THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON THE PETITION OF THE PANEVĖŽYS CITY LOCAL COURT, THE
PETITIONER, REQUESTING TO INVESTIGATE WHETHER ARTICLE
291 (WORDING OF 2 DECEMBER 1997) OF THE CODE OF
ADMINISTRATIVE VIOLATIONS OF LAW OF THE REPUBLIC OF
LITHUANIA IS NOT IN CONFLICT WITH PARAGRAPH 1 OF
ARTICLE 5, PARAGRAPH 2 OF ARTICLE 31 AND PARAGRAPH 2 OF
ARTICLE 109 OF THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA
29 October 2009
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis,
Algirdas Taminskas and Romualdas Kęstutis Urbaitis,
with the secretary of the sittingDaiva Pitrėnaitė,
in the procedural sitting of the Constitutional Court
considered the petition (No. 1B-45/2009) of the Panevėžys City
Local Court, the petitioner, requesting "to investigate whether a
part of Art. 291 (wording of Law No. VIII-545 of 2 December 1997)
of the CAVL of the RL establishing that the body, the official of
which drew up a protocol of administrative violation of law, is
granted the right to dispute the ruling adopted in the case of
administrative violation of law, according to its content and
scope is not in conflict with Par. 1 of Art. 5, Par. 2 of Art.
31, and Par. 2 of Art. 109 of the Constitution of the Republic of
Lithuania".
The Constitutional Court
has established:
The Panevėžys City Local Court, the petitioner, was
investigating the case of administrative violation of law. 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 a part of Art. 291 (wording of Law No.
VIII-545 of 2 December 1997) of the CAVL of the RL establishing
that the body, the official of which drew up a protocol of
administrative violation of law, is granted the right to dispute
the ruling adopted in the case of administrative violation of
law, according to its content and scope is not in conflict with
Par. 1 of Art. 5, Par. 2 of Art. 31, and Par. 2 of Art. 109 of
the Constitution of the Republic of Lithuania".
The Constitutional Court
holds that:
1. The Panevėžys City Local Court, the petitioner, requests
to investigate as to whether Article 291 (wording of 2 December
1997) of the Code of Administrative Violations of Law of the
Republic of Lithuania (hereinafter also referred to as CAVL) to
the extent that the body, the official of which drew up a
protocol on administrative violation of law, is granted the right
to lodge a complaint against the ruling adopted in the case of
administrative violation of law, is not in conflict with
Paragraph 1 of Article 5, Paragraph 2 of Article 31, and
Paragraph 2 of Article 109 of the Constitution.
2. Article 291 (wording of 2 December 1997) of the CAVL
provides: "A complaint against the ruling in a case of
administrative violation of law may be lodged by the person in
whose regard it was adopted, by the body whose official drew up
the protocol on administrative violation of law, and by the
victim."
Thus, Article 291 (wording of 2 December 1997) of the CAVL
regulates the relations that originate upon consideration of a
case of administrative violation of law and passing a ruling in
it, namely the relations that are linked to lodging a complaint
against the ruling handed down in the examined case of
administrative violation of law by a court or other institutions
(officials) that are empowered to consider cases of
administrative violation of law.
It should be noted that the Panevėžys City Local Court, the
petitioner, commenced the consideration of the case of
administrative violation of law related to the administrative
violations of law that are provided for in Paragraph 6 of Article
124-1 and Paragraph 1 of Article 126 of the CAVL, which, under
Article 224 (wording of 15 July 2009) of the CAVL, must be
investigated by the district (city) local courts (judges of local
courts). Under Paragraph 2 of Article 292 (wording of 19
September 2000) of the CAVL, in a case of administrative
violation of law one may lodge a complaint against a ruling of
the district (city) court (judge) with the Supreme Administrative
Court of Lithuania.
It means that, after the aforementioned case of
administrative violation of law (related to administrative
violations of law provided for in Paragraph 6 of Article 124-1
and Paragraph 1 of Article 126 of the CAVL) has been considered,
one can lodge a complaint against a ruling handed down by the
Panevėžys City Local Court, the petitioner, with the Supreme
Administrative Court of Lithuania.
Thus, the Panevėžys City Local Court, the petitioner, is not
the subject who considers complaints against the rulings that are
handed down in cases on administrative violations of law.
Alongside, it should be noted that for the moment the case on
administrative violation of law (related to the administrative
violations of law that are provided for in Paragraph 6 of Article
124-1 and Paragraph 1 of Article 126 of the CAVL) has not been
examined and no ruling has been handed down in it, therefore in
this procedural stage the right to lodge a complaint against the
ruling with the Supreme Administrative Court of Lithuania may not
be implemented.
3. Having taken account of the aforementioned circumstances
it is to be concluded that the Panevėžys City Local Court, the
petitioner, has adopted a ruling in the case on administrative
violation of law to suspend the investigation of the case and to
apply to the Constitutional Court with the request to investigate
the compliance of Article 291 (wording of 2 December 1997) of the
CAVL (to the extent that the body, the official of which drew up
a protocol on administrative violation of law, is granted the
right to lodge a complaint against the ruling adopted in the case
of administrative violation of law), namely the article that it
should not apply in the course of examination of the above-
mentioned case, with the Constitution.
4. According to Paragraph 2 of Article 110 of the
Constitution, in cases when there are grounds to believe that the
law or other legal act 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 incompliance with the Constitution.
According to 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 apply to the
Constitutional Court with a petition to decide whether the law or
other legal is in compliance with the Constitution.
5. The Constitutional Court has held in its acts that, under
the Constitution, a court of general jurisdiction or a
specialised court established under Paragraph 2 of Article 111 of
the Constitution may apply to the Constitutional Court with a
petition requesting to investigate and decide whether not any
constitutional law (part thereof) is not in conflict with the
Constitution, but only such constitutional law, which must be
applied in the corresponding case considered by that court, also
whether not any law (part thereof) (as well as the Statute of the
Seimas (part thereof)) is not in conflict with the Constitution
and constitutional laws, but only that which must be applied in
the corresponding case considered by that court, also whether not
any sub-statutory legal act (part thereof) of the Seimas is not
in conflict with the Constitution, constitutional laws and laws
as well as the Statute of the Seimas, but only that which must be
applied in the corresponding case considered by that court, also
whether not any act (part thereof) of the President of the
Republic is not in conflict with the Constitution, constitutional
laws and laws, but only that which must be applied in the
corresponding case considered by that court, as well as whether
not any act (part thereof) of the Government (part thereof) is
not in conflict with the Constitution, constitutional laws and
laws, but only that which must be applied in the corresponding
case considered by that court (Constitutional Court ruling of 28
March 2006 and decision of 5 July 2007).
Therefore, under the Constitution and the Law on the
Constitutional Court, a court may apply to the Constitutional
Court with a petition requesting to investigate whether not any
law (part thereof) or other legal act (part thereof) is not in
conflict with the Constitution, but only such law (part thereof)
or other legal act (part thereof), which must be applied in the
corresponding case considered by that court.
Thus, under the Constitution and the Law on the
Constitutional Court, no court has locus standi to apply to the
Constitutional Court with a petition requesting to investigate
whether a law (part thereof) or another legal act (part thereof),
which should not (could not) be applied in the case considered by
the said court, is not in conflict with the Constitution
(Constitutional Court decisions of 22 May 2007, 27 June 2007 and
5 July 2007, as well as ruling of 24 October 2007).
6. It has been mentioned that the Panevėžys City Local
Court, the petitioner, adopted a ruling in the case of
administrative violation of law to suspend the investigation and
to apply to the Constitutional Court with a petition requesting
to investigate the compliance of Article 291 (wording of 2
December 1997) of the CAVL (to the extent that the body, the
official of which drew up a protocol on administrative violation
of law, is granted the right to lodge a complaint against the
ruling adopted in the case of administrative violation of law),
namely the article that it should not apply in the course of
examination of the above mentioned case, with the Constitution.
Thus the Panevėžys City Local Court, the petitioner, in the
investigated case on administrative violation of law does not
have locus standi to apply to the Constitutional Court with a
petition requesting to investigate whether Article 291 (wording
of 2 December 1997) of the CAVL is not in conflict with the
Constitution.
7. According to Item 1 of Paragraph 1 of Article 69 of the
Constitution, 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 Panevėžys City Local Court, the
petitioner, requesting to investigate whether Article 291
(wording of 2 December 1997) of the CAVL, to the extent that the
body, the official of which drew up a protocol on administrative
violation of law, is granted the right to lodge a complaint
against the ruling adopted in the case of administrative
violation of law, is not in conflict with Paragraph 1 of Article
5, Paragraph 2 of Article 31, and Paragraph 2 of Article 109 of
the Constitution, is to be refused.
8. Alongside it should be mentioned that, as already held by
the Constitutional Court, the position of the petitioner
concerning the compliance of a legal act (part thereof) with the
Constitution according to the content of the norms and/or the
scope of regulation must be indicated clearly, unambiguously, the
petition must contain the arguments and reasoning grounding the
doubt of the petitioner that the legal act (part thereof) is in
conflict with the Constitution. The petition requesting to
investigate the compliance of a legal act (part thereof) with the
Constitution according to the content of norms and/or the scope
of regulation must also clearly indicate the legal arguments
grounding the doubt of the petitioner as regards every concretely
indicated article (part thereof) or item of the disputed legal
act, the compliance of which with the concretely indicated
provision of the Constitution is doubtful to the petitioner
(Constitutional Court decision of 16 April 2004, ruling of 12
December 2005, decisions of 14 March 2006 (Case No. 14/03) and 29
March 2006, as well as ruling of 20 December 2007).
The Constitutional Court has also held that "the courts that
apply to the Constitutional Court with the request to investigate
whether the law or other legal act (part thereof) is not in
conflict with the Constitution, while arguing their opinion
presented in the petition that the law or other legal act (part
thereof) is in conflict with the Constitution, may not confine
themselves to general reasoning or statements that the law or
other legal act (part thereof), in their opinion, is in conflict
with the Constitution, but must clearly indicate which disputed
articles (paragraphs, items thereof) and to what extent, in their
opinion, are in conflict with the Constitution, and to reason
their position on the compliance of every disputed provision of
the legal act (part thereof) with the Constitution with clearly
formulated legal arguments" (Constitutional Court rulings of 12
December 2005, 16 January 2006, 17 January 2006, decisions of 17
January 2006, 5 July 2007, 6 September 2007, 12 September 2007,
24 October 2007, 20 December 2007, and 14 October 2008).
9. In this context it should be noted that the petitioner
grounds his doubts concerning the compliance of Article 291
(wording of 2 December 1997) of the CAVL with the Constitution on
various assumptions, the already formed practise of application
of norms of the CAVL, consequences and expediency of
implementation of legal norms, etc.
9.1. The petitioner, by referring to the statements of
explanatory notes to the Draft Law on Amending Articles 163-5,
172-1, 173-1, 246-1, 247-5, 259-1, and 259 of the Code of
Administrative Violations of Law of the Republic of Lithuania and
Supplementing it with Articles 163-12 and 173-12 of 25 November
1997"while striving in the cases on administrative violations of
law to adopt only objective, reasoned and legitimate rulings, it
is proposed to amend Article 291 (The Right to Appeal Against a
Ruling in the Case of Administrative Violation of Law) of the
above mentioned Code", "by this amendment the right to appeal
against the ruling of a local court in a case on administrative
violation of law to the regional court, would be granted also to
the body, the official of which drew up the protocol on
administrative violation of law"makes an assumption that, by
amending Article 291 of the CAVL, "by granting to the body, the
official of which drew up the protocol on administrative
violation of law, the right to lodge a complaint against the
ruling handed down in the case of administrative violation of
law, one indirectly sought to grant the right and the possibility
to control the legitimacy of acts handed down by judges, i.e. to
participate in the administration of justice". The petitioner
does not provide any reasons, why, in his opinion, the right to
lodge a complaint against the ruling handed down by the court in
the case on administrative violation of law, as set forth in the
Code of Administrative Violations of Law, is in conflict with the
Constitution, and why this right, according to the petitioner,
means participation in administration of justice. The petitioner,
by referring inter alia to Chapter Twenty and Articles 283 and
284 of the CAVL, only indicates that "having granted the right to
lodge a complaint against the ruling handed down in the
administrative case to the persons who directly do not
participate in the investigation of the administrative case, one
alongside indirectly granted to them the function of control and
supervision of administration of justice, the performance of
which is not characteristic of them and anti-constitutional".
9.2. The petitioner states that the practice of the Supreme
Administrative Court of Lithuania "indicates that majority of
such rulings of local courts are repealed, therefore the judges,
when investigating the above-mentioned cases on administrative
violations of law, doubtless to say, are bound by the knowledge
that every Article 30-1 of the CAVL in such cases shall be
appealed against and this inevitably affects the respective
ruling in the case and limits independency of the judge." The
petitioner does not provide any legal arguments substantiating
the statement, why the "knowledge" that the ruling handed down in
a case on administrative violation of law will be appealed
against, limits the independency of a judge.
9.3. The petitioner indicates that "police officers who drew
up protocols on administrative violations of law in fact appeal
against all rulings handed down in the cases on administrative
violations of law <
>" and that the right to lodge a complaint
against the ruling handed down by the court "impedes the
individualisation of the prescribed administrative penalties and
alongside violates the rights and interests of citizens",
however, it does not explain why and how the aforementioned right
to lodge a complaint against the handed down ruling impedes
individualisation of administrative penalties and violates rights
and interests of citizens.
9.4. The petitioner states that "application of excessively
strict administrative penalties <
> makes the situation of our
state and society even worse", that "the strict pecuniary
penalties that are provided for in the CAVL constitute a
sufficient precautionary measure that prevents new administrative
violations of law. Although no special research has been
performed regarding this, but it is so".
These arguments of the petitioner are to be considered as
arguments of expedience, i.e. it is not the constitutionality
issue that is raised, but the expedience of application of strict
administrative penalties, moreover, by referring to the
assumption that pecuniary penalties constitute a sufficient
preventive measure (besides, the petitioner himself states that
this assumption is based on special research that has never been
performed). Thus, such statement of the petitioner not only does
not substantiate why pecuniary penalties constitute a sufficient
preventive measure, but this statement is self-contradictory,
too.
9.5. The petitioner quotes a passage from the doctrine of
the Constitutional Court that was formulated in the course of
investigation of the compliance of provisions of the Criminal
Code with the Constitution, for example: "An important aspect of
the independence of the judge and the court in criminal procedure
is the independence of the court in deciding all questions linked
with cases under investigation <
>", however he does not explain
how this statement substantiates the conflict of Article 291 of
the CAVL with the Constitution in the case on administrative
violation of law that is investigated by the petitioner.
9.6. It should be noted that even from the entirety of
arguments listed in the petition of the Panevėžys City Local
Court, the petitioner, it is evident that the conflict of the
disputed provision of the CAVL with the Constitution is
substantiated by the practise of application of the norms of the
CAVL, the arguments are inconsistent and self-contradictory: on
the one hand, it is stated that the Supreme Administrative Court
of Lithuania rescinds the majority of rulings of local courts (in
certain cases on administrative violations of law, inter alia in
the cases such as the one the investigation of which was
suspended by the petitioner and it was applied to the
Constitutional Court), i.e. it is recognised that the right which
is set forth in the CAVL (inter alia in respect to the bodies the
officials of which drew up protocols on administrative violations
of law) to appeal against rulings of the courts that are handed
down in the cases on administrative violations of law, creates
preconditions for correcting possible mistakes by the court, to
correctly apply the law and administer justice; on the other
hand, it is indicated that such practise, when the body indicated
in Article 291 (wording of 2 December 1997) of the CAVL, the
official of which drew up the protocol on administrative
violation of law, in all cases uses the right that is granted to
him to lodge complaints against rulings in the cases of
administrative violations of law, restricts the judges and
distorts the process of implementation of justice.
9.7. Thus it is obvious from the entirety of the arguments
which form the grounds of the petition of the Panevėžys City
Local Court, the petitioner, that the reasoning of applying to
the Constitutional Court which is specified in the petition,
irrespective of the employed legal terminology, may not be
recognised as legal reasoning.
10. Having taken into account the fact that, as already
mentioned, the Panevėžys City Local Court, the petitioner, does
not have locus standi to apply in the examined case on
administrative violation of law to the Constitutional Court with
a request to investigate whether Article 291 (wording of 2
December 1997) of the CAVL is not in conflict with the
Constitution, it is to be held that there are grounds to refuse
to consider the petition of the Panevėžys City Local Court, the
petitioner, requesting to investigate whether Article 291
(wording of 2 December 1997) of the CAVL to the extent that the
body, the official of which drew up a protocol on administrative
violation of law, is granted the right to lodge a complaint
against the ruling adopted in the case of administrative
violation of law, is not in conflict with Paragraph 1 of Article
5, Paragraph 2 of Article 31, and Paragraph 2 of Article 109 of
the Constitution.
Conforming to Paragraphs 3 and 4 of Article 22, Article 28,
Item 1 of Paragraph 1 and Paragraph 2 of Article 69 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court has passed the following
decision:
To refuse to consider the petition of the Panevėžys City
Local Court, the petitioner, requesting to investigate whether
Article 291 (wording of 2 December 1997) of the Code of
Administrative Violations of Law of the Republic of Lithuania to
the extent that the body, the official of which drew up a
protocol on administrative violation of law, is granted the right
to lodge a complaint against the ruling adopted in the case of
administrative violation of law, is not in conflict with
Paragraph 1 of Article 5, Paragraph 2 of Article 31, and
Paragraph 2 of Article 109 of the Constitution of the Republic of
Lithuania.
This decision of the Constitutional Court is final and not
subject to appeal.
The decision is promulgated in the name of Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis