Case No. 14/2008
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF ARTICLE 15 (WORDING OF 16 JANUARY
2007) OF THE CODE OF ADMINISTRATIVE VIOLATIONS OF LAW
OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF
THE REPUBLIC OF LITHUANIA
28 May 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,
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
hearing on 19 May 2010 heard constitutional justice case No. 14/
2008 subsequent to the petition of the Supreme Administrative
Court of Lithuania, the petitioner, requesting to investigate
whether Paragraph 1 (wording of 16 January 2007) of Article 15 of
the Code of Administrative Violations of Law of the Republic of
Lithuania to the extent that it provides that for administrative
violations of law police officials shall be liable under the
disciplinary statute and shall be held administratively liable
under general procedure only for violations of the road traffic
rules, the fire safety regulations and other normative acts
regulating fire safety, for those of hunting, fishing, other
environmental protection norms as well as norms of health
protection of residents, customs rules, requirements of legal
metrology, for violations of distribution and use of budgetary
allocations, violations of the procedure for public procurement,
for hindering the officials of the State Control or the persons
authorised by them from discharging the duties commissioned to
them and for failure to carry out decisions made by the officials
of the State Control as well as for contraband is not in conflict
with Paragraphs 1 and 2 of Article 29 of the Constitution of the
Republic of Lithuania and with the constitutional principles of a
state under the rule of law, justice and proportionality.
The Constitutional Court
has established:
I
The Supreme Administrative Court of Lithuania, the
petitioner, was investigating a case of an administrative
violation of law. By its ruling, the court suspended the
consideration of the case and applied to the Constitutional Court
with a petition requesting to investigate whether Paragraph 1
(wording of 16 January 2007) of Article 15 of the Code of
Administrative Violations of Law (hereinafter referred to as the
CAVL) to the extent that it provides that for administrative
violations of law police officials shall be liable under the
disciplinary statute and shall be held administratively liable
under general procedure only for violations of the road traffic
rules, the fire safety regulations and other normative acts
regulating fire safety, for those of hunting, fishing, other
environmental protection norms as well as norms of health
protection of residents, customs rules, requirements of legal
metrology, for violations of distribution and use of budgetary
allocations, violations of the procedure for public procurement,
for hindering the officials of the State Control or the persons
authorised by them from discharging the duties commissioned to
them and for failure to carry out decisions made by the officials
of the State Control as well as for contraband is not in conflict
with Paragraphs 1 and 2 of Article 29 of the Constitution and
with the constitutional principles of a state under the rule of
law, justice and proportionality.
II
The petition of the petitioner is substantiated by the
following arguments.
1. Paragraph 1 of Article 15 of the CAVL establishes limited
immunity of servicemen of actual military service, officials of
the police and services of the interior as well as of the persons
equated to them from administrative liability, i.e. such persons
may be held administratively liable only for the administrative
violations of law which are in the list established in Paragraph
1 of Article 15 of the CAVL. The petitioner has doubts whether
the establishment of the said limitation upon administrative
liability is in compliance with the Constitution.
2. The striving for an open, just, and harmonious civil
society and state under the rule of law, which is established in
the Preamble to the Constitution, implies that it is obligatory
to try to secure the safety of every individual and the whole
society from criminal attempts against them (Constitutional Court
ruling of 8 May 2000). According to the petitioner, this
constitutional doctrine is to be applied not only to crimes, but
to administrative violations of law as well. Thus, the state, as
the organisation of the entire society, is under obligation to
resort to various lawful and efficient measures, which prevent
administrative violations of law and which limit and decrease
their spread. One of the most efficient measures securing the
attainment of these objectives is inevitability of liability and
adequacy of the imposed punishment to the committed violation.
Therefore, the establishment of immunity from administrative
liability must be entrenched only as a clearly regulated
exception to the general rule that each person must be held
liable for a violation of law committed by him.
3. In the constitutional jurisprudence it is recognised
that, in general, immunity is additional guarantees of protection
of the person which are necessary and indispensable for proper
performance of the duties of the said person (Constitutional
Court ruling of 8 May 2000). According to the petitioner,
immunity cannot become a privilege awarded by means of a law to a
corresponding person (their group) and creating preconditions for
appearance of impunity of a corresponding group of persons or for
application of a type of legal liability which is significantly
milder and inadequate. The immunity and the extent thereof
established by a law should be constitutionally reasoned,
proportionate to the objectives sought by the establishment of
the immunity, i.e. the immunity should be only of the extent
which, while taking account of the status of the corresponding
person, his role in the life of the state, the discharged
functions, the office held, and other important circumstances, is
necessary in order to secure the proper performance of his
duties, by maintaining a just balance among various
constitutional valuesinevitability of liability, adequacy of
punishment and the necessity to secure proper performance of the
duties by the said person. Otherwise, according to the
petitioner, the constitutional principles of a state under the
rule of law, justice and proportionality would be disregarded.
4. While considering whether the immunity of corresponding
officials, which is entrenched in Paragraph 1 of Article 15 of
the CAVL, from administrative liability is constitutionally
reasoned, it is pointed out that by its ruling of 17 December
2007 the Constitutional Court recognised that Paragraph 4 of
Article 47 of the Republic of Lithuania Law on Courts to the
extent that it was established that a judge may not be held
administratively liable was in conflict with Paragraph 2 of
Article 114 of the Constitution, since the immunity from
administrative liability of a judge is not established in the
Constitution, except the cases when administrative liability is
related with the restriction of the freedom of a judge. It is
also noted that Members of the Seimas, the Prime Minister,
Ministers do not enjoy immunity from administrative liability,
either, save the cases when this is related with restriction of
their freedom. While taking account of this, the petitioner
doubts whether the duties discharged by police officials are so
much more important, if compared with the functions performed by
the aforesaid persons, so that application of administrative
liability to police officials would be justified only in certain
cases. According to the petitioner, the status of police
officials is not an exceptional one, administrative liability
should be applied to them as to ordinary citizens. It is not
clear to the petitioner also upon what objective or other
rational arguments Paragraph 1 of Article 15 of the CAVL singles
out a group of administrative violations for which the
corresponding persons are held liable by common grounds, whereas
for other administrative violations of law they are held liable
under disciplinary statutes. According to the petitioner, such
differentiated legal regulation is not based upon objective
differences of the situation of subjects of social relations
regulated by it. Therefore, the petitioner doubts whether it is
allowed to establish a limitation upon administrative liability
in Paragraph 1 of Article 15 of the CAVL, whether the principle
of equality of rights entrenched in Article 29 of the
Constitution, which prohibits to grant privileges not grounded
upon the status of a person or other important circumstances, is
not thus denied, and whether this is not in conflict with the
constitutional principles of a state under the rule of law,
justice and proportionality.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from the representative of the Seimas, the party concerned, Olga
Kisel, chief specialist of the Criminal and Administrative Law
Unit of the Legal Department of the Office of the Seimas, wherein
the following arguments are presented.
1. The norms-principles entrenched in Article 29 of the
Constitution prohibit only discrimination, i.e. they prohibit
"volitional restriction of the rights of a person or exemption
from duties, which are necessary by the law (privilege)" under
the grounds set forth in this article. It is important to
distinguish between discrimination of rights and legitimate
differentiation, where the essence of these two concepts is
different by the purposes and on the grounds of restriction or
extension of rights. The norms-principles formulated in Article
29 of the Constitution are not "a strict dogmait is a somewhat
dominant tendency, a legal and methodological basis upon which
all other laws concretising this norm are created".
2. The state is granted a bigger freedom of actions to
increase the extent of rights in order to secure proper discharge
of duties and protection of the public interest. The functions
(and character thereof) performed by statutory state servants may
vary to a great extent. This also exerts influence on the variety
of regulation of liability of the officials specified in
Paragraph 1 of Article 15 of the CAVL for administrative
violations of law. The extent of the rights and duties of
statutory state servants depend upon the character of the
functions performed by them, therefore, the legislator not only
has an opportunity to differentiate, but also he must
differentiate the extent of the rights and liability of some
groups of state servants in order to secure proper discharge of
duties by each state servant. While making use of the
legislator's discretion granted to it and taking account of the
circumstances, the Seimas chooses a corresponding type of
liability and establishes the procedure and conditions of the
implementation thereof; while granting additional rights to
certain groups of persons, the Seimas seeks to achieve the
necessary balance between the actually discharged duties of the
person and his subjective rights. This, according to the
representative of the party concerned, should not be regarded as
violation of Article 29 of the Constitution.
3. In the opinion of the representative of the party
concerned, a court, when it considers an issue of bringing a
person to liability of a certain type (administrative or
disciplinary) under Paragraph 1 of Article 15 of the CAVL,
assesses the received data under procedure established by laws
not only "formally" (whether the administrative violation of law
is provided for in Paragraph 1 of Article 15 of the CAVL) but
also "substantially" (whether the administrative violation of law
is of such nature that the official must be brought precisely to
disciplinary, but not to administrative liability).
4. The representative of the party concerned does not agree
with the opinion of the petitioner, that the duties discharged by
judges are more significant than the duties of the officials
listed in Paragraph 1 of Article 15 of the CAVL and that the
aforesaid statutory state servants, while enjoying partial
immunity from administrative liability, have the immunity
guarantees of a greater extent than judges. According to her, the
petitioner treats "the disputed legal situation" improperly
because of the following reasons. First, granting of partial
immunity to statutory state servants is to be related not with
the relative significance of the discharged duties, but with the
character of the essence of the special functions and duties
performed to the society and the state. Thus, the legal status of
the groups of state servants listed in Paragraph 1 of Article 15
of the CAVL is not more significant than the status of judges,
Members of the Seimas, the Prime Minister, and Ministers; it is
simply exceptional one and is necessary due to the specificity of
the performed functions. Second, courts, which have an
exceptional state and social importance, their activity and the
status of judges are regulated in detail in Chapter IX "The
Court" of the Constitution, whereas the status of statutory state
servants and granting of partial immunity to them is not the
matter of legal regulation by the Constitution.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from Assoc. Prof. A. Vaičaitis, who works at the Department of
Constitutional and Administrative Law of the Faculty of Law of
Vilnius University.
The Constitutional Court
holds that:
1. The Supreme Administrative Court of Lithuania, the
petitioner, requests investigation into whether Paragraph 1
(wording of 16 January 2007) of Article 15 of the CAVL to the
extent that it provides that for administrative violations of law
police officials shall be liable under the disciplinary statute
and shall be held administratively liable under general procedure
only for violations of the road traffic rules, the fire safety
regulations and other normative acts regulating fire safety, for
those of hunting, fishing, other environmental protection norms
as well as norms of health protection of residents, customs
rules, requirements of legal metrology, for violations of
distribution and use of budgetary allocations, violations of the
procedure for public procurement, for hindering the officials of
the State Control or the persons authorised by them from
discharging the duties commissioned to them and for failure to
carry out decisions made by the officials of the State Control as
well as for contraband is not in conflict with Paragraphs 1 and 2
of Article 29 of the Constitution and with the constitutional
principles of a state under the rule of law, justice and
proportionality.
In its acts the Constitutional Court has held more than once
that the constitutional principle of a state under the rule of
law is inseparable from the principle of justice, and vice versa
(inter alia Constitutional Court rulings of 17 March 2003, 3
December 2003, 24 December 2008, and 8 October 2009). The
Constitutional Court has also held more than once that the
constitutional principle of proportionality is one of the
elements of the constitutional principle of a state under the
rule of law (inter alia Constitutional Court rulings of 29
December 2004, 29 September 2005, and 10 April 2009). While
taking account of this, the petition of the petitioner requesting
investigation into whether disputed Paragraph 1 (wording of 16
January 2007) of Article 15 of the CAVL to the corresponding
extent is not in conflict with the constitutional principles of a
state under the rule of law, justice and proportionality is to be
regarded as a petition requesting investigation into whether
Paragraph 1 (wording of 16 January 2007) of Article 15 of the
CAVL to the corresponding extent is not in conflict with the
constitutional principle of a state under the rule of law.
2. The CAVL was adopted on 13 December 1984 and came into
force on 1 April 1985. Prior to the restoration of the
independence of the State of Lithuania, the CAVL (wording of 13
December 1984) was amended and/or supplemented more than once.
3. After the restoration of the independent State of
Lithuania, the CAVL (wording of 13 December 1984 with subsequent
amendments and supplements) remained in effect.
4. After the Constitution of the Republic of Lithuania was
adopted by the 25 October 1992 referendum, Article 2 of the
Republic of Lithuania Law "On the Procedure for Entry into Force
of the Constitution of the Republic of Lithuania"a constituent
part of the Constitutionestablished that laws, other legal acts
or parts thereof, which were in force on the territory of the
Republic of Lithuania prior to the adoption of the Constitution,
shall be effective inasmuch as they are not in conflict with the
Constitution and this law, and shall remain in force until they
are either declared null and void or brought in line with the
provisions of the Constitution.
5. It needs to be noted that, on 23 December 1997, the
Seimas adopted the Law on Temporary Prolongation of the Validity
of Laws Adopted until 11 March 1990 Which are in Force in the
Territory of the Republic of Lithuania, which came into force on
27 December 1997. This law approved the list of the laws which
had been adopted until 11 March 1990 and whose validity was
temporarily prolonged until 1 January 2000. This list also
included the CAVL, adopted on 13 December 1984, with subsequent
amendments and supplements
The Law on Temporary Prolongation of the Validity of Laws
Adopted until 11 March 1990 Which are in Force in the Territory
of the Republic of Lithuania (wording of 23 December 1997) has
been amended more than once, inter alia by the laws on amending
Article 1 of the Law on Temporary Prolongation of the Validity of
Laws Adopted until 11 March 1990 Which are in Force in the
Territory of the Republic of Lithuania which were adopted by the
Seimas on 7 December 1999, 20 December 2000, 31 October 2002, 11
December 2003, 9 December 2004, 13 December 2005, 14 December
2006, 18 December 2007, 13 November 2008 and 10 December 2009.
Under the Law on Temporary Prolongation of the Validity of Laws
Adopted until 11 March 1990 Which are in Force in the Territory
of the Republic of Lithuania (wording of 10 December 2009), the
CAVL (wording of 13 December 1984 with subsequent amendments and
supplements) shall be in force until 1 January 2011.
6. Article 15 "Liability for Administrative Violations of
Law of Members of the Military and Other Persons to Whom
Disciplinary Statutes are Applied" (wording of 13 December 1984)
of the CAVL prescribed:
"Members of the military and persons liable for call-up
called up for training exercises, as well as privates and chiefs
of bodies of the interior shall be liable for administrative
violations of law under disciplinary statutes. For violation of
the road traffic rules, hunting, fishing rules and rules of
preservation of fish stock, customs rules, and contraband the
said persons shall be brought to administrative responsibility
under general grounds. Such persons may not be imposed a fine,
correctional labour and administrative arrest.
Other persons, save those specified in the first paragraph
of this Article, to whom disciplinary statutes or special
disciplinary regulations are applied, shall be brought to
disciplinary liability in cases directly provided for in these
acts for administrative violations of law, whereas in other cases
they shall be brought to administrative liability according to
general grounds.
In the cases provided for in the first paragraph of this
Article, the bodies (officials) that have been granted the right
to impose administrative penalties, instead of imposing the
penalties may refer the material regarding the violations of laws
to respective bodies so that they would decide the question on
bringing the culprits to disciplinary liability."
It needs to be noted that by means of the legal regulation
established in Article 15 (wording of 13 December 1984) of the
CAVL the limitations upon bringing the persons, to whom
disciplinary statutes or special disciplinary regulations are
applied, to administrative liability were entrenched: some
personsmembers of the military, persons liable for call-up
called up for training exercises, as well as privates and chiefs
of bodies of the interiorwere liable for administrative
violations of law under disciplinary statutes, whereas they were
brought to administrative liability under general grounds, i.e.
under the CAVL, only for the administrative violations of law
listed in Paragraph 1 of Article 15 (wording of 13 December 1984)
of the CAVL, however, they could not be imposed a fine,
correctional labour and administrative arrest (Paragraph 1);
other persons, to whom disciplinary statutes or special
disciplinary regulations are applied, were brought to
disciplinary liability for administrative violations of law
directly provided for in these acts, whereas in other cases they
were brought to administrative liability according to general
grounds, i.e. under the CAVL (Paragraph 2).
7. Paragraph 1 (wording of 13 December 1984) of Article 15
of the CAVL has been amended and/or supplemented more than once:
- on 4 December 1990, the Supreme Council-Reconstituent
Seimas of the Republic of Lithuania adopted the Law "On Amending
and Supplementing the Code of Administrative Violations of Law of
the Republic of Lithuania", which came into force on 14 December
1990, by Item 2 whereof it set forth Paragraph 1 (wording of 13
December 1984) of Article 15 of the CAVL as follows:
"Servicemen of actual military service and reservists called
up for training exercises, as well as officials of bodies of the
interior shall be liable for administrative violations of law
under disciplinary statutes. For violations of the road traffic
rules, hunting, fishing rules, other legal norms of environmental
protection, customs rules, as well as for contraband the said
persons shall be brought to administrative liability under
general grounds";
- on 26 May 1992, the Supreme Council-Reconstituent Seimas
adopted the Republic of Lithuania Law "On Amending and
Supplementing the Code of Administrative Violations of Law of the
Republic of Lithuania", which came into force on 15 June 1992, by
Sub-item 2 of Item 9 whereof it set forth Paragraph 1 (wording of
4 December 1990) of Article 15 of the CAVL as follows:
"Servicemen of actual national defence service and
reservists called up for training exercises, as well as officials
of the police and of the interior and persons equated to them
shall be liable for administrative violations of law under
disciplinary statutes. For violations of the road traffic rules,
hunting, fishing rules, other norms of environmental protection,
as well as those of health protection of residents, customs
rules, as well as for contraband the said persons shall be
brought to administrative liability under general grounds";
- on 11 July 1996, the Seimas adopted the Republic of
Lithuania Law on Amending Articles of 15, 189, 241-1, 259-1 of
the Code of Administrative Violations of Law Supplementing It
with Articles 189-7, 241-2, 247-4, which came into force on 2
August 1996, by Article 1 whereof Paragraph 1 (wording of 26 May
1992) of Article 15 of the CAVL was amendedafter the word
"customs rules" the words "the rules of measurement means
ascribed to the state metrological control, manufacture thereof,
trade in such means, rent and use thereof" and this paragraph was
set forth as follows:
"Servicemen of actual national defence service and
reservists called up for training exercises, as well as officials
of the police and of the interior and persons equated to them
shall be liable for administrative violations of law under
disciplinary statutes. For violations of the road traffic rules,
hunting, fishing rules, other norms of environmental protection,
as well as those of health protection of residents, customs
rules, the rules of measurement means ascribed to the state
metrological control, manufacture thereof, trade in such means,
rent and use thereof, as well as for contraband the said persons
shall be brought to administrative liability under general
grounds";
- on 17 February 2000, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing the Code of
Administrative Violations of Law, which came into force on 15
March 2000, by Article 5 whereof, in Paragraph 1 (wording of 11
July 1996) of Article 15 of the CAVL, instead of the words
"servicemen of actual national defence service and reservists
called up for training exercises" the words "servicemen of actual
military service" were entered, after the words "the road traffic
rules" the words "the fire safety regulations and other normative
acts regulating fire safety" were entered and this paragraph was
set forth as follows:
"Servicemen of actual military service, as well as officials
of the police and of the interior and persons equated to them
shall be liable for administrative violations of law under
disciplinary statutes. For violations of the road traffic rules,
the fire safety regulations and other normative acts regulating
fire safety, hunting, fishing rules, other norms of environmental
protection, as well as those of health protection of residents,
customs rules, the rules of measurement means ascribed to the
state metrological control, manufacture thereof, trade in such
means, rent and use thereof, as well as for contraband the said
persons shall be brought to administrative liability under
general grounds";
- on 2 May 2000, the Seimas adopted the Republic of
Lithuania Law on Supplementing Articles 15, 187, 259-1 of the
Code of Administrative Violations of Law, which came into force
on 1 June 2000 (Article 4 of this law), by Article 1 whereof, in
Paragraph 1 (wording of 17 February 2000) of Article 15 of the
CAVL, after the word "statutes" the words "whereas officials of
the Special Investigation Service shall be liable under the
Statute of the Special Investigation Service" were entered and
this paragraph was set forth as follows:
"Servicemen of actual military service, as well as officials
of the police and of the interior and persons equated to them
shall be liable for administrative violations of law under
disciplinary statutes, whereas officials of the Special
Investigation Service shall be liable under the Statute of the
Special Investigation Service. For violations of the road traffic
rules, the fire safety regulations and other normative acts
regulating fire safety, hunting, fishing rules, other norms of
environmental protection, as well as those of health protection
of residents, customs rules, the rules of measurement means
ascribed to the state metrological control, manufacture thereof,
trade in such means, rent and use thereof, as well as for
contraband the said persons shall be brought to administrative
liability under general grounds";
- on 15 June 2000, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 15, 123,
173-2, 221, 222, 224, 259-1 of the Code of Administrative
Violations of Law, on Recognition of Article 179 as No Longer
Valid and on Supplementing the Code with Article 173-17, which
came into force on 5 July 2000, by Article 1 whereof, in
Paragraph 1 (wording of 2 May 2000) of Article 15 of the CAVL,
after the words "rent and use thereof" the words "for violations
of distribution and use of budgetary allocations, violations of
the procedure for public procurement, for hindering the officials
of the State Control or the persons authorised by them from
discharging the duties commissioned to them and for failure to
carry out decisions made by the officials of the State Control"
were entered and this paragraph was set forth as follows:
"Servicemen of actual military service, as well as officials
of the police and of the interior and persons equated to them
shall be liable for administrative violations of law under
disciplinary statutes, whereas officials of the Special
Investigation Service shall be liable under the Statute of the
Special Investigation Service. For violations of the road traffic
rules, the fire safety regulations and other normative acts
regulating fire safety, hunting, fishing rules, other norms of
environmental protection, as well as those of health protection
of residents, customs rules, the rules of measurement means
ascribed to the state metrological control, manufacture thereof,
trade in such means, rent and use thereof, for violations of
distribution and use of budgetary allocations, violations of the
procedure for public procurement, for hindering the officials of
the State Control or the persons authorised by them from
discharging the duties commissioned to them and for failure to
carry out decisions made by the officials of the State Control as
well as for contraband the said persons shall be brought to
administrative liability under general grounds";
- on 5 July 2002, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing the Code of
Administrative Violations of Law, by Article 1 whereof, which
came into force on 1 August 2002 (Paragraph 1 of Article 52 of
this law), the first sentence of Paragraph 1 (wording of 15 June
2000) of Article 15 of the CAVL was amended and the entire
paragraph was set forth as follows:
"Servicemen of actual military service, as well as officials
of the police and of the interior and persons equated to them
shall be liable for administrative violations of law under
disciplinary statutes, whereas officials of the Special
Investigation Service shall be liable under the Statute of the
Special Investigation Service, and officials of the State
Security Department shall be liable under the Statute of the
State Security Department. For violations of the road traffic
rules, the fire safety regulations and other normative acts
regulating fire safety, hunting, fishing rules, other norms of
environmental protection, as well as those of health protection
of residents, customs rules, the rules of measurement means
ascribed to the state metrological control, manufacture thereof,
trade in such means, rent and use thereof, for violations of
distribution and use of budgetary allocations, violations of the
procedure for public procurement, for hindering the officials of
the State Control or the persons authorised by them from
discharging the duties commissioned to them and for failure to
carry out decisions made by the officials of the State Control as
well as for contraband the said persons shall be brought to
administrative liability under general grounds";
- on 16 January 2007, the Seimas adopted the Republic of
Lithuania Law on Amending Articles 15, 44-1, 189-7, 224, 247-10,
259-1, 320 of the Code of Administrative Violations of Law and on
Supplementing the Code with Articles 44-3, 44-4, 44-5, 214-25,
214-26, which came into force on 30 January 2007, by Article 2
whereof it amended Paragraph 1 (wording of 5 July 2002) of
Article 15 of the CAVL: instead of the words "the rules of
measurement means ascribed to the state metrological control,
manufacture thereof, trade in such means, rent and use thereof"
the words "requirements of legal metrology" were entered and this
paragraph was set forth as follows:
"Servicemen of actual military service, as well as officials
of the police and of the and persons equated to them shall be
liable for administrative violations of law under disciplinary
statutes, whereas officials of the Special Investigation Service
shall be liable under the Statute of the Special Investigation
Service, and officials of the State Security Department shall be
liable under the Statute of the State Security Department. For
violations of the road traffic rules, the fire safety regulations
and other normative acts regulating fire safety, hunting, fishing
rules, other norms of environmental protection, as well as those
of health protection of residents, customs rules, requirements of
legal metrology, for violations of distribution and use of
budgetary allocations, violations of the procedure for public
procurement, for hindering the officials of the State Control or
the persons authorised by them from discharging the duties
commissioned to them and for failure to carry out decisions made
by the officials of the State Control as well as for contraband
the said persons shall be brought to administrative liability
under general grounds."
8. While summing up the provisions of the laws by which
Paragraph 1 of Article 15 of the CAVL were amended and/or
supplemented, it needs to be noted that by means of these
provisions one amended the names of the offices, where the
persons holding such offices could be brought to administrative
liability only for the administrative violations of law listed in
the said paragraph, or one expanded the list of such offices, or
one expanded the list of the administrative violations of law for
which the officials listed in this paragraph were to be brought
to administrative liability under general grounds. It also needs
to be noted that in the course of amending and/or supplementing
Paragraph 1 of Article 15 of the CAVL, the said paragraph
continued to contain the limitations upon bringing of persons, to
whom disciplinary or service statutes are applied, to
administrative liability: for administrative violations of law
these persons were liable under disciplinary or service statutes,
whereas they were brought to administrative liability under
general grounds, i.e. under the CAVL, only for the administrative
violations of law listed in Paragraph 1 of Article 15 of the
CAVL.
It needs to be mentioned that the prohibition to impose a
fine, correctional labour, and administrative arrest upon the
persons listed in Paragraph 1 of Article 15 of the CAVL for the
administrative violations of law specified in the same paragraph
was abolished by the law adopted by the Supreme Council-
Reconstituent Seimas on 4 December 1990, and as from the entry of
this law into force, i.e. as from 14 December 1990, for
commission of the administrative violations of law listed in
Paragraph 1 of Article 15 of the CAVL any administrative penalty
provided for in the CAVL could be imposed upon the person to whom
disciplinary or service statutes were applied.
9. Paragraphs 2 and 3 of Article 15 (wording of 13 December
1984) of the CAVL were not amended or supplemented till 15 July
2009.
It has been mentioned that Paragraphs 2 and 3 of Article 15
of the CAVL prescribed:
"Other persons, save those specified in the first paragraph
of this Article, to whom disciplinary regulations or special
disciplinary rules are applied, shall be brought to disciplinary
liability in cases directly provided for in these acts for
administrative violations of law, whereas in other cases they
shall be brought to administrative liability according to general
grounds.
In the cases provided for in the first paragraph of this
Article, the bodies (officials) that have been granted the right
to impose administrative penalties, instead of imposing the
penalties may refer the material regarding the violations of laws
to respective bodies so that they would decide the question on
bringing the culprits to disciplinary liability."
10. The Supreme Administrative Court of Lithuania, the
petitioner, had doubts regarding the compliance of Paragraph 1
(wording of 16 January 2007) of Article 15 of the CAVL with the
Constitution when it was considering a case of an administrative
violation of law, wherein the protocol of an administrative
violation of law was drawn up with regard to a police official.
It needs to be noted that Paragraph 1 (wording of 16 January
2007) of Article 15 of the CAVL established the limitations upon
bringing not only police officials, but also servicemen of actual
military service, officials of services of the interior and
persons equated to them, officials of the Special Investigation
Service and the State Security Department, to administrative
liability. The limitations upon bringing of all the officials
listed in Paragraph 1 (wording of 16 January 2007) of Article 15
of the CAVL to administrative liability were the same in the
aspect that for administrative violations of law these persons
were liable under either disciplinary or service statutes,
whereas they were brought to administrative liability under
general grounds, i.e. under the CAVL, only for the administrative
violations of law listed in Paragraph 1 of Article 15 of the
CAVL.
Paragraph 2 of Article 15 of the CAVL also established
limitations upon bringing certain personsother persons, save
those specified in Paragraph 1 of Article 15 of the CAVL, to whom
disciplinary statutes or special disciplinary regulations are
appliedto administrative liability: in cases directly provided
for in disciplinary statutes or special disciplinary regulations,
for commission of administrative violations of law these persons
were brought to disciplinary liability, whereas in other cases
they were brought to administrative liability according to
general grounds.
Paragraph 3 of Article 15 of the CAVL provided for the right
of the bodies (officials) that impose administrative penalties,
in the cases provided for in Paragraph 1 of Article 15 of the
CAVL, not to impose and administrative penalty and to refer the
material to respective institutions which have the right to
decide on bringing the culprits to administrative liability.
Thus, the legal regulation established in Article 15 of the
CAVL 15 was integral and all three paragraphs of this article
were inseparable from one another. While taking account of this
and regardless of the fact that the Supreme Administrative Court
of Lithuania, the petitioner, requests investigation into whether
only Paragraph 1 (wording of 16 January 2007) of Article 15 of
the CAVL is not in conflict with the Constitution only to certain
extent, the Constitutional Court will investigate whether Article
15 (wording of 16 January 2007) of the CAVL, to the extent that
it established that servicemen and statutory state servants
(officials) shall be brought to administrative liability under
general grounds for not all administrative violations of law, was
not in conflict with the Constitution.
In this context it needs to be mentioned that, under
Paragraph 6 of Article 2 of the Republic of Lithuania Law on the
State Service (wording of 23 April 2002 with subsequent
amendments and supplements), "statutory civil servant" means a
civil servant whose service is regulated by a statute approved by
the law or by the Law on the Diplomatic Service providing for
special conditions of recruitment to the state service,
performance of duties, responsibility as well as other conditions
related to specific features of the service and/or having public
administrative powers in respect of persons who are not
subordinate to him.
11. On 15 July 2009, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 13, 15, 41,
142, 172-19, 172-21, 173-5, 214, 214-10, 214-19, 221, 224, 232,
232-1, 233, 246-1, 246-6, 259-1, 262, 281, 288, 320 of the Code
of Administrative Violations of Law, on Supplementing the Code
with Articles 41-12, 43-11, 43-12, 142-11, 187-13 and on
Recognition of Articles 214-12, 214-13 Thereof as No Longer
Valid, by Article 3 whereof, which came into force on 1 January
2010 (Paragraph 2 of Article 31 of this law), amended Article 15
(wording of 16 January 2007) of the CAVL and set it forth as
follows: "Statutory state servants shall be brought to
administrative liability under general grounds."
Thus, the legal regulation established in Article 15
(wording of 16 January 2007) of the CAVL, which is disputed in
the constitutional justice case at issue, was amended in
essencethe limitations (which had been entrenched until then)
upon bringing statutory state servants (officials) to
administrative liability were abolished.
Under Paragraph 4 of Article 69 of the Law on the
Constitutional Court, the annulment of the disputed legal act
shall be grounds to adopt a decision to dismiss the instituted
legal proceedings. The Constitutional Court has held that the
same can also be said as regards the cases when the disputed
legal act (part thereof) was not repealed, however, the legal
regulation established therein was changed (Constitutional Court
ruling of 4 March 2003, decision of 14 March 2006, rulings of 30
March 2006, 14 April 2006, and 21 September 2006, decision of 28
May 2007, rulings of 22 June 2009 and 31 March 2010).
However, as it has been held by the Constitutional Court
more than once, when a court investigating a case applies to the
Constitutional Court after it has doubts concerning the
compliance of a law or other legal act applicable in the case
with the Constitution (other legal act of higher power), the
Constitutional Court has a duty to investigate the request of the
court regardless of the fact whether the disputed law or other
legal act is valid or not.
12. It has been mentioned that, in the constitutional
justice case at issue, subsequent to the petition of the Supreme
Administrative Court of Lithuania, the petitioner, it is
investigated whether the legal regulation established in Article
15 (wording of 16 January 2007) of the CAVL, whereby limitations
upon bringing some persons to administrative liability were
established, in the aspect that for administrative violations of
law servicemen and statutory state servants (officials) were
liable under disciplinary or service statutes, whereas for the
administrative violations of law listed in Paragraph 1 of Article
15 of the CAVL were brought under general grounds, i.e. under the
CAVL, was not in conflict with the Constitution.
13. In the course of construction of the legal regulation
whereby limitations upon bringing servicemen and statutory state
servants (officials) to administrative liability were
established, one is to take account of the legal regulation
established in other articles (paragraphs thereof) of the CAVL
and in other laws regulating liability of servicemen and
statutory state servants (officials).
14. In the constitutional justice case at issue the
following provisions of the CAVL are to be mentioned:
- under Paragraph 1 (wording of 26 May 1992) of Article 9 of
the CAVL, an administrative violation (transgression) of law
shall be deemed action or failure to act which is contrary to law
and is culpable (deliberate or negligent), by means of which
state or public order, property, rights and freedoms of citizens,
and the established order of governance are encroached upon, and
for which administrative liability is provided for by laws;
administrative liability for the violations of law provided for
in the CAVL shall appear provided these violations by their
character according to valid laws do not incur criminal liability
(Paragraph 2 (wording of 13 December 1984) of Article 9 of the
CAVL);
- persons who have reached sixteen years of age prior to
commission of an administrative violation of law shall be held
administratively liable (Article 12 (wording of 1984 December 13)
of the CAVL);
- persons who committed an administrative violation of law
shall be imposed an administrative penalty, by means of which it
is attempted to punish and educate these persons so that they
would observe laws, respect the rules of public life, and that
the violator of law and other persons would not commit new
violations of law (Article 20 (wording of 26 May 1992) of the
CAVL);
- the following administrative penalties may be imposed for
commission of administrative violations of law: 1) warning; 2) a
fine; 3) confiscation of the item which was the tool of
commission of an administrative violation of law and of the
revenues received by committing the administrative violation of
law; 4) deprivation of a special right (the right to drive
vehicles, the right to fly as a member of the crew of an
aircraft, to perform technical maintenance of aircraft, to work
as an air traffic controller, the right to hunt or engage in
fishing, the right to steer inland waterways means of transport,
the right to drive railway rolling-stock, the right to use or
import equipment, facilities, radio transmission or radio
monitoring equipment, to use resources of electronic
communications, to engage in radio amateurs' activity and in that
of users of other radio stations, the right to hold a certain
position in a sea vessel, the right to design buildings or to
conduct an expertise examination of designs of buildings); 5)
administrative arrest; 6) removal from office (position) (Article
21 (wordings of 17 February 2000 and 3 July 2008) of the CAVL.
It needs to be noted that, under the CAVL, administrative
liability is applied to all natural persons, who have reached
sixteen years of age on the day of commission of the violation,
and, from this standpoint, it is legal liability of general
character.
15. It has been mentioned that in the course of construction
of the legal regulation whereby limitations upon bringing
servicemen and statutory state servants (officials) to
administrative liability are established, one is to take account
of the legal regulation established in other laws regulating
liability of servicemen and statutory state servants (officials).
15.1. Article 22 titled "Responsibility of Police Officials"
of the Republic of Lithuania Law on Police Activities (wording of
17 October 2000): police officials shall be personally liable for
their own actions and decisions, and the consequences thereof
(Paragraph 1); police officials who violate the requirements of
the law in the execution of their duties shall, in accordance
with the procedure established by laws and other legal acts, be
subject to service-related, administrative, material, or criminal
liability, depending on the nature of the violation (Paragraph
2); a police official who executes a knowingly unlawful order or
directive shall not be relieved of responsibility (Paragraph 3);
the state shall, in accordance with the procedure established by
legal acts, compensate for damage inflicted on natural or legal
persons by the unlawful actions of a police official (Paragraph
4); police officials who act in accordance with the powers
granted to them by laws and other legal acts, shall not be held
responsible for damages inflicted when acting in accordance with
the powers granted by laws and other legal acts (Paragraph 5).
The Statute of the Internal Service (wording of 29 April
2003 with subsequent amendments and supplements) approved by the
Republic of Lithuania Law on the Approval of the Statute of the
Internal Service inter alia prescribes:
- "service-related transgression" means a violation of the
order of the internal service set out by the Statute of the
Internal Service and other legal acts or failure to perform
duties of an official, or inadequate performance of such duties
done by guilty acts of an official in violation of law or his
failure to act (Paragraph 6 of Article 2);
- "discredit to the name of the officer" means guilty acts
of or failure to act by an official related or unrelated to the
performance of service-related duties, however, apparently
discrediting the authority of the internal service system,
destroying confidence in an institution of internal affairs or
compromising it (Paragraph 7 of Article 2);
- for service-related transgressions officials shall be
brought to service-related liability without taking into
consideration the application of criminal liability or
administrative liability (Paragraph 1 of Article 25);
- one of the following service-related penalties may be
imposed on an official for a service-related transgression,
taking into account its type, reasons of performing such a
transgression, a degree of guilt of the transgressor, his
personality, caused consequences and other circumstances: 1) a
note of warning; 2) a reprimand; 3) a severe reprimand; 4)
demotion in rank by one grade; 5) transfer to the position one
grade lower than the held one; 6) dismissal from the internal
service (Paragraph 1 of Article 26).
15.2. Paragraph 3 of Article 26 (wording of 7 July 1999) of
the Republic of Lithuania Law on Organisation of National Defence
and on Military Service provides that a serviceman who violated
discipline or laws shall be liable under statutes and laws.
The Disciplinary Statute of the Armed Forces approved by the
Republic of Lithuania Law on the Approval of the Disciplinary
Statute of the Armed Forces (wording of 20 January 2006) inter
alia prescribes:
- a serviceman, who committed a deed which is defined in the
Code of Administrative Violations of Law and for which liability
is provided under disciplinary statutes shall be liable only
under this statute; for other deeds defined in the Code of
Administrative Violations of Law the serviceman is brought to
administrative liability under general grounds (Paragraph 4of
Article 2);
- a serviceman of obligatory initial military service or
professional military service, who committed a disciplinary
violation, shall be imposed these disciplinary penalties: 1) a
reprimand; 2) additional tasks of service; 3) prohibition to
leave the place of service; 4) reduction of the official
remuneration; 5) demotion in the serviceman's rank; 6) dismissal
from service (Paragraph 1 of Article 31).
15.3. Paragraph 1 of Article 22 of the Statute of the
Special Investigation Service of the Republic of Lithuania
approved by the Republic of Lithuania Law on the Approval of the
Statute of the Special Investigation Service (wording of 1 April
2003) provides that for service-related transgressions the
officials of the service shall be imposed the following
disciplinary penalties: 1) a note of warning; 2) a reprimand; 3)
a severe reprimand; 4) transfer to a lower position; 5) dismissal
from service.
15.4. Paragraph 7 of Article 18 (wording of 5 July 2002) of
the Republic of Lithuania Law on the State Security Department
prescribes: an official of the Security Department shall be
liable for violations of laws under procedure established by
laws.
The Statute of the State Security Department of the Republic
of Lithuania approved by the Republic of Lithuania Law on the
Approval of the Statute of the State Security Department (wording
of 5 July 2002) inter alia prescribes:
- security officials shall be liable for administrative
violations of law in accordance with the disciplinary procedure
on the basis of this statute, except for the cases specified by
laws; material on an administrative violation of law committed by
a security official and subject to disciplinary liability shall
be handed over to the Director General of the Security Department
(Paragraph 3 of Article 9);
- security officials shall be imposed the following
disciplinary penalties for violations of laws and other legal
acts and for other disciplinary transgressions: 1) a note of
warning; 2) a reprimand; 3) a severe reprimand; 4) demotion in
rank; 5) transfer to a lower position; 6) dismissal from service
(Paragraph 1 (wording of 6 October 2008) of Article 33).
16. In the context of the constitutional justice case at
issue, it needs to be noted that administrative liability and
service-related liability are different types of legal liability:
inter alia their character, objective, subjects, measures, inter
alia penalties, are different. For instance, if the
administrative penalties provided for in the CAVL and the
service-related penalties which are provided in corresponding
service statutes are compared, it is clear that in the course of
imposition of a service-related penalty one may not impose a
fine, confiscation of the item which was the tool of commission
of an administrative violation of law and confiscation of the
revenues received by committing the administrative violation of
law, deprivation of a special right (inter alia the right to
drive vehicles, the right to fly as a member of the crew of an
aircraft, the right to hold a certain position in a sea vessel),
and administrative arrest.
17. When the legal regulation established in Article 15
(wording of 16 January 2007) of the CAVL is construed together
with the aforesaid provisions of the laws establishing liability
of servicemen and statutory state servants (officials), it needs
to be noted that by means of such legal regulation pre-conditions
were created to the servicemen and statutory state servants
(officials) who committed some administrative violations of law
(not listed in Paragraph 1 (wording of 16 January 2007) of
Article 15 of the CAVL) to avoid the administrative liability,
since for commission of these violations they were liable under
disciplinary or service statutes, i.e. they were to be brought to
service-related liability.
It needs to be noted that service-related liability may not
be assessed as that replacing administrative liability. Although
in Article 15 (wording of 16 January 2007) of the CAVL it was
provided that for administrative violations of law servicemen and
statutory state servants (officials) shall be liable under
disciplinary and service statutes, one's bringing to service-
related liability for commission of an administrative violation
of law may not be treated as one's bringing to administrative
liability. In this context it needs to be mentioned that, under
Paragraph 1 Article 25 of the Statute of the Internal Service,
for service-related transgressions officials shall be brought to
service-related liability without taking into consideration the
application of criminal liability or administrative liability.
It also needs to be noted that the Constitutional Court has
held in its acts more than once that the constitutional principle
non bis in idem 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 for the
same violation 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, 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).
18. Thus, the legal regulation which is established in
Article 15 (wording of 16 January 2007) of the CAVL and which is
disputed in the constitutional justice case at issue, created
pre-conditions for such situations to appear, where the persons
which were not specified in Paragraphs 1 and 2 of Article 15 of
the CAVL had to be brought, under the CAVL, to administrative
liability for all administrative violations of law and they had
to be imposed administrative penalties, whereas for some
administrative violations of law (not listed in Paragraph 1 of
Article 15 of the CAVL) servicemen and statutory state servants
(officials), instead of being brought to administrative liability
used to be brought to service-related liability and had to be
imposed service-related penalties. Thus, under the legal
regulation established in Article 15 (wording of 16 January
2007) of the CAVL, the service of the person in a certain
institution, inter alia the police, determined the fact that for
commission of some administrative violations of law the persons
serving in such an institution used to be brought not to
administrative, but to service-related liability, whereas it
means that such legal regulation had granted a certain privilege
to these personsan opportunity to avoid administrative liability
for commission of the administrative violations of law which were
not listed in Paragraph 1 (wording of 16 January 2007) of Article
15 of the CAVL.
19. It has been mentioned that in the constitutional justice
case at issue, subsequent to the petition of the Supreme
Administrative Court of Lithuania, the petitioner, it is
investigated whether Article 15 (wording of 16 January 2007) of
the CAVL, to the extent that it established that servicemen and
statutory state servants (officials) shall be brought to
administrative liability under general grounds for not all
administrative violations of law, was not in conflict with
Paragraphs 1 and 2 of Article 29 of the Constitution and the
constitutional principle of a state under the rule of law.
19.1. The striving for an open, just, and harmonious civil
society and state under the rule of law, which is established in
the Preamble to the Constitution, implies that it is obligatory
to try to secure the safety of every individual and the whole
society from criminal attempts against them (Constitutional Court
rulings of 8 May 2000 and 16 January 2006). In a democratic state
under the rule of law the legislator has the right and duty to
prohibit by means of laws such deeds that may essentially harm
the interests of persons, society or the state or there might be
a threat of such harm to appear (Constitutional Court rulings of
8 May 2000, 10 June 2003, 29 December 2004 and 10 November 2005).
Under the Constitution, only by means of a law is it
permitted to define what deeds are criminal ones, and to
establish legal liability for such deeds is permitted by means of
a law as well; only such deeds may legislatively be recognised
criminal ones, which are really dangerous and by which harm is
really inflicted upon the interests of the person, society and of
the sate, or due to such deeds there is a threat that such harm
will be inflicted (Constitutional Court ruling of 8 May 2000 and
16 January 2006). The Constitution does not prohibit to define,
by means of a law, administrative violations of lawdeeds which
are less dangerous than criminal deedsand to establish
administrative liability for such deeds. Only the deeds, which
are less dangerous than criminal deeds, by means of which damage
is inflicted upon the interests of a person, society and the
state, may be recognised, by means of a law, as administrative
violations of law.
Under the Constitution, the legislator, while regulating the
relations linked with establishment of administrative liability
for commission of administrative violations of law, enjoys broad
discretion, he inter alia may, while taking account of the
character, dangerousness and other features of administrative
violations of law, as well as of other circumstances of
importance, consolidate differentiated legal regulation and
establish different administrative liability for corresponding
administrative violations of law. However, this discretion of the
legislator is not absolute: while doing so, the legislator must
heed the norms and principles of the Constitution, inter alia the
constitutional principle of a state under the rule of law, and
the principle of equality of rights of persons entrenched in the
Constitution, inter alia Article 29 thereof.
19.2. While construing the provisions of Article 29 of the
Constitution, wherein it is established that all persons shall be
equal before the law, the court, and other state institutions and
officials (Paragraph 1), that the rights of the human being may
not be restricted, nor may he be granted any privileges on the
ground of gender, race, nationality, language, origin, social
status, belief, convictions, or views (Paragraph 2), the
Constitutional Court has held more than once:
- in Paragraph 1 of Article 29 of the Constitution formal
equality of all persons is entrenched, in Paragraph 2 of the same
article the principle of non-discrimination of persons and non-
granting of privileges is entrenched;
- 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;
- the constitutional principle of equality of persons must
be followed both in passing of laws and in their application;
this principle does not deny a possibility to provide, by means a
law, for a different legal regulation in respect to certain
categories of persons who are in different situations.
- 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;
- while assessing whether an established different legal
regulation is a grounded one, particular 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.
19.3. The principle of equality of persons which is
entrenched in the Constitution, inter alia Article 29 thereof, is
inseparable from the constitutional principle of a state under
the rule of law, which is a universal principle upon which the
entire Lithuanian legal system and the Constitution itself are
based.
The constitutional principle of a state under the rule of
law, as it has been noted by the Constitutional Court more than
once, implies various requirements to the legislator and other
subjects of lawmaking, inter alia the fact that the requirements
established in legal acts must be based on the provisions of
general type (legal norms and principles) which can be applied in
regard to all the specified subjects of respective legal
relations; the differentiated legal regulation must be based only
on objective differences of the situation of subjects of public
relations regulated by respective legal acts; when legally
regulating public relations it is compulsory to pay heed to the
requirements of natural justice comprising inter alia the
necessity to ensure the equality of persons before the law, the
court and state institutions and officials, etc.
20. In the context of the constitutional justice case at
issue it needs to be noted that the legislator, while regulating
the relations linked to administrative liability for commission
of administrative violations of law, inter alia while
establishing limitations upon administrative liability of some
subjects for commission of administrative violations of law, must
heed the imperatives arising from Article 29 of the Constitution
that legal liability for the same administrative violations of
law must be established by means of a law and applied to all
persons, save the exceptions provided for in the Constitution.
In this context it also needs to be noted that, under the
Constitution, it is only the President of the Republic who enjoys
immunity not only from criminal, but also administrative
liability: while in office, he may neither be arrested nor held
criminally or administratively liable (Constitution Paragraph 1
of Article 86). In its ruling of 8 May 2000, the Constitutional
Court held that the legal status of the President of the Republic
as the Head of State is an individual one, different from that of
the rest of the citizens.
Under the Constitution, also Members of the Seimas,
Ministers and judges enjoy partial immunity from certain
administrative measures: a Member of the Seimas may not be held
criminally liable, arrested, nor may his freedom be otherwise
restricted without the consent of the Seimas (Paragraph 2 of
Article 62 of the Constitution), the Prime Minister, Ministers
and judges may not be held criminally liable, arrested or have
their freedom restricted otherwise without the prior consent of
the Seimas, while between the sessions of the Seimaswithout the
prior consent of the President of the Republic (Article 100 and
Paragraph 2 of Article 114 of the Constitution).
It needs to be noted that, under the Constitution, any other
persons, inter alia servicemen and statutory state servants
(officials), do not enjoy any immunity from administrative
liability.
21. While deciding, whether Article 15 (wording of 16
January 2007) of the CAVL, to the extent that it established that
servicemen and statutory state servants (officials) shall be
brought to administrative liability under general grounds for not
all administrative violations of law, was not in conflict with
Paragraphs 1 and 2 of Article 29 of the Constitution and the
constitutional principle of a state under the rule of law, it
needs to be noted that, as it has been mentioned in this ruling
of the Constitutional Court, by means of the legal regulation
established in Article 15 (wording of 13 December 1984) of the
CAVL the limitations upon bringing servicemen and statutory state
servants (officials) to administrative liability were entrenched;
under this legal regulation, the service of the person in a
certain institution, inter alia the police, determined the fact
that for commission of some administrative violations of law the
persons serving in such an institution used to be brought not to
administrative, but to service-related liability and thus they
were granted a certain privilegean opportunity to avoid
administrative liability for commission of the administrative
violations of law which were not listed in Paragraph 1 (wording
of 16 January 2007) of Article 15 of the CAVL.
It has also been mentioned in this ruling that one's
bringing to service-related liability for commission of an
administrative violation of law may not be treated as one's
bringing to administrative liability.
It has also been mentioned that the legislator, while
regulating the relations linked to administrative liability for
commission of administrative violations of law, inter alia while
establishing limitations upon administrative liability of some
subjects for commission of administrative violations of law, must
heed the imperatives arising from Article 29 of the Constitution
29 that legal liability for the same administrative violations of
law must be established by means of a law and applied to all
persons, save the exceptions provided for in the Constitution.
It needs to be held that there are no legal grounds to state
that the limitations (which are entrenched in Article 15 (wording
of 16 January 2007) of the CAVL) upon bringing servicemen and
statutory state servants (officials) to administrative liability
could be constitutionally justified. The legal regulation
established in Article 15 (wording of 16 January 2007) of the
CAVL, whereby, for the administrative violations of law not
listed in Paragraph 1 of Article 15 of the CAVL, servicemen and
statutory state servants (officials) were liable under
disciplinary or service statutes violated the formal equality of
all persons entrenched in Paragraph 1 of Article 29 of the
Constitution, violated the principle of non-granting privileges
entrenched in Paragraph 2 of Article 29 of the Constitution, and
deviated from the constitutional principle of a state under the
rule of law.
22. Taking account of the arguments set forth, one is to
draw a conclusion that Article 15 (wording of 16 January 2007) of
the CAVL, to the extent that it established that servicemen of
actual national defence service, as well as officials of the
police and of the interior and persons equated to them, officials
of the Special Investigation Service, officials of the State
Security Department, other persons to whom disciplinary statutes
or special disciplinary regulations were applied, shall be
brought to administrative liability under general grounds for not
all administrative violations of law, was in conflict with
Article 29 of the Constitution and the constitutional principle
of a state under the rule of law.
23. In the constitutional justice case at issue, it needs to
be noted that the fact that this ruling of the Constitutional
Court recognised that Article 15 (wording of 16 January 2007) of
the CAVL to the corresponding extent was in conflict with the
Constitution, does not mean that the service-related penalties
imposed upon the persons who, while following Article 15 (wording
of 16 January 2007) of the CAVL, had been brought to service-
related liability under disciplinary or service statutes or
special disciplinary regulations, may be questioned only on this
ground.
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:
To recognise that Article 15 (wording of 16 January 2007;
Official Gazette Valstybės žinios, 1985, No. 1-1, Official
Gazette Valstybės žinios, 2007, No. 12-492) of the Code of
Administrative Violations of Law of the Republic of Lithuania, to
the extent that it established that servicemen of actual national
defence service, as well as officials of the police and of the
interior and persons equated to them, officials of the Special
Investigation Service, officials of the State Security
Department, other persons to whom disciplinary statutes or
special disciplinary regulations were applied, shall be brought
to administrative liability under general grounds for not all
administrative violations of law, was in conflict with Article 29
of the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law.
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: Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis