THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON THE PETITION OF A GROUP OF MEMBERS OF THE SEIMAS OF
THE REPUBLIC OF LITHUANIA, THE PETITIONER, REQUESTING TO
INVESTIGATE WHETHER PARAGRAPHS 1 AND 2 OF ARTICLE 16 AND
ARTICLE 21 OF THE REPUBLIC OF LITHUANIA LAW ON POLICE
ACTIVITIES (WORDING OF 17 OCTOBER 2000) AND ARTICLE 187
(WORDING OF 13 DECEMBER 2007) OF THE CODE OF
ADMINISTRATIVE VIOLATIONS OF LAW OF THE REPUBLIC OF
LITHUANIA ARE NOT IN CONFLICT WITH THE CONSTITUTION OF
THE REPUBLIC OF LITHUANIA
2 July 2010
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis,
Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the procedural sitting of the Constitutional Court
considered the petition (No. 1B-37/2010) of a group of Members of
the Seimas of the Republic of Lithuania, the petitioner,
requesting to investigate whether Paragraphs 1 and 2 of Article
16 and Article 21 of the Republic of Lithuania Law on Police
Activities (wording of 17 October 2000) and Article 187 (wording
of 13 December 2007) of the Code of Administrative Violations of
Law of the Republic of Lithuania, to the extent of their
regulation, are not in conflict with Paragraph 2 of Article 3,
Paragraph 2 of Article 5 and Article 18 of the Constitution of
the Republic of Lithuania and the constitutional principle of a
state under the rule of law.
The Constitutional Court
has established:
1. A group of Members of the Seimas, the petitioner,
requests to construe "whether:
- Paragraphs 1 and 2 of Article 16 and Article 21 of the
Republic of Lithuania Law on Police Activities (No.: VIII-2048,
Official Gazette Valstybės žinios, 2000, No. 90-2777; 2002, No.
54-2116; 2003, No. 42-1910; 2003, No. 104-4643; 2006, No. 60-
2118; 2009, No. 130-5637), to the extent of their regulation, are
not in conflict with the constitutional principle of a state
under the rule of law and Paragraph 2 of Article 3, Paragraph 2
of Article 5 and Article 18 of the Constitution of the Republic
of Lithuania;
- Article 187 of the Code of Administrative Violations of
Law of the Republic of Lithuania (Official Gazette Valstybės
žinios, 1985, No. 1-1; 1992, No. 21-610; 1994, No. 58-1132; 1999,
No. 106-3061; 2000, No. 22-552; 2000, No. 41-1164; 2000, No. 92-
2866; 2002, No. 33-1252; 2005, No. 137-4911; 2006, No. 102-3937;
2007, No. 138-5641), to the extent of its regulation, is not in
conflict with the constitutional principle of a state under the
rule of law and Paragraph 2 of Article 3, Paragraph 2 of Article
5 and Article 18 of the Constitution."
2. Paragraphs 1 and 2 of Article 16 of the Law on Police
Activities (wording of 17 October 2000) prescribe:
"1. This and other laws shall grant the police official the
right to demand, when implementing police tasks, that persons who
are not directly subordinate to him carry out his lawful orders
and to use coercion in the case of their non-compliance or
resistance.
2. When exercising the powers granted to them, police
officials shall observe only the law. Law-based demands of police
officials shall be obligatory to all natural and legal persons.
Persons shall be held liable for non-compliance with such demands
in the manner prescribed by the law."
3. Article 21 of the Law on Police Activities (wording of 17
October 2000) prescribes:
"1. The police official must:
1) respect and protect human dignity, ensure and safeguard
human rights and freedoms;
2) upon receiving a report concerning a criminal deed or
other violation of law that is being committed or upon witnessing
such a deed, take urgent measures to stop the criminal deed or
other violation of law that is being committed, to protect the
scene and evidences of the crime, to detect, apprehend and bring
to police quarters a person who has committed a deed prohibited
by the law, and inform the police agency about this. The
requirements of this item (save the requirement to inform the
police agency about the aforesaid deed) shall not apply to the
police official in the cases when the performing of such duties
would in essence obstruct the fulfilment of tasks of the special
competence police agency;
3) guarantee the rights and legitimate interests of persons
who have been apprehended or brought to police quarters and
provide urgent assistance to victims of law violations and
persons who are in a helpless state;
4) take all possible measures to save the property of an
individual, the State, public organisations and other
organisations in the event of a natural calamity, a catastrophe,
accidents, or other emergency situations;
5) refrain from divulging information of a confidential
nature, unless the execution of service-related duties requires
otherwise.
2. The police official must also perform other duties
provided for by the law.
3. The police official must identify himself when performing
service-related duties. In the event that the police official
does not have any distinguishing police marks (special dress
(uniform) or a special official emblem) or upon a personal
request, the police official must present his official
identification card."
4. Article 187 (wording of 13 December 2007) of the Code of
Administrative Violations of Law prescribes:
"Resistance against a police official, Public Security
Service official or police supporter who carry out the duties of
the protection of public order that are commissioned to them
shall incur a fine from LTL five hundred to LTL one thousand
or an administrative arrest from fifteen to thirty days.
Non-compliance with a lawful order or demand of an official
of the police or of the Special Investigation Service, the State
Border Guard Service, the Public Security Service, the Financial
Crime Investigation Service under the Ministry of the Interior of
the Republic of Lithuania, the VIP Protection Department under
the Ministry of the Interior, and the State Security Department,
as well as the insult to the honour and dignity of the said
officials, conveyed by words or body gestures, insulting
behaviour, harassment or other behaviour,
shall incur a fine from LTL three hundred to LTL five
hundred or an administrative arrest from fifteen to thirty days.
Non-compliance with a lawful demand of a police official to
arrive at police quarters
shall incur a fine from LTL one hundred to LTL two hundred.
Walking or driving across, also pulling down or breaking a
special police ribbon or other barrier with the note STOP POLICE,
which limits the perimeter of the area of an accident,
shall incur a fine from LTL one hundred to LTL three
hundred."
The Constitutional Court
holds that:
1. The group of Members of the Seimas, the petitioner, has
doubts inter alia as to the compliance (in the aspect of the
extent of regulation) of Paragraphs 1 and 2 of Article 16 and
Article 21 of the Law on Police Activities (wording of 17 October
2000) with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and
Article 18 of the Constitution and the constitutional principle
of a state under the rule of law.
2. The petitioner disputes the fact which, in its opinion,
is not provided for in Paragraphs 1 and 2 of Article 16 and
Article 21 of the Law on Police Activities (wording of 17 October
2000), but which, according to the petitioner, ought to be
provided for therein. According to the petitioner, the disputed
provisions of the law contain a legal gapa legislative
omissionprohibited by the Constitution, since they do not
prescribe that:
- "the official who does not perform the duties of the
police official may not at the same time issue lawful orders and
demands that are obligatory for persons to comply with";
- "persons shall be under no obligation to comply with
unlawful orders of police officials".
While disputing the compliance of the provisions of the Law
on Police Activities with the Constitution, the petitioner
invokes inter alia the fragments of the official constitutional
doctrine formulated in the Constitutional Court decision of 8
August 2006: "<...> a legal gap, inter alia legislative omission,
always means that the legal regulation of corresponding social
relations is established neither explicitly, nor implicitly,
neither in the said legal act (part thereof), nor any other legal
acts, even though there exists a need for legal regulation of
these social relations, while the said legal regulation, in the
case of legislative omission, must be established, while heeding
the imperatives of the consistency and inner uniformity of the
legal system stemming from the Constitution and taking account of
the content of these social relations, precisely in that legal
act (precisely in that part thereof), since this is required by a
certain legal act of higher power, inter alia the Constitution
itself."
The petitioner also maintains that, in its opinion,
Paragraph 2 of Article 3 of the Constitution "gives each citizen
the right to refuse to comply with demands of the officials who
encroach on the independence, territorial integrity and
constitutional order of the State of Lithuania"; one of the legal
consequences of Paragraph 2 of Article 5 of the Constitution "is
that the powers of officials which are not provided for in the
Constitution and laws are contrary to the Constitution; one is
under no obligation to comply with unlawful demands of officials
"; one of the legal consequences of Article 18 of the
Constitution "is that the demands of officials whereby innate
human rights are denied are unlawful and are not to be complied
with".
3. It needs to be noted that Paragraph 1 of Article 16 of
the Law on Police Activities (wording of 17 October 2000)
provides that the police official has the right to demand that
persons who are not directly subordinate to him carry out his
lawful orders, while Paragraph 2 of this article provides that,
when exercising the powers granted to them, police officials
observe the law.
Thus, the legal regulation established in Paragraphs 1 and 2
of Article 16 of the Law on Police Activities (wording of 17
October 2000) virtually also means that persons are under no
obligation to comply with unlawful demands and orders of police
officials.
4. Consequently, a conclusion is to be made that the legal
regulation, proposed by the petitioner, that "persons are under
no obligation to comply with unlawful orders of police officials
", which, according to the petitioner, must be set in Paragraphs
1 and 2 of Article 16 of the Law on Police Activities (wording of
17 October 2000), is virtually entrenched in Paragraphs 1 and 2
of Article 16 of the legal act indicated in the petition of the
petitioner.
Thus, the matter of investigation, to the aforesaid extent,
is absent in the request of the petitioner.
5. It needs to be mentioned that Article 21 of the Law on
Police Activities (wording of 17 October 2000), the compliance of
which with the Constitution is doubted by the petitioner as well,
sets duties of the police official, as, for instance: to respect
and protect human dignity; to ensure and safeguard human rights
and freedoms; upon receiving a report concerning a criminal deed
or other violation of law that is being committed, to take urgent
measures to stop the criminal deed or other violation of law that
is being committed; to obligatorily identify himself when
performing service-related duties. Thus, Article 21 of the Law on
Police Activities (wording of 17 October 2000) is not designed to
regulate the relations connected with the duties of other persons
(not police officials) to carry out lawful or unlawful orders of
officials or not to carry them out. Consequently, there is not
any legal ground to maintain that the legal regulation, mentioned
by the petitioner, that "persons are under no obligation to
comply with unlawful orders of police officials" must be
entrenched precisely in Article 21 of this law. The
Constitutional Court has held that "in the cases when the
petitioner disputes the fact that the law or another disputed
legal act (part thereof) indicated by the petitioner does not
establish certain legal regulation, but the said legal
regulation, under the Constitution (or also under the laws in
case one disputes a substatutory legal act (part thereof) of the
Seimas, the Government or the President of the Republic), need
not be established precisely in that particular disputed legal
act (part thereof), the Constitutional Court holds that in the
case on the request of the petitioner the matter of investigation
is absent" (Constitutional Court ruling of 13 May 2003).
Thus, with respect to the aforesaid request of the
petitioner the matter of investigation is absent as well.
6. It has been mentioned that, in the opinion of the group
of Members of the Seimas, the petitioner, in Paragraphs 1 and 2
of Article 16 and Article 21 of the Law on Police Activities
(wording of 17 October 2000) it must be provided that "the
official who does not perform the duties of the police official
may not at the same time issue lawful orders and demands that are
obligatory for persons to comply with".
7. In this Constitutional Court decision it has been
mentioned that Paragraphs 1 and 2 of Article 16 and Article 21 of
the Law on Police Activities (wording of 17 October 2000) are
designed to regulate the relations of a different nature and that
the legal regulation indicated by the petitioner, under the
Constitution, need not be established precisely in the
aforementioned articles of the said law. It has also been
mentioned that "in the cases when the petitioner disputes the
fact that the law or another disputed legal act (part thereof)
indicated by the petitioner does not establish certain legal
regulation, but the said legal regulation, under the Constitution
(or also under the laws in case one disputes a substatutory legal
act (part thereof) of the Seimas, the Government or the President
of the Republic), need not be established precisely in that
particular disputed legal act (part thereof), the Constitutional
Court holds that in the case on the request of the petitioner the
matter of investigation is absent" (Constitutional Court ruling
of 13 May 2003).
Thus, also in the aforesaid respect, the matter of
investigation is absent in the petition of the petitioner.
8. The absence of the matter of investigation in the
petition of the petitioner means that the petition is not within
the jurisdiction of the Constitutional Court (Constitutional
Court decisions of 6 May 2003 and 13 May 2003, ruling of 13 May
2004, decision of 8 August 2006, rulings of 20 December 2007, 20
March 2008 and 5 November 2008) and it may not be accepted for
consideration (Constitutional Court decisions of 31 January 2007
and 14 October 2008).
9. Paragraph 1 of Article 69 of the Law on the
Constitutional Court prescribes that, by means of its decision,
the Constitutional Court shall refuse to consider petitions to
investigate the compliance of a legal act with the Constitution
if the consideration of the petition does not fall under the
jurisdiction of the Constitutional Court (Item 2).
10. Taking account of the arguments set forth, one is to
refuse to accept the petition of the group of Members of the
Seimas, the petitioner, requesting to investigate whether
Paragraphs 1 and 2 of Article 16 and Article 21 of the Law on
Police Activities (wording of 17 October 2000) are not in
conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5
and Article 18 of the Constitution and the constitutional
principle of a state under the rule of law, for consideration.
11. The group of Members of the Seimas, the petitioner inter
alia requests investigation into whether Article 187 (wording of
13 December 2007) of the Code of Administrative Violations of
Law, to the extent of its regulation, is not in conflict with
Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Article 18
of the Constitution and the constitutional principle of a state
under the rule of law.
12. In the opinion of the group of Members of the Seimas,
the petitioner, by means of the legal regulation established in
Article 187 (wording of 13 December 2007) of the Code of
Administrative Violations of Law, one has left a legal gapa
legislative omissionprohibited by the Constitution, since,
according to the petitioner, in Article 187 (wording of 13
December 2007) of the Code of Administrative Violations of Law it
must be provided that "the official who does not perform the
duties of the police official may not at the same time issue
lawful orders and demands that are obligatory for persons to
comply with" as well as that "persons are under no obligation to
comply with unlawful orders of police officials".
It needs to be noted that the disputed Article 187 (wording
of 13 December 2007) of the Code of Administrative Violations of
Law sets administrative liability of persons for: resistance
against officials who carry out the duties of the protection of
public order that are commissioned to them; non-compliance with a
lawful order or demand of an official; the insult to the honour
and dignity of an official, non-compliance with a lawful demand
of a police official to arrive at police quarters; walking or
driving across, also pulling down or breaking a special police
ribbon or other barrier with the note STOP POLICE, which limits
the perimeter of the area of an accident.
13. Consequently, Article 187 (wording of 13 December 2007)
of the Code of Administrative Violations of Law is designed to
regulate the relations of a different nature and there is not any
ground to maintain that the legal regulation aforementioned by
the petitioner must be established precisely in the said article
of the Code of Administrative Violations of Law. It has also been
mentioned that "in the cases when the petitioner disputes the
fact that the law or another disputed legal act (part thereof)
indicated by the petitioner does not establish certain legal
regulation, but the said legal regulation, under the Constitution
(or also under the laws in case one disputes a substatutory legal
act (part thereof) of the Seimas, the Government or the President
of the Republic), need not be established precisely in that
particular disputed legal act (part thereof), the Constitutional
Court holds that in the case on the request of the petitioner the
matter of investigation is absent" (Constitutional Court ruling
of 13 May 2003).
Thus, in the petition of the petitioner the matter of
investigation, to the said extent, is absent.
14. Attention also needs to be drawn to the fact that the
liability of officials inter alia is regulated by Paragraph 2
(wording of 18 July 1994) of Article 14 of the Code of
Administrative Violations of Law, wherein it is prescribed:
"Officials shall be brought to administrative liability for
the administrative violations of law that are related with
execution of their duties indicated in the first paragraph of
this article, also for the violations that are related with non-
observance of the established rules for administration order,
state and public order, environment, protection of the residents'
health, etc., ensuring the observance of which constitutes a
service-related duty of officials."
15. As the Constitutional Court has held in its acts more
than once, the constitutional principle of a state under the rule
of law, Paragraph 1 of Article 30 of the Constitution as well as
other provisions of the Constitution give rise to the imperative
that a person, who believes that his rights or freedoms have been
violated, enjoys an absolute right to an independent and
impartial courtan arbiterwhich would settle the dispute
(Constitutional Court decision of 8 August 2006 and rulings of 21
January 2008, 22 January 2008 and 15 March 2008). Under the
Constitution, it is not allowed to establish any such legal
regulation which would create preconditions to restrict, let
alone deny, the powers of the court to administer justice and
which would deny the right of a person, who thinks that his
rights or freedoms have been violated, to defend his rights or
freedoms in court (Constitutional Court ruling of 22 January
2008).
16. Alongside, it also needs to be noted that, in the
opinion of the petitioner, in the course of implementation of the
provisions of Article 187 (wording of 13 December 2007) of the
Code of Administrative Violations of Law, there might appear such
legal situations where an official, upon receiving a report
concerning a criminal deed or other violation of law that is
being committed or upon witnessing such a deed, takes no urgent
measures to stop the criminal deed; also, according to the
petitioner, situations might occur where a special police ribbon
or other barrier with the note STOP POLICE will be used
unlawfully, groundlessly or meaninglessly; it might also be used
not by the officials; it might be, in fact, also used without any
need; or the meaning and necessity of its use possibly will have
already disappeared.
It also needs to be held that the petitioner, in disputing
the compliance of the provisions (to the extent indicated by the
petitioner) of the Code of Administrative Violations of Law with
the Constitution, virtually has doubts as regards not the
compliance of the legal regulation established in the disputed
legal act with the Constitution, but the capability of police
officials to properly apply provisions of the corresponding legal
acts.
In this context it needs to be noted that the Constitutional
Court, as it has held, under the Constitution and the Law on the
Constitutional Court, does not decide the questions concerning
application of legal acts, also that such questions are decided
by the institution that has the powers to apply legal acts. The
petitions requesting to construe as to how the provisions of a
law (other legal acts) are to be applied are not within the
jurisdiction of the Constitutional Court (Constitutional Court
decisions of 20 November 2006, 6 September 2007 and 12 September
2007).
17. It has been mentioned that Paragraph 1 of Article 69 of
the Law on the Constitutional Court prescribes that, by means of
its decision, the Constitutional Court shall refuse to consider
petitions to investigate the compliance of a legal act with the
Constitution if the consideration of the petition does not fall
under the jurisdiction of the Constitutional Court (Item 2), also
if the petition is grounded upon non-legal motives (Item 5).
18. Taking account of the arguments set forth, one is to
refuse to accept the petition of the group of Members of the
Seimas, the petitioner, requesting to investigate whether Article
187 (wording of 13 December 2007) of the Code of Administrative
Violations of Law, to the extent of its regulation, is not in
conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5
and Article 18 of the Constitution and the constitutional
principle of a state under the rule of law, for consideration.
Conforming to Paragraphs 3 and 4 of Article 22, Article 28,
Items 2 and 5 of Paragraph 1 and Paragraph 2 of Article 69 of the
Law on the Constitutional Court of the Republic of Lithuania, the
Constitutional Court of the Republic of Lithuania has passed the
following
decision:
To refuse to accept for consideration the petition of the
group of Members of the Seimas of the Republic of Lithuania, the
petitioner, requesting to investigate "whether:
- Paragraphs 1 and 2 of Article 16 and Article 21 of the
Republic of Lithuania Law on Police Activities (No.: VIII-2048,
Official Gazette Valstybės žinios, 2000, No. 90-2777; 2002, No.
54-2116; 2003, No. 42-1910; 2003, No. 104-4643; 2006, No. 60-
2118; 2009, No. 130-5637), to the extent of their regulation, are
not in conflict with the constitutional principle of a state
under the rule of law and Paragraph 2 of Article 3, Paragraph 2
of Article 5 and Article 18 of the Constitution;
- Article 187 of the Code of Administrative Violations of
Law of the Republic of Lithuania (Official Gazette Valstybės
žinios, 1985, No. 1-1; 1992, No. 21-610; 1994, No. 58-1132; 1999,
No. 106-3061; 2000, No. 22-552; 2000, No. 41-1164; 2000, No. 92-
2866; 2002, No. 33-1252; 2005, No. 137-4911; 2006, No. 102-3937;
2007, No. 138-5641), to the extent of its regulation, is not in
conflict with the constitutional principle of a state under the
rule of law and Paragraph 2 of Article 3, Paragraph 2 of Article
5 and Article 18 of the Constitution."
This decision of the Constitutional Court is final and not
subject to appeal.
The decision is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis