article 67 of the Law on the
Constitutional Court, provided that there are grounds to consider
that a law or other legal act applicable in a concrete case is in
conflict with the Constitution, the court shall suspend the
investigation of said case and, with regard to the competence of
the Constitutional Court, shall apply to it with a petition to
decide whether the said law or other legal act is in compliance
with the Constitution.
Thus, under the Constitution and the Law on the
Constitutional Court, the court may apply to the Constitutional
Court with a petition to investigate whether not any law (part
thereof) or other legal act (part thereof), but only the law
(part thereof) or other legal act (part thereof) which should be
applied in the case considered by that court is not in conflict
with the Constitution.
It was held in the 22 May 2007 decision of the
Constitutional Court (while construing Paragraph 2 of Article 110
of the Constitution and Paragraph 1 of Article 67 of the Law on
the Constitutional Court) that under the Constitution and the Law
on the Constitutional Court, a court does not have locus standi
to apply to the Constitutional Court with a petition requesting
to investigate whether the law (part thereof) or the other legal
act (part thereof) which should not be applied in the case
considered by the said court, is not in conflict with the
Constitution.
3. Under Item 1 of Paragraph 1 of Article 69 of the Law on
the Constitutional Court, by a decision, the Constitutional Court
shall refuse to consider petitions to investigate the compliance
of a legal act with the Constitution, if the petition was filed
by an institution or person who does not have the right to apply
to the Constitutional Court.
The petition of the Šiauliai District Local Court, the
petitioner, to the extent that it requests to investigate whether
Paragraph 4 of Article 225 (wording of 26 September 2000) of the
CC is not in conflict with the Constitution, is to be refused to
be considered.
IV
1. It is clear from the arguments of the petition of the
petitioner that the petitioner has does not doubt whether
Paragraph 2 (wording of 26 September 2000) of Article 227
(wording of 10 April 2003) of the CC, if taken separately, and
Paragraph 4 of Article 225 (wording of 26 September 2000) of the
CC, if taken separately, are not in conflict with the
Constitution, but whether the paragraphs of the said articles of
the CC, taken together, are not in conflict with the
Constitution, because, as it was said, according to the
petitioner, under Paragraph 2 (wording of 26 September 2000) of
Article 227 (wording of 10 April 2003) of the CC, a deed of the
person who gives a bribe to a state servant and seeks for an
unlawful deed of the state servant is a crime and the punishment
of confinement for up to four years is provided for it, while
Paragraph 4 of Article 225 of the CC provides for responsibility
for the state servant who has made an "analogous" unlawful deed
while implementing his authorities only as for a criminal
offence. Thus, the petitioner's doubts whether Paragraph 2
(wording of 26 September 2000) of Article 227 (wording of 10
April 2003) and Paragraph 4 of Article 225 (wording of 26
September 2000) of the CC are not in conflict with the
Constitution are based not on the arguments which reveal why
Paragraph 2 (wording of 26 September 2000) of Article 227
(wording of 10 April 2003) of the CC, if taken separately, and
Paragraph 4 of Article 225 (wording of 26 September 2000) of the
CC, if taken separately, according to the petitioner, are in
conflict with the Constitution, but on the arguments which reveal
that the specified paragraphs of the articles of the CC,
according to the petitioner, are in conflict with the
Constitution because of the fact that there is no harmony between
the norms of the CC which establish the criminal liability for
the crime specified in Paragraph 2 (wording of 26 September 2000)
of Article 227 (wording of 10 April 2003) of the CC and for the
criminal offence specified in Paragraph 4 of Article 225 (wording
of 26 September 2000) of the CC. In this context, it needs to be
emphasized that the petition of the petitioner does not provide
with the arguments from which it would be clear whether he doubts
the compliance of Paragraph 4 of Article 225 (wording of 26
September 2000) of the CC with the Constitution (because of the
fact that the legal liability established in this paragraph of
the article of the CC is too mild in comparison with the legal
liability which is established in Paragraph 2 (wording of 26
September 2000) of Article 227 (wording of 10 April 2003) of the
CC) or the compliance of Paragraph 2 (wording of 26 September
2000) of Article 227 (wording of 10 April 2003) of the CC with
the Constitution (because of the fact that the legal liability
established in this paragraph of the article of the CC is too
strict in comparison with the legal liability established in
Paragraph 4 of Article 225 (wording of 26 October 2000) of the
CC).
Thus, the petitioner virtually doubts as to the
intercompatibility of the corresponding paragraphs of the
articles of the CC.
2. Under the Constitution, the Constitutional Court does not
decide issues of compatibility and rivalry of legal acts of the
same power (Constitutional Court decision of 13 November 2006).
If the laws contain obscurities, ambiguities, and gaps, it is the
duty of the legislature to eliminate them (Constitutional Court
decisions of 23 September 2002 and 13 November 2006).
If the Constitutional Court is requested to solve an issue
of compatibility and rivalry of legal acts of the same power,
such a request is not within the jurisdiction of the
Constitutional Court. Under Item 2 of Paragraph 1 of Article 69
of the Law on the Constitutional Court, this shall be the grounds
to refuse to consider the petition (Constitutional Court
decisions of 23 September 2002 and 13 November 2006).
3. On the other hand, this does not at all mean that in
certain cases incompatibility of legal acts (parts thereof)
cannot imply the conflict of such legal acts (or some of them)
with the Constitution, nor does it mean that the Constitutional
Court cannot state such conflict with the Constitution under
certain circumstances.
4. Upon holding in this Constitutional Court decision that
the petition of the Šiauliai District Local Court, the
petitioner, to the extent that it requests to investigate whether
Paragraph 4 of Article 225 (wording of 26 September 2000) of the
CC is not in conflict with the Constitution, is to be refused to
be considered, it needs to held that one cannot take account of
the arguments of the Šiauliai District Local Court, the
petitioner, whereby the doubt regarding the compliance of
Paragraph 2 (wording of 26 September 2000) of Article 227
(wording of 10 April 2003) of the CC with the Constitution is
based, since the said arguments are related with the
interrelation of the legal regulation established in Paragraph 4
of Article 225 (wording of 26 September 2000) of the CC and in
Paragraph 2 (wording of 26 September 2000) of Article 227
(wording of 10 April 2003) of the CC.
5. Alongside, it needs to be held that the petition of the
Šiauliai District Local Court, the petitioner, requesting to
investigate inter alia the compliance of Paragraph 2 (wording of
26 September 2000) of Article 227 (wording of 10 April 2003) of
the CC with the Constitution does not comply with Item 5 of
Paragraph 2 of Article 67 of the Law on the Constitutional Court,
under which, legal arguments presenting the opinion of the court
on the conflict of a law or other legal act with the Constitution
must be specified in the court ruling whereby it is applied to
the Constitutional Court.
6. As mentioned, under Article 70 of the Law on the
Constitutional Court, in the case that a petition or attachments
thereto fail to comply with the requirements set forth in inter
alia Article 67, the petition shall be returned to the petitioner
(Paragraph 1); the return of a petition shall not take away the
right to apply to the Constitutional Court according to the
common procedure after removal of the deficiencies thereof
(Paragraph 2).
7. Thus, the petition of the Šiauliai District Local Court,
the petitioner, requesting to investigate the compliance of
Paragraph 2 (wording of 26 September 2000) of Article 227
(wording of 10 April 2003) of the CC with the Constitution is to
be returned to the petitioner. It does not mean that the
constitutionality of the legal regulation established in this
paragraph may not be disputed at the Constitutional Court in
general, without relating it inter alia with the legal regulation
established in Paragraph 4 of Article 225 (wording of 26
September 2000) of the CC and to the interrelation of these
paragraphs.
Conforming to Articles 28, 69 and 70 of the Law on the
Constitutional Court of the Republic of Lithuania, the
Constitutional Court of the Republic of Lithuania has adopted the
following
decision:
1. To refuse to consider the petition of the Šiauliai
District Local Court, the petitioner, requesting to investigate
whether Paragraph 4 of Article 225 (wording of 26 September
2000) of the Criminal Code of the Republic of Lithuania (Official
Gazette Valstybės žinios, 2000, No. 89-2741) is not in conflict
with Article 29 of the Constitution of the Republic of Lithuania.
2. To return the petition of the Šiauliai District Local
Court, the petitioner, requesting to investigate whether
Paragraph 2 (wording of 26 September 2000) of Article 227
(wording of 10 April 2003 (Official Gazette Valstybės žinios,
2000, No. 89-2741)) of the Criminal Code of the Republic of
Lithuania is not in conflict with Article 29 of the Constitution
of the Republic of Lithuania, to the petitioner.
This Constitutional Court decision is final and not subject
to appeal.
The decision is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis