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On refusing to consider a petition

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 DECISION

ON THE PETITION OF THE FIRST VILNIUS CITY LOCAL COURT, THE PETITIONER, REQUESTING TO INVESTIGATE WHETHER ARTICLE 1891 (WORDING OF 2 DECEMBER 2010) OF THE CRIMINAL CODE OF THE REPUBLIC OF LITHUANIA IS NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 25 June 2012

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretary—Daiva Pitrėnaitė,

in a procedural sitting of the Constitutional Court considered the petition (No. 1B-15/2012) of the First Vilnius City Local Court, the petitioner, requesting “to investigate whether Article 1891 ‘Illicit enrichment’ (wording of 2 December 2010 of the Law No. X-1199) of the Criminal Code of the Republic of Lithuania is not in conflict with the constitutional principle of a state under the rule of law and the principle of the presumption of innocence enshrined in Article 31 of the Constitution of the Republic of Lithuania.”

The Constitutional Court

has established:

The First Vilnius City Local Court, the petitioner, was investigating a criminal case. By its ruling the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting “to investigate whether Article 1891 ‘Illicit enrichment’ (wording of 2 December 2010 of the Law No. X-1199) of the Criminal Code of the Republic of Lithuania is not in conflict with the constitutional principle of a state under the rule of law and the principle of the presumption of innocence enshrined in Article 31 of the Constitution of the Republic of Lithuania.”

The Constitutional Court

holds that:

  1. Article 1891 “Illicit enrichment” (wording of 2 December 2010) of the Criminal Code (hereinafter also referred to as the CC) prescribes:

“1. A person, who possessed the property of the value bigger than 500 MSL by the right of ownership, while being aware, or being supposed and being able to be aware that the said property could not be acquired with legal income,

shall be punished by a fine or an arrest, or by deprivation of freedom for up to four years.

  1. A person, who has taken over the property specified in Paragraph 1 of this Article shall be exempted from criminal liability for illicit enrichment if, until the delivery of the notice on being suspected, he informed about that the law and order institutions and actively participated in establishing the origin of this property.
  2. Also a legal person shall be liable for the deeds provided for in this Article.”
  3. Thus, Article 1891(wording of 2 December 2010) of the CC establishes criminal liability for illicit enrichment—possession of the property of the value bigger than 500 MSL by the right of ownership, while being aware, or being supposed and being able to be aware that the said property could not be acquired with legal income (Paragraph 1); certain circumstances are provided upon which the person is exempted from criminal liability for illicit enrichment (Paragraph 2); it is established that criminal liability for the deeds provided for in this article shall be applied also to a legal person (Paragraph 3).
  4. The petition of the First Vilnius City Local Court, the petitioner, requesting to investigate whether Article 1891(wording of 2 December 2010) of the CC is not in conflict with the principle of the presumption of innocence which, according to the petitioner, is enshrined in Article 31 of the Constitution and with the constitutional principle of a state under the rule of law, is substantiated by the following arguments.

3.1. The petitioner refers inter alia to the provisions of the official constitutional doctrine under which the legal regulation established in the laws must be clear, easy to understand, consistent; the formulas in the legal acts must be precise, consistency and internal harmony of the legal system must be ensured; violations of law, for which liability is established in legal acts, must be clearly defined.

3.2. The petitioner presumes that the component elements of the criminal deed enshrined in Article 1891 (wording of 2 December 2010) of the CC is unclear, ambiguous and difficult to understand. Possession of property of the value bigger than 500 MSL, which has been acquired while being aware, or being supposed and being able to be aware that the said property could not be acquired with legal income, according to the petitioner, is not dangerous in itself if its acquisition is not linked to other criminal deed from the result of which this property can be acquired. According to the petitioner, possession of property, as a deed, allows making an assumption that, under Article 1891 of the CC, criminal liability may be applied only for the possession of property without having any criminal purpose (for example, to avoid taxes, to conceal illegal income), thus, purportedly, it is unclear as to “whose ownership, property rights and property interests may be violated without an existing relation with any criminal deed committed before the possession of the property and without making any sham transactions with the possessed property.”

3.3. The petitioner states that there arise obscurities regarding the moment of completeness (“possessed”) of the criminal deed provided in Article 1891 of the CC: “whether the deed is to be considered as completed when one starts to possess, i.e. upon acquisition of the property, or upon making certain prolonged actions with the property which prove the possession of that property.” According to the petitioner, as from 10 December 2010, possession of the property which is not reasoned by legal income and which obviously could not be acquired in lawful ways incurs criminal liability, thus, a person, who wishes to avoid criminal liability for possession of such property, had to dispose of it until the specified day or manage to do that until such possession would be detected by the law and order institutions. Thus, according to the petitioner, “while criminalising the state”—possession of the property of the value bigger than 500 MSL, which had been acquired before the moment of coming into force of the aforementioned article of the CC—the legislator had to take account of the protection of legitimate expectations, legal certainty and legal security.

According to the petitioner, also there is no clarity as to the fact at which moment the value of the property (at the moment of acquisition of property or at the moment of its possession) gains importance (in order to accuse him). According to the petitioner, the establishment of the content of guilt which describes the subjective side of the deed provided in the aforementioned article of the CC also seems problematic: “While taking account of the fact that the component elements of the criminal deed provided for in Article 1891 of the CC is formal because the moment of its completeness is linked to the possession of the property without requiring any consequences arising from that and making an assumption that the crime provided in Article 1891 of the CC may also be negligent, there arises a question whether a negligent form of a crime is possible in the formal component elements of the criminal deeds at all, as Article 16 of the CC relates negligence with the criminal consequences which are typical only of material component elements.”

3.4. The petitioner believes that the procedure of proving of the criminal deed enshrined in Article 1891 (wording of 2 December 2010) of the CC is unclear: for the beginning of the pre-trial investigation of this criminal deed it is, purportedly, enough to establish that a person possesses the property of the value bigger than 500 MSL (LTL 65 000), and later, during the pre-trial investigation, it is, purportedly, established, whether this person could have illicit income in order to acquire this property. If a person, who is brought to criminal liability, acquired the property of the value bigger than 500 MSL (LTL 65 000) with the income which has been received from the activity not forbidden by legal acts, however, not accounted under procedure established by legal acts, he, according to the petitioner, while seeking to avoid criminal liability under Article 1891 of the CC, should disclose the circumstances of violations of the norms which regulate the accounting of this income (which may in turn incur a criminal or administrative, inter alia tax liability on him), and in such a manner he would be forced indirectly to give testimonies against himself (about possible violations of other legal norms committed by himself). If the property of the value bigger than 500 MSL were acquired with the income from a criminal activity of a family member or close relative, a person, who is brought to criminal liability and giving testimony against his family member or close relative, according to the petitioner, would have a possibility to avoid criminal liability.

3.5. Finally, before drawing a conclusion that there is a ground to apply to the Constitutional Court, the petitioner paid attention to the fact that “the legal norm enshrined in Article 1891 of the CC is new, there is no formulated judicial practice with regard to its application and construction, and because of the fact that this norm is unclear, ambiguous and difficult to understand, while seeking not to restrict the fundamental human rights unreasonably, it is necessary to assess the compliance of this norm with the constitutional principle of a state under the rule of law and the principle of the presumption of innocence which is enshrined in Article 31 of the Constitution."

  1. While assessing the arguments of the petitioner according to their entirety and the material of the considered criminal case, it needs to be noted that the petitioner, as it is specified in its petition, considered a criminal case in which a natural person is accused according to Paragraph 1 of Article 1891 (wording of 2 December 2010) of the CC, however, its doubts regarding the compliance of Article 1891 (wording of 2 December 2010) of the CC with the Constitution are also related with the legal regulation established in Paragraph 2 of the said article of the CC (in the aspect of the pre-trial investigation, inter alia of proving, giving testimony), thus, they are related with the concept of Paragraphs 1 and 2 (inter alia their significance, necessity) of this article of the CC.

4.1. The petitioner treats certain ambiguities which have arisen for it regarding the legal regulation (namely regarding the object of the criminal deed provided in Paragraph 1 of Article 1891 (wording of 2 December 2010) of the CC and regarding the content of the notion “possessed”) as a ground to doubt whether this deed is dangerous at all, also whether without the established criminal liability for acquisition of the corresponding property it is possible to criminalise its possession, however, it:

– does not provide any constitutional arguments why, in its opinion, the legislator may not provide, under the Constitution, the criminal liability for possession, by the right of ownership, of property which could not be acquired with legal income and why the possession of the property which was acquired with illicit income, purportedly, poses no threat to society and the state (i.e. it is not dangerous for any constitutional values);

– is silent as regards the provisions of the official constitutional doctrine which are particularly important in the context of the considered petition, that 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 inter alia 29 December 2004, 28 May 2010 and 4 June 2012); the laws define as to what deeds are considered crimes and establish punishment for their commission (Constitutional Court rulings of 10 June 2003, 8 June 2009 and 4 June 2012); when regulating the relations linked with the establishment of criminal liability for criminal deeds, the legislator enjoys broad discretion (Constitutional Court rulings of 16 January 2006 and 8 June 2009).

4.2. The statements of the petitioner related with the doubts regarding the circumstances established in Paragraph 2 of Article 1891 (wording of 2 December 2010) of the CC, upon which the persons are exempted from criminal liability, provide no legal substantiation why Paragraph 1 of Article 1891 (wording of 2 December 2010) of the CC which is to be applied in the criminal case considered by the petitioner, in its opinion, is in conflict with the principle of the presumption of innocence which, according to the petitioner, is enshrined in Article 31 of the Constitution.

4.3. It is not clear from the arguments of the petitioner, why, according to the legal regulation established in Paragraphs 1 and 2 of Article 1891 (wording of 2 December 2010) of the CC, in all the cases of application of this article of the CC, a person, purportedly, would be inevitably forced to give testimony against himself or his family members (i.e. he could not refuse to give testimony against himself and his family members in any cases, including the case which is specified by the petitioner). The petitioner does not provide any constitutional arguments substantiating why the possibility to disclose one’s sources of income, while seeking to avoid criminal liability according to Paragraph 1 of Article 1891 (wording of 2 December 2010) of the CC, should be treated as forcing the person to give testimony against himself or as a duty established for him to prove his innocence.

4.4. It needs to be noted that by Article 1891 (wording of 2 December 2010) of the CC, inter alia Paragraph 1 thereof, one does not regulate the procedure for proving of a criminal deed. Thus, the arguments of the petitioner linked to the application of the legal norms of the criminal procedure, while investigating and proving the criminal deeds provided in Paragraph 1 of Article 1891 (wording of 2 December 2010) of the CC provide no legal substantiation that by the legal regulation established in Paragraph 1 of Article 1891 (wording of 2 December 2010) of the CC the principle of the presumption of innocence may be violated and one may be forced to give testimony against himself, his family members or close relatives.

4.5. By the statements of the petitioner, whereby one seeks to substantiate the doubts regarding the conflict of Paragraph 1 of Article 1891 (wording of 2 December 2010) of the CC with the constitutional principle of a state under the rule of law (inter alia from the viewpoint of non-clarity, ambiguity and difficulty to understand of the component elements of illicit enrichment), one virtually seeks to elucidate the content of this legal regulation and uncertainties of application of the aforementioned provision arisen to the petitioner. It is not obvious from the arguments of the petition of the petitioner that the uncertainties of the legal regulation that have arisen to it may not be removed by applying and construing law, inter alia while considering concrete criminal cases by courts, and that those uncertainties are such that they prevent from the formation of the case-law on the application of Article 1891 (wording of 2 December 2010) of the CC and raise essential doubts regarding the possibilities of courts to administer justice according to this article of the CC.

4.6. The petitioner also doubts, whether the criminal deed provided in Paragraph 1 of Article 1891 of the CC may be negligent and whether it would be in line with the legal regulation established in Article 16 of the CC. In addition, the petitioner has noticed a certain incompatibility determined by the impugned legal regulation between the legal norms of the criminal procedure and the legal norms which regulate tax violations . In these aspects, the petitioner raises not only the questions regarding the construction and application of Paragraph 1 of Article 1891 of the CC, but also its compatibility with the provisions of the legal acts (inter alia the CC itself) of lower power than the Constitution.

In this context it needs to be noted that under the Constitution, the Constitutional Court, as it has held more than once, does not consider whether a law is in compliance with another law, it does not decide the issues of compatibility and rivalry of legal acts of the same power; if the Constitutional Court is requested to decide the issue of compatibility and rivalry of legal acts of the same legal power, such petition is not within the jurisdiction of the Constitutional Court, and, under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, it is the ground for refusing to consider the petition (Constitutional Court decisions of inter alia 13 November 2006, 27 June 2007, 6 September 2007, 12 September 2007 and 10 May 2012).

  1. While taking account of the circumstances set forth, there is a ground to hold that the petition of the First Vilnius City Local Court, the petitioner, requesting to investigate the compliance of Article 1891 (wording of 2 December 2010) of the CC with the Constitution is virtually substantiated by uncertainties which arise in the practice of construction and application of law.

The Constitutional Court has held more than once that, under the Constitution and the Law on the Constitutional Court, it 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; if the laws contain obscurities, ambiguities, and gaps, it is the duty of the legislature to eliminate them (Constitutional Court decisions of 23 September 2002, 20 November 2006, 6 September 2007, 12 September 2007, 16 November 2010, 5 September 2011, ruling of 18 April 2012 and decision of 11 May 2012). The questions of application of law that have not been decided by the legislator are the matter of judicial practice (Constitutional Court ruling of 9 July 1998, decisions of 20 November 2006, 6 September 2007, 12 September 2007, ruling of 18 April 2012 and decision of 11 May 2012), thus, these questions may be decided by courts, when they consider disputes regarding the application of corresponding legal acts (parts thereof) (Constitutional Court decisions of 20 November 2006, 6 September 2007 and 12 September 2007). The petitions requesting to construe as to how the provisions of a law (other legal act) are to be applied are not within the jurisdiction of the Constitutional Court (Constitutional Court decisions of 23 September 2002, 20 November 2006, 2 July 2010, 16 November 2010 and 5 September 2011).

  1. Under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by 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.
  2. It needs to be mentioned that the First Vilnius City Local Court, the petitioner, had already applied to the Constitutional Court with a petition (No. 1B-6/2012) regarding the compliance of the same article of the CC with the Constitution. By ordinance of the President of the Constitutional Court No. 2B-13 of 6 April 2012 this petition was returned to the petitioner due to the fact that the reasoning and statements provided by the petitioner provided no substantiation whatsoever why Article 1891 (wording of 2 December 2010) of the CC may be in conflict with Articles 23 and 31 of the Constitution and with the constitutional principle of a state under the rule of law.
  3. While taking account of this and of the arguments set forth, one is to refuse to consider the petition of the First Vilnius City Local Court, the petitioner, requesting “to investigate whether Article 1891 ‘Illicit enrichment’ (wording of 2 December 2010 of the Law No. X-1199) of the Criminal Code of the Republic of Lithuania is not in conflict with the constitutional principle of a state under the rule of law and the principle of the presumption of innocence enshrined in Article 31 of the Constitution of the Republic of Lithuania.”

 

Conforming to Paragraphs 3 and 4 of Article 22, Article 28, Item 2 of Paragraph 1 and Paragraph 2 of Article 69 of the Republic of Lithuania Law on the Constitutional Court, the Constitutional Court of the Republic of Lithuania has passed the following

decision:

To refuse to consider the petition (No. 1B-15/2012) of the First Vilnius City Local Court, the petitioner, requesting “to investigate whether Article 1891 ‘Illicit enrichment’ (wording of 2 December 2010 of the Law No. X-1199) of the Criminal Code of the Republic of Lithuania is not in conflict with the constitutional principle of a state under the rule of law and the principle of the presumption of innocence enshrined in Article 31 of the Constitution of the Republic of Lithuania.”

This decision of the Constitutional Court is final and not subject to appeal.

The decision is promulgated in the name of the Republic of Lithuania.

Justices of the Constitutional Court:                         Egidijus Bieliūnas

                                                                                             Toma Birmontienė

                                                                                             Pranas Kuconis

                                                                                             Gediminas Mesonis

                                                                                             Ramutė Ruškytė

                                                                                             Egidijus Šileikis

                                                                                             Algirdas Taminskas

                                                                                             Romualdas Kęstutis Urbaitis

                                                                                             Dainius Žalimas