THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON THE PETITION (NO. 1B-31) OF THE KAUNAS CITY LOCAL COURT, THE
PETITIONER, REQUESTING TO INVESTIGATE WHETHER PARAGRAPH 1 OF
ARTICLE 192 OF THE CRIMINAL CODE OF THE REPUBLIC OF LITHUANIA IS
NOT IN CONFLICT WITH PARAGRAPH 3 OF ARTICLE 42 OF THE
CONSTITUTION
12 September 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-31) of the Kaunas City Local
Court, the petitioner, requesting to investigate "whether the
objective feature of the retail price higher than 100 MSL
provided for in par. 1 of art. 192 of the RL CC is not in
conflict with par. 3 of art. 42 of the Constitution of Lithuania,
which is provided for defence of the rights of authors, and
whether the criterion of the retail price is in compliance with
the concept of the authors royalties in the course of defence of
the rights of authors on the basis of the valid criminal law" and
"whether the disposition of par. 1 of art. 192 of the RL CC
whereby due to the fact that upon establishing in a criminal case
that the works have been reproduced illegally, the copies of the
illegally reproduced works are destroyed, are in compliance with
the provisions of par. 3 of art. 42 of the Constitution of
Lithuania".
The Constitutional Court
has established:
I
1. The Kaunas City 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 the objective feature of the retail price higher than
100 MSL provided for in par. 1 of art. 192 of the RL CC is not in
conflict with par. 3 of art. 42 of the Constitution of Lithuania,
which is provided for defence of the rights of authors, and
whether the criterion of the retail price is in compliance with
the concept of the authors royalties in the course of defence of
the rights of authors on the basis of the valid criminal law" and
"whether the disposition of par. 1 of art. 192 of the RL CC
whereby due to the fact that upon establishing in a criminal case
that the works have been reproduced illegally, the copies of the
illegally reproduced works are destroyed, are in compliance with
the provisions of par. 3 of art. 42 of the Constitution of
Lithuania".
Note. The text of the Kaunas City Local Court, the
petitioner, is herein cited as it was submitted by the
petitionerwith the abbreviations, titles of the legal acts and
formulations of the provisions, which were made by the petitioner
itself. In this Constitutional Court decision the arguments of
the petitioner are cited also without correcting the language of
the petition.
2. The ruling adopted by the Kaunas City Local Court, the
petitioner, whereby it was applied to the Constitutional Court
(petition No. 1B-31), was adopted as far back as 10 November
2006, however, it was sent to the Constitutional Court only on 12
July 2007, i.e. after more than 8 months have passed from its
adoption. This ruling of the Kaunas City Local Court, the
petitioner, was received at the Constitutional Court on 17 July
2007.
The Constitutional Court
holds that:
I
1. Paragraph 1 of Article 192 of the Criminal Code of the
Republic of Lithuania (hereinafter also referred to as the CC)
provides:
"1. Those who illegally reproduced a work of literature,
science or art or part thereof, or imported, exported,
distributed, transported or stored illegal copies thereof for
commercial purposes, provided the total value of these copies, if
compared to the retail prices of legal copies thereof, exceeded
the sum of 100 MSL
shall be punished by public works, or a fine, or limitation
of freedom, or arrest, or deprivation of freedom for up to two
years."
2. The Kaunas City Local Court, the petitioner, requests to
investigate "whether the objective feature of the retail price
higher than 100 MSL provided for in par. 1 of art. 192 of the RL
CC is not in conflict with par. 3 of art. 42 of the Constitution
of Lithuania, which is provided for defence of the rights of
authors, and whether the criterion of the retail price is in
compliance with the concept of the authors emoluments in the
course of defence of the rights of authors on the basis of the
valid criminal law" and "whether the disposition of par. 1 of
art. 192 of the RL CC whereby due to the fact that upon
establishing in a criminal case that the works have been
reproduced illegally, the copies of the illegally reproduced
works are destroyed, are in compliance with the provisions of
par. 3 of art. 42 of the Constitution of Lithuania".
3. The petition of the Kaunas City Local Court, the
petitioner, formulated in such a way is to be treated, by taking
account of what is established in Paragraph 1 of Article 192 of
the CC, as a petition requesting to investigate:
- whether the provision "provided the total value of these
copies, if compared to the retail prices of legal copies thereof,
exceeded the sum of 100 MSL" of Paragraph 1 of Article 192 of the
CC due to the fact that, according to the petitioner, "the
criterion of the retail price" established in this paragraph, is
not in compliance with the concept of the authors emoluments, is
not in conflict with Paragraph 3 of Article 42 of the
Constitution;
- whether the fact that, according to the petitioner, under
Paragraph 1 of Article 192 of the CC, the copies of the illegally
reproduced works are destroyed in all cases, is not in conflict
with Paragraph 3 of Article 42 of the Constitution.
4. In this Constitutional Court decision the said petition
of the Kaunas City Local Court, the petitioner, will be also
referred to as the petition requesting to investigate whether
Paragraph 1 of Article 192 of the CC is not in conflict with
Paragraph 3 of Article 42 of the Constitution.
II
Under Item 2 of Paragraph 3 of Article 67 of the Law on the
Constitutional Court, the duplicate of the whole text of the
disputed legal act shall be attached to the court ruling whereby
one applies to the Constitutional Court, while, under Paragraph 4
of the same article, 30 copies of the court ruling and 30
duplicate copies of the disputed legal act shall be submitted to
the Constitutional Court.
It was not a copy of disputed Paragraph 1 of Article 192 of
the CC that was attached to the ruling of the Kaunas City Local
Court, the petitioner, whereby one applied to the Constitutional
Court, but a copy of the Republic of Lithuania Law on Amending
the Law on the Rights of Authors and Related Rights, i.e. that of
a legal act, which is not disputed by the petitioner.
2. Under Item 1 of Paragraph 3 of Article 67 of the Law on
the Constitutional Court, the suspended case shall be attached to
the court ruling whereby one has applied to the Constitutional
Court.
The suspended court case was not attached to the ruling of
the Kaunas City Local Court, the petitioner, whereby one has
applied to the Constitutional Court.
3. It needs to be held that the petition of the Kaunas City
Local Court, the petitioner, requesting to investigate whether
Paragraph 1 of Article 192 of the CC is not in conflict with
Paragraph 3 of Article 42 of the Constitution does not meet the
requirements of Items 1 and 2 of Paragraph 3 and Paragraph 4 of
Article 67 of the Law on the Constitutional Court.
4. Under Paragraph 1 of Article 70 of the Law on the
Constitutional Court, in the case that a petition fails to comply
with the requirements set forth in Article 67 of the Law on the
Constitutional Court, it is to be returned to the petitioner.
III
1. As mentioned, Paragraph 1 of Article 192 of the CC
provides that those who illegally reproduced a work of
literature, science or art or part thereof, or imported,
exported, distributed, transported or stored illegal copies
thereof for commercial purposes, provided the total value of
these copies, if compared to the retail prices of legal copies
thereof, exceeded the sum of 100 minimum subsistence levels
(hereinafter referred to as MSL), shall be punished by public
works, or a fine, or limitation of freedom, or arrest, or
deprivation of freedom for up to two years.
2. Paragraph 3 of Article 42 of the Constitution provides:
"The law shall protect and defend the spiritual and material
interests of an author which are related to scientific,
technical, cultural, and artistic work.".
3. Under Item 8 of Paragraph 1 of Article 66 of the Law on
the Constitutional Court, a petition for the investigation of the
compliance of a legal act with the Constitution must contain the
position of the petitioner concerning the compliance of an
appropriate act with the Constitution and legal support of such
position containing references to laws, while under Item 5 of
Paragraph 2 of Article 67 of the same law, the ruling whereby one
applies to the Constitutional Court must specify legal arguments
presenting the opinion of the court on the conflict of a law or
other legal act with the Constitution.
The said requirement arising from Item 5 of Paragraph 2 of
Article 67 of the Law on the Constitutional Court, means that the
courts, while arguing their opinion presented in the petition
that the law or other legal act (part thereof) is in conflict
with the Constitution, may not confine themselves to general
reasoning or statements that the law or other legal act (part
thereof), in their opinion, is in conflict with the Constitution,
but must clearly indicate which disputed articles (paragraphs,
items thereof) and to what extent, in their opinion, are in
conflict with the Constitution, and to reason their position on
the compliance of every disputed provision of the legal act (part
thereof) with the Constitution with clearly formulated legal
arguments (Constitutional Court rulings of 12 December 2005, 16
January 2006, 17 January 2006 and decisions of 17 January 2006
and 5 July 2007).
4. Some arguments, upon which the Kaunas City Local Court,
the petitioner, grounds its petition, question not the compliance
of the legal regulation established in Paragraph 1 of Article 192
of the CC, but its real or alleged incompatibility with the
provisions of the legal acts (inter alia the CC itself) which are
of lower legal power than the Constitution, for instance: "the
valid norm of art. 192 of LR CC is not harmonised with special
legal acts and international agreements, and it does not ensure
the protection of a work of literature, science, art, or another
work of an author, when the rights of the author are violated,
which are provided for in LPRARR, the Bern Convention, the Rome
Convention, Part III of the World Trade Agreement, directives of
the European Council and other legal acts"; "it is doubtful
whether the Criminal Code reasonably provides for liability for
the deeds such as distribution, transportation, storing etc. of
illegally reproduced works", since "such liability is provided
for in the Criminal Code, however, only as regards the health or
life of the human being or danger to society", while "is it
possible to compare storing, transporting or distribution of a
work, reproduced in a compact disc, or in other data retention
item, or in the form of a book, with weapons, radioactive
substances, narcotics, fake money etc."; "works reproduced
legally in any form freely circulate without any limitations,
therefore the recognition of their storing, transporting and
distribution as criminal deeds is doubtful and inadequate with
regard of other crimes"; "the author's emoluments for the use of
the works created by the author is not related with the retail
price of the works put into circulation, since the authors
emoluments constitute only small part in this", while "the price
of one copy of a work is composed of the author's emoluments, the
costs of issuance, preparation and manufacture of the work, its
transportation, storage, duties, value-added and other taxies and
the profit of the manufacturers, sellers and resellers",
therefore "a question arises, whether the criterion of the retail
price is in compliance with the concept of the authors emoluments
in the course of defence of the rights of authors on the basis of
the valid criminal law".
In this context, it needs to be noted that, under the
Constitution, the Constitutional Court, as it has held in its
acts more than once, does not decide the issues of compatibility
and rivalry of legal acts of the same power; if the
Constitutional Court is requested to decide the issue of
compatibility and rivalry of legal acts of the same legal power,
such petition is not within the jurisdiction of the
Constitutional Court and, under Item 2 of Paragraph 1 of Article
69 of the Law on the Constitution, it constitutes the grounds for
refusal to consider the petition.
The Constitutional Court has also held that the fact that,
under the Constitution, it does not decide the issues of
compatibility and rivalry of legal acts of the same power, 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 (Constitutional Court
decision of 27 June 2007). In such cases one must assess the
entirety of the arguments of the petition of the petitioner.
5. Some other arguments of the Kaunas City Local Court, the
petitioner, question not the legal regulation established in
Paragraph 1 of Article 192 of the CC, but the fact how the
provisions of this paragraph are or can be applied, as, for
example: "the subjects may be held liable on the basis of the
valid law also for using the works not covered by copyright,
since the law does not contain any specifications that it is
applied only to protected works"; "in practice, in almost all
situations, the criminal cases which are instituted, investigated
and considered on the basis of art. 192 of LR CC for
distribution, storing and transporting of compact discs for
commercial purposes, without having established nor having named
the titles of the works recorded in the compact discs, nor their
authors"; "the disposition of art. 192 of LR CC and the practice
of the consideration of cases of this category do not ensure the
protection of the rights of an author, therefore, there is a
doubt whether this is not in conflict with Paragraph 3 of Article
42 of the Constitution of the Republic of Lithuania"; "the
practice of the consideration of cases of this category does not
ensure the protection of the rights of an author"; "legally
reproduced and imported to Lithuania copies of a work, which are
meant for selling, may be distributed without any limitations
without the consent of the author or the manufacturer, but it is
impossible to understand it from the valid norm of art. 192 of
the CC".
In addition, some of such arguments related with
application of law have been formulated as questions, by which
one tries to elucidate the content of the legal regulation
established in Paragraph 1 of Article 192 of the CC and how this
paragraph is to be applied, as, for instance: "whether in the
course of protecting the rights of the author to the work that he
has created, in case the author himself is not established, the
provision that the spiritual and material interests of the author
is protected by law will not be violated, or whether it is
necessary to establish the author and the work that he has
created".
Such arguments do not provide any legal substantiation why,
in the opinion of the Kaunas City Local Court, the petitioner,
Paragraph 1 of Article 192 of the CC, which is disputed by him,
is in conflict (to the corresponding extent) with Paragraph 3 of
Article 42 of the Constitution.
In this context it needs to be noted that the
Constitutional Court, as it has held itself, under the
Constitution and the Law on the Constitutional Court, does not
decide issues of compatibility and rivalry of legal acts of the
same power; 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, 13 November
2006, 20 November 2006 and 27 June 2007). The Constitutional
Court has also held that the questions of application of law
which have not been decided by the legislator are the matter of
judicial practice (Constitutional Court ruling of 9 July 1998 and
decision of 20 November 2006); thus, the questions of application
of law which have not been decided by the legislator may be
decided by courts, when they consider disputes regarding the
application of corresponding legal acts (parts thereof)
(Constitutional Court decision of 20 November 2006). The
petitions requesting to construe as to how the provisions of a
law (other legal acts) are to be applied are not within the
jurisdiction of the Constitutional Court (Constitutional Court
decisions of 23 September 2002 and 20 November 2006).
6. Still other arguments of the Kaunas City Local Court,
the petitioner, are clearly artificial and fictitious. For
instance, it is maintained that "there are doubts whether the
legal regulation in par. 1 of art. 192 of the Republic of
Lithuania CC and par. 1 of art. 214-10 of the Republic of
Lithuania CAVL as well as the disposition of par. 1 of art. 192
of LR CC that due to the fact that after it was established in a
criminal case that the works had been reproduced illegally, in
all situations the illegally reproduced copies of the works are
destroyed are not in conflict with the principle of a state under
the rule of law which is entrenched in the Constitution of the
Republic of Lithuania and par. 4 of art. 31 of the Constitution
of the Republic of Lithuania".
However, Paragraph 1 of Article 192 of the CC the
compliance of which (to the corresponding extent) with Paragraph
3 of Article 42 of the Constitution (but not with Paragraph 4 of
Article 31 thereof, nor with the constitutional principle of a
state under the rule of law) is disputed by the Kaunas City Local
Court, the petitioner, does not regulate the relations linked
with destruction of copies of illegally reproduced works at all.
7. It needs to be held that although legal terminology is
employed in the petition, however, neither individual (separate)
arguments, nor their totality provides any legal grounds why, in
the opinion of the petitioner, Paragraph 1 of Article 192 of the
CC, which is disputed by him, is in conflict (to the
corresponding extent) with Paragraph 3 of Article 42 of the
Constitution, thus, the petition of the petitioner requesting to
investigate whether Paragraph 1 of Article 192 of the CC is not
in conflict with Paragraph 3 of Article 42 of the Constitution is
not grounded not on legal reasoning, but reasoning of other kind.
Under Item 5 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 is grounded
on non-legal reasoning.
9. Taking account of the arguments set forth, one is to
refuse to consider the petition of the Kaunas City Local Court,
the petitioner, requesting to investigate whether Paragraph 1 of
Article 192 of the CC is not in conflict (to the extent pointed
out by the petitioner) with Paragraph 3 of Article 42 of the
Constitution.
Conforming to Articles 1 and 28, Item 5 of Paragraph 1 and
Paragraph 2 of Article 69 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:
To refuse to consider the petition (No. 1B-31) of the
Kaunas City Local Court, the petitioner, requesting to
investigate "whether the objective feature of the retail price
higher than 100 MSL provided for in par. 1 of art. 192 of the RL
CC is not in conflict with par. 3 of art. 42 of the Constitution
of Lithuania, which is provided for defence of the rights of
authors, and whether the criterion of the retail price is in
compliance with the concept of the authors royalties in the
course of defence of the rights of authors on the basis of the
valid criminal law" and "whether the disposition of par. 1 of
art. 192 of the RL CC whereby due to the fact that upon
establishing in a criminal case that the works have been
reproduced illegally, the copies of the illegally reproduced
works are destroyed, are in compliance with the provisions of
par. 3 of art. 42 of the Constitution of Lithuania".
This decision of the Constitutional Court 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