Case No. 34/2008-36/2008-40/2008-1/2009-4/2009-5/2009-6/
2009-7/2009-9/2009-12/2009-13/2009-14/2009-17/2009-18/2009-19/
2009-20/2009-22/2009
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPHS 1, 2 AND 3 (WORDING OF
26 SEPTEMBER 2000) OF ARTICLE 20, PARAGRAPH 5 (WORDING
OF 5 JULY 2004) OF ARTICLE 20 AND PARAGRAPH 4 (WORDING
OF 26 SEPTEMBER 2000) OF ARTICLE 43 OF THE CRIMINAL CODE
OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF
THE REPUBLIC OF LITHUANIA
8 June 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, Egidijus Šileikis, Algirdas
Taminskas and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the presence of the representatives of the group of
Members of the Seimas, the petitioner, who were Vydas Gedvilas, a
Member of the Seimas, and advocate Valdemaras Bužinskas,
in the presence of the representatives of the Seimas of the
Republic of Lithuania, the party concerned, who were Girius
Ivoška, advisor of the Criminal and Administrative Law Division
of the Law Department of the Seimas and Dainius Zebleckis, senior
advisor of the Civil Law Department 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
hearings on 21, 25 and 26 May 2009 heard constitutional justice
case No. 34/2008-36/2008-40/2008-1/2009-4/2009-5/2009-6/2009-7/
2009-9/2009-12/2009-13/2009-14/2009-17/2009-18/2009-19/2009-20/
2009-22/2009 subsequent to the following:
1) the petition of the group of Members of the Seimas of the
Republic of Lithuania, the petitioner, requesting to investigate
whether Paragraphs 1, 2 and 3 (wording of 26 September 2000) of
Article 20 of the Criminal Code of the Republic of Lithuania are
not in conflict with Paragraph 1 of Article 29, Paragraphs 1, 2
and 4 of Article 31 of the Constitution of the Republic of
Lithuania, and with the constitutional principle of a state under
the rule of law, as well as whether Paragraph 5 (wording of 5
July 2004) of Article 20 of this code is not in conflict with
Paragraphs 1 and 2 of Article 23, Paragraph 1 of Article 29,
Paragraphs 1, 2 and 4 of Article 31 and Paragraphs 1, 2 and 3 of
Article 46 of the Constitution of the Republic of Lithuania, and
with the constitutional principle of a state under the rule of
law (petition No. 1B-37/2008);
2) the petition of the Court of Appeal of Lithuania, the
petitioner, requesting to investigate whether Paragraph 2 of
Article 20 of the Criminal Code of the Republic of Lithuania is
not in conflict with Article 29 and Paragraphs 1, 3 and 5 of
Article 31 of the Constitution of the Republic of Lithuania
(petition No. 1B-42/2008);
3) the petition of the Kaunas Regional Court, the
petitioner, requesting to investigate whether Paragraph 2 of
Article 20 of the Criminal Code of the Republic of Lithuania is
not in conflict with Paragraph 1 of Article 29 and Paragraphs 1,
3 and 5 of Article 31 of the Constitution of the Republic of
Lithuania (petition No. 1B-45/2008);
4) the petition of the Kaunas Regional Court, the
petitioner, requesting to investigate whether Paragraph 2 of
Article 20 of the Criminal Code of the Republic of Lithuania is
not in conflict with Paragraph 1 of Article 29 and Paragraphs 1,
3 and 5 of Article 31 of the Constitution of the Republic of
Lithuania (petition No. 1B-48/2008);
5) the petition of the Second Vilnius City Local Court, the
petitioner, requesting to investigate whether Paragraph 2 of
Article 20 of the Criminal Code of the Republic of Lithuania is
not in conflict with Paragraph 1 of Article 29 and Paragraphs 1,
3 and 5 of Article 31 of the Constitution of the Republic of
Lithuania (petition No. 1B-1/2009);
6) the petition of the Jonava District Local Court, the
petitioner, requesting to investigate whether Paragraph 2 of
Article 20 of the Criminal Code of the Republic of Lithuania is
not in conflict with Article 29 and Paragraphs 1, 3 and 5 of
Article 31 of the Constitution of the Republic of Lithuania
(petition No. 1B-3/2009);
7) the petition of the Vilnius Regional Court, the
petitioner, requesting to investigate whether Paragraph 2 of
Article 20 of the Criminal Code of the Republic of Lithuania is
not in conflict with Paragraph 1 of Article 29 and Paragraphs 1,
3 and 5 of Article 31 of the Constitution of the Republic of
Lithuania (petition No. 1B-4/2009);
8) the petition of the Kaunas Regional Court, the
petitioner, requesting to investigate whether Paragraph 2 of
Article 20 of the Criminal Code of the Republic of Lithuania is
not in conflict with Article 29 and Paragraphs 1, 3 and 5 of
Article 31 of the Constitution of the Republic of Lithuania
(petition No. 1B-5/2009);
9) the petition of the Klaipėda District Local Court, the
petitioner, requesting to investigate whether Paragraph 2 of
Article 20 of the Criminal Code of the Republic of Lithuania is
not in conflict with Article 29 and Paragraphs 1, 3 and 5 of
Article 31 of the Constitution of the Republic of Lithuania
(petition No. 1B-6/2009);
10) the petition of the Vilnius Regional Court, the
petitioner, requesting to investigate the following:
- whether Paragraphs 1, 2 and 3 of Article 20 of the
Criminal Code of the Republic of Lithuania are not in conflict
with Paragraph 1 of Article 29 and Paragraphs 1, 2, 4, 5 and 6 of
Article 31 of the Constitution of the Republic of Lithuania, and
with the constitutional principle of a state under the rule of
law,
- whether Paragraph 5 (wording of 5 July 2004) of Article 20
of the Criminal Code of the Republic of Lithuania is not in
conflict with Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of
Article 31, Paragraphs 1, 2 and 3 of Article 46 of the
Constitution of the Republic of Lithuania, and with the
constitutional principle of a state under the rule of law,
- whether Paragraph 4 of Article 43 of the Criminal Code of
the Republic of Lithuania is not in conflict with Paragraph 1 of
Article 29 and Paragraph 4 of Article 31 of the Constitution of
the Republic of Lithuania and with the constitutional principle
of a state under the rule of law (petition No. 1B-12/2009);
11) the petition of the Kaunas Regional Court, the
petitioner, requesting to investigate the following:
- whether Paragraphs 1, 2 and 3 of Article 20 of the
Criminal Code of the Republic of Lithuania are not in conflict
with Paragraph 1 of Article 29 and Paragraphs 1, 2 and 4 of
Article 31 of the Constitution of the Republic of Lithuania, and
with the constitutional principle of a state under the rule of
law;
- whether Paragraph 5 (wording of 5 July 2004) of Article 20
of the Criminal Code of the Republic of Lithuania is not in
conflict with Paragraphs 1 and 2 of Article 23, Paragraph 1 of
Article 29, Paragraphs 1, 2 and 4 of Article 31 and Paragraphs 1,
2 and 3 of Article 46 of the Constitution of the Republic of
Lithuania and with the constitutional principle of a state under
the rule of law (petition No. 1B-14/2009);
12) the petition of the Court of Appeal of Lithuania, the
petitioner, requesting to investigate whether Paragraph 2 of
Article 20 of the Criminal Code of the Republic of Lithuania is
not in conflict with Article 29 and Paragraphs 1 and 5 of Article
31 of the Constitution of the Republic of Lithuania (petition No.
1B-16/2009);
13) the petition of the Vilnius Regional Court, the
petitioner, requesting to investigate the following:
- whether Paragraphs 1, 2 and 3 of Article 20 of the
Criminal Code of the Republic of Lithuania are not in conflict
with Paragraph 1 of Article 29 and Paragraphs 1, 2, 4, 5 and 6 of
Article 31 of the Constitution of the Republic of Lithuania, and
with the constitutional principle of a state under the rule of
law,
- whether Paragraph 5 (wording of 5 July 2004) of Article 20
of the Criminal Code of the Republic of Lithuania is not in
conflict with Paragraphs 1 and 2 of Article 23, Paragraph 1 of
Article 29, Paragraphs 1, 2 and 4 of Article 31 and Paragraphs 1,
2 and 3 of Article 46 of the Constitution of the Republic of
Lithuania and with the constitutional principle of a state under
the rule of law (petition No. 1B-18/2009);
14) the petition of the Second Vilnius City Local Court, the
petitioner, requesting to investigate whether Paragraph 2 of
Article 20 of the Criminal Code of the Republic of Lithuania is
not in conflict with Paragraph 1 of Article 29 and Paragraphs 1
and 5 of Article 31 of the Constitution of the Republic of
Lithuania (petition No. 1B-20/2009);
15) the petition of the Vilnius Regional Court, the
petitioner, requesting to investigate whether Paragraph 2 of
Article 20 of the Criminal Code of the Republic of Lithuania is
not in conflict with Article 29 and Paragraphs 1, 3 and 5 of
Article 31 of the Constitution of the Republic of Lithuania
(petition No. 1B-21/2009);
16) the petition of the Klaipėda Regional Court, the
petitioner, requesting to investigate whether Paragraph 2 of
Article 20 of the Criminal Code of the Republic of Lithuania is
not in conflict with Article 29 and Paragraphs 1, 3 and 5 of
Article 31 of the Constitution of the Republic of Lithuania
(petition No. 1B-23/2009);
17) the petition of the Pasvalys District Local Court, the
petitioner, requesting to investigate whether Paragraph 2 of
Article 20 of the Criminal Code of the Republic of Lithuania is
not in conflict with Article 29 and Paragraphs 1, 3 and 5 of
Article 31 of the Constitution of the Republic of Lithuania
(petition No. 1B-25/2009).
By the Constitutional Court Decision "On joining petitions
into one case" of 14 May 2009, petition No. 1B-37/2008 (case No.
34/2008) of the group of Members of the Seimas of the Republic of
Lithuania, the petitioner, petition No. 1B-42/2008 (case No. 36/
2008) of the Court of Appeal of Lithuania, the petitioner,
petition No. 1B-45/2008 (case No. 40/2008) of the Kaunas Regional
Court, the petitioner, petition No. 1B-48/2008 (case No. 1/2009)
of the Kaunas Regional Court, the petitioner, petition No. 1B-1/
2009 (case No. 4/2009) of the Second Vilnius City Local Court,
the petitioner, petition No. 1B-3/2009 (case No. 5/2009) of the
Jonava District Local Court, the petitioner, petition No. 1B-4/
2009 (case No. 6/2009) of the Vilnius Regional Court, the
petitioner, petition No. 1B-5/2009 (case No. 7/2009) of the
Kaunas Regional Court, the petitioner, petition No. 1B-6/2009
(case No. 9/2009) of the Klaipėda District Local Court, the
petitioner, petition No. 1B-12/2009 (case No. 12/2009) of the
Vilnius Regional Court, the petitioner, petition No. 1B-14/2009
(case No. 13/2009) of the Kaunas Regional Court, the petitioner,
petition No. 1B-16/2009 (case No. 14/2009) of the Court of Appeal
of Lithuania, the petitioner, petition No. 1B-18/2009 (case No.
17/2009) of the Vilnius Regional Court, the petitioner, petition
No. 1B-20/2009 (case No. 18/2009) of the Second Vilnius City
Local Court, the petitioner, petition No. 1B-21/2009 (case No.
19/2009) of the Vilnius Regional Court, the petitioner, petition
No. 1B-23/2009 (case No. 20/2009) of the Klaipėda Regional Court,
the petitioner, and petition No. 1B-25/2009 (case No. 22/2009) of
the Pasvalys District Local Court, the petitioner, were joined
into one case and it was given reference No. 34/2008-36/2008-40/
2008-1/2009-4/2009-5/2009-6/2009-7/2009-9/2009-12/2009-13/2009-
14/2009-17/2009-18/2009-19/2009-20/2009-22/2009.
The Constitutional Court
has established:
I
1. The group of Members of the Seimas, the petitioner,
applied to the Constitutional Court with a petition requesting to
investigate whether Paragraphs 1, 2 and 3 (wording of 26
September 2000) of Article 20 of the Criminal Code (hereinafter
also referred to as the CC) are not in conflict with Paragraph 1
of Article 29, Paragraphs 1, 2 and 4 of Article 31 of the
Constitution, and with the constitutional principle of a state
under the rule of law, as well as whether Paragraph 5 (wording of
5 July 2004) of Article 20 of this code is not in conflict with
Paragraphs 1 and 2 of Article 23, Paragraph 1 of Article 29,
Paragraphs 1, 2 and 4 of Article 31 and Paragraphs 1, 2 and 3 of
Article 46 of the Constitution, and with the constitutional
principle of a state under the rule of law (petition No. 1B-37/
2008). The petition was received at the Constitutional Court on
31 October 2008.
2. The Court of Appeal of Lithuania, the petitioner, was
investigating a criminal case. By its ruling of 29 October 2008,
the said court suspended the consideration of the case and
applied to the Constitutional Court with a petition requesting to
investigate whether Paragraph 2 of Article 20 of the CC is not in
conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31
of the Constitution (petition No. 1B-42/2008).
3. The Kaunas Regional Court, the petitioner, was
investigating a criminal case. By its ruling of 8 December 2008,
the said court suspended the consideration of the case and
applied to the Constitutional Court with a petition requesting to
investigate whether Paragraph 2 of Article 20 of the CC is not in
conflict with Paragraph 1 of Article 29 and Paragraphs 1, 3 and 5
of Article 31 of the Constitution (petition No. 1B-45/2008).
4. The Kaunas Regional Court, the petitioner, was
investigating a criminal case. By its ruling of 22 December 2008,
the said court suspended the consideration of the case and
applied to the Constitutional Court with a petition requesting to
investigate whether Paragraph 2 of Article 20 of the CC is not in
conflict with Paragraph 1 of Article 29 and Paragraphs 1, 3 and 5
of Article 31 of the Constitution (petition No. 1B-48/2008).
5. The Second Vilnius City Local Court, the petitioner, was
investigating a criminal case. By its ruling of 19 December 2008,
the said court suspended the consideration of the case and
applied to the Constitutional Court with a petition requesting to
investigate whether Paragraph 2 of Article 20 of the CC is not in
conflict with Paragraph 1 of Article 29 and Paragraphs 1, 3 and 5
of Article 31 of the Constitution (petition No. 1B-1/2009).
6. The Jonava District Local Court, the petitioner, was
investigating a criminal case. By its ruling of 13 January 2009,
the said court suspended the consideration of the case and
applied to the Constitutional Court with a petition requesting to
investigate whether Paragraph 2 of Article 20 of the CC is not in
conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31
of the Constitution (petition No. 1B-3/2009).
7. The Vilnius Regional Court, the petitioner, was
investigating a criminal case. By its ruling of 19 January 2009,
the said court suspended the consideration of the case and
applied to the Constitutional Court with a petition requesting to
investigate whether Paragraph 2 of Article 20 of the CC is not in
conflict with Paragraph 1 of Article 29 and Paragraphs 1, 3 and 5
of Article 31 of the Constitution (petition No. 1B-4/2009).
8. The Kaunas Regional Court, the petitioner, was
investigating a criminal case. By its ruling of 23 January 2009,
the said court suspended the consideration of the case and
applied to the Constitutional Court with a petition requesting to
investigate whether Paragraph 2 of Article 20 of the CC is not in
conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31
of the Constitution (petition No. 1B-45/2008).
9. The Klaipėda District Local Court, the petitioner, was
investigating a criminal case. By its ruling of 27 January 2009,
the said court suspended the consideration of the case and
applied to the Constitutional Court with a petition requesting to
investigate whether Paragraph 2 of Article 20 of the CC is not in
conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31
of the Constitution (petition No. 1B-5/2009).
10. The Vilnius Regional Court, the petitioner, was
investigating a criminal case. By its ruling of 27 February 2009,
the said court suspended the consideration of the case and
applied to the Constitutional Court with a petition requesting to
investigate the following:
- whether Paragraphs 1, 2 and 3 of Article 20 of the CC are
not in conflict with Paragraph 1 of Article 29 and Paragraphs 1,
2, 4, 5 and 6 of Article 31 of the Constitution and with the
constitutional principle of a state under the rule of law,
- whether Paragraph 5 (wording of 5 July 2004) of Article 20
of the CC is not in conflict with Paragraphs 1 and 2 of Article
23, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article
31, Paragraphs 1, 2 and 3 of Article 46 of the Constitution and
with the constitutional principle of a state under the rule of
law,
- whether Paragraph 4 of Article 43 of the CC is not in
conflict with Paragraph 1 of Article 29 and Paragraph 4 of
Article 31 of the Constitution, and with the constitutional
principle of a state under the rule of law (petition No. 1B-12/
2009).
11. The Kaunas Regional Court, the petitioner, was
investigating a criminal case. By its ruling of 6 March 2009, the
said court suspended the consideration of the case and applied to
the Constitutional Court with a petition requesting to
investigate the following:
- whether Paragraphs 1, 2 and 3 of Article 20 of the CC are
not in conflict with Paragraph 1 of Article 29 and Paragraphs 1,
2 and 4 of Article 31 of the Constitution, and with the
constitutional principle of a state under the rule of law;
- whether Paragraph 5 (wording of 5 July 2004) of Article 20
of the CC is not in conflict with Paragraphs 1 and 2 of Article
23, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article
31 and Paragraphs 1, 2 and 3 of Article 46 of the Constitution
and with the constitutional principle of a state under the rule
of law (petition No. 1B-14/2009).
12. The Court of Appeal of Lithuania, the petitioner, was
investigating a criminal case. By its ruling of 6 March 2009, the
said court suspended the consideration of the case and applied to
the Constitutional Court with a petition requesting to
investigate whether Paragraph 2 of Article 20 of the CC is not in
conflict with Article 29 and Paragraphs 1 and 5 of Article 31 of
the Constitution (petition No. 1B-16/2009).
13. The Vilnius Regional Court, the petitioner, was
investigating a criminal case. By its ruling of 8 April 2009, the
said court suspended the consideration of the case and applied to
the Constitutional Court with a petition requesting to
investigate the following:
- whether Paragraphs 1, 2 and 3 of Article 20 of the CC are
not in conflict with Paragraph 1 of Article 29 and Paragraphs 1,
2, 4, 5 and 6 of Article 31 of the Constitution and with the
constitutional principle of a state under the rule of law,
- whether Paragraph 5 (wording of 5 July 2004) of Article 20
of the CC is not in conflict with Paragraphs 1 and 2 of Article
23, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article
31 and Paragraphs 1, 2 and 3 of Article 46 of the Constitution
and with the constitutional principle of a state under the rule
of law (petition No. 1B-18/2009).
14. The Second Vilnius City Local Court, the petitioner, was
investigating a criminal case. By its ruling of 15 April 2009,
the said court suspended the consideration of the case and
applied to the Constitutional Court with a petition requesting to
investigate whether Paragraph 2 of Article 20 of the CC is not in
conflict with Paragraph 1 of Article 29 and Paragraphs 1 and 5 of
Article 31 of the Constitution (petition No. 1B-20/2009).
15. The Vilnius Regional Court, the petitioner, was
investigating a criminal case. By its ruling of 9 April 2009, the
said court suspended the consideration of the case and applied to
the Constitutional Court with a petition requesting to
investigate whether Paragraph 2 of Article 20 of the CC is not in
conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31
of the Constitution (petition No. 1B-21/2009).
16. The Klaipėda Regional Court, the petitioner, was
investigating a criminal case. By its ruling of 30 March 2009,
the said court suspended the consideration of the case and
applied to the Constitutional Court with a petition requesting to
investigate whether Paragraph 2 of Article 20 of the CC is not in
conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31
of the Constitution (petition No. 1B-23/2009).
17. The Pasvalys District Local Court, the petitioner, was
investigating a criminal case. By its ruling of 14 April 2009,
the said court suspended the consideration of the case and
applied to the Constitutional Court with a petition requesting to
investigate whether Paragraph 2 of Article 20 of the CC is not in
conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31
of the Constitution (petition No. 1B-25/2009).
II
1. The petition (No. 1B-37/2008) of the group of Members of
the Seimas, the petitioner, is based upon the following
arguments.
1.1. The legislator, while establishing criminal liability
for the specific subjectlegal person, did not define the notion
of this subject and the grounds and conditions of the criminal
liability of the legal person. Such regulation implies a
conclusion that, in the aspect of bringing to criminal liability,
the legislator equalled the status of legal persons to the status
of natural persons, therefore, the conditions and grounds of
criminal liability of these subjects, following the
constitutional principle of equality of all persons, should be
equal. However, the said constitutional principle, according to
the petitioner, is violated as the natural persons may be brought
to criminal liability only for the criminal deeds that they
committed themselves, while Paragraphs 2 and 3 of Article 20 of
the CC provide for criminal liability for the legal persons not
for the criminal deeds that they committed themselves, but for
the criminal deeds committed by other subjectsnatural persons.
1.2. Bringing of a legal person to criminal liability for
the criminal deed committed by a natural person which is provided
for according to the disputed legal regulation actually means
that, while bringing a legal person to criminal liability, one
violates the requirements of the criminal laws to establish all
the features of the body of crime, including the guilt. Objective
criminal capacity is thus consolidated and this violates the
principle of presumption of innocence of persons enshrined in
Article 31 of the Constitution, the right of a person to a fair
trial, the rule of the imposed punishment only referring to a
law, as well as the constitutional principle of a state under the
rule of law.
1.3. The petitioner grounds his doubts regarding the
compliance of Paragraph 5 of Article 20 of the CC with Paragraphs
1 and 2 of Article 23, Paragraph 1 of Article 29, Paragraphs 1, 2
and 4 of Article 31, Paragraphs 1, 2 and 3 of Article 43 of the
Constitution and with the constitutional principle of a state
under the rule of law upon the fact that the legislator, while
establishing different limits of criminal liability for economic
entities of private capital and for public legal persons, taking
account of the nature of their capital, from the viewpoint of
criminal liability treats differently the subjects which act in
the same sphere of economic activity.
2. The petition (No. 1B-42/2008) of the Court of Appeal of
Lithuania, the petitioner, the petition (No. 1B-45/2008) of the
Kaunas Regional Court, the petitioner, the petition (No. 1B-49/
2008) of the Second Vilnius City Local Court, the petitioner, the
petition No. (1B-3/2009) of the Jonava District Local Court, the
petitioner, the petition (No. 1B-4/2009) of the Vilnius Regional
Court, the petitioner, the petition (No. 1B-5/2009) of the Kaunas
Regional Court, the petitioner, the petition (No. 1B-6/2009) of
the Klaipėda District Local Court, the petitioner, the petition
No. 1B-16/2009) of the Court of Appeal of Lithuania, the
petitioner, the petition (No. 1B-20/2009) of the Second Vilnius
City Local Court, the petitioner, the petition (No. 1B-21/2009)
of the Vilnius Regional Court, the petitioner, the petition (No.
1B-23/2009) of the Klaipėda Regional Court, the petitioner, and
the petition (No. 1B-25/2009) of the Pasvalys District Local
Court, the petitioner, are based on the following, virtually
analogous, arguments.
2.1. The disputed legal regulation enshrined in Paragraph 2
of Article 20 of the CC, under which a legal person shall be
brought to criminal liability for the criminal deed committed by
other (natural) person, while a natural person, under the
criminal laws, shall be brought to criminal liability only for
the criminal deed that he committed himself and only if he is
recognised guilty, violates the constitutional principle of
equality of persons. In addition, when a legal person is brought
to criminal liability for the criminal deed committed by other
(natural) person, the application of criminal liability to the
legal person depends on the result of establishment of the guilt
of the natural person who is suspected of commission of the
criminal deed. Such way of the legal person's defence from the
brought suspicions and accusations, when the defence depends on
the natural person's defence, may be inefficient, insufficient
and incompatible with the principle of equality of persons in the
criminal procedure.
2.2. The provisions of Paragraph 2 of Article 20 of the CC,
under which the guilt of the natural person is shifted to the
legal person, raise doubts also regarding their compliance with
the principle of presumption of innocence enshrined in Paragraph
1 of Article 31 of the Constitution.
2.3. The petitioners ground their doubts regarding the
compliance of Paragraph 2 of Article 20 of the CC with Paragraph
3 of Article 31 of the Constitution upon the fact that when the
legal person informs about the criminal deed of other (natural)
person, there appear legal consequences also for the legal
person. Being an independent subject of criminal law, the legal
person, as well as the natural person, may not be compelled by a
law to give evidence against himself and create such situation,
where carrying out of a duty (informing about a criminal deed of
other (natural) person which corresponds with the features
established in Paragraph 2 of Article 20 of the CC) would raise
negative consequences (application of criminal liability) to the
legal person himself.
2.4. The petitioners state that while applying the legal
regulation established in Paragraph 2 of Article 20 of the CC,
according to which criminal liability may arise only if there
exists a criminal deed committed by a natural person, such
situation is created when for the same criminal deed both the
natural person who committed that deed and the enterprise (the
legal person) are punished and thus the provision of Paragraph 5
of Article 31 of the Constitution that no one may be punished for
the same crime a second time is violated.
3. The petition (No. 1B-12/2009) of the Vilnius Regional
Court, the petitioner, is based upon the following arguments.
3.1. It is obvious from the provisions of Article 20 of the
Criminal Code that the legal person is brought to criminal
liability not for the criminal deed that he committed himself but
for those committed by the natural person. Such shift of the
guilt and criminal deeds committed by another subject to the
legal person is incompatible with the principles of all subjects'
equality before the law (Paragraph 1 of Article 29 of the
Constitution), the presumption of innocence (Paragraph 1 of
Article 31 of the Constitution), the right to fair hearing of the
case (Paragraph 2 of Article 31 of the Constitution), the
punishment of the person only on the grounds established by law
(Paragraph 4 of Article 31 of the Constitution) and a state under
the rule of law which are enshrined in the Constitution.
3.1.1. According to the meaning of Paragraphs 2 and 3 of
Article 20 of the Criminal Code, the legal person is brought to
criminal liability if the natural person is brought to criminal
liability. Two persons are thus brought to criminal liability and
judged for the same crime. Such legal regulation enshrines the
rule of punishing a second time for the same criminal deed, which
violates Paragraph 5 of Article 31 of the Constitution.
3.1.2. The provision enshrined in Paragraph 2 of Article 20
of the Criminal Code whereby the legal person shall be liable for
the criminal deeds committed by the natural person obviously
restricts the legal person's rights to defence from the brought
suspicions and accusations, because the question of application
of criminal liability of the legal person directly depends on the
realisation of the right to defence of the natural person who
purportedly committed the criminal deed. There appears a
situation where the only way of defence of the legal person from
the brought accusations is proving of innocence of the natural
person. Such regulation is in conflict with the provision of
Paragraph 6 of Article 31 of the Constitution which enshrines the
right to defence of the suspect or the accused.
3.2. The petitioner also has doubts regarding the compliance
of the legal regulation established in Paragraph 5 (wording of 5
July 2004) of Article 20 of the CC with the constitutional
principle of equality before the law, with Paragraphs 1, 2 and 3
of Article 46 of the Constitution, and with the principle of a
state under the rule of law to the extent that the state, while
regulating the activity of economic entities and while
consolidating by laws the regulation of their activity and
liability, provides for different criminal liability for themit
absolutely exempts certain economic entities from criminal
liability.
3.3. When disputing the constitutionality of the provision
of Paragraph 4 of Article 43 of the Criminal Code, the petitioner
noted that the criminal law does not regulate the criteria for
establishment of the size of a fine, as punishment, imposed on
the legal person, while if the punishment of the same kinda
fineis imposed on the natural person, the sizes of fines are
clearly defined taking account of the danger of the criminal
deed. The legislator does not specify the criteria whereby a
punishment should be imposed on the legal person, and the kind
and size thereof should be determined.
4. The petition (No. 1B-14/2009) of the Kaunas Regional
Court, the petitioner, and the petition (No. 1B-18/2009) of the
Vilnius Regional Court, the petitioner, are based on the
following, essentially analogous arguments.
4.1. It is obvious from the content of the provisions of
Article 20 of the Criminal Code that the legal person is brought
to criminal liability not for his own criminal deeds, but for the
criminal deeds of the natural person. Such shift of the guilt and
criminal deeds committed by another person to the legal person is
incompatible with the principles of equality of all subjects
before the law (Paragraph 1 of Article 29 of the Constitution),
the presumption of innocence (Paragraph 1 of Article 31 of the
Constitution), the right to fair hearing of the case (Paragraph 2
of Article 31 of the Constitution), punishment of the person only
on the grounds established by law (Paragraph 4 of Article 31 of
the Constitution) and a state under the rule of law which are
enshrined in the Constitution.
4.2. The petitioners also have doubts regarding the
compliance of the legal regulation established in Paragraph 5
(wording of 5 July 2004) of Article 20 of the CC with the
constitutional principle of equality before the law, with
Paragraphs 1, 2 and 3 of Article 46 of the Constitution, with the
principle of a state under the rule of law to the extent that the
state, while regulating the activity of economic entities and
while consolidating by laws the regulation of their activity and
their liability, provides for a different criminal liability for
themit absolutely exempts certain economic entities from
criminal liability.
4.3. The Vilnius Regional Court (petition No. 1B-18/2009),
the petitioner, also emphasises that according to the meaning of
Paragraphs 2 and 3 of Article 20 of the Criminal Code, the legal
person is brought to criminal liability if the natural person is
brought to criminal liability. Two persons are thus brought to
criminal liability and judged for the same crime. It means that
punishment is imposed twice for the same criminal deed: the
natural person who committed the criminal deed and the legal
person are punished provided the natural person who committed the
criminal deed meets the criteria established in Paragraphs 2 or 3
of Article 20 of the CC. Such legal regulation enshrines the rule
of punishing a second time for the same criminal deed, which
violates Paragraph 5 of Article 31 of the Constitution. In
addition, the provision enshrined in Paragraph 2 of Article 20 of
the Criminal Code, whereby the legal person is liable for the
criminal deeds committed by the natural person, obviously
restricts the legal person's rights to defence from the brought
suspicions and accusations because the question of application of
criminal liability of the legal person directly depends on the
realisation of the right to defence of the natural person who
purportedly committed the criminal deed. Such regulation is in
conflict with the provision of Paragraph 6 of Article 31 of the
Constitution which consolidates the right of the suspect or the
accused to defence.
III
In the course of preparation of the case for the
Constitutional Court hearing, written explanations were received
from the representatives of the Seimas, the party concerned, who
were G. Ivoška, advisor of the Division of Criminal and
Administrative Law of the Law Department of the Seimas and D.
Zebleckis, senior advisor of the Civil Law Division of the same
department, in which it is stated that the disputed provisions of
the Criminal Code are not in conflict with the Constitution. The
position of the representatives of the Seimas, the party
concerned, is based upon the following arguments.
1. A systemic analysis of Article 20 of the CC and the
articles of the special part thereof, in which it is established
that also the legal person shall be liable for the deeds
specified in these articles, permits to draw a conclusion that
from the viewpoint of application of criminal liability, the
legislator does not equal the legal situation of the legal person
to the legal situation of the natural person. In Lithuanian
criminal law, the legal person is not regarded as a subject of a
criminal deedit is especially obvious if we take as example such
criminal deeds as rape or homicide, for which the criminal
liability of the legal person is also provided for. Therefore,
different grounds and conditions of application of criminal
liability to legal persons and natural persons are
constitutionally grounded and may not be assessed as violating
the principle of equality enshrined in Article 29 of the
Constitution.
2. The fact that the legal person is not a subject of the
criminal deed also means that the legal person may not be
equalled to the natural person as one who may be brought to
liability for a criminal deed if there is guilt, which is
independent, separate or which does not depend on the natural
person otherwise. It also means that criminal liability of the
legal person appears due to the guilt of the natural person.
However, it may not be identified with shifting of guilt to the
legal person. The legal person may not be regarded as guilty from
the criminal law viewpoint, as the policy of his activity, the
standards to be applied and the values linked to him are
determined by one or more natural persons. Therefore, there is no
ground to consider the compliance of the provisions of Article 20
of the CC with Paragraph 1 of Article 31 of the Constitution,
which enshrines the principle of presumption of innocence, and
with the constitutional principle of a state under the rule of
law.
3. There is no ground to apply the procedural guarantees
established in Paragraph 3 of Article 31 of the Constitution to
the legal person, as not the legal person, but the natural person
is the subject of the criminal deed, at the same time being a
participant of the process to which the procedural guarantees are
applied.
4. Assenting to the statement of the petitioners that,
according to the CC, there may be no complicity between the
natural person and the legal person, the representatives of the
party concerned do not agree that the disputed legal regulation
violates the principle non bis in idem. In the explanations it is
emphasised that in the jurisprudence of the Constitutional Court
the said principle is construed as meaning that a person cannot
be punished a second time for the same violation of law, i.e. one
person may not be punished a second time by a sanction of the
same kind. Meanwhile, the legal person's liability for the deed
committed by the natural person means that there is criminal
liability of different persons for the same deed.
5. In the opinion of the representatives of the party
concerned, the compliance of Paragraph 5 of Article 20 of the
Criminal Code with the provisions of Articles 23 and 46 of the
Constitution may not be subject to consideration at this
constitutional justice case, because the legal persons specified
in Paragraph 5 of Article 20 of the CC are not economic entities
or subjects whose activity is based on the right of private
ownership or freedom of individual economic activity and
initiative.
IV
At the Constitutional Court hearing, Member of the Seimas V.
Gedvilas and advocate V. Bužinskas, the representatives of the
group of Members of the Seimas, the petitioner, repeated the
arguments set forth in the petition of the petitioner; advocate
V. Bužinskas also answered to the questions of the justices and
presented additional explanations.
The representatives of the Seimas, the party concerned, who
were G. Ivoška and D. Zebleckis, repeated the arguments set forth
in the written explanations. G. Ivoška also presented additional
explanations and answered to the questions of the justices.
The Constitutional Court
holds that:
I
1. As it has been mentioned, the petitionera group of
Members of the Seimas, requests to investigate whether Paragraphs
1, 2 and 3 of Article 20 of the CC are not in conflict with
Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31 of
the Constitution, and with the constitutional principle of a
state under the rule of law, whether Paragraph 5 (wording of 5
July 2004) of Article 20 of the CC is not in conflict with
Paragraphs 1 and 2 of Article 23, Paragraph 1 of Article 29,
Paragraphs 1, 2 and 4 of Article 31 and Paragraphs 1, 2 and 3 of
Article 46 of the Constitution and with the constitutional
principle of a state under the rule of law (petition No. 1B-37/
2008), the petitionersthe Court of Appeal of Lithuania (petition
No. 1B-42/2008), the Kaunas Regional Court (petition No. 1B-45/
2008), the Kaunas Regional Court (petition No. 1B-48/2008), the
Second Vilnius City Local Court (petition No. 1B-1/2009), the
Jonava District Local Court (petition No. 1B-3/2009), the Vilnius
Regional Court (petition No. 1B-4/2009), the Kaunas Regional
Court (petition No. 1B-5/2009), the Klaipėda District Local Court
(petition No. 1B-6/2009), the Court of Appeal of Lithuania
(petition No. 1B-16/2009), the Second Vilnius City Local Court
(petition No. 1B-20/2009), the Vilnius Regional Court (petition
No. 1B-21/2009), the Klaipėda Regional Court (petition No. 1B-
23/2009) and the Pasvalys District Local Court (petition No. 1B-
25/2009) request to investigate whether Paragraph 2 of Article 20
of the CC is not in conflict with Article 29 and Paragraphs 1, 3
and 5 of Article 31 of the Constitution, the petitionerthe
Vilnius Regional Court (petition No. 1B-12/2009) requests to
investigate whether Paragraphs 1, 2 and 3 of Article 20 of the CC
are not in conflict with Paragraph 1 of Article 29 and Paragraphs
1, 2, 4, 5 and 6 of Article 31 of the Constitution and with the
constitutional principle of a state under the rule of law,
whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the
CC is not in conflict with Paragraphs 1 and 2 of Article 23,
Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31
and Paragraphs 1, 2 and 3 of Article 46 of the Constitution and
with the constitutional principle of a state under the rule of
law, as well as whether Paragraph 4 of Article 43 of the CC is
not in conflict with Paragraph 1 of Article 29 and Paragraph 4 of
Article 31 of the Constitution and with the constitutional
principle of a state under the rule of law, the petitionerthe
Kaunas Regional Court (petition No. 1B-14/2009) requests to
investigate whether Paragraphs 1, 2 and 3 of Article 20 of the CC
are not in conflict with Paragraph 1 of Article 29 and Paragraphs
1, 2 and 4 of Article 31 of the Constitution and with the
constitutional principle of a state under the rule of law,
whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the
CC is not in conflict with Paragraphs 1 and 2 of Article 23,
Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31
and Paragraphs 1, 2 and 3 of Article 46 of the Constitution and
with the constitutional principle of a state under the rule of
law, and the petitionerthe Vilnius Regional Court (petition No.
1B-18/2009) requests to investigate whether Paragraphs 1, 2 and 3
of Article 20 of the CC are not in conflict with Paragraph 1 of
Article 29 and Paragraphs 1, 2, 4, 5 and 6 of Article 31 of the
Constitution and with the constitutional principle of a state
under the rule of law, and whether Paragraph 5 (wording of 5 July
2004) of Article 20 of the CC is not in conflict with Paragraphs
1 and 2 of Article 23, Paragraph 1 of Article 29, Paragraphs 1, 2
and 4 of Article 31 and Paragraphs 1, 2 and 3 of Article 46 of
the Constitution and with the constitutional principle of a state
under the rule of law.
2. Taking account of the content, extent and arguments of
the petitions of the petitioners, in this constitutional justice
case the Constitutional Court will investigate the following:
- the compliance of Paragraphs 1, 2 and 3 of Article 20 of
the CC with Articles 29 and 31 of the Constitution and with the
constitutional principle of a state under the rule of law;
- the compliance of Paragraph 5 (wording of 5 July 2004) of
Article 20 of the CC with Paragraphs 1 and 2 of Article 23,
Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31
and Paragraphs 1, 2 and 3 of Article 46 of the Constitution, and
with the constitutional principle of a state under the rule of
law;
- the compliance of Paragraph 4 of Article 43 of the CC with
Paragraph 1 of Article 29 and Paragraph 4 of Article 31 of the
Constitution and with the constitutional principle of a state
under the rule of law.
II
1. Upon restoration of the independent State of Lithuania on
11 March 1990, the Criminal Code adopted on 26 June 1961 was in
effect. This code did not include the provisions enshrining
criminal liability of legal persons.
2. On 25 January 2002, the Seimas adopted the Republic of
Lithuania Law on Amending Articles 7-1, 32, 35, 282, 284 and 290
of the Criminal Code, on Supplementing the Code with Articles
11-1, 22-1, 32-1, 32-2 and 302-2 and on Recognition of Articles
319 and 320 as no Longer Valid. By this law, in the then
effective Criminal Code (wording of 26 June 1961) inter alia one
enshrined the provisions linked to the criminal liability of the
legal persons, such as:
"Article 11-(1). Criminal liability of the legal person
The legal person shall be liable according to the criminal
laws only for taking the bribe (Article 282), bribing (Article
284) and money laundering (Article 326).
The legal person shall be liable for crimes committed by a
natural person in the case when the crime was committed for the
benefit or in the interests of the legal person by the natural
person who acted individually or on behalf of the legal person,
if he, while holding a leading office in the legal person, had
the right:
1) to represent the legal person, or
2) to take decisions on behalf of the legal person, or
3) to control activities of the legal person.
The legal person may be liable for the crimes also in such
case where there crimes were committed by the employee of the
legal person or his authorised representative for the benefit of
the legal person due to insufficient supervision or control of
the person specified in the Second Paragraph of this Article.
The criminal liability of the legal person does not remove
the criminal liability of the natural person who committed the
crime, organised it, instigated or helped to commit the crime.
According to this Code, the state, the state or municipal
institution and establishment and international public
organisation shall not be liable.
<...>
Article 22-(1). Kinds of punishments for the legal persons.
The following punishments may be imposed on the legal person
for the committed crime:
1) a fine;
2) confiscation of property;
3) restriction of activity of the legal person;
4) liquidation of the legal person.
The court, having imposed a punishment on the legal person,
may decide to announce this judgment through the mass media.
Not more than two punishments may be imposed upon the legal
person for one crime.
The punishments imposed on the legal persons are not
specified in the sanctions of the articles of the special part of
this Code. While imposing a punishment on the legal person, the
court follows the list of punishments established in the First
Paragraph of this Article.
<...>
Article 32-(1). Restriction of activity of the legal person
When imposing the penalty of restriction of activity of a
legal person, a court shall prohibit the legal person from
engaging in certain activities or oblige it to close a certain
division of the legal person.
Activities of a legal person may be restricted for a period
from one year up to five years. The term of this punishment shall
be counted in years and months.
Article 32-(2). Liquidation of the legal person
When imposing the punishment of liquidation of a legal
person, a court shall order the legal person to terminate, within
the time limit laid down by the court, the entire economic,
commercial, financial or professional activity and to close all
divisions of the legal person."
3. On 26 September 2000, the Seimas adopted the Republic of
Lithuania Law on the Approval and Coming into Force of the
Criminal Code, whereby the Criminal Code was approved (Article 1)
and it was established that it shall come into force only
together and only harmonised with the new Code of Criminal
Procedure of the Republic of Lithuania and the new Code of
Execution of Punishments whose (together with the Criminal Code)
date of coming into force is established by a separate law
(Article 2).
On 29 October 2002, the Seimas adopted the Republic of
Lithuania Law on the Procedure of Entry into Effect and
Implementation of the Criminal Code as Confirmed by Law No. VIII-
1968 of 26 September 2000, the Code of Criminal Procedure, as
Confirmed by Law No. IX-785 of 14 March 2002, and the Code of
Execution of Punishments as Confirmed by Law No. IX-994 of 27
June 2002, in which it inter alia established that the Criminal
Code shall come into force on 1 May 2003 (Article 1) and that
upon coming into force of the new Criminal Code, the former
Criminal Code shall become no longer effective (Paragraph 1 of
Article 47).
3.1. Article 20 (wording of 26 September 2000) of the CC,
whose provisions are disputed in this constitutional justice
case, enshrines the legal regulation linked to the criminal
liability of the legal persons. This article provides:
"Article 20. Criminal liability of a legal person
1. A legal person shall be held liable solely for the
criminal deeds the commission whereof is subject to liability of
a legal person as provided for in the Special Part of this Code.
2. A legal person shall be held liable for the criminal
deeds committed by a natural person solely where a criminal deed
was committed for the benefit or in the interests of the legal
person by a natural person acting independently or on behalf of
the legal person, provided that he, while holding a leading
office in the legal person, was entitled:
1) to represent the legal person, or
2) to take decisions on behalf of the legal person, or
3) to control activities of the legal person.
3. A legal person may be held liable for criminal deeds also
where they have been committed by an employee or authorised
representative of the legal person as a result of insufficient
supervision or control by the person indicated in Paragraph 2 of
this Article.
4. Criminal liability of a legal person shall not release
from criminal liability a natural person who has committed,
organised, instigated or assisted in commission of the criminal
deed.
5. The State, a state and municipal institution and
establishment as well as international public organisation shall
not be held liable under this Code."
3.2. Article 43 (wording of 26 September 2000) of the CC,
the provisions of Paragraph 4 whereof are disputed in this
constitutional justice case, enshrines the kinds of punishments
applied to the legal persons and certain peculiarities of
imposition of punishments on the legal persons. This article
provides:
"Article 43. Kinds of punishments in respect of legal
persons
1. The following punishments may be imposed upon a legal
person for the commission of a criminal deed:
1) fine;
2) restriction of activity of the legal person;
3) liquidation of the legal person.
2. Having imposed a penalty upon a legal person, a court may
also decide to announce this judgement in the media.
3. Only one punishment may be imposed upon a legal person
for one criminal deed.
4. The sanctions of articles of the Special Part of this
Code shall not specify the punishments to which legal persons are
subject. In imposing a punishment upon a legal person, a court
shall refer to the list of punishments specified in Paragraph 1
of this Article."
3.3. In this context, one is to note also other provisions
of the CC, linked to the grounds and conditions of application of
the criminal liability to the legal persons, inter alia:
- Paragraph 4 (wording of 26 September 2000) of Article 47
of the CC which regulates the conditions of imposition of
punishmentfine both to natural persons as well as legal persons
established: "The amount of a fine for a legal person shall be up
to 10 000 MSLs";
- Article 52 (wording of 26 September 2000) of the CC
regulates only the punishments applied to the legal person
imposition of restriction of activity of the legal person. This
article provides: "When imposing the penalty of restriction of
operation of a legal person, a court shall prohibit the legal
person from engaging in certain activities or oblige it to close
a certain division of the legal person" (Paragraph 1); "The
activity of a legal person may be restricted for a period from
one year up to five years. The term of this punishment shall be
counted in years and months" (Paragraph 2);
- Article 53 (wording of 26 September 2000) of the CC also
regulates only the punishments applied to the legal person
imposition of liquidation of the legal person. In this article it
is established: "When imposing the punishment of liquidation of a
legal person, a court shall oblige the legal person to terminate,
within the time limit laid down by the court, the entire
economic, commercial, financial or professional activity and to
close all divisions of the legal person";
- Paragraph 4 (wording of 26 September 2000) of Article 67
of the CC which regulates the purpose and types of penal measures
established that confiscation of property may be imposed on the
legal person;
- Article 72 (wording of 26 September 2000) of the CC
establishes the procedure of application of the penal measure
(confiscation of property) which is established for in Article 67
of the CC.
4. On 5 July 2004, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 20, 42, 63,
67, 68, 72, 75, 77, 82, 90, 91, 92, 95, 97, 128, 144, 148, 150,
178, 182, 194, 195, 201, 204, 205, 210, 211, 212, 220, 221, 222,
223, 230, 236, 246, 248, 260, 263, 287 and 306 of the Criminal
Code and on Supplementing the Code by Article 228-1 which came
into force on 13 July 2004.
4.1. Article 1 of this law amended Paragraph 5 (wording of
26 September 2000) of Article 20 of the Criminal Code and set it
forth as follows:
"5. The State, a municipality, a state and municipal
institution and establishment as well as international public
organisation shall not be held liable under this Code."
This amendment expanded the list of the legal persons which
are not held liable according to the CCthe municipality was
attributed to such legal persons.
4.2. In addition, in Paragraph 4 of Article 4 of the said
law adopted on 5 July 2004, Paragraph 4 (wording of 26 September
2000) of Article 67 was recognised to be regarded as Paragraph 5
of Article 67 without changing the content of the provisions.
5. Article 3 of the Republic of Lithuania Law on Amending
Articles 7, 38, 47, 63. 66, 70, 75, 82, 93, 129, 166, 167, 172,
178, 180, 181, 182, 183, 184, 185, 189, 194, 196, 197, 198, 198-
1, 198-2, 199, 202, 213, 214, 215, 225, 227, 228, 231, 233, 235,
252, 256, 257, 262, 284, 285 and 312 and the Annex of the
Criminal Code, on Amending the Titles of Chapters XXVI and XXX
and on Supplementing the Code with Articles 256-1 and 257-1
adopted on 28 June 2007 amended the size of maximum punishment
established with regard to legal persons in Paragraph 4 (wording
of 26 September 2000) of Article 47 of the CCit was increased to
50 000 MSLs.
6. While construing the legal regulation established in
Paragraphs 1, 2, 3 and 5 of Article 20 of the CC, it needs to be
noted that the provisions of Article 20 of the CC which are
disputed in this constitutional justice case enshrine the grounds
of criminal liability of the legal person and the conditions for
its application.
7. It needs to be noted that the CC does not define the
notions of the legal person, representation of the legal person,
the leading office and other notions which are important in the
course of construction of the content of the provisions of
Article 20 of the CC. Therefore, the provisions of the disputed
legal regulation must be construed not only in a systemic manner
with regard to each other, but also together with the provisions
enshrined in other laws which regulate the formation of the
bodies administrating the legal person, implementation of the
rights and duties, as well as the legal relations of
representation.
8. Paragraph 1 of Article 2.33 of the Civil Code of the
Republic of Lithuania enshrines the definition of the notion of
the legal person: "A legal person shall be an enterprise or an
organisation which has its business name, which may in its name
gain and enjoy rights and assume obligations as well as act as a
plaintiff or as a defendant in courts."
Article 2.34 of the Civil Code enshrined the kinds of the
legal persons and their definitions:
"Article 2.34. Public and Private Persons
1. Legal persons shall be divided into public and private
persons.
2. Public legal persons shall be legal persons established
by the state or municipalities, their institutions or other non-
profit-seeking persons whose goal is to meet public interests
(state and municipality enterprises, state or municipality
institutions, public institutions, religious communities, etc.).
3. Private legal persons shall be legal persons, which aim
at meeting private interests."
Article 2.35 of the Civil Code provides that the state and
municipalities shall be legal persons (Paragraph 1); state and
municipality institutions the existence whereof is prescribed by
the Constitution shall be legal persons in the cases prescribed
by law (Paragraph 2).
Article 2.81 of the Civil Code provides that legal persons
achieve civil rights, assume civil duties and implement them
through their bodies (Paragraph 1); only natural persons may be
members of managing bodies of a legal person (Paragraph 4).
Therefore, the legal person is an independent, specific
subject of legal relations. The specificity of the legal person,
as an independent subject of legal relations, is determined inter
alia by the fact that he, having an independent structure, legal
capacity and capability, i.e. being an independent subject of
legal relations, is a participant of these relations through
natural persons (head, authorised representative, etc.). Thus,
the activity of the legal person is inseparable from the activity
of the corresponding natural persons through which he acts and
without their activity it would be essentially impossible.
9. Under Paragraph 1 of Article 20 of the Criminal Code, the
legal persons may be held criminally liable only for the criminal
deeds, for the commission of which the criminal liability of the
legal persons is provided for in the special part of this code.
The list of such criminal deeds established by the legislator is
rather broad: the crimes against life of a human being, against
his health and freedom; the crimes and criminal offences against
the person's right to sexual self-determination and
inviolability, against the child and the family; the crimes
against inviolability of a person's private life, against
intellectual and industrial property, against safety of
electronic data and information systems; the crimes and criminal
offences against economy and business order, against financial
system, state service and public interests, against justice, etc.
It needs to be noted that the dispositions of the articles of the
special part of the Criminal Code which establish criminal
liability of both natural persons and legal persons are equal in
defining both the deeds committed by the natural persons as well
as the deeds committed by legal persons.
10. In cases when a criminal deed is committed for which
criminal liability of legal persons is provided for in the
special part of the CC, the question of bringing the legal person
to criminal liability is decided taking account of the conditions
established in Paragraphs 2 and 3 of Article 20 of this code, i.
e. such criminal deed must be committed by a natural person, who
meets the features specified in the CC; it must be committed by
acting individually or on behalf of the legal person and acting
for the benefit or in the interests of the legal person. In other
words, there are two essential groups of conditions of bringing
the legal person to criminal liability: one is linked to the
specific features of the subject upon commission of a criminal
deed whereof also the legal person may be brought to criminal
liability, while the other describes the deed itself, the purpose
and reason of its commission (it was committed individually or on
behalf of the legal person and seeking to serve the interests of
the legal person or the benefit for him).
10.1. While construing the specific features of a natural
person, who committed the criminal deed, it needs to be noted
that Paragraph 2 of Article 20 of the CC defines two of the
features describing such subject: first, that person must take a
leading office in the legal person and, second, he must have one
of the following rights (alternative features): either to
represent the legal person, or to adopt decisions on behalf of
the legal person, or to control the activity of the legal person.
However, Paragraph 3 of Article 20 of the CC provides that
criminal liability may arise for the legal person also in such a
case if the employee of the legal person or his authorised
representative committed criminal deeds for the benefit of the
legal person due to insufficient supervision or control of the
person specified in Paragraph 2 of Article 20 of the CC.
10.2. Therefore, under Paragraphs 2 and 3 of Article 20 of
the CC, criminal liability may arise to the legal person when the
natural person, who holds a leading office in that legal person
and has the right either to represent the legal person, or to
adopt decisions on behalf of the legal person, or to control the
activity of the legal person, commits a criminal deed for the
benefit or in the interests of the legal person, or when a
criminal deed is committed for the benefit of the legal person
not by the person holding a leading office, but by an employee or
authorised representative, however, on the condition that this
deed was committed due to insufficient supervision or control of
the person who holds a leading office.
10.3. While construing these provisions, it is important to
note that the notion "leading office" is not defined in the
Criminal Code (it is not specified, what concrete office in the
legal person falls into this category), however, the essential
aspects of this notion may be revealed referring to the
provisions of the legal acts which regulate the activity of
economic entities and which are linked to the management of legal
persons.
10.3.1. In this context, the following provisions of the
Civil Code linked to the concept of the bodies of the legal
persons, their authority and functions are to be mentioned:
"Article 2.81. Bodies of a legal person
1. Legal persons achieve civil rights, assume civil duties
and implement them through their bodies which are formed and act
in accordance with laws and documents of incorporation of legal
persons.
2. In cases prescribed by laws and incorporation documents
legal persons may achieve civil rights and assume duties through
their members.
3. Members of legal persons enjoy the right to institute an
action at law requesting to prohibit the managing bodies of a
legal person to enter into contracts which contravene the goals
of the activities of a legal person or overstep the authority of
a managing body of a legal person.
4. Only natural persons may be members of managing bodies of
a legal person whereas both natural and legal persons may be
members of other bodies.
Article 2.82. Authority and functions of the bodies of legal
persons
1. Authority and functions of the natural persons' bodies
shall be established by the law and incorporation documents of a
legal person, which regulate legal persons of a respective
juridical form.
2. Where incorporation documents and laws regulating the
activities of a legal person fail to provide a different
structure of managing bodies, each legal person must have a
single-person or a collegial managing body and the general
meeting of members. Laws regulating individual juridical forms of
legal persons may establish that a managing body and the general
meeting of members may be considered to be the same body of a
legal person.
3. A managing body shall be responsible for the financial
accountability, convening of the general meeting of members of a
legal person, production of documents and data to the register of
legal persons, notification of the members of a legal person
about the essential events, which are important for the
activities of a legal person, organisation of the legal person's
activities, accounting of the members of a legal person and
actions specified in paragraph 3 of Article 2.4 of the given
Code, except as otherwise provided in laws regulating the
activities of legal persons or incorporation documents of a legal
person.
4. Decisions of the bodies of a legal person may, in
judicial proceedings, be declared void where they contravene the
imperative provisions of the law, incorporation documents of a
legal person or principles of reasonableness and good faith.
Where the decision infringes their rights or interests, action
can be taken by the creditors of a legal person, a respective
managing body of a legal person, member of a legal person or
other persons prescribed by the law. Three-month limitation of
actions period shall be set for the said actions. It shall be
counted as of the day on which the defendant found out or had to
find out about the contested decision where the given Code and
other laws fail to set another term of limitation of actions or a
different procedure for the challenging of the decision."
10.3.2. Article 37 of the Republic of Lithuania Law on
Companies (wording of 11 December 2003) enshrines the notion of
the manager of the company, the procedure of his election and
removal from office, the grounds of his activity and his
competence. This article inter alia establishes: the manager of
the company is a single-person management organ of the company
(Paragraph 1); the manager of the company must be a natural
person; a person may not be the manager of the company if under
the legal acts he is not entitled to hold the position (Paragraph
2); the manager of the company shall be elected and removed from
office by the Board (the Supervisory Board if the Board is not
formed or the General Meeting if the Supervisory Board is not
formed either) which shall also fix his salary, approve his job
description, provide incentives and impose penalties (Paragraph
3); the employment contract shall be concluded with the manager
of the company (Paragraph 4); in his activities, the manager of
the company shall comply with laws and other legal acts, the
Statutes of the company, decisions of the General Meeting,
decisions of the Supervisory Board and the Board, and his job
description; the manager of the company shall organise daily
activities of the company, hire and dismiss employees, conclude
and terminate employment contracts with them, provide incentives
and impose penalties (Paragraph 6); the manager of the company
shall act on behalf of the company and shall be entitled to enter
into the transactions at his own discretion, save in cases where
the Statutes of the company provide for quantitative
representation of the company (Paragraph 8).
Paragraph 10 (wording of 11 July 2006) of Article 37 of the
Law on Companies provides that the manager of the company shall
be responsible for: 1) the organisation of activities and the
implementation of objects of the company; 2) the drawing up of
the annual accounts; 3) the conclusion of the contract with the
firm of auditors where the audit is mandatory or required under
the Statutes of the company; 4) the submission of information and
documents to the General Meeting, the Supervisory Board and the
Board in cases laid down in this law or at their request; 5) the
submission of documents and particulars of the company to the
administrator of the Register of Legal Persons; 6) the submission
of the documents of a joint-stock company to the Securities
Commission and the Central Securities Depository of Lithuania; 7)
the publication of information referred to in this Law in the
daily indicated in the Statutes; 8) the submission of information
to shareholders; 9) the fulfilment of other duties laid down in
this law and other laws and legal acts as well as in the Statutes
and the staff regulations of the manager of the company.
10.3.3. Paragraph 2 of Article 11 of the Republic of
Lithuania State and Municipal Enterprise Law (wording of 16
December 2003) established that "the head of the enterprise shall
organise the activity of the enterprise and shall act on behalf
of the enterprise in the presence of the relations with other
persons. The head of the enterprise: shall employ and fire
employees; shall conclude and terminate employment contracts with
them; shall approve of the statutes of the branches and
representations of the enterprise; shall appoint and recall the
managing bodies of the branches and representations of the
enterprise; having the rights of the management board, and if the
board is not composedthe advance consent of the institution
which implements the rights and duties of the owner, shall
establish the methods and norms of calculation of amortisation of
property applied in the enterprise; shall prepare the rules of
payment and awarding premiums for the employees of the
enterprise; shall provide the institution which implements the
rights and duties of the owner of the enterprise with information
about the forecasts and plans of the activity of the enterprise
specifying the amounts of the necessary investments for the
coming financial year, and about the events which are of
essential importance for the activity of the enterprise. If the
board is not composed in the enterprise, the head of the
enterprise shall perform also the functions attributed to the
competence of the board, save the exceptions specified in
Paragraph 4 of Article 10 of this Law." Paragraph 3 of the same
article provides that the head of the enterprise shall have the
right to conclude transactions at his discretion, while Paragraph
6 thereof provides that the head of the enterprise shall be
responsible for the following: 1) organisation of the activity of
the enterprise; 2) informing the institution which implements the
rights and duties of the owner of the enterprise about the events
which are of essential importance for the activity of the
enterprise; 3) drawing up of the annual financial accountability
report and its presentation together with the conclusion from the
auditor and the report of the auditor to the institution which
implements the rights and duties of the owner of the enterprise
within 3 months from the end of the financial year; 4)
presentation of the report on the activity of the enterprise to
the institution which implements the rights and duties of the
owner of the enterprise; 5) submission of the data and documents
of the enterprise to the register of the legal persons; 6)
announcing of public information; 7) keeping of documents and
other information about the enterprise; 8) management, use of
disposition of property of the enterprise according to the
procedure and conditions established in the statutes; 9) other
actions which are established for the head of the enterprise by
this law, other legal acts and statutes of the enterprise.
10.4. It needs to be noted that while construing the concept
of a leading office in the context of the criminal liability of
the legal persons, not only the legal regulation related to the
subjects (enterprises) of the economic entities is important, but
also those provisions of the laws which are linked to public
legal persons that usually are non-profit ones.
10.4.1. Article 7 of the Republic of Lithuania Law on
Associations (wording of 22 January 2004) which regulates "the
formation, management, activities, specific features of
restructuring, termination (reorganisation and liquidation) of
legal persons whose legal form is an association" (Article 1)
provides:
"Article 7. Bodies of an association
1. An association shall acquire the civil rights, undertake
the civil obligations and shall implement them through its
management bodies.
2. An association must have a general meeting of members or
any other body (conference, convention, congress, assembly or
other), which enjoys all or part of the rights of the general
meeting of members.
3. The provisions of this Law applicable to a general
meeting of members shall apply to the body of an association
(conference, convention, congress, assembly or other), which
enjoys all rights of a general meeting of members.
4. In the event any other body of an association is being
set up (conference, convention, congress, assembly or other)
which enjoys only a part of the rights of a general meeting of
members, then a general meeting of members shall be obligatory.
The provisions of this Law applicable to a general meeting of
members, with the exception of Items 1 and 6 of Paragraph 6 of
Article 8 of this Law, the decisions provided for in which may be
taken by a general meeting of members, shall apply to the body of
an association which enjoys a part of the rights of a general
meeting of members.
5. The management body (sole or/and collegiate) must
function in an association.
6. Several bodies may be set up in an association.
7. The structure of the association bodies, their
competence, the procedure for convening and taking decisions
shall be laid down in the statutes of an association.
8. Members of the collegiate bodies, set in the statutes of
an association, which are not the management bodies, shall not be
remunerated for activities.
9. Minutes must be taken of general meetings of members and
sittings of collegiate bodies."
In Article 9 of this law, the management bodies of the
association and their competence is determined:
"Article 9. Management bodies
1. The management bodies shall act in the name of an
association in the presence of relations with other persons, and
the said bodies shall also conclude transactions in the name of
the association.
2. Besides the functions provided for in Article 2.82 of the
Civil Code, the management body shall employ and dismiss
employees, conclude employment contracts with them, prepare and
present to a general meeting of members a report on activities of
the association, announce or organise dissemination of public
information, organise voluntary works in accordance with the
procedure laid down by the Government, resolve other issues
within the competence of the management bodies as prescribed in
this Law and the statutes of the association. The management body
shall also take decisions on setting-up of branches and
representative offices, and termination of activities thereof,
approve their regulations, unless otherwise provided for in the
statutes of the association.
3. If several management bodies are set up in an
association, the statutes of the association must define the
competence of each body.
4. A member of the management bodies of an association may
be reimbursed for his activities in these bodies.
5. Natural personsmembers of the associationand natural
persons proposed by the members of the associationlegal
personsmay be members of a collegiate management body. The
statutes of the association may lay down additional requirements
for a member of the collegiate management body.
6. A collegiate management body may take decisions when more
than 1/2 of members attend its meeting."
10.4.2. The Republic of Lithuania Law on Political Parties
(wording of 23 March 2004) which regulates "formation,
activities, rights, specific features of termination
(reorganisation and liquidation) and restructuring of legal
persons whose legal form is a political party" does not establish
any special formation of the management body of a political
party, the activity or regulation of competence thereof, however,
Paragraph 2 of Article 6 which enshrines the requirements for the
founding documents of a political party provides that a statute
of a political party must indicate inter alia: the competence,
periodicity of a congress (meeting, conference) of the political
party, as well as the procedure for convening it and taking
decisions (Item 8); the collegiate management bodies of the
political party, their competence, the procedure for electing and
recalling them, the period of time for which the collegiate
management bodies may be elected, the procedure for taking their
decisions (Item 9); the procedure for electing and recalling the
leader of the political party, the period of his competence for
which he may be elected (Item 10); the procedure of
accountability of the management bodies of the political party to
a congress (meeting, conference) and the procedure of control
over their activities.
10.4.3. Paragraph 1 of Article 2 of the Republic of
Lithuania Law on Charity and Sponsorship Funds (wording of 22
December 2003) defines the notion of the fund: "A fund is a
public legal person of limited civil liability having its own
name and the objective of providing charity and/or sponsorship
and other support, in accordance with the procedure laid down in
the Law on Charity and Sponsorship of the Republic of Lithuania
(hereinafter referred to as the Law on Charity and Sponsorship)
and this Law, to legal and natural persons in the fields of
science, culture, education, arts, religion, sports, health care,
social care and assistance, environmental protection as well as
in other fields recognised as selfless and beneficial to
society."
Paragraph 1 of Article 7 of this law provides that the fund
must hold general meetings of stakeholders and shall set up a
managing body (single-person and/or collegiate).
The legal regulation of the managing bodies of the fund is
consolidated in Article 9 of the Law on Charity and Sponsorship
Funds:
"Article 9. Managing bodies
1. The managing body shall act on behalf of the fund in
respect of relations with other persons and it shall also
conclude transactions on behalf of the fund.
2. In addition to performing the functions specified in
Article 2.82 of the Civil Code, the managing body shall hire and
dismiss employees, conclude employment contracts, prepare a
report on the fund's activities and present it to the general
meeting of stakeholders, allocate funds for charity and
sponsorship, confirm the valuation of property contributions,
analyse the results of the fund's activities, estimates of income
and expenditure, the findings of audits, stocktaking and other
inventory records, publish or arrange the publication of public
information, organise voluntary work in accordance with the
procedure established by the Government as well as deal with
other issues within the scope of its competence as prescribed by
this Law and the articles of association. The managing body shall
also adopt decisions on the establishment of branches and
representative offices as well as on the termination of their
activities and shall approve their regulations, unless otherwise
provided by the articles of association.
3. Where several managing bodies are set up within a fund,
the articles of association shall determine the scope of
competence for each such body.
4. Members of a managing body may be remunerated for
carrying out its work.
5. Natural persons who are members of the fund and natural
persons nominated by the fund's stakeholders who are legal
persons may be members of a collegiate managing body. The
articles of association of the fund may stipulate additional
requirements for members of a collegiate managing body.
6. A collegiate managing body may adopt decisions if more
than 1/2 members are present at the meeting."
10.5. In the context of the constitutional justice case at
issue, while summing up the said legal regulation linked to the
structure of management of legal persons of various forms and the
competence of the management bodies, it needs to be noted that a
leading office is usually linked with the competence of a certain
management body to give obligatory instructions to other
employees of the legal person or the possibility to form the
directions of activity of the legal person or his structural
unit.
Both one-man subject of management of the legal personthe
head of a company, the director, president of an enterpriseand
the person who manages the collegial body of a legal person, for
example, the chairperson of the board, are to be attributed to
leading persons.
However, in this context it is also necessary to emphasise
the fact that taking account of the today's variety of forms of
establishment and activity of the legal persons and the variety
of the management structure, it would be very difficult to define
a leading office in the legal manner, in addition, it could
create preconditions for the enterprises to manipulate the
management structure in order to avoid liability. Therefore, the
construction of the notion "leading office" from the point of
view of application of criminal liability to the legal persons
must be not a linguistic one, but a systemic one, where several
criteria are applied which help to assess in a complex manner the
role of a concrete natural person for the activity of the legal
person, i.e. the structure of management of the legal person, the
office held by the concrete person, the description of this
office (instruction of the office), and the functions implemented
by him. For example, when the legal person is an enterprise or
organisation of a complex structure, also the heads of divisions
or units of the legal person may be attributed to the leading
persons.
10.6. As it has been mentioned, the natural person specified
in Paragraph 2 of Article 20 of the CC, upon commission of a
criminal deed for which also a legal person may be brought to
criminal liability, in addition to the already discussed feature
of the "leading office", may be described also by the fact that
such natural person, holding a leading office in the legal
person, must have the right either to represent the legal person,
or to adopt decisions on behalf of the legal person, or to
control the activity of the legal person.
10.6.1. It needs to be noted that taking account of the fact
that the said features of a person, who committed a criminal deed
for the benefit or in the interests of the legal person, which
are enumerated in Paragraph 2 of Article 20 of the CC, are
applied only to the person who holds a leading office, in this
case, representation should be understood as non-contractual
representation (i.e. the right to act on behalf of the legal
person is linked to a leading office of the corresponding natural
person).
10.6.2. The right to adopt decisions on behalf of the legal
person means the right to decide questions linked to the activity
of the legal person and his relations with third persons. This
right usually may include the competence to decide the questions
of the structure of the legal person and staff thereof (to employ
and dismiss employees, to define their functions, to establish
the system of payment for work, including incentive measures, to
impose disciplinary punishments on employees, etc.), the
questions linked to the strategy of activity of the legal person
(for example, drawing up business plans) and questions of
management of finance.
10.6.3. The right to control the activity of the legal
person, as well as other features, is to be construed taking
account also of the said provisions of the legal acts which
regulate the competence of the management bodies of the legal
persons of various kinds. This right is linked to the system of
internal control of the legal person, whereby one seeks to ensure
the lawfulness, results, efficiency of the activity of the legal
person, implementation of his strategic goals, effective and
lawful use and accounting of the financial resources, observation
of fulfilment of obligations to the third persons and management
of risk factors linked to all that. Therefore, the control
implemented by the person who holds a leading office inter alia
means the right to control whether the activity of the legal
person is implemented properly, as well as the right to take
certain measures so that the activity would be implemented
properly and that ultimate results of activity would be achieved.
This right includes not only the control of management of results
of the activity and financial resources of the organisation, but
it can also include, for example, control of fulfilment of safety
requirements in the enterprise, etc.
10.7. Paragraph 3 of Article 20 of the CC establishes the
possibility to bring the legal person to criminal liability also
for a deed committed by an employee or an authorised
representative of the legal person, if this deed has been
committed due to insufficient supervision or control of the
person who holds the leading office.
Under Paragraph 3 of Article 20 of the CC, the legal person
may be liable also for the criminal deed committed by the
employee of the legal person or his authorised representative,
however, only in the case where such deed has been committed due
to insufficient supervision or control of the person who holds a
leading office. Differently from the formula "the legal person
shall be liable" used in Paragraph 2 of Article 20 of the CC, the
formula "the legal person may be liable" entrenched in Paragraph
3 of the same article is to be construed as meaning that the
court, in this case deciding the question of criminal liability
of the legal person, must assess the nature of lack of non-
supervision or control of the person who holds a leading office
and the influence thereof on the commission of the criminal deed:
whether the person who holds a leading office did not implement
the functions of supervision and control authorised to him
deliberately or even intentionally, or implemented them
negligently, whether these functions were carried out not
carefully enough and whether that could determine (or even
encourage) the commission of the criminal deed, etc.
The concept of the employee of the legal person is to be
construed referring to the provisions of the Labour Code of the
Republic of Lithuania which regulates the legal labour relations
that define the notion of the employee. Article 15 of the Labour
Code provides that the employee is a natural person possessing
legal capacity and capability in labour relations according to
Article 13 of this code, employed under employment contract for
remuneration. Paragraph 1 of Article 95 of the Labour Code
specifies the necessary conditions of the employment contract on
which the parties must agree, i.e. the employee's place of work
(enterprise, establishment, organisation, structural subdivision,
etc.), and job functions (work in a certain profession,
speciality, qualification, or specific duties).
Thus, while applying Paragraph 3 of Article 20 of the CC,
the employee shall be considered a person, who is linked to a
legal person by labour relations, when it is agreed on the
necessary conditions of the employment contract.
While defining the right of representation by applying
Paragraph 3 of Article 20 of the CC, one should take account of
the provisions of the Civil Code which regulate the relations of
contractual representation, inter alia on the ground of
authorisation or procuracy.
In Article 2.137 of the Civil Code, the following is
established:
"Article 2.137. Power of Attorney
1. Power of attorney shall be a written document granted by
a person (principal) to other person (authorised representative)
to represent the principal in establishing and maintaining
relations with the third persons.
2. An authorised representative whose rights in the power of
attorney are not clearly defined shall enjoy the right to perform
only those actions, which are necessary for the protection of the
principal's property and property interests as well as
supervision of the principal's property."
Article 2.176 of the Civil Code defines the concept of
procuracy: "Procuracy shall be a power of attorney, which a legal
person (entrepreneur) grants to his employee or other person to
perform, in the principal's name and in his interests, all legal
acts related to the legal person's (entrepreneur's) undertaking."
One is also to note the rules of conclusion of contracts by
representatives:
"Article 2.132. Conclusion of Contracts by Representatives
1. Persons shall enjoy the right to conclude contracts
through representatives with the exception of those contracts
which, due to their character, may be concluded only personally
as well as other contracts prescribed by the law.
2. Agency shall be possible on the basis of contract, law
statute, court judgement or an administrative act.
3. Legally capable natural persons as well as legal persons
may act as representatives.
4. Persons who act in their own name although in the
interest of other person shall not be deemed to be
representatives (sales intermediaries, etc.)."
Namely on the contractual representation relations, inter
alia regulated by the said provisions of the Civil Code, should
the concept of the legal person be grounded also by applying
Paragraph 3 of Article 20 of the CC.
10.8. Another condition for criminal liability of the legal
person is commission of a criminal deed individually or on behalf
of the legal person and for the benefit or in the interests of
the legal person. It is important to note that the feature of the
benefit is usually construed as linked to the guarantee of the
material benefit, while the guarantee of the interestsas meaning
the implementation of other (non-material) objectives of the
legal person. It also needs to be noted that this feature helps
to qualify the deed and to establish when the criminal deed
committed by the natural person may be assessed as a criminal
deed of the legal person, i.e. when from this deed, the legal
person has a specific benefit and when he recognises that
benefit, or when the legal person is interested in such deed and
the consequences created by it.
11. Therefore, under the legal regulation established in
Paragraphs 1, 2 and 3 of Article 20 of the CC, the legal person
may be brought to criminal liability on the following conditions:
1) the committed criminal deed falls within the list of
criminal deeds specified in the special part of the CC for which
criminal liability of legal persons is provided for;
2) a) the criminal deed was committed by the natural person
who acted on behalf of the legal person or individually which
holds a leading office in the legal person (depending on the
structure of the legal person, the leading office may be both
one-man management body of the legal personthe head of a
company, the director, president of an enterpriseor a member,
who represents the collegial management body of the legal person,
for example, the chairperson of the board or the head of a
division or a unit) and has the right either to represent the
legal person (it is a non-contractual representation including
the right to act on behalf of the legal person which is linked to
a leading office of the corresponding natural person), or to
adopt decisions on behalf of the legal person (it is the right to
decide questions linked to the activity of the legal person and
relations with the third persons) or to control the activity of
the legal person (it is the right to control whether the activity
of the legal person is implemented properly, as well as the right
to take certain measures so that the activity would be
implemented properly and that ultimate results of activity would
be achieved); b) or the criminal deed was committed by the
natural person who is an employee of the legal person (the person
who is linked to the legal person by labour relations) or an
authorised representative (when the person and the legal person
are linked to each other by the contractual representation
relations grounded on the letter of attorney, procuracy, etc.)
and the deed has been committed due to insufficient supervision
or control of the person who holds a leading office;
3) the criminal deed was committed for the benefit or in the
interests of the legal person (when from the deed committed by
the natural person, the legal person has a specific benefit and
when he recognises that benefit or when the legal person is
interested in such deed and the consequences created by it) or
only for the benefit thereof.
12. The provision of Paragraph 5 (wording of 5 July 2004) of
Article 20 of the CC which is disputed in this constitutional
justice case enshrines the exceptions of application of the
criminal liability for certain legal persons. Under the said
provision of the CC, criminal liability shall not be applied to
the state, the state or municipal institutions and establishments
and international public organisations.
12.1. While construing this exception of criminal liability
of the legal persons provided for in the CC, one must assess the
concepts of the legal persons and their types enshrined in the
laws. As it has been mentioned, Article 2.34 of the Civil Code
enshrines the division of the legal persons into public and
private persons (Paragraph 1); it defines that public legal
persons shall be legal persons established by the state or
municipalities, their institutions or other non-profit-seeking
persons whose goal is to meet public interests (state and
municipality enterprises, state or municipality institutions,
public institutions, religious communities, political parties,
charity and relief funds, etc.) (Paragraph 2); it also defines
the notion of private legal persons: private legal persons shall
be legal persons, which aim at meeting private interests
(Paragraph 3). According to Paragraph 1 of Article 2.35 of the
Civil Code, the state and municipalities shall be legal persons.
12.2. In this context, one should discuss how the notions of
the subjects specified in Paragraph 5 (wording of 5 July 2004) of
Article 20 of the CC for which criminal liability is not applied
are defined.
12.2.1. While construing the constitutional concept of the
state, the Constitutional Court has held in its acts more than
once that the state is an organisation of the entire society
(Constitutional Court rulings of 25 November 2002, 4 March 2003,
30 September 2003, 3 December 2003, 30 December 2003 and 13
December 2004); the power of the state, as a political
organisation of the entire society, covers all the territory of
the state, and it is designated for ensuring human rights and
freedoms and guaranteeing the public interest (Constitutional
Court rulings of 30 December 2003 and 13 December 2004); the
state, when exercising its functions, must act in the interests
of entire society (rulings of 4 March 2003 and 13 December 2004).
12.2.2. In the official constitutional doctrine, the
constitutional concept of local self-government is construed as
self-regulation and self-action of the communities of the
administrative units of state territory, in accordance with the
competence defined by the Constitution and laws, which are
provided for by law (i.e. territorial or local communities), and
which are composed of permanent residents of these units
(citizens of the Republic of Lithuania and other permanent
residents). The Constitutional Court has also held that the
Constitution names communities of state administrative
territorial units (territorial communities) as municipalities (or
local municipalities). However, due to the fact that the right of
self-government is inseparable from the institutions through
which the said right is implemented and/or from the organisation
and activities of the institutions which are accountable to them,
it is not coincidence that the Constitution employs the notion of
"municipality" not only in the sense of the territorial community
of an administrative unit but also in the sense of local self-
government institutions and/or the institutions which are
accountable to them (rulings of 24 December 2002 and 13 December
2004).
12.2.3. In the Constitutional Court ruling of 13 December
2004, it is emphasised that the state exercises its functions
through the system of respective establishments; the system of
state institutions comprises various state institutions; the
notion "state institutions" is of general type and it comprises
various state institutions through which the state exercises its
functions.
12.2.4. While construing the constitutional concept of self-
government institutions in the acts of the Constitutional Court,
it needs to be noted that the right of self-government is
implemented through self-government institutions-municipal
councils; no other self-government institutions, save the
municipal councils, are specified in the Constitution; the notion
"self-government institutions" expresses the constitutional
purpose of corresponding institutions of territorial communities
of administrative units: they are institutions through which the
right of self-government of respective communities is implemented
(rulings of 24 December 2002 and 13 December 2004).
In this context, it needs to be noted that while acting
according to the competence defined by the Constitutions and
laws, while exercising public administration and/or providing
pubic service, the municipalities (their institutions) ensure the
public interest not only of the territorial community, but the
public interest of the entire community of the state-the civil
Nation, which is ensured, according to their competence, by state
institutions as well (Constitutional Court ruling of 13 December
2004).
When summing-up the concepts of the said legal persons, it
needs to be noted that a specific legal status is typical for the
state, municipalities and state and municipal institutions and
establishments: the rights and duties of these subjects may not
be in conflict with the objectives and tasks of the state.
12.2.5. The international public organisation is a subject
of international law. The international public organisations are
defined as permanent formations of intergovernmental (cross-
border) nature which were founded on the basis of an
international agreement in order to help solving international
problems specified in their founding documents as well as to
comprehensively develop international cooperation. The main
features of such organisations are as follows: 1) contractual
basis of international organisation; 2) the members of the
organisations are states; 3) cross-border objectives; 4)
international legal subjectivness; 5) compliance with
international law.
Therefore, the enumerated features describing the specified
public legal personsthe state, the municipality, the state and
municipal institutions and establishments, international public
organisationstestify that these subjects, in comparison with
other public legal persons, are specific ones according to their
legal situation and functions.
13. The content of the said provisions of the Civil Code and
the content of laws which regulate the activity of the legal
persons of various kinds and forms (the Law on Associations, the
State and Municipal Enterprise Law, etc.) reveal that the concept
of the public legal persons includes not only the state,
municipalities, state or municipal institutions and
establishments, but also other legal persons the purpose of which
is to satisfy the public interests, inter alia the state and
municipal enterprises, public establishments, religious
communities, etc. Therefore, not only the state or municipal
institutions and establishments which implement the public
functions commissioned by the state or municipalities fall within
the category of the public legal persons, but also those subjects
which are engaged in economic activities (state and municipal
enterprises), and non-governmental public organisations
(religious communities, public establishments, associations,
charity and relief funds).
Taking account of that, it needs to be noted that not all
the public legal persons are attributed to the legal persons
specified in Paragraph 5 of Article 20 of the CC to whom the
criminal liability is not applied. In this provision of the CC,
the specific legal persons are specifiedthey are to be singled
out from the whole category of the public legal persons according
to the following essential features: they are founded for
implementation of purposes which are important to society (for
implementation of functions of public significance, for provision
and administration of public services) and usually they are not
engaged into economic activity.
14. It has been mentioned that according to the CC, the
legal person shall be liable only for those criminal deeds, for
the commission of which liability is provided for such person in
this code. Therefore, taking account of this fact, it needs to be
noted, for what criminal deeds criminal liability is provided for
legal persons in the CC.
14.1. The CC (wording of 26 September 2000) provides for the
criminal liability of the legal person for the following criminal
deeds: for negligent homicide in violation of the special conduct
security rules as specified by legal acts (Paragraph 3 of Article
132), severe health impairment caused through negligence, when it
is committed in violation of the special conduct security rules
as specified by legal acts (Paragraph 3 of Article 137), unlawful
violation of inviolability of a person's correspondence, other
messages, postal items or telephone conversations (Item 166),
unauthorised disclosure or use of information about a person's
private life (Article 168), incitement against any national,
racial, ethnic, religious or other group of persons (Article
170), unlawful use of energy and communication services (Article
179), swindling (Paragraphs 1 and 2 of Article 182),
misappropriation of property (Paragraphs 1 and 2 of Article 183),
causing property damage by deceit (Paragraph 1 of Article 186),
destruction of or damage to property through negligence
(Paragraph 2 of Article 188), unlawful reproduction of a
literary, scientific, artistic or other work, distribution,
transportation or storage of illegal copies thereof (Article
192), destruction or alteration of information about management
of author's rights or related rights (Article 193), unlawful
removal of technical protection means of author's rights or
related rights (Article 194), violation of industrial property
rights (Article 195), destruction or modification of computer
data (Article 196), destruction or modification of software
(Article 197), appropriation and distribution of computer data
(Article 198), smuggling (Article 199), unlawful failure to bring
goods or products outside the Republic of Lithuania (Article
200), unauthorised engagement in economic, commercial, financial
or professional activities (Article 202), unlawful activities of
a legal entity on a large scale (Paragraph 1 of Article 203), use
of another's trademark or service mark (Article 204), misleading
declaration about the activities of a legal entity (Article 205),
use of a credit or a loan not in accordance with its purpose
(Article 206), credit fraud (Article 207), dishonesty of a debtor
(Article 208), realisation of counterfeit currency or securities
(Paragraph 3 of Article 213), legalisation of money or property
which has been obtained by criminal means (Article 216), trade in
securities by using non-public information (Article 217),
manipulating the price of securities (Article 218), failure to
pay taxes (Article 219), provision of inaccurate data on income,
profit or assets (Article 220), failure to submit declaration
(Article 221), fraudulent management of accounts (Article 222),
negligent management of accounts (Article 223), bribery (Article
225), bribe (Article 227), violation of the rules governing the
storage of a firearm, ammunition, explosives or explosive
materials (Article 255), violation of the rules governing lawful
possession of nuclear or radioactive materials (Article 257),
violation of the regulations governing lawful possession of
psychotropic, highly active or toxic substances (Article 268),
violation of the rules governing environmental protection or the
use of natural resources (Article 270), destruction or
devastation of protected areas or protected natural objects
(Article 271), unauthorised forest cutting (Article 273),
unauthorised pharmaceutical activities (Article 275), production
of or trading in the products harmful to human health or life
(Article 276), violation of the regulations governing control of
epidemics or contagious diseases (Article 277), unlawful
transportation of persons across the state border (Article 292),
organisation of travels of citizens of the Republic of Lithuania
abroad for the purpose of staying there illegally or abandoning
them without assistance (Article 293), forgery of a document or
possession of a forged document (Article 300), forgery of a seal,
stamp or form (Article 301), seizure of a seal, stamp or document
or use of the seized seal, stamp or document (Article 302),
destruction or concealment of a seal, stamp or document (Article
303), provision of false information for the purpose of
acquisition of a document (Article 304), release and use of
measuring devices without undergoing state metrological control
or alteration of parameters thereof (Article 305) and seizure,
forgery or handling of the stamp of a state control mark or the
use of a counterfeit stamp (Article 306).
14.2. On 10 April 2003, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 4, 7, 9, 23,
25, 37, 39, 44, 46, 47, 48, 51, 61, 62, 65, 67, 74, 75, 90, 92,
95, 97, 102, 105, 118, 119, 143, 175, 178, 186, 187, 188, 189,
199, 202, 212, 213, 215, 227, 249, 250, 251, 257, 260, 263, 272,
281 and 291 of the Criminal Code as Approved by Law No. VIII-1968
of 26 September 2000 and Supplementing the Code with Articles 39-
1 and 306-1 which came into force on 1 May 2003. This law inter
alia established the criminal liability of the legal persons also
for the following criminal deeds: acquisition or handling of the
property obtained by criminal means (Paragraphs 1 and 2 of
Article 189), the act of terrorism (Article 250). In addition, by
the said law, the CC (wording of 26 September 2000) was
supplemented with Article 306-1 (forgery, unlawful destruction or
alteration of the number plate of a vehicle), which provided for
the criminal liability also for the legal persons.
14.3. On 29 January 2004, the Republic of Lithuania Law on
Amending and Supplementing Articles 13, 162, 191, 196, 197, 203,
206, 216, 219, 221 and 309 of the Criminal Code and on
Supplementing the Code with Articles 198-1 and 198-2 was adopted,
which came into force on 14 February 2004. By this law, criminal
liability of legal persons was established also for the following
criminal deeds: use of a child for pornography (Article 162),
misappropriation of authorship (Article 191) and possession of
pornographic material (Article 309). In addition, the CC (wording
of 26 September 2000) was supplemented with the following
articles which also provide for criminal liability of legal
persons: with Article 198-1 (unlawful connection to an
information system), and with Article 198-2 (unlawful possession
of installations, software, passwords, login codes and other
data).
14.4. Article 17 of the Republic of Lithuania Law on
Amending and Supplementing Articles 20, 42, 63, 67, 68, 72, 75,
77, 82, 90, 91, 92, 95, 97, 128, 144, 148, 150, 178, 182, 194,
195, 201, 204, 205, 210, 211, 212, 220, 221, 222, 223, 230, 236,
246, 248, 260, 263, 287 and 306 of the Criminal Code and on
Supplementing the Code with Article 228-1, which was adopted by
the Seimas on 5 July 2004 and which came into force on 13 July
2004, established criminal liability of legal persons also for
restriction of freedom of a person's actions (Article 148).
14.5. On 28 October 2004, the Republic of Lithuania Law on
Amending the Title of Chapter XXXVI of the Criminal Code and on
Supplementing the Code with Article 253-1 was adopted, which came
into force on 16 November 2004. By this article, the CC (wording
of 26 September 2000) was supplemented with Article 253-1 titled
"Unauthorised intermediation in the transfer of military
equipment" which provided for also the criminal liability of the
legal persons for this criminal deed.
14.6. On 11 November 2004, the Republic of Lithuania Law on
Supplementing the Criminal Code with Article 250-1 was adopted,
which came into force on 26 November 2004. By this law, the CC
(wording of 26 September 2000) was supplemented with Article 250-
1 titled "Incitement of terrorism" which also provided for
criminal liability of legal persons for this criminal deed.
14.7. On 23 June 2005, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 48, 60, 145,
147, 157, 212, 213, 214, 215, 226, 249, 251, 252, 256, 267, 270,
272, 274 and 280 and the Annex of the Criminal Code and on
Supplementing the Code with Articles 147-1, 199-1, 199-2, 267-1,
270-1 and 308-1 which came into force on 30 June 2005. By this
law, the CC (wording of 26 September 2000) was inter alia
supplemented with the following articles which also provide for
criminal liability of legal persons: Article 147-1 (use for
forced labour), Article 199-1 (deceit of the customs), Article
199-2 (unlawful possession of the goods subject to excise
duties), Article 267-1 (creation or unlawful possession of
biological weapons), Article 270-1 (illicit trade in the
substances depleting the ozone layer) and Article 308-1
(prohibited biomedical research involving a human being or a
human embryo). By this law, the following criminal deeds were
attributed to the crimes for which criminal liability of legal
persons was provided for: threatening to murder or cause a severe
health impairment to a person or terrorisation of a person
(Article 145), trafficking in human beings (Article 147),
purchase or sale of a child (Article 157), production, storage or
handling of counterfeit currency or securities (Article 213),
bribery of an intermediary (Article 226), criminal association
(Article 249), hijacking of an aircraft, ship or fixed platform
on a continental shelf (Article 251), hostage taking (Article
252), unlawful possession of nuclear or radioactive materials or
other sources of ionising radiation (Article 256), unlawful
possession of highly active or toxic substances (Article 267),
illegal hunting or fishing or other use of wild fauna resources
(Article 272), unlawful picking, destruction, handling or other
possession of protected wild plants, fungi or parts thereof
(Article 274) and damage to vehicles or roads, the facilities
located thereon (Article 280).
14.8. On 20 January 2006, the Republic of Lithuania Law on
Amending Articles 300 and 302 of the Criminal Code and on
Supplementing the Code with Article 302-1 was adopted, which came
into force on 11 February 2006. By this law, the CC (wording of
26 September 2000) was supplemented with Article 302-1 titled
"Production, storage, transportation, forwarding or handling of
equipment for the forgery of seals, stamps, documents or special
accounting document forms" which also provided for criminal
liability of legal persons for this activity.
14.9. The Republic of Lithuania Law on Amending and
Supplementing Articles 149, 150, 151, 162, 260, 265, 266, 307,
308 and 309 and the Annex of the Criminal Code and on
Supplementing the Code with Article 151-1 which was adopted on 22
June 2006 and which came into force on 14 July 2006 supplemented
the CC (wording of 26 September 2000) with Article 151-1 titled
"Satisfaction of sexual desires by violating a minor's freedom of
sexual self-determination and/or inviolability", in which also
criminal liability of legal persons was provided for this
criminal deed. By this law also the following criminal deeds are
attributed to the crimes for which criminal liability of legal
persons is provided for: rape of a minor or a young child
(Paragraphs 3 and 4 of Article 149), sexual assault of a minor or
a young child (Paragraphs 3 and 4 of Article 150), sexual abuse
in respect of a minor (Paragraph 2 of Article 151), unlawful
possession of narcotic or psychotropic substances for the purpose
of distribution thereof or unlawful possession of a large
quantity of narcotic or psychotropic substances (Article 260),
illegal cultivation of poppies or hemp (Article 265), unlawful
possession of category I precursors of narcotic or psychotropic
substances (Article 266), gaining profit from another person's
prostitution (Article 307) and involvement in prostitution
(Article 308).
14.10. On 28 June 2007, the Republic of Lithuania Law on
Amending and Supplementing Articles 7, 38, 47, 63, 66, 70, 75,
82, 93, 129, 166, 167, 172, 178, 180, 181, 182, 183, 184, 185,
189, 194, 196, 197, 198, 198-1, 198-2, 199, 202, 213, 214, 215,
225, 227, 228, 231, 233, 235, 252, 256, 257, 262, 284, 285 and
312 and the Annex, on Amending the Titles of Chapters XXVI and
XXX and on Supplementing the Code with Articles 256-1 and 257-1
was adopted, which came into force on 21 July 2007. By this law,
in the CC (wording of 26 September 2000) one inter alia provided
for criminal liability of legal persons for the following
criminal deeds: squandering of property (Paragraphs 1 and 2 of
Article 184), production of a counterfeit electronic means of
payment, forgery of a genuine electronic means of payment or
unlawful possession of an electronic means of payment or data
thereof (Article 214), unlawful use of an electronic means of
payment or data thereof (Article 215), abuse of office (Article
228), hindering the activities of a judge, prosecutor, pre-trial
investigation officer, lawyer or bailiff (Article 231), influence
on a witness, victim, expert, specialist or translator (Article
233). In addition, the CC (wording of 26 September 2000) was
supplemented with the following articles which also provided for
criminal liability of legal persons: Article 256-1 (threat to use
or otherwise influence or unlawfully acquire nuclear or
radioactive materials or other sources of ionising radiation) and
Article 257-1 (production of installations for the production of
explosive materials, explosives or radioactive materials or
development or distribution of production technologies or
specifications thereof).
14.11. Thus, as it is clear from the legal regulation which
enshrines criminal liability of the legal person for the specific
criminal deeds, the legislator expanded the list of criminal
deeds for which legal persons are held criminally liable. Such
expansion of the list was linked inter alia to the objective of
the legislator to harmonise the provisions of the CC with the
requirements which stem from international documents, inter alia
EU law. However, it needs to be noted that the legal regulation
enshrined in the aforementioned articles of the CC is not the
matter of investigation in this constitutional justice case.
15. As it has been mentioned, in this constitutional justice
case one disputes the compliance of Paragraph 4 of Article 43 of
the CC with the Constitution. This provision of the CC is to be
construed referring to the systemic analysis of the disputed
provision in the context of other provisions of the CC, inter
alia of Paragraph 1 of Article 43 and Paragraph 4 (wording of 28
June 2007) of Article 47 of the CC.
15.1. Paragraph 4 of Article 43 of the CC enshrines the
provision that the sanctions of articles of the Special Part of
this code shall not specify the penalties to which legal entities
are subject, in imposing a penalty upon a legal entity, a court
shall refer to the list of punishments specified in Paragraph 1
of this article: fine, restriction of activity of the legal
person, liquidation of the legal person. Therefore, under the
disputed legal regulation, while imposing a punishment on the
legal person, the court must choose one of the punishments
specified in Paragraph 1 of Article 43 of the CC. If a fine is
selected, it is imposed pursuant to Paragraph 4 (wording of 28
June 2007) of Article 47 of the CC, which establishes the size of
the fine established for the legal personup to 50 000 MSLs. It
needs to be noted that the CC does not enshrine any special rules
following which a court would have to establish the size of the
fine imposed on the legal person in a concrete case, which is not
bigger that the specified one.
15.2. In this context it needs to be noted that namely the
specificity of the legal person, as a subject of legal relations,
inter alia penal legal relations, as well as criminal liability,
also determines that the system of punishments established for
him differs from that established for the natural person. Those
punishments which are applied to the natural person such as
restriction of freedom, arrest, public works, deprivation of the
right to work in a certain job may not be objectively imposed on
the legal person. On the other hand, certain punishments provided
for the legal person, for example, liquidation, may not be
imposed on the natural person.
15.3. Neither Article 43 of the CC which provides for the
kinds of punishments imposed on the legal person, nor Article 47
which regulates the rules of imposition of a fine, nor Articles
52 and 53 which correspondingly establish the rules for
application of punishments of restriction of activity and
liquidation of the legal person, provide any criteria under which
a certain punishment must be imposed on the legal person and the
size (if it is a fine) or term and extent (if restriction of
activity is imposed) of that punishment must be established.
However, it does not mean that the legal regulation established
in the said articles of the CC may be construed that the court,
while imposing a punishment on the legal person, may not follow
other norms of the CC and the principles enshrined therein, inter
alia the basic principles of imposition of a punishment (to take
account of the degree of dangerousness of the criminal deed, the
reasons and objectives of the deed, etc.) which are provided for
in Article 54 of the CC. Therefore, by the legal regulation
enshrined in Article 43 of the CC, one does not prohibit the
court from taking account of the basic requirements of imposition
of punishments, inter alia the rules of individualisation of
punishments, the rules of summation of punishments, etc.
16. While speaking about regulation of application of
criminal liability to legal persons, one is also to note certain
legal norms of criminal procedure and implementation of
punishments.
16.1. Article 388 of the Code of Criminal Procedure
provides:
"1. The head or employee of the legal person, or an advocate
authorised by the legal person to be the representative in the
procedure may be the representative of the legal person which is
to be brought to criminal liability.
2. When a letter of attorney to act as the representative in
the procedure is presented, the official of the pre-trial
investigation adopts a decision to recognise the person as the
representative of the legal person.
3. If the legal person delegates an inappropriate person as
representative or does not delegate any representative at all,
the official of the pre-trial investigation shall have the right
to delegate the representative of the legal person by means of a
decision.
4. In the procedure, the representative of the legal person
shall enjoy full rights which are granted by this Code to the
suspect or the accused, as well as shall carry out the duties of
these participants of the procedure."
16.2. Chapter VI of the Code of Execution of Punishments
enshrines the legal regulation of the procedure and conditions of
implementation of punishments of restriction of activity of the
legal person and liquidation of the legal person. Article 27 of
this Code established the following:
"Article 27. Implementation of punishment of restriction of
activity of the legal person
1. The bailiff shall send the inducement paper to implement
the judgment at goodwill to the legal person within seven working
days as from the date of receipt of a copy of the judgment. In
the inducement paper it is specified what activity of the legal
person must be terminated or which unit of the legal person must
be closed and the term is established within which the legal
person must do that.
2. The legal person, having implemented the actions
specified in the inducement paper, must inform the bailiff about
it in writing. The bailiff, having verified the actions done by
the legal person, must draw up an act of execution of the
judgment. The form of this act shall be established by the
Ministry of Justice.
3. If the legal person, due to objective reasons, may not
perform the actions specified in the inducement paper within the
established term, the bailiff shall have the right to extend the
term subsequent to a reasoned request by the legal person. The
ordinance not to extend the term established in the inducement
paper may be appealed against in the local court of the territory
of the bailiff's activity under the procedure established in the
Civil Code.
4. If, within the established term, the legal person does
not implement the actions specified in the inducement paper, the
bailiff or person commissioned by him shall perform the actions
necessary for the judgment.
5. During the whole period of implementation of punishment,
the bailiff himself of through the commissioned person shall
control, how the legal person complies with the restrictions of
activity established in the judgment."
Article 28 of the Code of Execution of Punishments enshrines
the procedure of liquidation of the legal person. It provides:
"Article 28. Execution of punishment of liquidation of the
legal person
1. Within seven working days as from the date of receipt of
a copy of the judgment, the bailiff shall send the inducement
paper to the legal person to terminate all economic, commercial,
financial or professional activity and to close all the units of
the legal person within the term specified in the judgment, as
well as to perform other procedures of liquidation and to strike
the legal person off the register of legal persons. In addition,
in the inducement paper one specifies the term in which the
liquidator of the legal person must be assigned and a plan of
execution of liquidation of the legal person must be prepared if
the bailiff decides so.
2. If the body of the legal person does not assign the
liquidator within the established term, the bailiff or other
person who meets the requirements raised for the liquidator shall
be designated as the liquidator by the ordinance of the bailiff
within up to ten working days.
3. The Civil Code and other legal acts establish the actions
of the body of the legal person and the liquidator in the
execution the liquidation of the legal person. The liquidator
shall announce in public once and shall inform all the creditors
in writing about liquidation of the legal person subsequent to
the court judgment.
4. If the body of the legal person or the liquidator may not
liquidate the legal person within the term established in the
judgment due to objective reasons, the local court of the
territory of the bailiff's activity, upon receipt of the reasoned
request from the legal person or the liquidator and the a
conclusion of the bailiff, shall have the right to extend the
established term."
III
1. It needs to be noted that criminal liability of legal
persons is not a novel of criminal law. Criminal liability of
legal persons is provided for in the penal laws of most European
states, for example, in the Criminal Code of Finland, the Penal
Code of France, the Croatian Law on Liability of Legal Persons
for Criminal Violations, the Prevention of Corruption Act of
Ireland and criminal laws of Portugal and Belgium.
2. It has been mentioned that the consolidation of criminal
liability of the legal person in the CC is linked inter alia to
the objective of the legislator to harmonise the provisions of
the CC with the requirements which stem from international
documents, inter alia EU law. In the context of this
constitutional justice case at issue, the following provisions of
international documents are to be mentioned:
- Article 5 of the International Convention for the
Suppression of the Financing of Terrorism signed on 9 December
1999 (ratified by the Seimas by Law No. IX-1216 of 3 December
2002) provides: each State Party, in accordance with its domestic
legal principles, shall take the necessary measures to enable a
legal entity located in its territory or organised under its laws
to be held liable when a person responsible for the management or
control of that legal entity has, in that capacity, committed an
offence; such liability may be criminal, civil or administrative
(Paragraph 1); such liability is incurred without prejudice to
the criminal liability of individuals having committed the
offences (Paragraph 2); each State Party shall ensure, in
particular, that legal entities liable in accordance with
Paragraph 1 above are subject to effective, proportionate and
dissuasive criminal, civil or administrative sanctions; such
sanctions may include monetary sanctions (Paragraph 3);
- the provisions linked to liability of the legal person
enshrined in Article 10 of the United Nations Convention against
Transnational Organised Crime signed on 13 December 2000 in
Palermo (ratified by the Seimas by Law No IX-794 of 19 March
2002) are essentially analogous to those established in Article 5
of the International Convention for the Suppression of the
Financing of Terrorism;
- Article 18 titled "Corporate Liability" of the Criminal
Law Convention against Corruption signed by the member states of
the Council of Europe and other states on 27 January 1999 in
Strasbourg (ratified by the Seimas by Law No. IX-736 of 25
January 2002) established the following: each Party shall adopt
such legislative and other measures as may be necessary to ensure
that legal persons can be held liable for the criminal offences
of active bribery, trading in influence and money laundering
established in accordance with this Convention, committed for
their benefit by any natural person, acting either individually
or as part of an organ of the legal person, who has a leading
position within the legal person, based on a power of
representation of the legal person; or an authority to take
decisions on behalf of the legal person; or an authority to
exercise control within the legal person; as well as for
involvement of such a natural person as accessory or instigator
in the above-mentioned offences (Paragraph 1); apart from the
cases already provided for in Paragraph 1, each Party shall take
the necessary measures to ensure that a legal person can be held
liable where the lack of supervision or control by a natural
person referred to in Paragraph 1 has made possible the
commission of the criminal offences mentioned in Paragraph 1 for
the benefit of that legal person by a natural person under its
authority (Paragraph 2); liability of a legal person under
paragraphs 1 and 2 shall not exclude criminal proceedings against
natural persons who are perpetrators, instigators of, or
accessories to, the criminal offences mentioned in Paragraph 1
(Paragraph 3);
- in Paragraph A of Item 3 of Chapter I titled "Liability"
of Recommendation No. R (88)18 of the Council of Europe Committee
of Ministers to Member States Concerning Liability of Enterprises
Having Legal Personality for Offences Committed in the Exercise
of their Activities adopted on 20 October 1988, it is recommended
for the Member States to render enterprises criminally liable
taking into account the nature of the offence, the degree of
guilt on the part of the enterprise, the consequences for society
and the need to prevent further offences;
- in Section VI titled "Penal Legislation and Judicial Co-
operation" of Recommendation No. R(2000)11 of the Committee of
Ministers of the Council of Europe of 19 May 2000, in addition to
the necessity to introduce or increase penal sanctions that are
in proportion to the gravity of the offences including custodial
sentence (Item 43), it is inter alia specified that one must
provide for rules governing the liability of legal persons, with
specific penalties (Item 46);
- Item 12 of Appendix 11 of Recommendation No. R(2001)11 of
the Committee of Ministers of the Council of Europe to the Member
States Concerning Guiding Principles on the Fight against
Organised Crime of 19 September 2001 specifies that member states
should ensure that legal persons can be held liable for offences
committed on their behalf and linked to organised crime;
- Article 3 of the Second Protocol of the Convention on the
Protection of the European Communities' Financial Interests drawn
up on the basis of Article K.3 of the Treaty on European Union of
26 July 1995 (ratified by the Seimas by Law No. IX-2021 of 12
February 2004) established the following: each Member State shall
take the necessary measures to ensure that legal persons can be
held liable for fraud, active corruption and money laundering
committed for their benefit by any person, acting either
individually or as part of an organ of the legal person, who has
a leading position within the legal person, based on a power of
representation of the legal person, or an authority to take
decisions on behalf of the legal person, or an authority to
exercise control within the legal person, as well as for
involvement as accessories or instigators in such fraud, active
corruption or money laundering or the attempted commission of
such fraud (Paragraph 1); apart from the cases already provided
for in Paragraph 1, each Member State shall take the necessary
measures to ensure that a legal person can be held liable where
the lack of supervision or control by a person referred to in
Paragraph 1 has made possible the commission of a fraud or an act
of active corruption or money laundering for the benefit of that
legal person by a person under its authority (Paragraph 2);
liability of a legal person under Paragraphs 1 and 2 shall not
exclude criminal proceedings against natural persons who are
perpetrators, instigators or accessories in the fraud, active
corruption or money laundering (Paragraph 3).
It needs to be noted that in the Preamble of the Second
Protocol of this convention the Member States of the European
Union inter alia noted that they sign this protocol "aware that
the financial interests of the European Communities may be
damaged or threatened by acts committed on behalf of legal
persons and acts involving money laundering" and "convinced of
the need for national law to be adapted, where necessary, to
provide that legal persons can be held liable in cases of fraud
or active corruption and money laundering committed for their
benefit that damage or are likely to damage the European
Communities' financial interests."
One is also to note the definition of the notion "legal
person" presented in Item d of Article 1 of the Second Protocol
of this convention: "legal person shall mean any entity having
such status under the applicable national law, except for States
or other public bodies in the exercise of State authority and for
public international organisations";
- Article 39 of the Directive 2005/60/EC of the European
Parliament and of the Council of 26 October 2005 on the
Prevention of the Use of the Financial System for the Purpose of
Money Laundering and Terrorist Financing which regulates the
sanctions provides:
"1. Member States shall ensure that natural and legal
persons covered by this Directive can be held liable for
infringements of the national provisions adopted pursuant to this
Directive. The penalties must be effective, proportionate and
dissuasive.
2. Without prejudice to the right of Member States to impose
criminal penalties, Member States shall ensure, in conformity
with their national law, that the appropriate administrative
measures can be taken or administrative sanctions can be imposed
against credit and financial institutions for infringements of
the national provisions adopted pursuant to this Directive.
Member States shall ensure that these measures or sanctions are
effective, proportionate and dissuasive.
3. In the case of legal persons, Member States shall ensure
that at least they can be held liable for infringements referred
to in paragraph 1 which are committed for their benefit by any
person, acting either individually or as part of an organ of the
legal person, who has a leading position within the legal person,
based on:
a) a power of representation of the legal person;
b) an authority to take decisions on behalf of the legal
person, or
c) an authority to exercise control within the legal person.
4. In addition to the cases already provided for in
paragraph 3, Member States shall ensure that legal persons can be
held liable where the lack of supervision or control by a person
referred to in paragraph 3 has made possible the commission of
the infringements referred to in paragraph 1 for the benefit of a
legal person by a person under its authority."
- Article 9 of Council Regulation (EC) No 2580/2001 of 27
December 2001 on Specific Restrictive Measures Directed against
Certain Persons and Entities with a View to Combating Terrorism
provides that each Member State shall determine the sanctions to
be imposed where the provisions of this regulation are infringed;
such sanctions shall be effective, proportionate and dissuasive.
Article 10 of this regulation provides that this regulation
shall apply to any legal person, group or entity incorporated or
constituted under the law of a Member State (Item 4); to any
legal person, group or entity doing business within the Community
(Item 5);
- In Item 10 of Preamble to the Council Framework Decision
2004/68/JHA of 22 December 2003 on Combating the Sexual
Exploitation of Children and Child Pornography it is noted that
"the specific characteristics of the combat against the sexual
exploitation of children must lead Member States to lay down
effective, proportionate and dissuasive sanctions in national
law. Such sanctions should also be adjusted in line with the
activity carried on by legal persons."
Article 6 of this decision which regulates liability of
legal persons inter alia provides that each Member State shall
take the necessary measures to ensure that legal persons can be
held liable for an offence referred to in Articles 2, 3 and 4
committed for their benefit by any person, acting either
individually or as part of an organ of the legal person, who has
a leading position within the legal person, based on a power of
representation of the legal person, an authority to take
decisions on behalf of the legal person or an authority to
exercise control within the legal person.
Article 7 of this decision which regulates the sanctions
provides:
"1. Each Member State shall take the necessary measures to
ensure that a legal person held liable pursuant to Article 6(1)
is punishable by effective, proportionate and dissuasive
sanctions, which shall include criminal or non-criminal fines and
may include other sanctions such as:
(a) exclusion from entitlement to public benefits or aid;
(b) temporary or permanent disqualification from the
practice of commercial activities;
(c) placing under judicial supervision;
(d) a judicial winding-up order; or
(e) temporary or permanent closure of establishments which
have been used for committing the offence.
2. Each Member State shall take the necessary measures to
ensure that a legal person held liable pursuant to Article 6(2)
is punishable by effective, proportionate and dissuasive
sanctions or measures."
- In Item 6 of the Preamble of the Council Framework
Decision 2005/667/JHA of 12 July 2005 to Strengthen the Criminal-
law Framework for the Enforcement of the Law against Ship-Source
Pollution, it is noted that "due to the specific nature of the
conduct, common penalties with regard to legal persons should be
introduced."
Article 5 of the decision establishes liability of legal
persons for the offences specified in Articles 2 and 3 of this
decision.
Paragraph 1 of Article 6 of this decision, which regulates
the sanctions, provides:
"1. Each Member State shall take the measures necessary to
ensure that a legal person held liable pursuant to Article 5(1)
is punishable by effective, proportionate and dissuasive
penalties. The penalties:
a) Shall include criminal or non-criminal fines, which, at
least for cases where the legal person is held liable for
offences referred to in Article 2, are:
i) of a maximum of at least between EUR 150 000 and EUR 300
000;
ii) of a maximum of at least between EUR 750 000 and EUR 1
500 000 in the most serious cases, including at least the
intentionally committed offences covered by Article 4(4) and (5).
b) may, for all cases, include penalties other than fines,
such as:
i) exclusion from entitlement to public benefits or aid;
ii) temporary or permanent disqualification from engaging in
commercial activities;
iii) placing under judicial supervision;
iv) a judicial winding-up order;
v) the obligation to adopt specific measures in order to
eliminate the consequences of the offence which led to the
liability of the legal person."
3. While summing up the legal regulation enshrined in the
said acts of international law linked to establishment of
liability for legal persons for deeds of criminal nature, it
needs to be noted that the states are obliged or they are
recommended (taking account of the obligation of the legal act)
to establish, for deeds of criminal nature, such sanctions to
legal persons, which would be effective, proportionate and
dissuasive measures. Thus, on the one hand, certain freedom is
left for the states to establish the kind of liability and the
conditions of its application to legal persons taking account of
the specificity of the national law. On the other hand, the main
requirement for the states while establishing the liability and
sanctions to be applied to legal persons is that such sanctions
must be proportionate to the committed violations. In other
words, while establishing liability to legal persons for unlawful
deeds, the states should assess whether these unlawful deeds are
regarded as crimes according to the national law, or whether they
are recognised as offences of different nature (torts,
administrative violations, etc.), and, taking account of that,
apply the corresponding liability and sanctions provided for
these deeds in the national law.
4. It also needs to be noted that certain legal acts of
international law not only enshrine the basic requirements and
principles for establishment of liability of the legal persons
for the deeds of criminal nature, but also regulate the
conditions of application of that liability.
For example, Article 18 of the aforementioned Criminal Law
Convention on Corruption signed by the Member States of the
Council of Europe and other states in Strasbourg on 27 January
1999 provides that legal persons can be held liable for the
criminal offences of active bribery, trading in influence and
money laundering established in accordance with this Convention,
committed for their benefit by any natural person, acting either
individually or as part of an organ of the legal person, who has
a leading position within the legal person, based on a power of
representation of the legal person, an authority to take
decisions on behalf of the legal person or an authority to
exercise control within the legal person. Under Paragraph 2 of
the same article, a legal person can be held liable where the
lack of supervision or control by a natural person referred to in
Paragraph 1 has made possible the commission of the criminal
offences mentioned in Paragraph 1 for the benefit of that legal
person by a natural person under its authority.
It needs to be noted that the provisions of Article 20 of
the CC which are disputed in this constitutional justice case
enshrine an essentially analogous regulation of application of
criminal liability to the legal persons to the one mentioned.
IV
1. In this constitutional justice case the petitioners
request to investigate the compliance of the provisions of the CC
which regulate criminal liability of the legal person with
Paragraphs 1 and 2 of Article 23, Article 29, Article 31 and
Paragraphs 1, 2 and 3 of Article 46 of the Constitution and with
the constitutional principle of a state under the rule of law.
2. The Constitutional Court has held more than once that:
- the striving for an open, just, and harmonious civil
society and a state under the rule of law established in the
Preamble to the Constitution pre-supposes that every individual
and the whole society must be safe from unlawful attempts against
them (Constitutional Court rulings of 8 May 2000 and 16 January
2006);
- crimes are violations of law by which human rights and
freedoms as well as other values protected and defended by the
Constitution are especially grossly violated, negative impact is
made on the living conditions, the subsistence level of people,
and by which the fundamentals of life of the state and society
are encroached upon (Constitutional Court rulings of 8 May 2000,
29 May 2004 and 16 January 2006);
- one of the means for protection of rights and freedoms of
the human being as well as other constitutional values is
criminal liability for criminal deeds (rulings of 10 June 2003
and 4 July 2003);
- the purpose of the state as a political organisation of
the entire society is to ensure human rights and freedoms and to
guarantee the public interest, therefore, while exercising its
functions and acting in the interests of the entire society, the
state has the obligation to efficiently ensure effective
protection of human rights and freedoms, other values protected
and defended by the Constitution, of every individual and the
whole society from inter alia criminal attempts (rulings of 29
December 2004 and 16 January 2006);
- if the state did not resort to proper actions attempting
to prevent crimes, the trust in the state power and laws would be
ruined, disrespect for the legal order and various social
institutes would increase. Therefore, under the Constitution, the
state, as the organisation of the entire society, which must
guarantee the public interest, not only has the right but also an
obligation to resort to various lawful measures, which prevent
crimes and limit and decrease criminality (rulings of 8 May 2000
and 16 January 2006);
- the measures established and applied by the state, which
prevent crimes and limit and decrease criminality must be
efficient (rulings of 8 May 2000 and 16 January 2006);
- in a state under the rule of law the legislator has a
right as well as a duty to legislatively prohibit deeds, by which
essential harm is inflicted upon interests of persons, society or
of the state or which pose threat that such harm will appear; the
laws define as to what deeds are considered crimes and establish
punishment for their commission; by threatening with criminal
punishments, they protect individuals and society from criminal
attempts against them and establish bases on the grounds of which
the persons who have committed crimes are punished in attempt to
correct them (rulings of 8 May 2000, 10 June 2003 and 16 January
2006);
- when regulating the relations linked with the
establishment of criminal liability for criminal deeds, the
legislator enjoys broad discretion, he, inter alia, may, while
taking account of the nature, danger (gravity), scale and other
signs of the criminal deeds, consolidate differentiated legal
regulation and establish different legal liability for
corresponding criminal deeds. However, this discretion of the
legislator is not absolute: the legislator must pay heed to the
norms and principles of the Constitution, inter alia the
imperatives of regularity and inner consistency of the legal
system, which arise from the Constitution (ruling of 16 January
2006).
3. It needs to be noted that the Constitution does not
expressis verbis establish that only a natural person may be a
subject of criminal liability or that a legal person cannot be a
subject of such liability.
It has been mentioned that the specificity of the legal
person is determined inter alia by the fact that having legal
capacity and capability, he is a participant of legal relations
through natural persons (head, authorised representative, etc.).
It has also been mentioned that the activity of the legal person
is inseparable from the activity of the corresponding natural
persons through which he acts and without their activity it would
be essentially impossible. In the context of the constitutional
justice case at issue, it needs to be noted that while
establishing criminal liability of the legal person, the
legislator must take account also of the aforementioned
specificity of the legal person as a subject of legal relations.
The specificity of the legal person also determines the
particularities of application of certain legal institutes of
criminal law to legal persons. In this context it also needs to
be noted that due to such specificity of the legal person, in
comparison with the natural person, one cannot apply certain
norms of criminal law, which are established for the natural
persons to the legal person.
Thus, the specificity of the legal person as a subject of
legal relations is determined by the fact that in the Criminal
Code one may establish a differentiated legal regulation linked
to the criminal liability of the natural person and the legal
person. However, in this context it needs to be noted that, while
regulating also criminal liability of legal persons, the
legislator must heed the norms and principles of the
Constitution, inter alia those enshrined in Article 31 thereof.
4. The following doctrinal provisions linked to the
construction of Article 31 of the Constitution are to be
mentioned in the context of the constitutional justice case at
issue:
- the provisions of Article 31 of the Constitution should be
construed while taking account of the fact that the Constitution
establishes the principle of a state under the rule of law, as
well as that the Constitution consolidates human rights and
freedoms, other constitutional values which must be protected and
defended. One of the means for protection of rights and freedoms
of the human being as well as other constitutional values is
criminal liability for punishable deeds (Constitutional Court
ruling of 10 June 2003);
- when he regulates relations of criminal procedure, the
legislator enjoys rather broad discretion. For instance, the
legislator may establish, by means of a law, different kinds of
criminal procedure, as well as peculiarities of criminal
procedure in the investigation of certain criminal deeds and/or
in the consideration of criminal cases of individual categories,
inter alia different rules of investigation of certain criminal
deeds, the peculiarities of the legal status of participants of
the criminal procedure etc. However, when implementing the said
discretion, the legislator must pay heed to the norms and
principles of the Constitution (Constitutional Court ruling of 16
January 2006);
- the legal regulation of criminal procedure must be based
on the constitutional principles of lawfulness, equality before
the law and the court, presumption of innocence, public and fair
trial, impartiality and independence of the court and the judge,
separation of the functions of the court and other state
institutions (officials) which participate in the criminal
procedure, the guarantee of the right to defence as well as on
other principles (Constitutional Court rulings of 5 February
1999, 8 May 2000, 19 September 2000 and 16 January 2006);
- the presumption of innocence is one of the most important
guarantees of administration of justice in a democratic state
under the rule of law and, alongside, an important guarantee for
human rights and freedoms (Constitutional Court rulings of 12
April 2001, 29 December 2004 and 16 January 2006);
- an important condition to solve the case justly is proper
court process (Constitutional Court rulings of 5 February 1999,
16 January 2006 and 28 May 2008);
- the constitutional principle of a state under the rule of
law implies the right of the person to proper legal process. One
of legal processes is a court process. Thus, from the
constitutional principle of a state under the rule of law arises
also the right of the person to proper court process. Certain
requirements for a court process arise form Paragraph 2 of
Article 31 of the Constitution, too, in which it is established
that a person charged with the commission of a crime shall have
the right to a public and fair hearing of his case by an
independent and impartial court (Constitutional Court ruling of
16 January 2006);
- the principle of the right of the person to a proper court
process entrenched in Paragraph 2 of Article 31 of the
Constitution means, inter alia, that the court must
unconditionally follow the constitutional principles and the
requirements of laws establishing them as regards the equality of
the parties of criminal proceedings before the law and the court,
and be impartial and independent. These are the most important
pre-conditions ensuring that the circumstances of the case be
investigated thoroughly, completely and objectively and the truth
be established, as well as that penal laws be applied correctly
(Constitutional Court rulings of 19 September 2000, 16 January
2006 and 28 May 2008);
- the right of the person to a proper court process, which
is an important condition for a just solution of the case and
which arises from Paragraph 2 of Article 31 of the Constitution
and the principle of a state under the rule of law, means that in
criminal procedure in court one must pay heed to clarity of the
process, the equal rights of participants of the process, their
participation in the procedure of proving, their right to a
translator, the contention and other principles, so that the
circumstances of committing the criminal deed would be
investigated comprehensively, objectively and impartially and a
just decision would be adopted in the criminal case. The
Constitution obliges the legislator to establish, while
regulating the relations of criminal procedure, such legal
regulation so that the rights of participants of criminal
procedure could be ensured as well: the procedure must be such so
that the efficient protection of the rights of the person who has
suffered from the criminal deed and that such person would be
able to make use of all the rights arising from the Constitution.
The criminal procedure must be such so that the constitutional
rights of the person suspected of committing a criminal deed are
not violated: his rights to defence, his right to have an
advocate, his right to know what he is accused of, etc., must be
ensured (Constitutional Court ruling of 16 January 2006);
- Paragraph 2 of Article 31 of the Constitution consolidates
the right of a person to a fair, impartial and independent court.
While construing Paragraph 2 of Article 31 alongside with
Paragraph 4 of this article, according to which punishment may be
imposed or applied only on the grounds established in law, it is
noteworthy in the context of the case under consideration that,
under the Constitution, an independent and impartial court may
not, by considering a case and investigating all circumstances of
a case, impose a punishment by failing to observe the law. It
should be noted that the constitutional right to a fair trial
inter alia means not only that, during the judicial procedure,
principles and norms of law of criminal procedure must be
observed, but also that the punishment established in the penal
law and imposed by the court must be just; the penal law must
provide for all opportunities for the court to impose, while
taking consideration of all circumstances of the case, a just
punishment on the person who committed a criminal deed. The
imposition of an unjust punishment would imply that the right of
a person to a fair trial is violated, consequently, Paragraph 2
of Article 31 of the Constitution and the constitutional
principle of a state under the rule of law are violated as well
(Constitutional Court ruling of 10 June 2003);
- Paragraph 4 of Article 31 of the Constitution according to
which punishment may be imposed or applied only on the grounds
established in law means inter alia that, under the Constitution,
the legislator has the duty to establish by law as to what deeds
are crimes, as well as criminal liability for such deeds. Upon
establishing as to what deeds are crimes, as well as criminal
liability for them, the legislator is bound by the principles of
natural justice and proportionality established by the
Constitution as well as other requirements of a state under the
rule of law. Under the Constitution, the legislator may specify,
by a penal law, only those deeds as crimes which are really
dangerous and by which huge harm is inflicted on the interests of
persons, society and those of the state. Paragraph 4 of Article
31 of the Constitution according to which punishment may be
imposed or applied only on the grounds established in law also
means that the legislator must establish punishments for criminal
deeds and sizes of these punishments by law only; punishments
must be established for each criminal deed. The principle of
natural justice consolidated in the Constitution presupposes that
punishments established by a penal law must be just. The
constitutional principles of justice and a state under the rule
of law imply inter alia that the means which are applied by the
state must be adequate to the sought objective. Thus, punishments
must be adequate to the criminal deeds for which they have been
established; it is not permitted to establish the punishments for
criminal deeds and their sizes which would be obviously
inadequate to the criminal deed and the purpose of the
punishment. Punishments and their sizes must be differentiated in
a penal law, while taking account of the danger of criminal deeds
(Constitutional Court ruling of 10 June 2003);
- the constitutional principle non bis in idem means
prohibition of punishment a second time for the same deed that is
contrary to law, i.e. for the same crime, as well as for the same
violation of law which is not a crime (Constitutional Court
rulings of 7 May 2001, 2 October 2001, 10 November 2005 and 21
January 2008). However, this constitutional principle does not
mean that different kinds of liability may not be applied to the
person for a violation of law (Constitutional Court rulings of 7
May 2001, 10 November 2005 and 21 January 2008). In addition, in
itself, the constitutional principle non bis in idem does not
deny a possibility to apply more than one sanction of the same
kind (i.e. defined by the norms of the same branch of law) to a
person for the same violation, i.e. the main and additional
punishment or the main and additional administrative penalty
(Constitutional Court rulings of 10 November 2005 and 21 January
2008);
- Paragraph 6 of Article 31 of the Constitution provides:
"From the moment of arrest or first interrogation, persons
suspected or accused of a crime shall be guaranteed the right to
defence and legal counsel." This constitutional provision
establishes the right of an individual suspected of commission of
crime and that of the accused to defence. It is one of the
guarantees of protection of human rights and a necessary
condition so that every person who committed a crime would be
justly punished and that an innocent person would not be brought
to criminal responsibility nor punished (Constitutional Court
ruling of 12 April 2001);
- the right of the accused to defence ensured by Paragraph 6
of Article 31 of the Constitution presupposes that fact that the
accused must be guaranteed sufficient procedural means to defend
himself against the brought accusation and that he must have an
opportunity to make use of them. The right of the accused to
defence is one of the guarantees for establishment of the truth
in the case. This right is considered a necessary condition in
implementation of the objective of criminal procedure which is
justly to punish every person who committed a crime and to ensure
that an innocent person would not be brought to criminal
responsibility and convicted. During the judicial investigation
of a case, a guarantee of the right of a person accused of a
crime, which is the equality of the rights of the prosecutor, the
accused, the defence, the victim and his representative, the
civil claimant and respondent, and their representatives, as well
as conformity to the principle of contention, are of importance
(Constitutional Court ruling of 5 February 1999).
5. The provisions of Article 31 of the Constitution are to
be construed also in the context of the imperatives of equal
rights which stem from Article 29 of the Constitution. The
following constitutional doctrinal provisions linked to the
construction of the principle of equality enshrined in Article 29
of the Constitution are to be mentioned:
- the constitutional principle of equality of persons should
be applied not only to natural, but also to legal persons
(Constitutional Court rulings of 28 February 1996, 18 April 1996,
23 February 2000, 6 December 2000, 17 November 2003 and 26
January 2004);
- this provision of Article 29 of the Constitution enshrines
formal equality of all persons. The constitutional principle of
equality of all persons before the law requires that in law the
main rights and duties be established equally to all
(Constitutional Court rulings of 18 April 1994, 30 June 2000, 23
September 2008, 24 December 2008 and 2 March 2009);
- this constitutional principle of equality of all persons
must be followed in the course of enactment of laws and their
application. This principle does not deny a possibility to
provide in a law for different legal regulation in respect to
certain categories of persons who are in different situations
(Constitutional Court rulings of 23 April 2002, 4 July 2003, 3
December 2003, 26 September 2007, 24 December 2008 and 2 March
2009);
- the constitutional principle of equality of all persons
before the law would be violated 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 (Constitutional Court rulings of 20
November 1996, 30 December 2003, 13 December 2004, 26 September
2007, 24 December 2008 and 2 March 2009);
- while assessing whether an established different legal
regulation is a grounded one, concrete legal circumstances must
be taken into account. First of all, differences of the legal
situation of subjects and objects to which different legal
regulation is applied must be considered (Constitutional Court
rulings of 28 February 1996, 13 November 1997, 4 July 2003, 24
December 2008 and 2 March 2009). The compliance of a concrete
legal norm with Article 29 of the Constitution may be assessed
only by taking into account all significant circumstances
(Constitutional Court rulings of 4 July 2003, 24 December 2008
and 2 March 2009);
- when relations of criminal procedure are regulated, one
must pay heed to the constitutional principle of equal rights of
persons; the constitutional principle of equal rights of persons
must be followed in passing of laws and in their implementation
as well as in administration of justice; under the Constitution,
the legal regulation must be such so that participants of
criminal procedure who enjoy the same procedural status (the
victims, the persons suspected of commission of the criminal
deed, the accused, witnesses, counsel for the defence etc.) would
be treated equally (Constitutional Court ruling of 16 January
2006).
In this context it also needs to be noted that the
constitutional principle of equal rights must be heeded also in
those cases, when by means of a law one regulates the questions
linked to the subjects of criminal liability. It also needs to be
noted that certain objective differences of the corresponding
subjects of criminal liability may also determine a
differentiated legal regulation of their criminal liability.
However, while establishing a differentiated legal regulation,
one must heed the norms and principles of the Constitution.
6. The provisions of Article 31 of the Constitution are also
inseparable from the requirements which stem from Articles 23 and
46 of the Constitution. In the context of the constitutional
justice case at issue, one is to note the following doctrinal
statements formulated in the acts of the Constitutional Court
which are linked to the interpretation of the constitutional
imperatives of protection of the rights of ownership and
regulation of economic activity:
- the inviolability of ownership should not be treated as
absolute: "Neither the Constitution nor universally recognised
international legal norms deny a possibility to establish by laws
certain limits on management, use or disposal of one's property.
Meanwhile, such restrictions may not deny the essence of the
ownership right" (Constitutional Court rulings of 13 December
1993, 6 May 1997, 10 July 1997, 1 October 1997 and 1 June 1998);
- under the Constitution, the right of ownership is not
absolute, it can be limited by means of a law due to the
character of the object of ownership, due to committed deeds,
which are contrary to law, and/or due to the need which is
necessary to the society and constitutionally grounded. When one
limits the rights of ownership, in all cases the following
conditions must be followed: it may be limited only by invoking
the law; the limitations must be necessary in a democratic
society in order to protect the rights and freedoms of other
persons, the values established in the Constitution and the
objectives which are necessary to society and which are
constitutionally grounded; one must pay heed to the principle of
proportionality (Constitutional Court ruling of 14 March 2006);
- various sanctions, including proprietary ones, are imposed
for performed transgressions of law: a fine, confiscation of
property, etc. A fine, as well as confiscation of property, is
seizure of property from the transgressor and its conversion into
state property due to his transgression of law. It means that
protection of property for the person who has transgressed law
narrows to the limits as specified by the sanction. Such a
provision may be derived from the Constitution, as well as
international legal acts which have been ratified by Lithuania
and which are a constituent part of the system of law of
Lithuania. Such a standpoint regarding restriction of the
ownership rights is considered acceptable also under Article 1 of
Protocol No. 1 of the European Convention of Human Rights. It is
established therein that states shall have the right to enforce
such laws as they deem necessary to control the use of property
in accordance with the general interest or to secure the payment
of taxes or other contributions or penalties (Constitutional
Court ruling of 8 April 1997);
- a conclusion is to be drawn from the analysis of the
content of Articles 23 and 28 of the Constitution that it is
possible to establish by law restriction of the ownership rights,
as well as property sanctions for violations of law. However,
this must not deny the essence of the right to property
(Constitutional Court ruling of 8 April 1997);
- the principles set down in Article 46 of the Constitution
constitute a whole, which is the constitutional basis of the
economy of this country. The principles are in harmony with each
other, and this pre-supposes their balance, therefore each of
them must be interpreted without denying another constitutional
principle (Constitutional Court rulings of 6 October 1999, 17
March 2003 and 2 March 2009);
- the freedom of individual economic activity and initiative
inter alia implies freedom of conclusion of contracts, freedom of
fair competition, opportunities to restructure economic entities
without restrictions, to change the character of their activity,
not to obstruct establishment of new economic entities or
liquidate the existing ones when one reacts to changes in the
market; it is inseparable from an opportunity of a person, who is
willing to engage in an economic activity or, conversely, who is
willing to drop it, to get into the market without artificial
barriers and to abandon it without artificial barriers
(Constitutional Court rulings of 13 May 2005 and 31 May 2006).
However, freedom of economic activity is not absolute, the person
makes use of it only by following certain obligatory requirements
and limitations (Constitutional Court rulings of 20 April 1995,
18 October 2002, 14 March 2002, 9 April 2002, 13 May 2005 and 31
May 2006);
- the provision that the state shall support economic
efforts and initiative that are useful to society (Paragraph 2 of
Article 46 of the Constitution) constitutes constitutional legal
preconditions for inter alia differentiated legal regulation of
economic activity, the main criterion whereof is the common
welfare of the Nation, it also implies the duty of the state and
municipal institutions and officials by no decisions or actions
to hinder the expression and development of the initiative or
economic efforts of persons, if this initiative or economic
efforts are not harmful to society, even if their benefit to
society is not evident (Constitutional Court ruling of 31 May
2006).
In the context of the constitutional justice case at issue,
it needs to be noted that under the Constitution, inter alia
Article 31 thereof and according to the principle of a state
under the rule of law, the legislator, while regulating the
relations linked to criminal liability of the legal person, must
establish such legal regulation so that the court, while deciding
the question of criminal liability of the legal person, inter
alia the question of imposition of punishment on him, could take
account of all the circumstances, inter alia the circumstances
which increase or decrease the dangerousness of the criminal deed
committed by the legal person. In this context it needs to be
noted that the specificity of the legal person, as a subject of
legal relations (inter alia the fact that the legal person has an
independent structure and is a participant of the legal relations
through certain natural persons) also implies that the law may
recognise also such circumstances as circumstances increasing or
decreasing the dangerousness of the criminal deed committed by
the legal person, which normally may not be regarded as
circumstances increasing or decreasing the dangerousness of the
criminal deed committed by the natural person. For example, the
dangerousness of the criminal deed committed by the legal person
may be determined by the politics of activity of the legal
person, its strategy, organisational culture, etc. For example,
the dangerousness of the criminal deed committed by the legal
person is assessed in one way when the policy of activity of the
legal person and its organisational structure were targeted so
that the legal person could not act criminally, while it is
assessed in another way, when the strategy of activity of the
legal person and its internal procedures create preconditions for
the legal person to act in a criminal manner (or are even
oriented so that the legal person would act in a criminal
manner), when the legal person recognises the results of the
criminal deed committed for his benefit ex post facto, etc.
It also needs to be noted that the existence or non-
existence of the said circumstances in the criminal deed
committed by the legal person may be of crucial importance for
exoneration of the legal person from the criminal liability.
V
On the compliance of Paragraphs 1, 2 and 3 (wording of 26
September 2000) of Article 20 of the Labour Code with Articles 29
and 31 of the Constitution and with the constitutional principle
of a state under the rule of law.
1. As it has been mentioned, the petitioners inter alia
request to investigate, whether Paragraphs 1, 2 and 3 of Article
20 of the CC are not in conflict with Article 31 of the
Constitution.
2. Paragraphs 1, 2 and 3 of Article 20 of the CC provide:
"1. A legal person shall be held liable solely for the
criminal deeds the commission whereof is subject to liability of
a legal person as provided for in the Special Part of this Code.
2. A legal person shall be held liable for the criminal
deeds committed by a natural person solely where a criminal deed
was committed for the benefit or in the interests of the legal
person by a natural person acting independently or on behalf of
the legal person, provided that he, while holding a leading
office in the legal person, was entitled:
1) to represent the legal person, or
2) to take decisions on behalf of the legal person, or
3) to control activities of the legal person.
3. A legal person may be held liable for criminal deeds also
where they have been committed by an employee or authorised
representative of the legal person as a result of insufficient
supervision or control by the person indicated in Paragraph 2 of
this Article."
3. It has been mentioned that the legal regulation
established in Paragraphs 1, 2 and 3 of Article 20 of the CC
means that the legal person may be brought to criminal liability
under the following conditions: the committed criminal deed falls
within the list of criminal deeds specified in the special part
of the CC for which criminal liability of legal persons is
provided for; the criminal deed was committed by the natural
person who acted on behalf of the legal person or individually
which has the following features: holds a leading office in the
legal person (depending on the structure of the legal person, the
leading office may be both one-man management body of the legal
personthe head of the company, the director, president of the
enterpriseor a member, who represents the collegial management
body of the legal person, for example, the chairperson of the
board or the head of a division or unit) and has the right either
to represent the legal person (it is a non-contractual
representation including the right to act on behalf of the legal
person which is linked to a leading office of the corresponding
natural person), or to adopt decisions on behalf of the legal
person (it is the right to decide questions linked to the
activity of the legal person and relations with the third
persons), or to control the activity of the legal person (it is
the right to control whether the activity of the legal person is
implemented properly, as well as the right to take certain
measures so that the activity would be implemented properly and
that ultimate results of activity would be achieved) or the
criminal deed was committed by the natural person who is an
employee of the legal person (the person who is linked to the
legal person by labour relations) or an authorised representative
(when the person and the legal person are linked to each other by
the contractual representation relations grounded on the letter
of attorney, procuracy, etc.) and the deed has been committed due
to insufficient supervision or control of the person who holds a
leading office; the criminal deed was committed for the benefit
or in the interests of the legal person (when from the deed
committed by the natural person, the legal person has a specific
benefit and when he recognises that benefit or when the legal
person is interested in such deed and the consequences created by
it) or only for the benefit thereof.
4. The provisions of Paragraphs 1, 2 and 3 of Article 20 of
the CC are inseparable, therefore, in this constitutional case,
one will investigate not the compliance of each provision with
the Constitution individually, but the compliance of the overall
legal regulation enshrined in them with the Constitution.
5. The petitioners ground their doubts regarding the
compliance of Paragraphs 1, 2 and 3 of Article 20 of the CC with
Paragraphs 1 of Article 31 of the Constitution (in which it is
established that a person shall be presumed innocent until proved
guilty according to the procedure established by law and declared
guilty by an effective court judgement) upon the fact that, under
the disputed legal regulation, according to the petitioners, the
legal person is brought to criminal liability for the criminal
deeds committed by another (natural) person, thus the principle
of presumption of innocence is violated.
In this context it needs to be noted that the Constitutional
Court has emphasised more than once that the presumption of
innocence is one of the most important guarantees of
administration of justice in a democratic state under the rule of
law and, alongside, an important guarantee for human rights and
freedoms (Constitutional Court rulings of 12 April 2001, 29
December 2004 and 16 January 2006).
6. As it has already been held, the necessary condition of
criminal liability of the legal person according to Paragraphs 2
and 3 of Article 20 of the CC is the fact that the natural person
commits a criminal deed for the benefit or in the interests of
the legal person. It has also been held that this feature helps
to establish when a criminal deed committed by a natural person
may be assessed as a criminal deed of a legal person, i.e. when
from this deed the legal person has a specific benefit and when
he recognises that benefit or when the legal person is interested
in such deed and the consequences created by it.
The specificity of the legal person as the subject of a
criminal deed, i.e. the fact that he is an independent subject of
legal relations having legal capacity and capability, independent
name, organisational integrity, that his property is separated
from the property of his participants, however, that he is a
participant of legal relations through the natural persons who
act on his behalf, also implies specificity of his guilt. The
guilt of the legal person is to be linked to the guilt of the
natural person who acts for the benefit or in the interests of
the legal person. Thus, by the legal regulation established in
Paragraphs 1, 2 and 3 of Article 20 of the CC, one does not
create preconditions for the legal person's liability without
guilt.
7. Thus, such legal regulation established in Paragraphs 1,
2 and 3 of Article 20 of the CC, under which the liability of the
legal person is linked to the criminal deed committed by the
natural person, does not mean that the guilt of the legal person
should not be proved according to the procedure established by
law and recognised by an effective court judgement.
Taking account of the arguments set forth, one is to draw a
conclusion that by the legal regulation established in Paragraphs
1, 2 and 3 of Article 20 of the CC, one does not create
preconditions to violate the requirement of the presumption of
innocence which stems from Article 31 of the Constitution.
8. The doubts of the petitioners regarding the compliance of
Paragraphs 1, 2 and 3 of Article 20 of the CC with Paragraph 2 of
Article 31 of the Constitution, in which it is established that a
person charged with the commission of a crime shall have the
right to a public and fair hearing of his case by an independent
and impartial court, are grounded upon the fact that under the
disputed legal regulation, according to the petitioners, the
guilt for the criminal deed committed by another subject is
shifted to the legal person and he is brought to criminal
liability and sentenced for the criminal deed that was committed
by someone else. In addition, according to the petitioners, it
means that the question of application of criminal liability of
the legal person directly depends on the result of the defence of
the natural person from the accusations brought to him.
As it has been mentioned, it was held in the Constitutional
Court ruling of 10 June 2003 that the constitutional right to a
fair trial inter alia means not only that during the judicial
procedure principles and norms of law of criminal procedure must
be observed, but also that the punishment established in the
penal law and imposed by the court must be just; the penal law
must provide for all opportunities for the court to impose, while
taking consideration of all circumstances of the case, a just
punishment on the person who committed a criminal deed.
In the context of this constitutional justice case at issue,
it needs to be noted that the constitutional right to a fair
trial also means that when the court decides the question of
criminal liability, one must determine all the conditions to
apply criminal liability, which are provided for in the law,
inter alia the guilt of a person, who is brought to criminal
liability, for the commission of a crime.
In this context it also needs to be noted that the
specificity of the legal person, as a subject of legal relations
and a subject of liability, also determines the fact that the
activity of the legal person is inseparable from the activity of
the natural person which acts on behalf of that legal person,
therefore, the guilt of the legal person is also linked to the
criminal deed of the natural person which acts on behalf of and
for the benefit or in the interests of the legal person.
As it has already been held, the legal regulation
established in Paragraphs 1, 2 and 3 of Article 20 of the CC,
under which the liability of the legal person is linked to the
criminal deed committed by the natural person, does not mean that
the guilt of the legal person should not be proved according to
the procedure established by law and recognised by an effective
court judgement.
According to the disputed legal regulation, the legal person
is brought to criminal liability only if his guilt for the
incriminated criminal deeds is proven. Thus, by the legal
regulation established in Paragraphs 1, 2 and 3 of Article 20 of
the CC, one does not prevent an independent and impartial court
from investigating the case of the legal person who is accused of
commission of a crime.
9. In the opinion of the petitioners, the provisions of
Paragraphs 1, 2 and 3 of Article 20 of the CC are in conflict
with Paragraph 3 of Article 31 of the Constitution, in which it
is established that it shall be prohibited to compel one to give
evidence against himself, his family members or close relatives,
in the aspect that the disputed legal regulation creates
preconditions to bring the legal person to criminal liability for
the criminal deed committed by the natural person who meets the
features established in Article 20 of the CC about which the
legal person reported himself.
The legal regulation enshrined in Paragraph 3 of Article 31
of the Constitution is virtually linked to the features and legal
situation of the natural person as a subject of legal relations.
Only a natural person may be a subject of the family or kinship
legal relations. The legal person who is not a participant of the
family or kinship legal relations may not be a subject of
compelling to give evidence against his family members or close
relatives. Therefore, Paragraph 3 of Article 31 of the
Constitution regulates the legal relations (linked to the
situation of a natural person in the procedure of application of
criminal liability) of different nature than those which are
regulated by the disputed provisions of Paragraphs 1, 2 and 3 of
Article 20 of the CC which are linked to criminal liability of a
legal person.
It also needs to be noted that the legal regulation
established in Paragraph 3 of Article 31 of the Constitution may
not be construed as meaning that the natural person may not
voluntarily (i.e. without anybody compelling him) give evidence
against himself, members of his family or close relatives.
Thus, in itself, the legal person's report about the
criminal deed of a natural person, even if the legal person is
brought to criminal liability afterwards, may not be assessed as
violation of the prohibition enshrined in Paragraph 3 of Article
31 of the Constitution.
The legal regulation enshrined in Paragraphs 1, 2 and 3 of
Article 20 of the CC may not be construed as permitting to compel
to give evidence against oneself, one's family members or close
relatives.
Taking account of the arguments set forth, it needs to be
held that the legal regulation established in Paragraphs 1, 2 and
3 of Article 20 of the CC does not create preconditions to
violate the prohibition enshrined in Paragraph 3 of Article 31 of
the Constitution.
10. The petitioners ground their doubts regarding the
compliance of Paragraphs 1, 2 and 3 of Article 20 of the CC with
Paragraph 4 of Article 31 of the Constitution (in which it is
established that punishment may be imposed or applied only on the
grounds established by law) upon the fact that, under the
disputed legal regulation, according to the petitioners, the
legal person is brought to criminal liability for the criminal
deeds committed by another (natural) person, i.e. when in the
activity of the legal person the features of criminal deed for
which criminal liability is provided for in the law are not
established. Therefore, in the opinion of the petitioners, the
legal person is brought to criminal liability and punished by
failing to follow the rules provided for in the law.
As it has been mentioned, it was held in the Constitutional
Court ruling of 10 June 2003 that Paragraph 4 of Article 31 of
the Constitution, according to which punishment may be imposed or
applied only on the grounds established in law, means inter alia
that, under the Constitution, the legislator has the duty to
establish by law as to what deeds are crimes, as well as criminal
liability for such deeds; upon establishing as to what deeds are
crimes, as well as criminal liability for them, the legislator is
bound by the principles of natural justice and proportionality
established by the Constitution as well as other requirements of
a state under the rule of law; under the Constitution, the
legislator may specify, by a penal law, only those deeds as
crimes which are really dangerous and by which huge harm is
inflicted on the interests of persons, society and those of the
state.
While deciding, whether Paragraphs 1, 2 and 3 of Article 20
of the CC are not in conflict with Paragraph 4 of Article 31 of
the Constitution, it needs to be noted that, as it has been
mentioned, the legal person is a specific subject of legal
relations inter alia in the aspect that he is a participant of
legal relations through natural persons. It has also been
mentioned that the specificity of the legal person also
determines the particularities of application of certain legal
institutes of criminal law to legal persons.
In this context it needs to be noted that such specificity
of the legal person implies also the establishment of the
corresponding grounds and conditions for his criminal liability
in the CC, inter alia the fact that, under the CC, criminal
liability of the legal person appears only when a natural person,
who has certain features that relate him to the legal person,
commits a criminal deed for the benefit or in the interests (or
only for the benefit) of the legal person. Thus, if one wishes to
bring the legal person to criminal liability, it is necessary to
establish whether the corresponding criminal deed was committed
by the natural person. Therefore, the legal regulation enshrined
in Paragraphs 1, 2 and 3 of Article 20 of the CC may not be
regarded as meaning that the legal person may be held liable also
when the criminal deed is not established.
It has been mentioned that Paragraph 4 of Article 31 of the
Constitution enshrines the constitutional requirements inter alia
for defining criminal deeds, establishment of punishment and its
imposition.
It has also been mentioned that Paragraphs 1, 2 and 3 of
Article 20 of the CC enshrine the grounds of criminal liability
of the legal person and the conditions for its application: it is
defined for what criminal deeds the legal person shall be liable
(Paragraph 1), the conditions for application of criminal
liability for legal persons are established (Paragraphs 2 and 3).
These provisions of the CC do not regulate the questions linked
to definition of criminal deeds and imposition of punishment. The
legal relations linked to the imposition of punishment on the
legal person are regulated in Article 43 of the CC, Paragraph 4
of Article 47, Article 53, Paragraph 5 of Article 67, Article 72
thereof, etc. The criminal deeds are defined in Articles 10, 11
and 12 of the CC and in the articles of the special part of the
CC.
Taking account of the arguments set forth, there is no legal
ground to state that Paragraphs 1, 2 and 3 of Article 20 of the
CC are in conflict with Paragraph 4 of Article 31 of the
Constitution.
11. In the opinion of the petitioners, the legal regulation
established in Paragraphs 1, 2 and 3 of Article 20 of the CC are
also in conflict with Paragraph 5 of Article 31 of the
Constitution, in which it is established that no one may be
punished for the same crime a second time. The petitioners ground
their doubts regarding the compliance of the disputed provisions
with Paragraph 5 of Article 31 of the Constitution upon the fact
that according to the meaning of the disputed provisions, the
legal person is brought to criminal liability if the natural
person is brought to criminal liability and this means that two
persons are brought to criminal liability and punished for the
same crime.
It has been mentioned that while construing Paragraph 5 of
Article 31 of the Constitution, the Constitutional Court held
that the constitutional principle non bis in idem means
prohibition of punishment a second time for the same deed that is
contrary to law, i.e. for the same crime, as well as for the same
violation of law which is not a crime. However, this
constitutional principle does not mean that different kinds of
liability may not be applied to the person for a violation of
law. In addition, in itself, the constitutional principle non bis
in idem does not deny a possibility to apply more than one
sanction of the same kind (i.e. defined by the norms of the same
branch of law) to a person for the same violation, i.e. to apply
the main and additional punishment or the main and additional
administrative penalty.
While construing the constitutional principle enshrined in
Paragraph 5 of Article 31 of the Constitution in the context of
this constitutional justice case, it needs to be noted that the
principle non bis in idem means that it is prohibited to punish
the same person a second time for the same criminal deed,
however, this constitutional principle does not deny a
possibility to bring two or more persons whose guilt is proved to
criminal liability.
As it has already been held, while bringing to criminal
liability the natural person for the commission of a deed which
was committed by a natural person, who has certain defined
features and the legal person who is recognised guilty of the
fact that the natural person with certain defined features
committed the criminal deed for the benefit (or in the interests)
of the legal person, two different subjectsthe natural person
and the legal personare brought to criminal liability for one
deed. Therefore, the natural person and the legal person, as
subjects of criminal liability, may not be identified.
Therefore, the legal regulation enshrined in Paragraphs 1, 2
and 3 of Article 20 of the CC does not create preconditions to
violate the prohibition established in Paragraph 5 of Article 31
of the Constitution.
12. The doubts of the petitioners regarding the compliance
of Paragraphs 1, 2 and 3 of Article 20 of the CC with Paragraph 6
of Article 31 of the Constitution, in which it is established
that a person suspected of the commission of a crime and the
accused shall be guaranteed, from the moment of their detention
or first interrogation, the right to defence as well as the right
to an advocate, are grounded upon the fact that, under the
disputed legal regulation, the question of application of
criminal liability of the legal person directly depends on the
realisation of the right to defence of the natural person who
purportedly committed a criminal deed, i.e. the only way of
defence of the legal person from the accusations brought to him
is proving that the natural person is not guilty.
As it has been mentioned, the right of the accused to
defence ensured by Paragraph 6 of Article 31 of the Constitution
implies that the accused must be guaranteed sufficient procedural
means to defend himself against the brought accusation and that
he must have an opportunity to make use of them. The right of the
accused to defence is one of the guarantees for establishment of
the truth in the case. This right is regarded as a necessary
condition in implementation of the objective of the criminal
procedure, which is justly to punish every person who committed a
crime and to ensure that an innocent person would not be brought
to criminal responsibility and convicted.
Thus, Paragraph 6 of Article 31 of the Constitution
enshrines the guarantees which are applied in the criminal
procedure both to the suspect and the accused.
In this context it needs to be noted that Paragraphs 1, 2
and 3 of Article 20 of the CC do not regulate the relations
linked to the right of the suspect or the accused to defence. In
Lithuanian legal system, the relations linked to the right of the
suspect or the accused to defence are regulated not in the CC,
but in other legal acts, inter alia the Code of Criminal
Procedure. The provisions of other legal acts, inter alia the
Code of Criminal Procedure, are not subject of investigation in
this constitutional justice case.
Therefore, in itself, the legal regulation established in
Paragraphs 1, 2 and 3 of Article 20 of the CC may not be assessed
as violating the requirements which stem from Paragraph 6 of
Article 31 of the Constitution.
13. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraphs 1, 2 and 3 of Article 20 of the
CC are not in conflict with Article 31 of the Constitution.
14. It was mentioned that the petitioners inter alia request
to investigate whether Paragraphs 1, 2 and 3 of Article 20 of the
CC are not in conflict with Article 29 of the Constitution.
While assessing the disputed legal regulation in the aspect
of its compliance with Article 29 of the Constitution, it needs
to be noted that two essential groups of arguments are to be
singled out in the petitions of the petitioners, upon which the
doubts regarding the compliance of Paragraphs 1, 2 and 3 of
Article 20 of the CC with Article 29 of the Constitution are
grounded, i.e. different treatment of grounds for application of
criminal liability with regard to the legal persons and natural
persons (according to the petitioners, the legal person is
brought to criminal liability for the criminal deed of other
(natural) person, while the natural person, according to the
penal laws, is brought to criminal liability only for the
criminal deed that he committed himself and only if he is guilty)
and procedural non-equality (application of criminal liability to
the legal person depends on the defence results of the natural
person who is suspected of commission of a criminal deed).
14.1. While assessing the disputed legal regulation in the
first aspect specified by the petitioners, it needs to be noted
that, as it has already been mentioned, the Constitutional Court
has held more than once that the constitutional principle of
equality of persons enshrined in Article 29 of the Constitution
should be applied not only to natural, but also to legal persons
(rulings of 28 February 1996, 18 April 1996, 23 February 2000, 6
December 2000, 17 November 2003 and 26 January 2004).
It has also been mentioned that in the acts of the
Constitutional Court it has been held more than once:
constitutional principle of equality of all persons must be
followed in the course of enactment of laws and their
application; this principle does not deny a possibility to
provide in a law for different legal regulation in respect to
certain categories of persons who are in different situations;
while assessing whether an established different legal regulation
is a grounded one, concrete legal circumstances must be taken
into account; first of all, differences of the legal situation of
subjects and objects to which different legal regulation is
applied must be considered; the compliance of a concrete legal
norm with Article 29 of the Constitution may be assessed only by
taking into account all significant circumstances.
It has also been mentioned that the constitutional principle
of equal rights must be heeded also in those cases, when by means
of a law one regulates the questions linked to the subjects of
criminal liability; certain objective differences of the
corresponding subjects of criminal liability may also determine a
differentiated legal regulation of their criminal liability.
It has been mentioned in this Constitutional Court ruling
that the legal person is a specific subject of legal relations;
according to his features, the legal person as a subject of legal
relations, inter alia that of penal relations, is different from
the natural person as a subject of legal relations, inter alia
penal relations; the legal situation of legal persons and natural
persons is different.
In this context, it also needs to be noted that the legal
regulation enshrined in Paragraphs 1, 2 and 3 of Article 20 of
the CC, whereby the legal person shall be held liable only when
the corresponding natural person commits a crime for the benefit
or in the interests (or only for his benefit) of the legal
person, may not be interpreted as meaning that the legal person
shall be held liable without guilt. The aforementioned
specificity of the legal person as a subject of the legal
relations (the fact that the activity of the legal person is
inseparable from the activity of the natural person through which
the legal person acts) also implies that in this case the guilt
of the legal person for commission of a crime is inseparable from
the guilt of the natural person through which the legal person
acts, which, in a certain aspect, determines the content of guilt
of the legal person for the criminal deed committed for his
benefit.
14.2. While assessing the disputed legal regulation in the
second aspect (procedural non-equality) specified by the
petitioners, it needs to be noted that Paragraphs 1, 2 and 3 of
Article 20 of the CC do not regulate the relations of criminal
procedure. These relations are regulated by the Code of Criminal
Procedure.
In this context one is to mention the provision of Paragraph
4 of Article 388 of the CCP that "in the procedure, the
representative of the legal person shall enjoy all the rights
which are granted by this Code to the suspect and the accused, as
well as shall perform the duties of participants of this
procedure."
It also needs to be noted that the norms of the CCP, inter
alia Paragraph 4 of Article 388 of the CCP, are not the matter of
investigation in this constitutional justice case.
Taking account of the arguments set forth, it needs to be
held that the legal regulation established in Paragraphs 1, 2 and
3 of Article 20 of the CC which enshrines criminal liability of
legal persons does not violate the principle of equal rights of
persons which is enshrined in Article 29 of the Constitution.
15. The petitioners also request to investigate the
compliance of Paragraphs 1, 2 and 3 of Article 20 of the CC with
the constitutional principle of a state under the rule of law.
The petitioners ground their doubts regarding the compliance of
the disputed provisions with this principle on the same arguments
as their doubts regarding the compliance of those provisions with
Articles 29 and 31 of the Constitution. According to the
petitioners, the fact that the disputed legal regulation violates
the requirements which stem from Articles 29 and 31 of the
Constitution at the same time means that the constitutional
principle of a state under the rule of law is violated.
In this ruling it has been held that the legal regulation
enshrined in Paragraphs 1, 2 and 3 of Article 20 of the CC is not
in conflict with Articles 29 and 31 of the Constitution.
Therefore, there are no sufficient arguments to state that the
said disputed regulation is in conflict with the constitutional
principle of a state under the rule of law.
Taking account of the arguments set forth, one is to draw a
conclusion that Paragraphs 1, 2 and 3 of Article 20 of the CC are
not in conflict with the constitutional principle of a state
under the rule of law.
VI
On the compliance of Paragraph 5 (wording of 5 July 2004) of
Article 20 of the Criminal Code with Paragraphs 1 and 2 of
Article 23 of the Constitution, Paragraph 1 of Article 29,
Paragraphs 1, 2 and 4 of Article 31, Paragraphs 1, 2 and 3 of
Article 46 thereof and with the constitutional principle of a
state under the rule of law.
1. As it has been mentioned, Paragraph 5 (wording of 5 July
2004) of Article 20 of CC provides that ,under the CC, the state,
the municipality, the state and the municipal institution and
establishment and international public organisation shall not be
liable. Thus, under the legal regulation established in Paragraph
5 of Article 20 of the CC, certain public legal persons are
singled out which may not be brought to criminal liability.
2. The petitioners ground their doubts regarding the
compliance of Paragraph 5 (wording of 5 July 2004) of Article 20
of the CC with the constitutional principles of a state under the
rule of law and equality before the law upon the fact that in
this provision of the CC one unreasonably provides for a
different criminal liability of economic entities, when
individual economic entities, in violation of the constitutional
imperatives of a state under the rule of law and equal rights of
persons which stem from the Constitution, are totally exempted
from criminal liability.
The petitioners ground the incompliance of Paragraph 5
(wording of 5 July 2004) of Article 20 of the CC with the
provisions of Articles 23, 31 and 46 of the Constitution upon the
fact that the constitutional principles of a state under the rule
of law and equal rights are violated. Thus, one will first of all
decide whether Paragraph 5 (wording of 5 July 2004) of Article 20
of the CC is not in conflict with the constitutional principle of
a state under the rule of law and with the principle of equal
rights of persons which is enshrined in Paragraph 1 of Article 29
of the Constitution.
3. While deciding whether Paragraph 5 (wording of 5 July
2004) of Article 20 of the CC is not in conflict with the
constitutional principle of a state under the rule of law and
with the principle of equal rights of persons which is enshrined
in Paragraph 1 of Article 29 of the Constitution, it needs to be
noted that:
- as it has been mentioned, the constitutional principle of
equality of all persons must be followed in the course of
enactment of laws and their application. This principle does not
deny a possibility to provide, in a law, for different legal
regulation in respect to certain categories of persons who are in
different situations;
- it has been mentioned that the constitutional principle of
equality of all persons before the law would be violated 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;
- it has also been mentioned that, while assessing whether
an established different legal regulation is a grounded one,
concrete legal circumstances must be taken into account. First of
all, differences of the legal situation of subjects and objects
to which different legal regulation is applied must be
considered. The compliance of a concrete legal norm with Article
29 of the Constitution may be assessed only by taking into
account all significant circumstances;
- it has been mentioned that the subjects specified in
Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC
certain public legal persons as the state, a municipality, a
state and municipal institution and establishment, international
public organisationwhich may not be held liable, are specific
according to their legal situation and functions in comparison
with other public legal persons which may be brought to criminal
liability;
- therefore, the legal situation of the public legal
personsthe state, a municipality, a state and municipal
institution and establishment, international public
organisationwhich are enumerated in Paragraph 5 (wording of 5
July 2004) of Article 20 of the CC, is different in comparison
with the legal situation of other public legal persons. Between
these public legal persons there are differences of such nature
and size that different treatment thereof in the aspect that some
of them may be brought to criminal liability while others may not
is objectively justifiable;
- there are no legal arguments to state that Paragraph 5
(wording of 5 July 2004) of Article 20 of the CC is in conflict
with the constitutional principles of a state under the rule of
law and equal rights of persons.
4. Taking account of the arguments set forth, one is to draw
a conclusion that Paragraph 5 of Article 20 of the CC is not in
conflict with the constitutional principles of equal rights and a
state under the rule of law.
5. While deciding whether Paragraph 5 (wording of 5 July
2004) of Article 20 of the CC is in conflict with Paragraphs 1
and 2 of Article 23 of the Constitution, it needs to be noted
that:
- as it has been mentioned, the inviolability and protection
of property enshrined in Article 23 of the Constitution, inter
alia Paragraphs 1 and 2 thereof, inter alia mean that the owner
has the right to perform any actions with the property which
belongs to him, save those prohibited by the law, to use his
property and to determine its destiny in any way which does not
violate the rights and freedoms of other persons; the owner has
the right to demand that other persons would not violate his
rights of ownership, and the state has the duty to defend and
protect property against unlawful encroachment upon it. It has
also been mentioned that the provision of Paragraph 2 of Article
23 of the Constitution inter alia means that laws must protect
the rights of ownership of all owners;
- the legal regulation established in Paragraph 5 (wording
of 5 July 2004) of Article 20 of the CC under which certain
public legal persons may not be brought to criminal liability may
not be construed as meaning that it regulates legal relations
linked to inviolability and protection of property;
- thus, Paragraph 5 (wording of 5 July 2004) of Article 20
of the CC regulates the relations of different nature than those
regulated in Paragraphs 1 and 2 of Article 23 of the
Constitution;
- therefore, the said legal regulation may not be regarded
as violating the imperatives of inviolability and protection of
property which stem from Article 23 of the Constitution, inter
alia Paragraphs 1 and 2 thereof.
6. Taking account of the arguments set forth, one is to draw
a conclusion that Paragraph 5 of Article 20 of the CC is not in
conflict with Paragraphs 1 and 2 of Article 23 of the
Constitution.
7. While deciding whether Paragraph 5 (wording of 5 July
2004) of Article 20 of the CC is not in conflict with Paragraphs
1, 2 and 3 of Article 46 of the Constitution, it needs to be
noted that:
- as it has been mentioned, the principles enshrined in
Article 46 of the Constitution, inter alia Paragraphs 1, 2 and 3
of this article, constitute a whole, which is the constitutional
basis of the economy of this country;
- it has also been mentioned that Paragraph 1 of Article 46
of the Constitution defines the basis of the economy of the
Nation which is constituted of the following values: the right of
private ownership, freedom of individual economic activity and
initiative. Paragraph 2 of Article 46 enshrines one of the main
rules of regulation of the economy of this country. Paragraph 3
of Article 46 enshrines the constitutional principle which
defines the purposes, directions, ways and limits of regulation
of the economic activity;
- Paragraph 5 (wording of 5 July 2004) of Article 20 of the
CC does not regulate the relations linked to economic activity
and to the economy of the country in generalthis provision of
the CC regulates the relations linked to the criminal liability
of certain public legal persons;
- thus, Paragraph 5 (wording of 5 July 2004) of Article 20
of the CC regulates the relations of different nature than those
regulated in Paragraphs 1, 2 and 3 of Article 46 of the
Constitution.
8. Taking account of the arguments set forth, one is to draw
a conclusion that Paragraph 5 of Article 20 of the CC is not in
conflict with Paragraphs 1, 2 and 3 of Article 46 of the
Constitution.
9. While deciding whether Paragraph 5 (wording of 5 July
2004) of Article 20 of the CC is not in conflict with Paragraphs
1, 2 and 4 of Article 31 of the Constitution, it needs to be
noted that:
- as it has been mentioned, Paragraph 1 of Article 31 of the
Constitution enshrines the principle of presumption of innocence
which means that a person shall be presumed innocent until proved
guilty according to the procedure established by law and declared
guilty by an effective court judgement. Paragraph 2 of Article 31
of the Constitution enshrines the principle of the right of the
person, inter alia who is charged with the commission of a crime,
to a proper court process. From Paragraph 4 of Article 31 of the
Constitution, a duty stems for the legislator to establish by law
what deeds are criminal as well as criminal liability for these
deeds;
- thus, the imperatives which stem from Paragraphs 1, 2 and
4 of Article 31 of the Constitution are applied inter alia while
regulating legal relations linked to the rights of a person, who
is charged with the commission of a criminal deed, and to the
consolidation of criminal liability for commission of criminal
deeds in a law;
- Paragraph 5 (wording of 5 July 2004) of Article 20 of the
CC does not regulate the relations linked to the rights of a
person, who is charged with the commission of a criminal deed,
and to the establishment of criminal liability for commission of
criminal deeds; on the contrary, Paragraph 5 of Article 20 of the
CC specifies the corresponding public legal persons which,
according to the CC, may not be subjects of criminal liability;
- thus, Paragraph 5 (wording of 5 July 2004) of Article 20
of the CC regulates the relations of different nature than those
regulated in Paragraphs 1, 2 and 4 of Article 31 of the
Constitution.
10. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 5 (wording of 5 July 2004) of
Article 20 of the CC is not in conflict with Paragraphs 1, 2 and
4 of Article 31 of the Constitution.
VII
On the compliance of Paragraph 4 (wording of 26 September
2000) of Article 43 of the Criminal Code with Paragraph 1 of
Article 29 and Paragraph 4 of Article 31 of the Constitution and
with the constitutional principle of a state under the rule of
law.
1. Paragraph 4 of Article 43 of the CC provides that the
punishments imposed on legal persons are not specified in the
sanctions of the articles of the special part of this code and
that while imposing a punishment on the legal person, the court
follows the list of punishments established in the first
paragraph of this article.
2. The petitioners ground their doubts regarding the
compliance of Paragraph 4 of Article 43 of the CC with Paragraph
1 of Article 29 and Paragraph 4 of Article 31 of the Constitution
and with the constitutional principle of a state under the rule
of law upon the fact that in the disputed provision of the CC,
the legislator does not specify the criteria, under which one
should impose a punishment on the legal person, choose its kind
and size, inter alia the criteria for establishment of the size
of a fine, as a punishment, are also not regulated.
3. While deciding, whether Paragraph 4 of Article 43 of the
CC is not in conflict with Paragraph 4 of Article 31 of the
Constitution and with the constitutional principle of a state
under the rule of law, it needs to be noted that:
- as it has been mentioned, Paragraph 4 of Article 31 of the
Constitution according to which punishment may be imposed or
applied only on the grounds established in law also means that
the legislator must establish punishments for criminal deeds and
sizes of these punishments by law only; punishments must be
established for each criminal deed; the penal law must provide
for all opportunities for the court to impose, while taking
consideration of all circumstances of the case, a just punishment
on the person who committed a criminal deed;
- it has also been mentioned that imposition of an unjust
punishment would imply that the constitutional principle of a
state under the rule of law is also violated;
- it has been mentioned that the requirements of clarity,
accuracy, consistency and inner non-contradiction of the legal
regulation inter alia stem from the constitutional principle of a
state under the rule of law;
- the Criminal Code, inter alia Articles 43, 47, 52 and 53
thereof, provides for the punishments and their sizes with
respect to legal persons for criminal deeds;
- it has been mentioned that the fact that Article 43 of the
CC, inter alia Paragraph 4 thereof, does not specify the criteria
under which the kind of punishment and its size for the legal
person should be chosen does not mean in itself that the court is
prevented from, having taken account of all the circumstances of
the case and referring to other provisions of the CC which
enshrine the purpose of the punishment, the general requirements
for imposition of punishments, inter alia the rules for
individualisation of punishments and summation of punishments,
etc., to impose a just punishment upon the legal person who has
committed a criminal deed.
Thus, in itself, the legal regulation enshrined in Paragraph
4 of Article 43 of the CC may not be assessed as violating the
imperatives which stem from Paragraph 4 of Article 31 of the
Constitution and from the constitutional principle of a state
under the rule of law.
4. Taking account of the arguments set forth, one is to draw
a conclusion that Paragraph 4 of Article 43 of the CC is not in
conflict with Paragraph 4 of Article 31 of the Constitution and
with the constitutional principle of a state under the rule of
law.
5. Having held that Paragraph 4 of Article 43 of the CC is
not in conflict with Paragraph 4 of Article 31 of the
Constitution and with the constitutional principle of a state
under the rule of law, there is also no legal ground to state
that Paragraph 4 of Article 43 of the CC is in conflict with the
principle of equal rights which is enshrined in Paragraph 1 of
Article 29 of the Constitution.
6. Taking account of the arguments set forth, one is to draw
a conclusion that Paragraph 4 of Article 43 of the CC is not in
conflict with Paragraph 1 of Article 29 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 Paragraphs 1, 2 and 3 (wording of 26
September 2000, Official Gazette Valstybės žinios, 2000, No. 89-
2741) of Article 20 of the Criminal Code of the Republic of
Lithuania are not in conflict with the Constitution of the
Republic of Lithuania.
2. To recognise that Paragraph 5 (wording of 5 July 2004,
Official Gazette Valstybės žinios, 2004, No. 108-4030) of Article
20 of the Criminal Code of the Republic of Lithuania is not in
conflict with the Constitution of the Republic of Lithuania.
3. To recognise that Paragraph 4 of Article 43 (wording of
26 September 2000, Official Gazette Valstybės žinios, 2000, No.
89-2741) of the Criminal Code of the Republic of Lithuania is not
in conflict with the Constitution of the Republic of Lithuania.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis