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On the administrative penalty of property confiscation

Case No. 12/96-5/97

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Paragraph 1 of Article 26 of the Code of Administrative Violations of Law of the Republic of Lithuania with the Constitution of the Republic of Lithuania

 

8 April 1997, Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas Rasimavičius, and Juozas Žilys

The court reporter—Sigutė Brusovienė

Assoc. Prof. Dr. Pranas Petkevičius, a consultant at the Legal Division of the Seimas, acting as the representative of the Seimas

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 12 March 199,7 considered case No. 12/96-5/97 subsequent to the petition submitted to the Court by the petitioners—the Lazdijai District Local Court and the Alytus District Local Court—requesting an investigation into whether Paragraph 1 of Article 26 of the Code of Administrative Violations of Law of the Republic of Lithuania is in compliance with the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 28 June 1996, the Lazdijai District Local Court, a petitioner, was investigating a civil case pursuant to the complaint of R. Beczkowski who sought to repeal the decision of the head of the Lazdijai Custom-House by which an administrative penalty had been imposed. By its ruling the said court suspended the investigation of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Article 1 of the Law “On Amending and Supplementing Articles 26, 35, 208, 209, 210, 211, 237, 292 and 320 of the Code of Administrative Violations of Law of the Republic of Lithuania” of 23 April 1996 (Official Gazette Valstybės žinios, 1996, No. 41-990) by which the second clause of Paragraph 1 of Article 26 of the Code of Administrative Violations of Law (hereinafter referred to as the CAVL) is in compliance with Article 23 of the Constitution.

On 14 January 1997, the Alytus District Local Court, a petitioner, was investigating a civil case pursuant to the complaint of J. Kazakevičius who sought to repeal the decision of the head of the Alytus Territorial Custom-House by which an administrative penalty had been imposed. By its ruling the said court suspended the investigation of the case and applied to the Constitutional Court with the petition requesting an investigation into whether the provision contained by the second clause of Paragraph 1 of Article 26 of the CAVL is in compliance with the Constitution.

Taking account of the fact that the both petitions concern the question of compliance of the same legal act and the same norm with the Constitution, the Constitutional Court by its 3 March 1997 decision joined them into one case.

II

The petitioners ground their requests on the following arguments:

1. The second clause of Paragraph 1 of the impugned Article 26 of the CAVL stipulates: “Only the item which is property of the violator shall be subject to confiscation with the exception of the item which was either an immediate instrument or an immediate object of the administrative violation of law pertaining to legal cases of administrative violations of law as provided for by Article 210 of this Code.” In the opinion of the petitioners, this violates the norm of Paragraph 1 of Article 23 of the Constitution that “property shall be inviolable”, as well as that of Paragraph 2 of the same article that “the rights of ownership shall be protected by law”, as well as that of Paragraph 3 of the same article that “property may only be seized for the needs of society according to the procedure established by law and must be adequately compensated for”. Such an amendment of the law violates the ownership rights of other persons who have not committed administrative violations of law. The impugned provision contradicts the objectives of administrative penalty defined in Article 20 of the CAVL, too.

2. The petitioners are of the opinion that the CAVL consolidates the requirement that only such a person be penalised who is guilty of having (on purpose or through negligence) performed an act by which interests protected by law were violated. Meanwhile, Paragraph 1 of Article 26 of the CAVL provides with the grounds to penalise another person who is innocent but not the one who performed a violation of law.

III

In the course of the preparation of the case for the judicial investigation, an explanation of 31 October 1996 of the Customs Department at the Ministry of Finance of the Republic of Lithuania was received. It was indicated therein that the confiscation of an item is one of the types of penalties listed in Article 21 of the CAVL. When a violator makes use of his or someone else’s property as a means to violate proprietary or personal rights of other persons, or interests of the state or those of society, then such property may be confiscated under procedure and conditions provided for by law. Not any property is subject to confiscation but only which is linked with the performed violation. The instrument of administrative violation of law is confiscated from the violator who with the help of this item (no matter if it belongs to him or whether it was transferred to him on trust) violated legal norms. Providing a person, by realising his proprietary and other rights, acts contrary to rights and freedoms of other persons, he may be called to account and punished (Articles 30 and 31 of the Constitution). The punishment of such a person, or the application of some or other limitation on him or his property, are determined by means of laws of different branches of law pursuant to the general requirements of the Constitution, as well as principles of forming sanctions pertaining to this branch of law while taking account of the objectives of penalties. Provided the owner transfers an item to another person for use by warrant, or by agreement or arrangement, and if the latter uses it for criminal deeds and loses it, then, under the norms of the Civil Code of the Republic of Lithuania (hereinafter referred to as the CC), the owner of the item may recover damages inflicted on him from the debtor (violator of administrative law). The inviolability of property means that the owner as the possessor of subjective rights to property is entitled to demand that other persons should not violate his rights, as well as that the state has the duty to safeguard and protect property from illegal encroachment upon it. Handling the property which has been trusted to him in an unfair and unlawful manner, and knowing that this property may be confiscated under procedure determined by law, the person violates the rights to property of the owner.

Paragraph 2 of Article 23 of the Constitution stipulates that the rights of ownership shall be protected by law. It is stated in the explanation of the Customs Department that for this purpose an entire system of norms of civil and other branches of law has been created. However, from the standpoint of legal theory, protection of ownership rights by legal means also predetermines respective limits of such protection. On the other hand, subjective rights, i.e. the rights of the owner to manage, use and dispose of his property, may be limited by law due to the nature of property possessed (arms, narcotic substance etc.), due to urgent interests of society (problems of ecology etc.) or due to performed acts contrary to the law. Laws provide that claims may be directed at the property of the owner under obligations which occur from agreement, delictual, family, or other relations. The fact that property may be seized is also confirmed by Paragraph 3 of Article 23 of the Constitution which stipulates: “Property may only be seized for the needs of society according to the procedure established by law and must be adequately compensated for.”

The provision that under certain conditions ownership rights may be restricted is provided for in Item 2 of Article 17 of the Universal Declaration of Human Rights which stipulates: “No one shall be arbitrarily deprived of his property.” It means that property may be seized but this must be performed under procedure established by law, and this must be done by an authorised state body.

The explanation of the Customs Department states that neither the Constitution nor valid system of other laws nor universally recognised norms of international law deny the opportunity to seize property or to limit its managing, use or disposal of under conditions and procedure established by law. The Lazdijai District Local Court, which states that “the amendment of Paragraph 1 of Article 26 of the Code of Administrative Violations of Law of the Republic of Lithuania contradicts the very purpose of administrative penalty as established by law”, does not assess the fact that contraband is a dangerous violation and mere educational means applied to violators are not enough. One also has to exert a corresponding influence upon them and ensure protection of needs of society, as well as to accomplish prevention of violations.

IV

During the Constitutional Court hearing, the representative of the Seimas pointed out that the legislature amended the impugned Article 26 of the CAVL by the law of 23 April 1996 because of two reasons:

1. Article 26 of the CAVL which had been in force earlier was not completely in line with Article 210 of the same code which stipulated that violations shall “incur a fine from 1,000 to 10,000 Lt together with the confiscation of contraband items, as well as other means designated for transporting contraband items across the border of the Republic of Lithuania or hide them”. Whereas Article 26 of the said code had prescribed that only “the item which is property of the violator shall be subject to confiscation”. Thus, these two provisions had not been coordinated. One of them stated that a contraband item, as well as the means of its transportation, may be subject to confiscation while general provisions of the code (Article 26) emphasised that only such an item may be confiscated which is property. Therefore, in an attempt to eliminate these contradictions, the legislature passed a new law and thereby coordinated these two provisions.

2. Lately there has been an increase of such contraband cases when persons, in order to transport contraband items, began to employ deliberately the means of transport which belong to other persons by the right of ownership. In such cases it was impossible to apply to violators the administrative penalty of the confiscation of the means of transport. Seeking to put an end to contraband, the legislature in Article 210 of the CAVL provided, as an exception, for a case when an item may be confiscated (including the means of transport) which was either an instrument or item of violation of law of contraband, even though the said item is not property of the guilty person.

In the opinion of the representative of the party concerned, the impugned norm established by Article 26 of the CAVL reflects a certain peculiarity of responsibility. An exception is made from the general rule by which the confiscation of the item which is not property of the violator is provided for. Such a peculiarity was determined by the circumstances that violation of law of contraband is widespread, it inflicts much harm on the state and is ruinous to its economy. In both legal theory and valid laws, one may detect more of such peculiarities of responsibility. For instance, the CC also provides for responsibility in such cases when there is no guilt in actions of the person. Therefore, the legislature, providing for exceptions, takes account of certain circumstances. However, such adopted norms are in compliance with the Constitution.

The representative of the party concerned is of the opinion that on the grounds of such arguments the conclusion may be drawn that valid Article 26 of the CAVL is in compliance with Article 23 of the Constitution. This conclusion may also be based on the norm of Article 31 of the Constitution which prescribes that “punishments may only be administered or applied on the basis of law”. Likewise, it is possible to assert that administrative penalty may be established and applied only on the grounds of law and taking account of certain conditions. The CAVL determines that not each and every item may be confiscated but which was an instrument of violation or its immediate object.

In the opinion of the representative of the party concerned, in assessing the impugned norm one must take into consideration the circumstances which prompted the legislature to establish amendments of Paragraph 1 of Article 26 of the CAVL. The subjects of violations of law of contraband were, by special power of a warrant, using the means of transport which belonged to other persons. Under such power of a warrant, they had very broad rights. They provided that the persons were granted the right to thoroughly use these means and even to sell them. Under this power, the principal would grant the right to the commissioner to perform various actions at any place, including custom-houses, while the latter was using the car. Thus, the persons who permitted violators to use their cars by power of a warrant must have known in advance that the said vehicles might be used when crossing the state border, managing affairs at custom-houses, etc. The representative of the party concerned also based his opinion on Item 7 of Decision No. 1 “On the Judicial Practice in Cases Connected with Contraband” of 16 February 1997 passed by the Senate of the Supreme Court of Lithuania.

There also exist laws in other states, e.g., Poland, Germany, wherein it is established that the property of the third party may be confiscated which has been used as the object or instrument of a crime.

Upon the assessment of all the circumstances, the representative of the party concerned has concluded that Paragraph 1 of Article 26 of the CAVL is in compliance with the constitution.

Z. Bereišienė, a lawyer at the Legal Division of the Customs Department at the Ministry of Finance, acting as the specialist, presented her explanations at the hearing.

The Constitutional Court

holds that:

1. On 23 June 1996 the Seimas adopted the Law “On Amending and Supplementing Articles 26, 35, 208, 209, 210, 211, 237, 292 and 320 of the Code of Administrative Violations of Law of the Republic of Lithuania” by which Paragraph 1 of Article 26 of the CAVL was amended. It was set forth as follows: “The confiscation of the item which was an instrument or immediate object of violation of administrative law shall be a coercive conversion of this item into state property for no consideration. Only the item which is property of the violator shall be subject to confiscation with the exception of the item which was either an immediate instrument or an immediate object of administrative violation of law pertaining to legal cases of administrative violations of law as provided for by Article 210 of this Code.” In its new wording, Paragraph 1 of Article 26 of the CAVL provides for an exceptional rule that an instrument or immediate object of violation of administrative law which belonged to the violator of law by the right of ownership shall be confiscated including the items belonging to other persons by the same right which were temporarily used or managed by the violator at the time when he was performing the said violation.

The petitioner had doubts as to the compliance of the said norm of Paragraph 1 of Article 26 of the CAVL with Article 23 of the Constitution. This norm provided that in the cases of administrative violation of law of contraband the items which were either an instrument or immediate object of performing the said violation shall be subject to confiscation irrespective of the fact whether these items belonged by the right of ownership to the violator or other persons who had temporarily transferred the said item to the violator of law.

2. Article 23 of the Constitution stipulates:

Property shall be inviolable.

The rights of ownership shall be protected by law.

Property may only be seized for the needs of society according to the procedure established by law and must be adequately compensated for.”

From the standpoint of protection of property, the norms of Article 23 of the Constitution wherein the essence of protection of the ownership rights is disclosed constitute an indivisible whole.

The norm “Property shall be inviolable” of Paragraph 1 of the said article of the Constitution consolidates the right of the owner as the possessor of subjective rights to property to demand that other persons, as well as the state, should not violate his ownership rights. In addition, this norm consolidates the duty of the state to safeguard and protect property from unlawful encroachment upon it. Such a conception of the norm of Paragraph 1 of Article 23 of the Constitution means that this norm consolidates intensive protection of property which ensures that the property belonging to the owner will be protected by legal means. At the same time it is possible to notice that this norm does not give grounds to maintain that the Constitution establishes absolute protection of property. Making the ownership rights absolute, preconditions may appear to violate property interests of other persons and also to cause conflicts. One of the ways to solve them is the imposition of respective limitations or restrictions on the ownership rights in legal norms.

The norm “The rights of ownership shall be protected by law” of Paragraph 2 of Article 23 of the Constitution means that property relations are the matter of legal regulation. This constitutional norm also conditions the fact that to protect property a system of laws is created which ensures the protection of various and dynamic property relations and the opportunity to efficiently utilise property in one’s interests as well as those of society. The main principle of creating such a system of laws is coordination of its elements—legal norms aimed at protection of property—as well as elimination of existing and possible contradictions in the protection of ownership rights. Bearing in mind the fact that a legal system is constantly evolving, coordination of its elements is a permanent task the solution of which is not always unequivocal. From the standpoint of compatibility of the system it is also possible to notice quite a few evident inadequacies connected with legal regulation of property confiscation ensuing from violation of law. For instance, Article 1421 of the CC provides that property may be seized against the will of the owner only by decision, judgment or special requisition act of the court, meanwhile Article 237 of the CAVL determines that in the case of violation of law of contraband an administrative penalty (as well as the confiscation of property) shall be imposed by the Director and assistant directors of the Customs Department at the Ministry of Finance of the Republic of Lithuania, as well as heads and deputy heads of custom-houses. Article 163 of the CC once again in a different way consolidates a provision that the state shall be permitted to seize property for no consideration only in cases and under procedure established by means of laws of the Republic of Lithuania. Article 26 of the CAVL provides that an object or instrument of administrative violation of law of contraband may be confiscated irrespective of the fact to whom it belongs by the right of ownership, meanwhile, Item 1 of Article 93 of the Code of Criminal Proceedings of the Republic of Lithuania provides that the instruments and means of crime (including contraband) which belong to the committer of the crime shall be confiscated, transferred to other organisations or destroyed.

The creation of the system of laws protecting the ownership rights also means that respective limitations on the ownership rights protection are determined. The Constitutional Court held in its ruling of 13 December 1993 that “as far as the theory of law is concerned, the protection of property rights by legal means presuppose, in turn, appropriate limits to such protection, as law in all cases of the regulation of public relations is valid only within certain limits”. Moreover, the Constitutional Court has noted many a time that there exist no subjective rights which had no protection boundaries, as law is one of the ways to coordinate public interests by which a balance is found between different, sometimes even contradictory needs. One of essential peculiarities of modern law is that the legal mechanism of ownership rights protection is intensively developed with which it is sought to ensure as much as possible the rights and legitimate interests of the owner. However, this does not mean that the legislature, by attempting to coordinate reciprocal interests of people, as well as personal interests and those of society, may not, in general, limit the rights of the owner when he is managing, using or disposing of his property.

The norm “Property may only be seized for the needs of society according to the procedure established by law and must be adequately compensated for” of Paragraph 3 of Article 23 of the Constitution determines the conditions and procedure of the protection of the ownership rights. This means that under the Constitution property may be seized from the owner or limitations on the ownership rights may be established only when such seizure or limitation is provided for by law. Besides, property may be seized from the owner only for public needs and this must be adequately compensated for. Such a norm discloses a specific aspect of social purpose of property when the opportunities not only to protect his rights and accomplish interests but also, when realising them, to take account of public needs are acknowledged for the owner.

The possibilities of limitation on the ownership rights are also discussed in the judgments of the European Court of Human Rights while deciding cases pertaining to accomplishment of the norms set forth in Article 1 of Protocol No. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It was noted in these judgments that the notion “in the public interest” is inevitably broad. The said Court, bearing in mind that the opportunity of choice granted to the legislature that implements social and economic policy must be broad enough, takes into consideration the decisions of the legislature in defining “public interests”, unless the said decisions are not substantially grounded. The seizure of property, when implemented for the success of legal-social and economic policy, may be justified by “public interests” even when the whole society does not make direct use of the seized property (the cases James and others against the United Kingdom (1986), Lithgow and others against the United Kingdom (1987)).

Thus, the legal norms which regulate the protection of the ownership rights, on the one hand, constitute the property law institute which determines the opportunity of the owner to manage, use and dispose of his property at his discretion (the right to property in its objective sense), on the other hand, the aforesaid norms consolidate his opportunities to accomplish the ownership rights to a particular item (the right to property in its subjective sense). This means that on the grounds of these norms the owner of the item is entitled to demand that his ownership rights should not be violated. Alongside, the owner is guaranteed the right to handle his item at his discretion so, however, that they did not contradict the law. Therefore, the owner, while accomplishing his ownership rights, must abstain from acts by which the rights of other persons or public interests might be violated.

3. The subjects of property relations regulated by legal norms possess, as a rule, not only certain rights but also respective duties. Coordination of rights and duties directly ensues from the norms provided for by Article 28 of the Constitution which stipulates: “While exercising their rights and freedoms, persons must observe the Constitution and the laws of the Republic of Lithuania, and must not impair the rights and interests of other people”.

Such a coordination of rights and freedoms manifests itself in laws by consolidating not only the rights of the owner but also imposing respective prohibitions on other persons, as well as the owner himself. The practice of application of legal norms indicates that the laws regulating the ownership rights are often violated not only by encroaching upon the rights of the owner but also, for the owner’s part, by not keeping to the limits of managing, use and disposal of property as defined by law.

It is the result of historical development that the implementation of requirements established in the norms of objective law is based not only on the utility but also coercion which is set in sanctions of legal norms. The purpose of a sanction is to define the content of responsibility which may occur after a person has violated the order regulated by legal norms. The essence of responsibility is a purposeful impairment of the person which is specified in respective legal norms because of his reprehensible action or inaction which is prohibited by the said norms. As to its content, this impairment may be of either a personal or proprietary character. Besides, it should be emphasised that in an attempt to stop violations of law, the established sanctions are only one of the elements that may be used along with other measures of a socio-economic character.

Various sanctions, including proprietary ones, are imposed for performed violations of law: a fine, the confiscation of property, etc. A fine, as well as the confiscation of property, is the seizure of property from the violator and its conversion into state property due to his violation of law. This means that the protection of property for the person who has violated law narrows to the limits as specified by the sanction. Such a provision may be derived from the Constitution, as well as international legal acts which have been ratified by Lithuania and which are a constituent part of the system of law of Lithuania. Such a standpoint regarding limitation on the ownership rights is considered acceptable also under Article 1 of Protocol No. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It is established therein that states shall have the right to enforce such laws as they deem necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Alongside, one should bear in mind in all cases that the right to possess property is one of inborn human rights. Any limitation on the ownership rights, along with the establishment of sanctions prescribed by legal norm, must be precise and, if necessary, particularised enough. Laws must ensure that ungrounded impairment of the right to property is evaded, and that one is always entitled to protect these rights in court, as Article 30 of the Constitution prescribes that any person whose constitutional rights and freedoms are violated shall have the right to appeal to court.

The conclusion should be drawn from the analysis of the content of Articles 23 and 28 of the Constitution that it is possible to establish, by law, limitation on the ownership rights and property sanctions for violations of law. However, this must not deny the essence of the right to property.

4. An administrative violation of law is considered a culpable deed (action or inaction) which is contrary to law by which human rights and freedoms, as well as public interests protected by the state are encroached. Therefore, it should be noted that guilt is one of the main elements indicating that a person has violated law and may be brought to justice for this. If the law prescribed an administrative responsibility without there being any guilt, as well as if a person were punished without being guilty, this would mean an objective charge incompatible with either fundamentals of the state under the rule of law or universally recognised principles of human rights’ protection.

Article 21 of the CAVL provides that the following administrative penalties may be imposed for violations of law: (1) warning; (2) a fine; (3) the seizure, with compensation, of the instrument or immediate object of administrative violation of law; (4) the confiscation of the instrument or immediate object of administrative violation of law; (5) the deprivation of a special right (to drive a vehicle, to hunt or to fish) granted for the citizen; (6) correctional labour; (7) administrative arrest; (8) removal from work duties (office). Thus, depending on the danger of administrative violation to society, as well as the damage caused or threatened by it, as well as other circumstances, administrative penalties of various stringency are set.

The norm of Article 210 of the CAVL which provides for responsibility for contraband establishes a cumulative sanction: the main penalty—a fine from 1,000 to 10,000 Lt, and a complementary penalty—the confiscation of contraband items, as well as that of transportation and other means designated for transportation or hiding contraband items when crossing the state border of the Republic of Lithuania. Paragraph 1 of Article 26 of the CAVL prescribes that while imposing a penalty for administrative violation of contraband, unlike than in other cases provided for in this code, an item or instrument of contraband shall be confiscated irrespective of the fact whether it belongs by the right of ownership to the violator or other person.

5. Assessing the content of Paragraph 1 of Article 26 of the CAVL, one should, first of all, discuss the immediate object of the said violation of law, as well as the danger which emerges from such a violation of law for the interests of a human being, those of society and of the state.

Article 210 of the CAVL stipulates that an immediate item of contraband shall be:

(1) illegal transportation across the state border of the Republic of Lithuania of goods (wares, valuable and other items) with the exception of firearms, ammunition, poisonous, radioactive, virulent or narcotic substances providing the value of illegally transported goods (wares, valuable or other items) does not exceed 100 minimal subsistence levels (MSL);

(2) importing or obtaining goods from abroad, notwithstanding the set permission is possessed or duty paid, providing importing or obtaining the said goods is linked with illegal exporting, remitting or sending currency or currency values, pay-documents expressed in litas or other monetary units, jewellery and other common articles made of precious metals and jewels, as well as breakage of such articles;

(3) illegal export, import, sending or remittance abroad or from abroad of currency, pay-documents of currency values expressed in litas or other monetary units, jewellery and other common articles made of precious metals and jewels, as well as breakage of such articles;

(4) import of goods having no tax stamps the trading of which in the Republic of Lithuania is prohibited without tax stamps or other marks;

(5) transportation of items of personal use and of other items across the state border of the Republic of Lithuania through the green corridor by exceeding the norm set in normative acts.

The imported and exported contraband goods, values and other items inflict great damage on the system of Lithuanian economy and finance as smugglers attempt to evade duty taxes by illegally imported and exported goods. Because of unpaid duties, as well as unchecked quality etc. of imported goods or other items, contraband goods have, as a rule, lower price and, thus, they illegally compete with respective goods which are manufactured in this country or those legally imported from abroad. In view of illegally imported non-firearms, gas pistols, psychotropic substances, goods of poor quality, etc., danger may arise for the health of people of this country. Illegal export of national values may also be associated to irreparable harm to national culture or economy. Thus, contraband is one of the most dangerous violations of administrative law. This violation causes damage not only to economic interests of the country where the goods are imported but also often to those of the country from which they are exported. Thus, virtually all states concern themselves in stopping contraband in the most efficient way. Due to this reason states, as a rule, impose stringent property sanctions for contraband violations, as well as take other financial and economic measures to stop them.

Transporting contraband goods which belong to either him or another person, a violator of law deliberately violates Lithuanian customs laws and thereby causes danger to the system of economy and finances of Lithuania, or to the health or even life of its people, i.e. he utilises them as the object of violation of law as provided for by Article 210 of the CAVL. Illegally imported goods are seriously dangerous to public and state interests irrespective of the fact whether they belonged to the person who was transporting them or to other persons. Therefore, the conclusion should be drawn that the legislature established an essentially adequate complementary penalty—the confiscation of the object of contraband—for the said violation of administrative law.

6. In assessing whether the norm of Paragraph 1 of Article 26 of the CAVL which provides for a supplementary penalty—the confiscation of the items of administrative violation of law of contraband belonging to either the violator of law or other persons—is in compliance with the norm of Article 23 of the Constitution, one must, first of all, take account of the causing of great damage to society by the said violation of law which has been discussed.

The Constitutional Court notes that laws have been passed in foreign countries, too, permitting the confiscation of property which belongs to the third party in cases when it has been used during the commission of a crime or violation of law. There also are countries the laws of which provide for an opportunity to confiscate not the item itself but a corresponding amount of money in an equivalent value of the item from the immediate violator of law. Alongside, an attempt is made that laws providing for the confiscation of property in connection with a violation of law performed by the violator would not groundlessly violate his rights to property or those of the third party. Provided a question of application of such a sanction for the violator occurs, laws permit taking into consideration the danger of the performed violation of law, as well as indirect culpability of the third party in the complicity of committing the violation of law. In exceptional cases, they provide for an opportunity to confiscate only part of the property, or not to confiscate it at all, etc.

One of the elements limiting the rights to property is prohibition on using property in a way inflicting harm on other persons or society. This prohibition remains irrespective of the fact whether the owner himself manages, uses and disposes of his property, or whether it has been transferred to other persons for management or use. Article 305 of the CC directly stipulates that the tenant must use the property taken on lease according to the agreement and its purpose. It is evident from Article 366 of the CC that the receiver of the item of use must keep to the same management as the tenant and is liable to the person who has transferred the use. This means that after granting on lease or transferring an item for use the owner still has an interest in the future of the said item.

By making agreements of temporary transfer of property for management and use, various conditions and diverse procedure of management and use of property may be established in them. Providing the parties do not establish such conditions in the agreement, it is universally recognised in civil law that the creditor is entitled to require that the temporary manager or user of his property treat it as a clever and careful person. It goes without saying, the temporary manager of property must act in no case on purpose so that the property of the other person which is run by him be endangered.

One should note that Article 143 of the CC specifies different protection of the ownership rights when: (a) the owner has by himself transferred his property to someone else for management or use; (b) such property has been lost, or seized, or ceased to be managed by the owner irrespective of his will.

An item (a car, motorcycle, etc.) which has been temporarily transferred by his owner to the violator of law for management or use could be used as an instrument of violation of law of contraband. At present, the owners of means of transport normally transfer them for temporary use to other persons by power of a warrant (Articles 397–405 of the CC). Similarly, the means of transport which have been used as an instrument of violation of law of contraband may be transferred for temporary management or use by agreements of use (Articles 366–373 of the CC), or lease (Articles 297–317) or other agreements.

The owner, by transferring a car by power of a warrant for performance of legal acts, thereby grants the right to the commissioner to manage and use the car, to take care of its technical condition, to be the representative of the owner at the police, insurance and other offices, to sign and perform for the owner all acts linked with the said power of a warrant. The analysis of such an agreement enables one to discern in it not only the authorisation, but also the use or lease, and, to a certain degree, the disposal of the said item.

An administrative violation of law of contraband may be performed only by means of deliberate actions. The violator of law understands that he is transporting goods in violation of laws, and he wishes to do so. Performing this violation, he deliberately makes use of the item (a car, etc.) which belongs to the other person by the ownership right. This means that the violator of law creates such a situation with his deliberate illegal actions in which other person’s property temporarily managed or used by him may be lost, as it is established by law that the instrument of contraband shall be confiscated irrespective of the fact who is its owner. The violator of law deliberately ignores such a threat made by the law. Therefore, the legal effects occur which are provided for by law: the confiscation of the property (the car, etc.) which has been an instrument of contraband.

Paragraph 1 of Article 26 of the CAVL establishes that confiscation shall be a coercive, gratuitous conversion of this item into state property. This means that on the grounds of the law the item which has been the instrument of administrative violation of law is no longer managed and used either by its temporary user or the owner as this instrument of violation of law becomes state property. In other words, the state becomes a legitimate gainer of the said property.

Alongside, one should note that, by transferring his property to other persons for management or use, the owner of property always runs the risk to a certain degree. The temporary user or manager of property, contrary to the agreement made, or the purpose of the item, or the interests of the owner, can damage, ruin or otherwise lose the said item with his deliberate or negligent actions. Article 152 of the CC prescribes that the owner shall hold the risk of accidental destruction of the item. By transferring his property to other persons for temporary management or use, the owner remains the owner of the transferred property, therefore, the risk of accidental destruction of the said item falls on him. In the case of administrative violation of law of contraband, the temporary manager or user of property has received the instrument (the car, etc.) of this violation from the owner by the consent of the latter. As the owner has transferred his property to another person by agreement having the power of a warrant, or that of use, lease, etc., and the latter lost it while performing administrative violation of law of contraband, the right of the owner to exact it from its honest gainer (the state) is limited. The confiscation of an item that belongs to the third party and was an instrument of administrative violation of law of contraband as provided for by Paragraph 1 of Article 26 of the CAVL should be compared to the factual destruction of the item, therefore, the owner is deprived of the opportunity to recover it in kind. However, he may claim the payment of damages by the manager or the user of the item who has performed such a violation of law. Such a regulation of legal relations by the impugned law is designated for imposing stricter responsibility on the violator of law for his actions and may not be regarded as punishment of the third party.

The rights of the owner are protected differently in the case when, for the purpose of contraband, the violator of law has used an item (a car, etc.) which has been managed or used illegally. In such a case the law protects the rights of the owner also from the honest gainer of the said property. Article 143 of the CC prescribes that the owner has the right to exact the property from its honest gainer providing the owner or another person to whom the owner has transferred it for management has been lost or seized from either of them or seized to be managed irrespective of their will. This is a universally recognised rule of protection of the right to property.

In view of the arguments set forth, the conclusion should be drawn that the norm of Paragraph 1 of Article 26 of the CAVL stipulating that “only the item which is property of the violator shall be subject to confiscation with the exception of the item which was either an immediate instrument or an immediate object of administrative violation of law pertaining to legal cases of administrative violations of law as provided for by Article 210 of this Code” is in compliance with the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 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 gives the following

ruling:

To recognise that the norm of Paragraph 1 of Article 26 of the Code of Administrative Violations of Law of the Republic of Lithuania stipulating that “only the item which is property of the violator shall be subject to confiscation with the exception of the item which was either an immediate instrument or an immediate object of administrative violation of law pertaining to legal cases of administrative violations of law as provided for by Article 210 of this Code” is in compliance with the Constitution of the Republic of Lithuania.

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

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

 

Egidijus Jarašiūnas      Zigmas Levickis      Augustinas Normantas

 

Vladas Pavilonis     Jonas Prapiestis     Pranas Vytautas Rasimavičius

 

Juozas Žilys