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On the right to apply to court

Case No. 7/97

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

R U L I N G

On the compliance of Paragraph 5 of Article 195 and Article 242 of the Code of Criminal Proceedings with the Constitution of the Republic of Lithuania

Vilnius, 1 October 1997

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

The court reporter—Daiva Pitrėnaitė

Petras Ancelis, a consultant at the Legal Division of the Seimas, the representative of the Office of the Seimas of the Republic of Lithuania, the party concerned

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 9 September 1997, considered case No. 7/97 subsequent to the petition submitted to the Court by the College of Civil Cases of the Vilnius Regional Court, the petitioner, requesting an investigation into whether the procedure of appealing against a decision of the investigator to sequestrate property as established in Paragraph 5 of Article 195 and Article 242 of the Code of Criminal Proceedings was in compliance with the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 18 February 1997, the College of Civil Cases of the Vilnius Regional Court, the petitioner, was considering a civil case pursuant to a special appeal of the plaintiff V. Vasauskas regarding the 23 December 1996 ruling of the Vilnius District Local Court to dismiss the case. By its ruling, the College of Civil Cases of the Vilnius Regional Court suspended the consideration of the civil case and applied to the Constitutional Court with a petition requesting an investigation into whether the procedure of appealing against a decision of the investigator to sequestrate property as established in Paragraph 5 of Article 195 and Article 242 of the Code of Criminal Proceedings was in compliance with the Constitution.

In his petition the petitioner points out that, under Paragraph 1 of Article 30 of the Constitution, any person whose constitutional rights or freedoms are violated shall have the right to apply to court. After a certain property has been sequestrated in pursuance of the procedure established by the Code of Civil Proceedings, its owner is entitled to implement the aforesaid right without delay and, under the procedure established by Article 472 of the said code, to apply to court either under common procedure by filing a special complaint or by appealing against the ruling of the judge of the first instance by filing a special complaint (Article 162 of the Code of Civil Proceedings). Thus, the court considers all questions concerning substantiation of property sequestration, and thereby the human right to inviolability of property is guaranteed (Article 23 of the Constitution).

The property of the plaintiff had been sequestrated under procedure of criminal prosecution. Under Paragraph 5 of Article 195 of the Code of Criminal Proceedings, sequestration imposed on property shall be repealed by a decision of the investigator in the case that the said measure becomes unnecessary, while under Article 242 of the said code, actions of the investigator shall be appealed against with the prosecutor. No solution of property sequestration issue during the consideration of a criminal case in court is provided for (Article 333 of the Code of Criminal Proceedings). Then a question arises, whether a person, according to the Constitution, when criminal proceedings have been instituted not against him and criminal prosecution is not enforced as to him, has no right to apply to court with a request to decide if his property has been sequestrated on substantial grounds. In other words, a question arises if Article 195 of the Code of Civil Proceedings which does not provide for the possibility of applying to court against the actions of the investigator is in compliance with the Constitution.

The petitioner points out that his doubts as to the procedure of repeal of sequestrated property as established in Paragraph 5 of Article 195 and Article 242 of the Code of Criminal Proceedings are confirmed by an action brought by the Deputy Prosecutor General in another case at law. Thence the petitioner concludes that such an action concerning the conflict regarding recognising the agreements on the sale and purchase of buildings to be null and void under civil pleadings may be instituted and considered in court, however, an opposing demand that the property sequestration be repealed would not be possible and even in case of nonsuit the property would remain sequestrated, while the question of the repealing of property sequestration would be decided by the investigator but never by the court. The petitioner is of the opinion that thereby the human right to judicial defence is narrowed.

II

In the course of preparation of the case for the court hearing the representative of the party concerned explained in writing that in the Lithuanian legal system there exists a principle of formality as for criminal prosecution. From the wording of Article 3 of the Code of Criminal Proceedings it is clear that criminal cases may be instituted either against a concrete person or when elements of crime come to light.

The aforesaid representative noted that Article 195 of the Code of Criminal Proceedings provides for sequestration of property belonging not only to the suspect, the accused or other natural persons materially responsible for their actions under the law but also to such natural persons who possess property which has been unlawfully gained or acquired. The circle of such persons was enlarged in 1995 after supplementation of the Code of Criminal Proceedings with Articles 1941 and 1942 dealing with a temporary limitation on property rights.

In the opinion of the representative, the Code of Criminal Proceedings, unlike the Code of Civil Proceedings, provides for a different mechanism of guaranteeing the rights and freedoms of participants in the proceedings, as during the initial stage of investigation of cases at law most of the complaints, those concerning the property sequestration among them, too, are more promptly and even with greater competence decided by the prosecutor. The court thereby is not burdened with the work of justice implementation prior to completion of the investigation of the case at law and its complete preparation for the judicial investigation. Under Articles 1941 and 1942 of the Code of Criminal Proceedings, upon a temporary limitation on property rights, an additional guarantee of the securing of rights occurred, as any person is entitled to file a complaint with a prosecutor superior in rank against the decision of the prosecutor, while the decision of the former may be appealed against to court. The representative assumes that this is in conformity to the manner of appealing provided for in Articles 195 and 242 of the Code of Criminal Proceedings, as upon a temporary limitation on property rights there is always a case of either the institution of a criminal case or the repealing of the said measure.

The representative also noted that Article 118 of the Constitution mentions prosecutors and investigators. When one has in mind the fact that this article is included in Chapter IX of the Constitution which regulates competence of the judicial power, one can assert that from this viewpoint also the impugned procedure of appealing against the property sequestration as provided for in the Code of Criminal Proceedings is in compliance with the Constitution.

The representative maintained that a criminal case may be dismissed prior to referring it to court, and in such a case the decision regarding the property sequestration would be adopted by the investigator and the prosecutor.

On the grounds of these arguments and reasoning, the representative of the party concerned concludes that the procedure of property sequestration repeal and that of the investigation into complaints as established by Articles 195 and 242 of the Code of Criminal Proceedings is in compliance with the Constitution.

During the process of the judicial investigation, the representative of the party concerned reiterated the statements set forth in his paper and additionally explained that on the grounds of the existing norms of the Code of Criminal Proceedings, it is possible to investigate a criminal case rationally and speedily. In case of granting the right to the third party to apply to court with a civil suit as to the repeal of property sequestrated in the civil case, the investigation of such a case would be more difficult. Thereby the interests of society would be violated. Moreover, one cannot base oneself on a mere declarative protection of rights to property. The interests of society require that now and then rights to property should be subject to limitation, all the more that after the pre-trial interrogation the case at law is investigated in the court which reviews all actions of the investigator. In the opinion of the representative, taking account of the specific character and importance of the right to property, as one of the fundamental human rights, the impugned issue must be more particularised.

III

In the course of preparation of the case for the court hearing explanations of A. Galinis, Deputy Prosecutor General of the Republic of Lithuania, S. Karvelis, Director of the Investigation Department at the Ministry of the Interior, E. Palskis, Head of the Criminal Proceedings Department at the Lithuanian Law Academy, and J. Rinkevičius, acting deputy director of the Lithuanian Court Expertise Institute, were received.

The Constitutional Court

holds that:

1. Article 195 entitled “Sequestration of Property” of the Code of Criminal Proceedings stipulates:

In an attempt to secure a civil action, as well as possible confiscation of property, the investigator must sequestrate the property or the means of transport or other possessions belonging to the suspect, the accused or the natural person who is materially responsible under the law for the actions of the mentioned above, as well as the property of the persons who appear to hold the property or the means of transport which has been acquired in an unlawful manner. The property may be sequestrated either together with seizure or search or separately.

Property of the natural person may be sequestrated:

(1) in an attempt to secure possible confiscation of property in the cases provided for by Article 35 of the Criminal Code;

(2) in an attempt to secure a civil action when there are substantial grounds make a legal person a civil respondent at a criminal case.

The investigator shall draw up a reasoned decision as regards the property sequestration. The property subject to sequestration shall be listed under the rules provided for by Articles 189 and 191 of this code. All the property subject to listing must be shown to invited witnesses and other persons who are present. On the property list the number of listed items as well as their individual properties shall be indicated. Items which are necessary for the suspect or the accused, as well as for the members of their families and the persons who are supported by them, shall not be subject to sequestration according to the list established by means of laws of the Republic of Lithuania.

At the discretion of the investigator the sequestered property shall be passed for preservation to either an apartment maintenance organisation or the representative of a governing body of the municipality, or the owner of the said property or his relative, or another person after explaining about their responsibility under Article 304 of the Criminal Code of the Republic of Lithuania for embezzlement, transfer or concealment of the said property. For this purpose a written pledge shall be taken from them. When necessary, the sequestrated property may be seized. Upon the sequestration of monetary deposits, all operations as to these deposits shall be suspended.

The property sequestration is repealed upon the decision of the investigator provided the said measure becomes unnecessary.”

Article 242 entitled “Procedure of Appealing against the Actions of the Investigator” of the same code stipulates:

The suspect, the accused, their legal representatives, the defender, as well as the victim and his representative, the civil plaintiff, the civil respondent or their representatives, the bailor, the witness, the invited witness, the expert, the specialist, the translator as well as other persons may file complaints with the prosecutor against the actions of the investigator. The complaints shall be filed with the prosecutor either directly or through the investigator against actions of whom the complaint is lodged. The complaints may be either in written or oral form. The prosecutor or the investigator shall enter oral complaints into the protocol which shall be signed by both the declarant and the person who has received the complaint.

The investigator must within 24 hours refer the received complaint together with his explanations to the prosecutor.

The filing of the complaint until the decision concerning the said complaint shall not suspend the implementation of the action complained against, unless to do so the investigator or the prosecutor regards as being necessary.”

The College of Civil Cases of the Vilnius County Court had doubts whether the procedure of appealing against the decision of the investigator to sequestrate property as established in Paragraph 5 of Article 195 and Article 242 of the Code of Criminal Proceedings was in compliance with the Constitution.

2. In case of clash of different rights or different interests of persons various ways of their co-ordination or protection are possible. One of the most important ways of the protection of violated rights or freedoms is their protection in court. Such a protection of rights is consolidated in Article 30 of the Constitution Paragraph 1 whereof provides: “Any person whose constitutional rights or freedoms are violated shall have the right to apply to court.” Such a possibility of the protection of violated rights and freedoms is pointed out in Article 8 of the Universal Declaration of Human Rights adopted on 10 December 1948 by the General Assembly of the United Nations (“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”), as well as in Paragraph 1 of Article 14 of the International Covenant on Civil and Political Rights of 16 December 1966 (“In the determination of any criminal charge against him, or his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law <...>”). It is noted in Paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Under Paragraph 1 of Article 5 of the Constitution, in Lithuania, the powers of the state shall be exercised by the Seimas, the President of the Republic and the Government, and the Judiciary. The purpose of the judicial power is to implement justice. The Constitution consolidates the independence of the judiciary as a branch of state power. While administering justice, judges and courts shall be independent (Paragraph 2 of Article 109 of the Constitution). The independence of judges and courts is also conditioned by everyone’s right to an impartial arbiter of the conflict. Such a right means that in a state under the rule of law a possibility is ensured for everyone to protect his rights in court from other persons, as well as unlawful actions of state institutions or officials. To guarantee this is of much importance when conflict as to the inborn rights and freedoms occurs.

The judicial protection of rights and freedoms, unlike other ways of their protection, has such universally recognised democratic principles (the equality before the court, openness, the adversarial principle, the right to be heard in court, etc.) which are characteristic of it only. The court shall obey only the law and, in particular cases, shall adopt decisions in the name of the Republic of Lithuania (Paragraph 4 of Article 109 of the Constitution). The state guarantees carrying out of the adopted court decision concerning a concrete person.

While settling a conflict, a court, as an institution of state authority, adopts an act of justice. When adopting it, the court invokes special procedural rules. One of them prescribes that, in determining anyone’s rights and obligations, the court must point out the clear and convincing reasoning of the adopted decision. In the case that a person does not agree with the court decision adopted regarding him, the law guarantees a possibility for him to appeal against the said decision following the hierarchical line, i.e. the examination of the lawfulness and validity of the adopted decision at the court of higher instance.

3. The petitioner doubts whether the procedure of appealing against a decision of the investigator to sequestrate property as established in the norms of the Code of Criminal Proceedings does not narrow the human right to apply to court.

Paragraph 1 of Article 118 of Chapter IX “The Court” of the Constitution provides: “Prosecutors shall prosecute criminal cases on behalf of the State, shall carry out criminal prosecutions, and shall supervise the activities of the interrogative bodies.” The functions of prosecutors are particularised in Article 25 of the Law on the Prosecutor’s Office: “The prosecutor shall commence criminal prosecution in the manner prescribed by the law on criminal procedure, in the course of criminal investigation he shall conduct acts of prosecution and, if there is sufficient grounds, shall refer the case to court.” The competence of prosecutors, as well as their rights and duties, are also defined in other articles of the said law. Even though, under the Constitution, prosecutors are a constituent part of the judicial power, one cannot, however, identify them with courts. The fundamental difference between the constitutional status of a prosecutor and that of a court is the fact that the prosecutor may not accomplish the functions of the administration of justice which are categorised as belonging to courts. The existence of such a difference was also stated in the Constitutional Court’s ruling of the 14 February 1994.

In order to implement the functions of the investigator and the prosecutor, respective rules have been established in the Code of Criminal Proceedings. Under these rules the prosecutor and the investigator enjoy the independence and liberty as established by law. However, one may not deem them to be absolute, especially when the actions or inaction of the aforesaid officials are linked with fundamental human rights and freedoms. The Constitution establishes a direct relation between a certain performance of procedural actions and the decision of a court. For example, Paragraph 3 of Article 20 of the Constitution provides that a person detained in flagrante delicto must, within 48 hours, be brought before a court for the purpose of deciding, in the presence of the detainee, on the validity of the detention. If the court does not adopt a decision to arrest the person, the detainee shall be released immediately. A court order is necessary as regards the collection of information concerning the private life of a person (Paragraph 3 of Article 22 of the Constitution), as well as the inviolability of the home of a human being (Article 24 of the Constitution). It is obvious that it is impossible to list in the Constitution all cases when a court decision (order) is necessary. However, when one addresses fundamental human rights or freedoms, one may not forget the human right to apply to court which is consolidated in Paragraph 1 of Article 30 of the Constitution. On the basis of this norm it should be concluded that, when checking the lawfulness of the actions performed by the investigator, the prosecutor should not become the final arbiter as concerns human rights and freedoms.

Paragraph 1 of Article 195 of the Code of Criminal Proceedings provides for a duty of the investigator to sequestrate property in certain cases. Paragraph 5 of the same article provides that the investigator may repeal the property sequestration in the event that he believes that the measure of property sequestration becomes unnecessary. The investigator is entitled to adopt a decision as to this question irrespective of any request of any person. The investigator does so on the basis of the assessment of the circumstances of the criminal case, and he may do so at any time when the case is at his disposal. Thus, in the impugned norm of Paragraph 5 of Article 195, a rule of a general character is established which is applied to the actions of the investigator when criminal prosecution is being implemented. He is entitled to perform these actions prior to reference of the case to the court or dismissal of the case. This norm neither regulates nor restricts the human right to judicial protection, therefore, it should be concluded that it is in compliance with the Constitution.

One should note that Article 2 of the Republic of Lithuania’s Law on the Procedure for the Enforcement of the Constitution of the Republic of Lithuania insists on co-ordination of laws and other legal acts which were in effect on the territory of the Republic of Lithuania prior to the adoption of the Constitution with the provisions of the Constitution. Doubts have been expressed in the case at issue whether the impugned norms are in compliance with the provision consolidated in Paragraph 1 of Article 30 of the Constitution which stipulates that any person whose constitutional rights or freedoms are violated shall have the right to apply to court. Besides, upon supplementation of the Code of Criminal Proceedings with Articles 1941 and 1942 on 20 December 1995, which provide for mere temporary limitations on the right to property in an attempt to secure a civil action, as well as possible confiscation of property or exaction of a fine, Paragraphs 6 of the aforesaid articles provide for the right of persons whose rights have been temporarily limited to apply to court against the decision of the prosecutor. Meanwhile, when the Code of Criminal Proceedings was being amended and supplemented, the procedure of appealing against actions of the investigator as prescribed in Article 242 of the said code, which had been confirmed prior to the adoption of the Constitution, remained unchanged, i.e. this norm remained uncoordinated with the Constitution.

4. It is stipulated in Article 23 of the Constitution: “Property shall be inviolable.” Paragraph 2 of the same article provides: “The rights of ownership shall be protected by law.” Thus, this article of the Constitution obligates the state to protect the rights of ownership by law.

The Constitutional Court has noted for several times that the inviolability of property may not be deemed to be absolute: “<...> neither the Constitution, nor the valid system of other laws, nor universally recognised norms of international law deny the opportunity, under conditions and procedure prescribed by law, to alienate the property or limit its possession, use or disposal” (the Constitutional Court’s rulings of 13 December 1993 and 10 July 1997).

Under Paragraph 1 of Article 195 of the Code of Criminal Proceedings, in securing a civil action, as well as possible confiscation of property, the preventive measure of property sequestration shall be applied. Property is sequestrated so that it could not be hidden, used up or destroyed. For this reason property sequestration must be applied promptly. Such a procedural action must be performed first of all by the investigator. The decision of the investigator to sequestrate property is characteristic of the fact that it is adopted when criminal prosecution is being accomplished. When such a prosecution is being accomplished, the interests of a particular individual who has suffered damages because of the crime, as well as those of society, are protected by property sequestration.

Upon the sequestration of property, its owner is not deprived of the ownership rights to his property. As a preventive measure, property sequestration merely limits the subjective rights of the owner. As a rule, this is a limitation on the disposal of property, whereas in the case that the diminishing of the property value or the destruction of the property is imminent, the limitations on the use and management of the property are applied.

Justice demands that a person who has committed a crime be justly punished, his property be confiscated in the cases established by law, and the one who has suffered losses be compensated damages. Compensation for material damage is guaranteed by Paragraph 2 of Article 30 of the Constitution: “The law shall establish the procedure for compensating material and moral damage inflicted on a person.”

However, by establishing limitations on the right to property one may not at the same time deny the right of a private owner to defend his property rights at a competent and independent judicial institution. By giving an emphasis to the public interest in criminal proceedings in the case of property sequestration, along with placing limitations on the judicial protection of the right to property, the right of the owner to protect his interests would be restricted.

5. Unprotected human rights and freedoms would become meaningless if one did not take account of the universal rule ubi jus ibi remedium: if the law grants a right, it also provides for means of protection of this right. In the legal system of a state such means are established by means of laws of this state. As it was mentioned, one of the main guarantees of protection of any person’s rights is his right to apply to court. The implementation of this right is conditioned by the realisation of the person himself that his rights or freedoms are violated. No one may hinder his appealing to court. Appellation to court is a subjective procedural personal right guaranteed by the Constitution, as Paragraph 1 of Article 30 of the Constitution provides: “Any person whose constitutional rights or freedoms are violated shall have the right to apply to court.”

Under Article 242 of the Code of Criminal Proceedings, actions of the investigator may be appealed against by the suspect, the accused, their legal representatives, the defender, as well as the victim and his representative, the civil plaintiff, the civil respondent or their representatives, the bailor, the witness, the invited witness, the expert, the specialist, the translator as well as other persons. Complaints of the said persons are examined by the prosecutor. Thus, the analysis of the impugned norm allows drawing the conclusion that in such a case the right of the aforesaid persons to apply to court against actions of the investigator is limited.

In the case that the prosecutor rejects a complaint requesting the repealing of the decision of the investigator by which property has been sequestrated, the person should not be prevented from applying to court. As the ownership rights are categorised as the fundamental constitutional human rights, only the court should be the final arbiter that decides the lawfulness of the decision to sequestrate property.

On the grounds of the arguments set forth, the conclusion should be made that the norm of Article 242 of the Code of Criminal Proceedings to the extent that a person’s right to apply to court against the decision to sequestrate property is limited contradicts Paragraphs 1 and 2 of Article 23, as well as Paragraph 1 of Article 30 of 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:

1. To recognise that Paragraph 5 of Article 195 of the Code of Criminal Proceedings is in compliance with the Constitution.

2. To recognise that the norm of Article 242 of the Code of Criminal Proceedings to the extent that a person’s right to apply to court against the decision to sequestrate property is limited contradicts Paragraphs 1 and 2 of Article 23, as well as Paragraph 1 of Article 30 of the Constitution.

This ruling 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:

Kęstutis Lapinskas     Zigmas Levickis     Augustinas Normantas

Vladas Pavilonis     Jonas Prapiestis      Pranas Vytautas Rasimavičius

Teodora Staugaitienė      Juozas Žilys