Lt

On a crime committed by a group of juvenile delinquents

Case No. 4/97

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

On the compliance of Article 50 of the Code of Administrative Violations of Law of the Republic of Lithuania with the Constitution of the Republic of Lithuania

Vilnius, 13 November 1997

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

The court reporter—Daiva Pitrėnaitė

Vytautas Masiokas, a judge at the Kaunas City Local Court, the petitioner

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 22 October 1997, considered case No. 4/97 subsequent to the petition submitted to the Court by the Kaunas City Local Court, the petitioner, requesting an investigation into whether Article 1 of Part IV of the Law “On Amending and Supplementing the Republic of Lithuania’s Criminal Code, the Code of Criminal Proceedings, the Code of Civil Proceedings and the Code of Administrative Violations of Law” by which Article 50 of the Code of Administrative Violations of Law of the Republic of Lithuania had been amended was in compliance with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 5 February 1997, in its procedural sitting, the Kaunas City Local Court, the petitioner, was considering a criminal case wherein two juveniles had been charged with an attempt, on 30 July 1996, to steal secretly the coin collecting container (the value whereof was 34.2 Lt) of a public telephone, as well as the committed crimes provided for in Paragraph 2 of Article 16, Paragraph 2 of Article 271 and Paragraph 2 of Article 278 of the Criminal Code of the Republic of Lithuania (hereinafter referred to as the CC).

The court suspended the consideration of the criminal case by its ruling and applied to the Constitutional Court with a petition requesting an investigation into whether Article 1 of Part IV of the Law “On Amending and Supplementing the Republic of Lithuania’s Criminal Code, the Code of Criminal Proceedings, the Code of Civil Proceedings and the Code of Administrative Violations of Law” (Official Gazette Valstybės žinios, 1995, No. 104-2325) by which Article 50 of the Code of Administrative Violations of Law of the Republic of Lithuania (hereinafter referred to as the CAVL) had been amended was in compliance with Paragraph 1 of Article 29 of the Constitution.

II

The petitioner substantiates his request by the following arguments.

Article 50 of the CAVL in its former dispositive wording had been as follows: “Minor seizure of other persons’ property by theft, fraud, misappropriation or embezzlement”. Under such a dispositive wording of the said article, provided the target of theft did not exceed the amount of the then existing one minimum subsistence level (hereinafter referred to as the MSL) the punishment provided for by Article 50 of the CAVL was to be applied.

The now in force disposition of Article 50 of the CAVL provides: “Minor seizure of other persons’ property by theft, fraud, misappropriation or embezzlement providing there are no aggravating circumstances provided for in Articles 271, 274 and 275 of the Criminal Code of the Republic of Lithuania.” According to this wording, persons shall be brought to criminal responsibility for a theft the target whereof does not exceed the amount of one MSL providing it has been committed by a group of persons or repeatedly.

The petitioner notes:

1. Corpus delicti is an essential basis in deciding whether to bring a person to criminal responsibility. This is also indicated in Item 2 of Paragraph 1 of Article 5 of the Code of Criminal Proceedings: “The criminal case may not be instituted, and the instituted case must be dismissed: <...> in the case that there is no corpus delicti in the deed”. The elements of corpus delicti are the target of crime, the objective side, the subject and the subjective side. The elements of corpus delicti must be reflected in the criminal deed itself, too. In the absence of at least one of the elements of corpus delicti, the deed may not be deemed to be a crime.

In this particular case at issue the target of crime is property, while its item is 34.2 Lt. Thus, there is the body of petty theft only in the deed of the accused as the value of the stolen property does not exceed the amount of one MSL.

2. Providing in the aforesaid case one person would have attempted to commit the same theft, he would not be criminally liable as in his deed there would be no aggravating circumstances indicated in the disposition of Article 50 of the CAVL and provided for in Article 271 of the CC.

3. Under the same circumstances, provided only when theft is committed by two persons, they already are criminally liable (in the case that one follows the new wording of Article 50 of the CAVL).

Therefore, in such a case the constitutional principle stipulating that all persons shall be equal before the law is being violated.

In addition, the petitioner is of the opinion that there is no precision in Article 50 of the CAVL when it stipulates “in the case that there are no aggravating circumstances”. It would be more precise to indicate “qualifying factors” as aggravating circumstances are provided for by Article 41 of the CC which in its special section articles does not generally point out qualifying factors.

III

In the course of the preparation of the case for the Constitutional Court hearing, Pranas Petkevičius, a consultant at the Seimas Legal Division, acting as the representative of the party concerned, pointed out that Article 50 of the CAVL had been amended by the 20 December 1995 law of the Republic of Lithuania in an attempt to define more precisely the notion of minor seizure of other persons’ property as a violation of administrative law, and thereby to dissociate it from the criminal crime provided for in Article 271 of the CC. The disposition of Article 50 of the CAVL provides that minor seizure of other persons’ property by theft, fraud, misappropriation or embezzlement shall be such a deed when there are no aggravating circumstances provided for in Articles 271, 274 and 275 of the CC and providing the value of the stolen property does not exceed the amount of one MSL.

The law indicates the following aggravating circumstances: “theft committed by a person who has a previous conviction for crimes against property”, “by a group of persons with a premeditated intent”, “by braking into a dwelling-place” etc. Thus, they are treated by the legislature as deed qualifying factors indicating that such a deed is more dangerous to society, therefore, such a deed should be qualified as a criminal crime. Besides, in this case the said circumstances are not regarded as aggravating circumstances indicated in Article 41 of the CC which are taken account of when the punishment is given to the guilty person.

Thus, the now in force disposition of Article 50 of the CAVL by defining the notion of minor seizure of other persons’ property as an administrative violation of law is in compliance with Paragraph 1 of Article 29 of the Constitution.

IV

During the hearing at the Constitutional Court the petitioner virtually confirmed his arguments set forth in the 5 February 1997 ruling of the Kaunas City Local Court. Moreover, the petitioner noted that the said amendment of the CAVL does not always reasonably aggravate the responsibility of juveniles. Juvenile delinquents commit minor thefts, however, they do this in groups, therefore, under the law, they are criminally, but not administratively, liable. Meanwhile all persons are equal before the law and there may not exist administrative responsibility for one group of persons and criminal responsibility for another group of persons for the same deed.

The Constitutional Court

holds that:

1. One of characteristic peculiarities of the legal system is constant evolution of legal regulation. It depends on changes taking place in the society, and, thus, on the appearing necessity to regulate the new, as well as the old and changed public relations. Taking account of such a necessity of legal regulation by means of laws and other legal acts new legal norms are being consolidated, the valid ones are being perfected or the dated legal norms are being eliminated.

When new legal norms are being adopted or the valid ones are being improved there exist no restrictions as to what public relations must be regulated and in what order it must be done. Through law-making initiative it becomes most often clear which spheres of public life need be regulated first of all or the regulation of which wants more precision. However, there exists no complete freedom as regards the content and form of the laws undergoing the process of adoption. All legal acts are subject to one fundamental requirement: they must not contradict the Constitution.

The preamble of the Constitution proclaims an aspiration for an open, just, and harmonious civil society and state under the rule of law. One of the ways of the realisation of such an aim is improvement of the legal system based on constitutional and general legal principles.

When one establishes responsibility for committing an unlawful deed, the principles of equality before the law, those of justice and humanity consolidated in the Constitution and directly deriving from it are of crucial importance. The assessment of the law undergoing the process of adoption on the grounds of these principles may be of help to express the content of a legal norm appropriately, to assess the legal effects which are being established adequately, to evade possible contradictions with respect to the relevant branch of law, as well as the system of law.

These principles are also of much importance when legal norms are being applied, accomplished or otherwise realised, however, legal principles manifest themselves differently in the process of lawmaking and that of implementation of law.

Taking account of the changes taking place in society, the evolution of legal regulation in the sphere of criminal law first of all is manifested by criminalisation or decriminalisation of deeds, i.e. certain deeds are either deemed to be unlawful or the responsibility for them is removed from criminal laws. The process of criminalisation of deeds is linked with social phenomena taking place in society, however, when deeds are being criminalised, one does not always assess the actual possibilities of other branches of law to regulate and protect certain public relations. In comparative criminal law there are examples when by criminalisation of deeds, and notably by making stricter punishments for unlawful deeds one virtually attempts to intimidate a potential criminal so that he would not commit the crime. However, this aim is not always achieved by such means.

To recognise a deed as a crime, one has to assess all aspects linked with the performing of such a deed. In an attempt to prevent unlawful deeds, it is not always expedient to recognise such deeds as crime, and to apply the strictest measure—criminal punishment. Therefore, every time when one has to decide whether a particular deed is a crime or another violation of law, it is very important to assess what results may be achieved by other means (administrative, disciplinary, civil sanctions or measures of public influence etc.) which are not linked with application of criminal punishments.

2. When the expediency question of criminalisation of deeds is decided one particularly has to pay attention to the reciprocity between criminal and administrative law. In deciding whether the responsibility for an unlawful deed should be categorised as belonging either to the sphere of administrative or that of criminal law, one should emphasise that both criminal and administrative law belong to public law and according to their content of regulation as well as methods have much in common, however, alongside one may perceive their important differences, too.

The conception of an administrative violation of law and that of the crime are similar, however they differ in: (a) the danger of deeds performed; (b) contradiction to law; (c) legal effects.

The administrative violation of law and the crime are defined as dangerous deeds as on their performance certain values are disturbed. The legal doctrine commonly recognises that the danger of a violation of administrative law and that of the crime are not analogous. The greater danger of the crime is determined not only by the target of crime but also the entirety of other objective and subjective elements.

One of the differences between a violation of administrative law and a crime is also the legal effects affecting the subject. After one has committed a crime, the strictest coercive measure—the punishment provided for in criminal laws—may be imposed upon him. When applying administrative responsibility, administrative penalties (a fine, an administrative arrest not exceeding 30 days, correctional labour not exceeding the period of 2 months, etc.) similar to criminal punishments may be imposed. Administrative penalties are virtually more lenient and they do not incur a criminal conviction. However, when one compares certain sanctions of the norms of administrative and criminal law, it is possible to perceive a certain incompatibility between different branches of law, which gives trouble to implementation of the justice principle.

3. On 20 December 1995 the Seimas passed the Law “On Amending and Supplementing the Republic of Lithuania’s Criminal Code, the Code of Criminal Proceedings, the Code of Civil Proceedings and the Code of Administrative Violations of Law” by which Article 50 of the CAVL was amended. The disposition of the new wording of the said article provides that minor seizure of property by theft, fraud, misappropriation or embezzlement shall be an administrative violation of law providing there are no aggravating circumstances provided for in Articles 271, 274 and 275 of the CC.

In the note of Article 50 of the CAVL it is stipulated that seizure of property shall be regarded as minor one providing the value of seized property does not exceed the amount of one MSL. Along with the value of seized property, one also takes into consideration the natural amount (weight, size) of stolen items.

Article 271 of the CC provides for the following qualifying factors of theft: (a) theft committed repeatedly or by a group of persons with a premeditated intent, or by breaking into uninhabited premises; (b) theft committed by breaking into a dwelling place; (c) theft committed on a large scale.

Article 274 of the CC provides for the following qualifying factors of fraud: (a) fraud perpetrated repeatedly or by a group of persons with a premeditated intent, or by intentionally designing a faulty computer programme, or by entering erroneous data into computer memory, or by otherwise affecting computer information or its processing; (b) fraud perpetrated on a large scale.

Article 275 of the CC provides for the following qualifying factors of misappropriation or embezzlement: (a) the deed performed repeatedly or by a group of persons with a premeditated intent; (b) misappropriation or embezzlement of other persons’ property which has been entrusted to or which is at the command of the culprit on a large scale.

Thus, under the now in force disposition of Article 50 of the CAVL, for theft of other persons’ property, fraud, misappropriation, or embezzlement providing there exist the said qualifying factors, even though the value of seized property is less than the amount of one MSL, the punishment shall be applied as for a crime and not as for an administrative violation of law. A person who has performed any of the aforementioned deeds having these factors is brought to criminal responsibility respectively under either Article 271 or 274 or 275 of the CC.

4. In the opinion of the petitioner, the impugned law does not precisely use the definition “in the case that there are no aggravating circumstances”, as the doctrine of criminal law makes distinction between aggravating circumstances and qualifying factors.

It should be noted that aggravating circumstances are provided for by Article 41 of the CC (the crime has been committed by a person who has a previous conviction; the crime has been committed by an organised group; the crime has incurred dire consequences etc.). The main peculiarity of the aggravating circumstances enumerated in the law is the fact that they are possible in any crimes committed provided for in the CC. On establishment of their existence in a concrete deed, by deciding the punishment the court takes account of this and may give a stricter punishment to the culprit.

Part of aggravating circumstances mentioned in Article 41 of the CC are indicated by defining the crimes provided for in the special part of the CC. In such a case the doctrine of criminal law, as a rule, designates them as crime qualifying factors. Other circumstances which are not indicated in Article 41 of the CC are also rated as qualifying factors. Generally, the establishment of a qualifying factor also determines a respectively stricter sanction. The notion “aggravating circumstance” used in the impugned law and indicated in Articles 271, 274 and 275 of the CC does not create any possibility of treating it otherwise but a qualifying factor. Such use of the notion may be deemed to be a mere linguistic inexactitude, even though in other cases (e.g. Article 105 of the CC), too, the notion “under aggravating circumstances” is used but not “providing there exist qualifying factors”.

5. During the consideration of the case in the hearing at the Constitutional Court, the petitioner noted that the amendments of Article 50 of the CAVL relate to a great number of juveniles. In such cases when juveniles commit minor seizures of other person’s property by acting in groups of persons with a premeditated intent, under valid laws their deeds must be qualified as crimes and not as administrative violations of law.

Article 1 of the Republic of Lithuania’s Law on Fundamentals of Protection of the Rights of the Child defines the child as a human being below the age of 18 years unless otherwise established by law. Similarly this norm is consolidated in Article 1 of the Convention on the Rights of the Child adopted by the United Nations wherein it is noted that a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier.

Paragraph 1 of Article 40 of the said convention provides that every child alleged as, accused of, or recognised as having infringed the penal law has the right that one took account of the child’s age; alongside there must be apparent the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. Article 37 of the same convention obligates the State Parties to ensure that the arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time.

Taking account of social peculiarities and those of psychological structure of the juvenile, the general part of the CC limits the number of crimes for which juveniles of the age of 14–16 years may be brought to criminal responsibility. Alongside, limitations on imposing the maximum confinement time period (which must not exceed 10 years), certain mitigating conditions acquitting a juvenile from criminal responsibility, as well as releasing from punishment by putting one on probation before the expiration of punishment term, are established. On the other hand, provisions for stricter responsibility and punishment in the special part of the CC have diminished the opportunities to take account of established peculiarities of criminal responsibility for juveniles. Actually, the punishment of confinement for juveniles as provided for in sanctions of the CC has become a rule but not an exception.

The Constitutional Court holds that by amendment of the impugned law the circle of deeds for which juveniles may be brought to criminal responsibility has essentially been enlarged. As a rule, juveniles commit minor thefts which, if one considers the value of seized property, may be deemed to be administrative violations of law. However, juveniles very often perform such violations of law in groups of persons with a premeditated intent or repeatedly, therefore, under valid laws, such deeds must be qualified as crimes. Besides, for the seizures of property which have been qualified the sanctions of the CC provide for punishments which, taking account of the value of seized property, may be overly strict or not applicable at all for juveniles.

All this allows assuming that one should provide for a broader differentiation of responsibility for juveniles, as well as a better regulation of the peculiarities of their administrative and criminal responsibility, and these peculiarities should be in keeping with not only the danger of the deed performed but also the social and psychological characteristics of children of a respective age.

6. The petitioner had doubts as to the conformity of the amendment of Article 50 of the CAVL to Paragraph 1 of Article 29 of the Constitution which provides that “all persons shall be equal before the law”. The petitioner contends that under Article 50 of the CAVL responsibility occurs provided one person steals property the value whereof does not exceed one MSL, however if this has been committed by a group of persons with a premeditated intent, these persons are brought to a much stricter—criminal—responsibility.

In assessing the arguments of the petitioner one should note that in deciding the issue of equality before the law one has to distinguish between, first, establishment of such equality in the law, and, second, implementation of equality in application of laws.

6.1. The problem of equality of persons in the laws cannot be adequately decided without the assessment of the fact in each case whether peculiarities of legal regulation are reasonably established in respect to these persons.

In its ruling of 28 February 1996, the Constitutional Court noted that, in itself, the constitutional principle of the equality of persons does not deny the fact that law may establish different legal regulation concerning certain categories of persons who are in a different situation. Assessing the fact whether different legal regulation has been reasonably established one should take into account particular circumstances. Firstly, the differences of the legal situation of respective entities and items to which different legal regulation is being applied must be assessed; secondly, one must take into consideration the compatibility of legal acts as to their hierarchy, scope of regulation, etc.; thirdly, one must assess whether the legal norms establishing special conditions correspond the destination and purpose of a legal act. The cogency of particular legal norms may be convincing in such cases when all indicated circumstances have been taken into consideration.

The impugned law establishes different responsibility for persons who have committed a minor seizure of other persons’ property by theft, fraud, misappropriation or embezzlement when there are no qualifying factors provided for in Articles 271, 274 and 275 of the CC (administrative violation of law) and when the deed has been performed when there are the qualifying factors provided for in Articles 271, 274 and 275 (crime).

In the opinion of the petitioner, the danger of a deed depends on the value of an attempted item, and on the grounds of this it is expedient to distinguish between a crime and an administrative violation of law.

Thus, one has to answer the question whether upon the amendment of Article 50 of the CAVL by which it was recognised that in the case of theft of other persons’ property, fraud, misappropriation or embezzlement providing there are the qualifying factors provided for in Articles 271, 274 and 275 of the CC, the deeds become more dangerous. On such grounds one may assess whether criminalisation of the said deeds and removal of responsibility for them from the sphere of administrative law into that of criminal law violates justice and, therefore, if this creates any inequality before the law of persons who have committed the said deeds.

It should be noted that the danger of a deed, in fact, very often is determined by the target and item of attempt (for instance, a deed which causes danger to human life is more dangerous than an attempt on one’s property). However, the assessment of the dangerousness of a deed is determined not only by the value of the target or that of the item. The manner of its performance (for instance, an open seizure of property with violence is more dangerous than a secret seizure of the same property), its form (for instance, deliberate destruction of property is more dangerous than the same destruction of property through negligence), as well as peculiarities of the subject of crime may also be of significance for dangerousness of a deed.

In assessing the dangerousness of the crime committed, the doctrine of criminal law takes heed of the fact that a crime committed by several persons is potentially more dangerous than an analogous one committed by one person. The dangerousness of crime may be greater because of the fact that several persons co-ordinate their efforts, it is easier for them to commit many crimes, to cover either traces of their crimes or the persons that have committed them etc. When actions are performed jointly, there exists a more solid psychological background and determination to either commit or continue a crime, methods of committing a crime are better considered, more effective instruments and means of committing a crime are chosen.

The qualifying circumstance of a premeditated intent of a group to seize property as provided in Articles 271, 274 and 275 of the CC means that prior to committing a crime two or more persons decide to act jointly. Acting in such a way, one is able to plan beforehand as to what property will be attempted on, the roles to be taken during a perpetration of crime are divided, one plans as to where the stolen property will be hidden or utilised otherwise etc. Taking account of the fact that several persons acting jointly are capable of inflicting more harm, therefore, objectively, their actions are more dangerous.

The differentiation of responsibility may be accomplished only after one takes into consideration not only the harm and its size inflicted by unlawful deeds but also the manner of the performance of such deeds, as well as other circumstances along with the measures of coercion which have already been provided for. Thus, the establishment of administrative and criminal responsibility for deeds of different degree of danger violates neither the constitutional principle of equality nor that of justice.

6.2. Another issue relates to equality of persons in respect to application of laws.

Paragraph 1 of Article 29 of the Constitution provides: “All persons shall be equal before the law, the court, and other State institutions and officials.” In law the principle of equality before the law means an “equal measure” when one has to apply the same norm for different persons. In criminal law, the principle of equality means that the same basis of responsibility is established for the committed crime.

According to criminal law, the principle of the equality before the law is realised by recognising that corpus delicti is the only basis on which persons may be brought to criminal responsibility. The entirety of features of corpus delicti as it is described in the law defines a deed as crime and in this respect corpus delicti becomes an “equal measure” for all persons who have performed a certain deed. In other words, providing a single feature of corpus delicti described in the law is missing, then a person may not be brought to criminal responsibility. On the other hand, providing the deed of a person corresponds to the features of crime described in the law, then neither any properties of the person, nor his social status etc. may influence his bringing to criminal responsibility. This determines a special significance of precise formulation of features of crimes.

However, an equal basis for bringing anyone to criminal responsibility does not mean that all persons who have committed the same crime must be given the same punishment. The laws provide that when giving a punishment, one takes account of the character of the committed crime, the person of the culprit, the degree of the guilt, the circumstances which either mitigate or aggravate the responsibility, and on the grounds of all this the punishment must be particularised. The particularisation of punishment does not violate the principle of all persons’ equality before the law. This should also be applied when persons are brought to administrative responsibility.

The Constitutional Court holds that the administrative responsibility for minor unlawful seizure by theft, fraud, misappropriation or embezzlement as provided for by the impugned law providing there are no qualifying factors indicated in Articles 271, 274 and 275 of the CC assigns deeds of different dangerousness for respective administrative violations of law and crimes, therefore, it does not violate the principle of the equality before the law.

In view of what has been set forth above, it should be concluded that the disposition of Article 50 of the CAVL 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 disposition “minor unlawful seizure of property by theft, fraud, misappropriation or embezzlement providing there are no aggravating circumstances provided for in Articles 271, 274 and 275 of the Criminal Code of the Republic of Lithuania” of Article 50 of the Code of Administrative Violations of Law of the Republic of Lithuania 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      Kęstutis Lapinskas      Zigmas Levickis

 

Augustinas Normantas      Vladas Pavilonis      Jonas Prapiestis

 

Pranas Vytautas Rasimavičius      Teodora Staugaitienė     Juozas Žilys