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On the right to file a complaint against a decision of the judge of pre-trial investigation

Case No. 38/2008

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF THE PROVISION OF PARAGRAPH 4 (WORDING OF 28 JUNE 2007) OF ARTICLE 168 OF THE CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

7 April 2011
Vilnius

 

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

with the secretary—Daiva Pitrėnaitė,

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 1 April 2011, heard constitutional justice case No. 38/2008 subsequent to the petition (No. 1B-43/2008) of the Panevėžys Regional Court, the petitioner, requesting to investigate whether the provision “A complaint against the decision of the judge of pre-trial investigation shall be filed in the manner prescribed in Part X of this Code” of Paragraph 4 (wording of 28 June 2007) of Article 168 of the Code of Criminal Procedure of the Republic of Lithuania is not in conflict with Paragraph 1 of Article 109 and Paragraph 1 of Article 118 (wording of 20 March 2003) of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The Panevėžys Regional Court, the petitioner, was investigating a complaint regarding annulment of the ruling of a judge of pre-trial investigation of the Rokiškis District Local Court whereby the complaint of J. K. against the ruling of the prosecutor to refuse to institute pre-trial investigation was not satisfied. On 24 November 2008, by its ruling, the court suspended the investigation of the complaint and applied to the Constitutional Court with a petition requesting to investigate whether the provision “A complaint against the decision of the judge of pre-trial investigation shall be filed in the manner prescribed in Part X of this Code” of Paragraph 4 (wording of 28 June 2007) of Article 168 of the Code of Criminal Procedure (hereinafter also referred to as the CCP) is not in conflict with Paragraph 1 of Article 109 and Paragraph 1 of Article 118 (wording of 20 March 2003) of the Constitution.

II

The petition of the Panevėžys Regional Court, the petitioner, is substantiated by the following arguments.

Under Paragraph 1 of Article 118 (wording of 20 March 2003) of the Constitution, pre-trial investigation is organised and directed only by the prosecutor, whereas the function of the court to administer justice, which is entrenched in Paragraph 1 of Article 109 of the Constitution, is in essence different from that of directing pre-trial investigation.

In the opinion of the petitioner, the fact that, under Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, the lawfulness and reasonableness of the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation may be verified by the prosecutor executing the control of pre-trial investigation and the judge of pre-trial investigation is in line with the Constitution and guarantees the right of a person to defend his violated rights and legitimate expectations in court.

According to the petitioner, under the provision of Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, which is disputed in the constitutional justice case at issue, the court is ascribed the function of deciding as to the institution of pre-trial investigation as well as that of executing the control of pre-trial investigation, although, under the Constitution, the said functions are not ascribed to the competence of the court. Once the opportunity to file, with a higher court, a complaint against a decision adopted by the judge of pre-trial investigation is entrenched, a court of higher instance is obliged to decide as to the question of instituting (refusing to institute) pre-trial investigation, the consideration whereof, according to the petitioner, is an exceptional function of the prosecutor; therefore, the actions of a higher court start exhibiting the elements of the control of pre-trial investigation that are not typical of administration of justice.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the Member of the Seimas Vidmantas Žiemelis, the representative of the Seimas, the party concerned, wherein it is maintained that the provision of Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, which is disputed in the constitutional justice case at issue, is not in conflict with Paragraph 1 of Article 109 and Paragraph 1 of Article 118 (wording of 20 March 2003) of the Constitution.

According to the representative of the Seimas, the status of the judge of pre-trial investigation should not be related to the legal status of the prosecutor. The judge of pre-trial investigation is a judge of a local court who is appointed by the President of the local court to perform the procedural actions prescribed by laws as well as to take decisions and who enjoys the same guarantees of impartiality and independence as other judges.

The fact that a judge of pre-trial investigation or a higher court may be involved at the stage of pre-trial investigation does not yet mean that they interfere in the investigation of criminal deeds. According to the representative of the Seimas, when adopting a decision regarding the ruling of the prosecutor to refuse to institute pre-trial investigation, a judge of pre-trial investigation and a higher court alike do not administer justice or disclose any criminal deed, nor organise or direct pre-trial investigation.

The institute of the judge of pre-trial investigation is entrenched in other Western European states as well. The involvement of a judge of pre-trial investigation and a higher court in the process of pre-trial investigation allows reaching important procedural goals: providing the person with more opportunities to defend his rights and legitimate expectations during pre-trial investigation, emphasising the importance of the questions being solved, as well as implementing the principle of expeditious procedure. Furthermore, by providing a judge of pre-trial investigation and a higher court, both of which enjoy exceptional guarantees of independence, with more opportunities to carry out certain actions during the stage of pre-trial investigation, one eliminates a possibility of raising the issue of impartiality of those actions during the later stages of the procedure, etc.

The Constitutional Court

holds that:

I

1. The Panevėžys Regional Court, the petitioner, requests the Constitutional Court to investigate whether the provision “A complaint against the decision of the judge of pre-trial investigation shall be filed in the manner prescribed in Part X of this Code” of Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP is not in conflict with Paragraph 1 of Article 109 and Paragraph 1 of Article 118 (wording of 20 March 2003) of the Constitution.

2. Paragraph 4 (wording of 28 June 2007) of Article 168 “Refusal to Institute Pre-trial Investigation” of the CCP, the compliance of the provision whereof with the Constitution is disputed in the constitutional justice case at issue by the Panevėžys Regional Court, the petitioner, prescribes:

A complaint may be filed against the ruling of the official of pre-trial investigation to refuse to institute pre-trial investigation with the prosecutor, while the ruling of the prosecutorwith the judge of pre-trial investigation. If the prosecutor does not rescind the ruling refusing to institute pre-trial investigation, a complaint may be filed against his decision with the judge of pre-trial investigation. A complaint against the decision of the judge of pre-trial investigation shall be filed in the manner prescribed in Part X of this Code. Complaints may be brought within seven days of the day of the receipt of the copy of the ruling. The persons entitled to bring a complaint who, due to important reasons, have missed the term for filing a complaint are qualified to request the prosecutor or the judge of pre-trial investigation, who have the powers to consider the complaint, that the term missed be renewed. A request to renew the aforesaid term may not be submitted after more than six months of the adoption of the decision against which a complaint is being filed.”

3. Part X “Filing of Complaints Against Rulings of Lower Courts with Higher Courts and Consideration of Complaints” (wording of 28 June 2007) of the CCP referred to in the provision of Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, which is disputed in the constitutional justice case at issue, regulates inter alia the procedure for filing, with a higher court, a complaint against the ruling of the judge of pre-trial investigation that resolves the complaint of a person, who has submitted a complaint, statement or notification about a criminal deed, regarding the ruling of the prosecutor to refuse to institute pre-trial investigation or the decision of the prosecutor not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation.

4. From the arguments of the petition it is clear that the petitioner doubts whether the fact that Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP provides for an opportunity to file, with a higher court, a complaint against the decision of the judge of pre-trial investigation, which resolves the complaint regarding the ruling of the prosecutor to refuse to institute pre-trial investigation or the decision of the prosecutor not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation, is not in conflict with the Constitution.

5. Although the petitioner requests investigation into whether the provision of Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, which is disputed in the constitutional justice case at issue, is not in conflict with inter alia Paragraph 1 of Article 118 (wording of 20 March 2003) of the Constitution, from the arguments of the petition it is clear that the petitioner has doubts as regards the compliance of the provision of Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP with not the entire Paragraph 1 of Article 118 (wording of 20 March 2003) of the Constitution, but only with the provision “Pre-trial investigation shall be organised and directed <...> by the prosecutor” of the said paragraph of Article 118 (wording of 20 March 2003) of the Constitution.

6. Thus, subsequent to the petition of the Panevėžys Regional Court, the petitioner, in the constitutional justice case at issue, the Constitutional Court will investigate whether Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, insofar as, under the regulation established therein, a complaint may be filed, with a higher court, against the decision of the judge of pre-trial investigation regarding the ruling of the prosecutor to refuse to institute pre-trial investigation or the decision of the prosecutor not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation, is not in conflict with Paragraph 1 of Article 109 and the provision “Pre-trial investigation shall be organised and directed <...> by the prosecutor” of Paragraph 1 of Article 118 (wording of 20 March 2003) of the Constitution.

II

1. Under Paragraph 1 of Article 109 of the Constitution, in the Republic of Lithuania, justice is administered only by courts.

The Constitutional Court has held in its rulings (inter alia in the ones of 13 May 2004, 16 January 2006 and 28 May 2008) more than once that:

under the Constitution, the prosecutor does not administer justice; nor is justice administered at the stage of pre-trial investigation, either; under the Constitution, administration of justice is a function of courts, determining the place of this branch of power in the system of institutions of state power and the status of judges; no other state institution or official may discharge this function;

in the criminal procedure, the court must also be an impartial arbiter, who objectively assesses the data (evidence) of the circumstances of commission of a criminal deed, which are in the criminal case, and who adopts a just decision concerning the guilt of the person who is accused of committing the criminal deed, and, alongside, the court, in attempting to establish the objective truth, has to participate in the criminal procedure actively—to define the limits of consideration of the criminal case, to perform certain procedural actions, not to permit that the persons who participate in the court process abuse their rights or powers, to solve other issues related with consideration of the criminal case in court; while considering the criminal case, the court must act so that the objective truth is established in the criminal case and the issue of guilt of the person accused of committing the criminal deed is justly decided; the court must also be equally just to all the persons who participate in the criminal procedure;

the constitutional function of the court—administration of justice—is essentially different from being in charge of pre-trial investigation of the case, the control of this investigation, upholding of charges on behalf of the state, etc. When administering justice, the court considers the criminal case that is already prepared, solves the issue of guilt of the defendant, and either imposes punishment upon him or acquits him.

2. Under Paragraph 1 of Article 118 (wording of 20 March 2003) of the Constitution, pre-trial investigation is organised and directed by the prosecutor.

Under the Constitution, the Prosecutor’s Office of the Republic of Lithuania is a centralised state institution with specific authoritative powers, it is not ascribed to the institutions executing state power, which are indicated in Paragraph 1 of Article 5 of the Constitution, and it is not a constituent part of the judicial power; also the prosecutor is a state official enjoying specific authoritative powers and his functions are different from administration of justice; no one else but the prosecutor can organise and direct pre-trial investigation (Constitutional Court rulings of 13 May 2004 and 16 January 2006).

The provision of Paragraph 1 of Article 118 of the Constitution that pre-trial investigation is organised and directed by the prosecutor obliges the legislator to establish the powers of prosecutors in organisation and direction of pre-trial investigation. While regulating this, the legislator enjoys rather broad discretion: when taking account of the nature, danger (gravity), scale, other signs of criminal deeds, as well as other circumstances of importance, he can establish various forms of organisation and direction of pre-trial investigation as well as certain powers of prosecutors in this procedure, etc. However, in this case the legislator is bound by the norms and principles of the Constitution, inter alia by the obligation stemming from the Constitution to ensure the security of every person and the entire society from criminal attempts. From the said provision of Paragraph 1 of Article 118 of the Constitution a duty arises for the prosecutors to organise and direct pre-trial investigation so that objective and comprehensive information would be collected about the criminal deed and the person who is suspected of the commission of this deed, which inter alia would create legal pre-conditions for the court to establish the objective truth in the criminal case and adopt a just decision concerning the guilt of the person who is accused of commission of the criminal deed (Constitutional Court ruling of 16 January 2006).

The Constitutional Court has noted that the independence of the prosecutor in organising pre-trial investigation and being in charge of it, also in upholding charges on behalf of the state in criminal cases, is a constitutional value; under the Constitution, it is not permitted to establish any such legal regulation whereby this constitutional value would be denied or the independence of the prosecutor would be otherwise restricted when he organises pre-trial investigation and directs it and when he upholds charges on behalf of the state in criminal cases (Constitutional Court rulings of 13 May 2004 and 16 January 2006). However, the independence of the prosecutor consolidated in the Constitution may not be interpreted as meaning that, purportedly, in the criminal procedure prosecutors are not obligated to follow laws and/or instructions of the court (the judge) (Constitutional Court ruling of 16 January 2006).

3. The provisions of the Constitution entrenching the constitutional status of courts and prosecutors are related both with one another and with other norms and principles of the Constitution.

While construing the imperatives of the security of the person and society from criminal attempts and of the right of the person to proper legal procedure, which arise from the constitutional principle of a state under the rule of law, the Constitutional Court has held that the legal regulation of criminal procedure must be based on the constitutional principles of lawfulness, equality before the law and the court, presumption of innocence, public and fair trial, impartiality and independence of the court and the judge, separation of the functions of the court and other state institutions (officials) which participate in the criminal procedure, the guarantee of the right to defence, as well as on other principles (inter alia Constitutional Court rulings of 16 January 2006, 24 January 2008 and 8 June 2009); it is necessary to seek to ensure the protection of the rights of the persons who have suffered from criminal deeds; the legal regulation of criminal procedure should not create any pre-conditions to procrastinate the investigation into criminal deeds nor consideration of criminal cases, nor should it create any pre-conditions for participants of the criminal procedure to abuse their procedural and other rights (Constitutional Court ruling of 16 January 2006).

In its ruling of 16 January 2006, the Constitutional Court also held that, in the course of regulation of the relations of criminal procedure one must also pay heed to the fact that, under the Constitution, pre-trial investigation and consideration of the criminal case in court are different stages of criminal procedure; during pre-trial investigation one collects and assess the information necessary so that it would be possible to decide whether the pre-trial investigation must be continued and whether, after it has been completed, the criminal case must be referred to court, also that it would possible to consider the case, which has been referred, in court and to solve it justly; under the Constitution, it is impermissible to establish any such legal regulation whereby one would not be allowed to file a complaint against the decisions adopted during pre-trial investigation with the court.

4. It needs to be noted that, under the Constitution, inter alia Paragraph 1 of Article 109 and Paragraph 1 of Article 118 (wording of 20 March 2003) thereof, the legislator, while regulating the criminal procedure, may not establish any such legal regulation whereby the court would be allowed to organise and direct pre-trial investigation.

5. Under the Constitution, inter alia Paragraphs 1 and 2 of Article 118 (wording of 20 March 2003) thereof, when organising and directing pre-trial investigation, the prosecutor must ensure that the procedural actions provided for in the law would be performed and that the said actions would be carried out in the manner prescribed by the law. In addition, the prosecutor is obliged to guarantee the rights of persons participating at the stage of pre-trial investigation, inter alia the persons who have suffered from a criminal deed, which are provided for in the Constitution and the Law on Criminal Procedure, inter alia the right of the person to apply to court regarding violation of his rights during pre-trial investigation.

6. Under the Constitution, inter alia Paragraph 1 of Article 30 thereof, when regulating the relations of criminal procedure, one may not, in any respects, violate the right of the person to apply to court, which is entrenched in the Constitution; the relations of criminal procedure must be regulated by laws in such a way that the entities of the legal relations of criminal procedure, who believe that their rights have been violated, would enjoy the right to defend their rights in court regardless of their legal status in the criminal procedure; the legislator, when regulating the relations of criminal procedure, may also establish such legal regulation, so that no person is allowed to abuse the constitutional right to apply to court, in case there are not any grounds for such application (Constitutional Court ruling of 16 January 2006).

7. In the context of the constitutional justice case at issue it needs to be noted that the legislator may establish various models for consideration of the complaints of persons participating at the stage of pre-trial investigation, inter alia the ones who have suffered from a criminal deed, regarding the actions or decisions of the prosecutor; however, the established legal regulation may not deny the constitutional right of such persons to apply to court, inter alia regarding the violation of their rights during pre-trial investigation. Under Paragraph 1 of Article 30 of the Constitution, the law must provide for the right of persons participating at the stage of pre-trial investigation, inter alia the ones who have suffered from a criminal deed, to file a complaint against the procedural actions and decisions of the prosecutor, inter alia the refusal to institute pre-trial investigation, in cases where such a refusal violates their rights.

It also needs to be noted that, under Paragraph 1 of Article 30 of the Constitution, when regulating the opportunity for persons participating at the stage of pre-trial investigation, inter alia the ones who have suffered from a criminal deed, to file a complaint against the actions and decisions relating to pre-trial investigation in the criminal procedure, the legislator may establish such procedure under which one may file, with a higher court, a complaint against the court decision regarding the ruling of the prosecutor to refuse to institute pre-trial investigation. While doing so, the legislator must heed the norms and principles of the Constitution.

III

1. It has been mentioned that subsequent to the petition of the Panevėžys Regional Court, the petitioner, the Constitutional Court will investigate whether Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, insofar as, under the regulation established therein, a complaint may be filed, with a higher court, against the decision of the judge of pre-trial investigation regarding the ruling of the prosecutor to refuse to institute pre-trial investigation or the decision of the prosecutor not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation, is not in conflict with Paragraph 1 of Article 109 and the provision “Pre-trial investigation shall be organised and directed <...> by the prosecutor” of Paragraph 1 of Article 118 (wording of 20 March 2003) of the Constitution.

2. The doubt of the petitioner is substantiated by the fact that, according to the petitioner, Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, which is, to the specified extent, disputed in the constitutional justice case at issue, provides for an opportunity for a higher court to decide as to institution of pre-trial investigation, although this is an exceptional function of the prosecutor, and that, as a result of such legal regulation, the actions of a higher court start exhibiting the elements of the control of pre-trial investigation that are not typical of administration of justice.

3. On 14 March 2002, the Seimas adopted the Republic of Lithuania Law on the Approval, Entry into Force and Implementation of the Code of Criminal Procedure, by Article 1 whereof it approved the Code of Criminal Procedure of the Republic of Lithuania. The new CCP came into force on 1 May 2003, while as from that date the previously valid CCP became no longer valid.

4. Paragraph 4 (wording of 14 March 2002) of Article 168 of the CCP prescribed: “A complaint may be filed against the ruling of the official of pre-trial investigation to refuse to institute pre-trial investigation with the prosecutor, while the ruling of the prosecutor—with the judge of pre-trial investigation. If the prosecutor does not rescind the ruling refusing to institute pre-trial investigation, a complaint may be filed against his decision with the judge of pre-trial investigation.”

It needs to be noted that neither Paragraph 4 (wording of 14 March 2002) of Article 168 of the CCP, nor other Paragraphs of this article entrenched the opportunity of filing a complaint against a decision of the judge of pre-trial investigation with a higher court.

5. The CCP (wording of 14 March 2002) was amended and/or supplemented more than once, inter alia Article 168 (wording of 14 March 2002) thereof was also amended and/or supplemented more than once. The legal regulation, the compliance whereof with the Constitution is disputed by the petitioner, was laid down by the Republic of Lithuania Law on Amending and Supplementing Articles 37, 40, 44, 46, 48, 53, 55, 56, 62, 63, 64, 65, 70, 73, 80, 82, 90, 93, 108, 110, 111, 130, 131, 132, 139, 140, 141, 142, 151, 154, 160, 161, 166, 167, 168, 171, 178, 186, 199, 212, 214, 217, 225, 232, 233, 234, 254, 256, 276, 287, 296, 300, 302, 303, 308, 310, 312, 313, 314, 316, 317, 318, 319, 320, 324, 326, 327, 329, 333, 342, 358, 367, 368, 370, 372, 373, 374, 375, 377, 380, 381, 382, 384, 385, 409, 413, 414, 439, 447, 448, 454 and 460 of the Code of Criminal Procedure, Recognising Article 306 Thereof as No Longer Valid, Supplementing the Code with Articles 411, 772, 801, 3741, 3742 and 4121, and Supplementing the Annex of the Code, which was adopted by the Seimas on 28 June 2007 and came into force on 21 July 2007.

6. It has been mentioned that Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, the compliance whereof with the Constitution is, to the specified extent, disputed in the constitutional justice case at issue by the Panevėžys Regional Court, the petitioner, prescribes:

A complaint may be filed against the ruling of the official of pre-trial investigation to refuse to institute pre-trial investigation with the prosecutor, while the ruling of the prosecutor—with the judge of pre-trial investigation. If the prosecutor does not rescind the ruling refusing to institute pre-trial investigation, a complaint may be filed against his decision with the judge of pre-trial investigation. A complaint against the decision of the judge of pre-trial investigation shall be filed in the manner prescribed in Part X of this Code. Complaints may be brought within seven days of the day of the receipt of the copy of the ruling. The persons entitled to bring a complaint who, due to important reasons, have missed the term for filing a complaint are qualified to request the prosecutor or the judge of pre-trial investigation, who have the powers to consider the complaint, that the term missed be renewed. A request to renew the aforesaid term may not be submitted after more than six months of the adoption of the decision against which a complaint is being filed.”

7. Thus, under the legal regulation laid down in Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, which is disputed in the constitutional justice case at issue, a complaint may be filed against inter alia the decision of the judge of pre-trial investigation regarding the ruling of the prosecutor to refuse to institute pre-trial investigation or the decision of the prosecutor not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation.

8. When investigating, subsequent to the petition of the petitioner, whether Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, which is disputed in the constitutional justice case at issue, is not, to the specified extent, in conflict with the Constitution, first of all, it is necessary to elucidate the legal regulation which provides for the competence of the judge of pre-trial investigation to adopt a decision regarding the ruling of the prosecutor to refuse to institute pre-trial investigation or the decision of the prosecutor not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation.

8.1. Paragraph 1 (wording of 28 June 2007) of Article 168 of the CCP prescribed: “After receiving a complaint, statement or notification, and, in due casesalso a specification thereon, the prosecutor or the official of pre-trial investigation shall refuse to institute pre-trial investigation only in cases where the facts indicated about the committed criminal deed are obviously false or there are clear circumstances specified in Paragraph 1 of Article 3 of this Code.”

In this context it needs to be mentioned that Paragraph 1 of Article 3 “Circumstances Due to Which the Criminal Procedure is Impossible” (wording of 14 March 2002) of the CCP, the reference to which is made in Paragraph 1 (wordings of 28 June 2007 and 21 September 2010) of Article 168 of the CCP, prescribes:

1. The criminal procedure may not be instituted, while an instituted one must be dismissed:

1) if no deed with signs of crime or criminal offence has been committed;

2) where the terms of prescription of criminal liability have passed;

3) if the criminal deed has been committed by the person who enjoys the immunity from criminal jurisdiction under the norms of international law, or there is no authorisation from a competent institution to bring the person to criminal liability where such an authorisation is mandatory;

4) against the person who at the time of commission of a criminal deed had not reached the age from which he is held liable under criminal laws;

5) in cases where the victim has reached conciliation with the person accused of commission of a criminal deed indicated in Article 407 of this Code;

6) if there is no complaint from the victim, or application of his legitimate representative, or demand of the prosecutor that the procedure be instituted in the cases where the procedure may be instituted only subsequent to the complaint from the victim, or application of his legitimate representative, or the demand of the prosecutor;

7) against the deceased person, save the situations where the case is needed for the rehabilitation of the deceased person or for renewal of the case in regard of other persons because of newly emerged circumstances;

8) against the person in whose respect the judgement of the court on the same accusation, or the ruling of the court or the ruling of the prosecutor to dismiss the procedure on the same grounds has come into effect;

9) if there exists a circumstance eliminating criminal liability, which is provided for in Chapter V of the Criminal Code of the Republic of Lithuania.”

It also needs to be mentioned that after, on 21 September 2010, the Seimas adopted the Republic of Lithuania Law on Supplementing the Code of Criminal Procedure with Article 31 and Amending and Supplementing Articles 18, 21, 38, 55, 64, 78, 81, 102, 112, 121, 125, 134, 135, 136, 137, 142, 151, 157, 168, 170, 176, 178, 181, 342, 348, 389, 418 and 440 of the Code, which, save Article 31 thereof, came into force on 1 October 2010, Paragraph 1 (wording of 28 June 2007) of Article 168 of the CCP was amended and set forth in a new wording, however, the legal regulation, whereby the prosecutor or the official of pre-trial investigation refuses to institute pre-trial investigation only in the cases where the data indicated in a complaint, statement or notification about a criminal deed is obviously false or where there are clear circumstances due to which the criminal procedure is impossible, has remained unchanged.

8.2. Paragraph 3 (wording of 28 June 2007) of Article 168 of the CCP prescribed: “A copy of the ruling to refuse to institute pre-trial investigation shall be sent to the person who has submitted the complaint, statement or notification. Within twenty-four hours the official of pre-trial investigation must send a copy of the ruling to the prosecutor.”

8.3. Paragraph 2 (wordings of 14 March 2002 and 21 September 2010) of Article 64 “Resolution of Complaints Regarding the Procedural Actions and Rulings of the Official of Pre-trial Investigation or the Prosecutor” of the CCP inter alia prescribes: “<...> the judge of pre-trial investigation <...> must consider the complaint and adopt <...> a ruling. If the complaint is satisfied <...> the ruling shall indicate <...> the violations committed by the prosecutor and shall suggest removing these violations; if the complaint is dismissed the ruling shall provide the reasoning on the grounds of which the complaint has been recognised as unreasonable and has been dismissed.”

9. Thus, while construing the legal regulation laid down in Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, which is disputed in the constitutional justice case at issue, alongside the aforementioned legal regulation laid down in Paragraph 2 (wordings of 14 March 2002 and 21 September 2010) of Article 64 and Paragraph 1 (wordings of 28 June 2007 and 21 September 2010) and Paragraph 3 (wording of 14 March 2002) of Article 168 of the same code, in the context of the constitutional justice case at issue it needs to be noted that:

a complaint may be filed against the ruling of the prosecutor to refuse to institute pre-trial investigation or the decision of the prosecutor not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation with the judge of pre-trial investigation by the person who has submitted a complaint, statement or notification about a criminal deed;

after considering such a complaint, the judge of pre-trial investigation may recognise the complaint as unreasonable and dismiss it;

when satisfying such a complaint, the judge of pre-trial investigation must indicate the violations committed by the official of pre-trial investigation or the prosecutor and suggest removing these violations; the said powers of the judge of pre-trial investigation inter alia mean his entitlement to rescind the ruling of the prosecutor under which one has refused to institute pre-trial investigation or has decided not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation;

when adopting the decisions indicated in Paragraph 2 (wordings of 14 March 2002 and 21 September 2010) of Article 64 of the CCP, the judge of pre-trial investigation must provide the reasoning for these decisions.

10. While investigating, subsequent to the petition of the petitioner, whether Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, which is disputed in the constitutional justice case at issue, is not, to the specified extent, in conflict with the Constitution, one also needs to elucidate the legal regulation, which is established in Paragraph 1 of Article 65 (wording of 28 June 2007) of the CCP and respective articles of Part X (wording of 28 June 2007) of the same code, by means of which one has inter alia entrenched the competence of a higher court to consider decisions adopted by the judge of pre-trial investigation.

10.1. Paragraph 1 of Article 65 “Filing Complaints Against Procedural Actions and Rulings of the Judge of Pre-trial Investigation and Resolution of Complaints” (wording of 28 June 2007) of the CCP prescribes: “The prosecutor, participants of the procedure and the persons in regard to whom coercive procedural measures have been applied may file a complaint against the procedural actions carried out and decisions adopted by the judge of pre-trial investigation, save the rulings that, under Article 64 of this Code, are not subject to appeal, in the manner prescribed in Part X of this Code.”

10.2. As mentioned, Part X “Filing of Complaints Against Rulings of Lower Courts with Higher Courts and Consideration of Complaints” (wording of 28 June 2007) of the CCP regulates inter alia the procedure for filing, with a higher court, a complaint against the ruling of the judge of pre-trial investigation that resolves the complaint of a person, who has submitted a complaint, statement or notification about a criminal deed, regarding the ruling of the prosecutor to refuse to institute pre-trial investigation or the decision of the prosecutor not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation. Part X of the CCP comprises Articles 439–442.

In the context of the constitutional justice case at issue the following provisions of Part X of the CCP are to be mentioned:

Paragraph 1 of Article 439 “Filing Complaints Against Rulings of Lower Courts with Higher Courts” (wording of 28 June 2007) inter alia prescribes: “The participants of the consideration of the case in court as well as other persons shall have the right to file, in the manner prescribed in this part of the Code, a complaint with a higher court against the rulings of lower courts regarding the preparation of the case for the hearing or the rulings thereof adopted during the trial hearing, also, in the cases provided for in this Code, against other rulings of the courts, <...>”;

Paragraph 1 of Article 441 “The Procedure for Considering Complaints in a Higher Court” inter alia prescribes: “The President of a higher court or the Chairperson of the Division of Criminal Cases shall assign a judge or the college of three judges to the consideration of a complaint <...>. If the ruling against which a complaint has been filed was adopted by a local court <...> the complaint shall be considered by a judge of the regional court; <...>”;

Paragraph 1 of Article 442 “Decisions of a Higher Court Adopted Upon the Consideration of a Complaint” inter alia prescribes:

After considering a complaint, in the deliberation room a judge of a higher court <...> shall pass one of the following rulings:

1) to dismiss the complaint and leave the court ruling in force;

2) to rescind the court ruling and adopt a new decision regarding the complaint;

3) to change the court ruling.”

11. Thus, when construing the legal regulation laid down in Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, which is disputed in the constitutional justice case at issue, alongside the legal regulation laid down in Paragraph 1 of Article 65 (wording of 28 June 2007), Paragraph 1 of Article 439 (wording of 28 June 2007) and Paragraph 1 of Article 442 of the CCP, in the context of the constitutional justice case at issue it needs to be noted that:

under the procedure prescribed in Part X of the CCP, a judge of a higher court considers complaints, inter alia the ones regarding the rulings of the judge of pre-trial investigation that resolve the complaints against the ruling of the prosecutor to refuse to institute pre-trial investigation or the decision of the prosecutor not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation;

a complaint may be filed, with a higher court, against the said rulings of the judge of pre-trial investigation by the persons who have submitted a complaint, statement or notification about a criminal deed, also by the prosecutor after he has adopted the ruling to refuse to institute pre-trial investigation or the ruling not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation;

after considering the said complaints, a judge of a higher court passes one of the following decisions regarding the ruling of the judge of pre-trial investigation: to dismiss the complaint and leave the said ruling of the judge of pre-trial investigation in force; to rescind the said ruling of the judge of pre-trial investigation and adopt a new ruling; to change the said ruling of the judge of pre-trial investigation.

12. It has been mentioned that, under the legal regulation laid down in Paragraph 2 (wordings of 14 March 2002 and 21 September 2010) of Article 64 and Paragraph 1 (wordings of 28 June 2007 and 21 September 2010), Paragraph 3 (wording of 14 March 2002) and Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, the judge of pre-trial investigation, after considering the complaint against the ruling of the prosecutor to refuse to institute pre-trial investigation or the decision of the prosecutor not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation, may recognise the complaint as unreasonable and dismiss it; when satisfying such a complaint, the judge of pre-trial investigation must indicate the violations committed by the official of pre-trial investigation or the prosecutor and suggest removing these violations; the said powers of the judge of pre-trial investigation inter alia mean his entitlement to rescind the ruling of the prosecutor under which one has refused to institute pre-trial investigation or has decided not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation; when adopting the decisions indicated in Paragraph 2 (wordings of 14 March 2002 and 21 September 2010) of Article 64 of the CCP, the judge of pre-trial investigation must provide the reasoning for these decisions.

Consequently, under the legal regulation entrenched in Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP (which is disputed in the constitutional justice case at issue) and construed alongside the aforementioned legal regulation established in inter alia Paragraph 2 (wordings of 14 March 2002 and 21 September 2010) of Article 64, Paragraph 1 of Article 65 (wording of 28 June 2007), Paragraph 3 (wording of 14 March 2002) of Article 168, Paragraph 1 of Article 439 (wording of 28 June 2007) and Paragraph 1 of Article 442 of the same code, after considering a complaint regarding the ruling of the judge of pre-trial investigation that resolves the complaint against the ruling of the prosecutor to refuse to institute pre-trial investigation or the decision of the prosecutor not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation, a judge of a higher court:

while rescinding the said ruling of the judge of pre-trial investigation and adopting a new decision regarding the complaint, or while changing the said ruling of the judge of pre-trial investigation, may and must indicate the violations committed by the official of pre-trial investigation or the prosecutor and suggest removing these violations; the said powers of a judge of a higher court inter alia mean his entitlement to rescind the ruling of the prosecutor to refuse to institute pre-trial investigation or the decision of the prosecutor not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation;

may recognise the complaint as unreasonable and dismiss it;

must provide the reasoning for the decisions being adopted.

Thus, under the legal regulation laid down in Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, which is disputed in the constitutional justice case at issue, no preconditions are created for a higher court to take over the constitutional powers of the prosecutor to organise and direct pre-trial investigation.

13. When deciding whether Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, which is, to the specified extent, disputed in the constitutional justice case at issue, is not in conflict with Paragraph 1 of Article 109 and the provision “Pre-trial investigation shall be organised and directed <...> by the prosecutor” of Paragraph 1 of Article 118 (wording of 20 March 2003) of the Constitution, it needs to be noted that, as it has been mentioned:

under the Constitution, inter alia Paragraph 1 of Article 109 and Paragraph 1 of Article 118 (wording of 20 March 2003) thereof, the legislator, while regulating the criminal procedure, may not establish any such legal regulation whereby the court would be allowed to organise and direct pre-trial investigation;

under Paragraph 1 of Article 30 of the Constitution, when regulating the opportunity for persons participating at the stage of pre-trial investigation, inter alia the ones who have suffered from a criminal deed, to file a complaint against the actions and decisions relating to pre-trial investigation, the legislator may establish such procedure under which one may file, with a higher court, a complaint against the court decision regarding the ruling of the prosecutor to refuse to institute pre-trial investigation;

under the legal regulation laid down in Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, which is disputed in the constitutional justice case at issue, no preconditions are created for a higher court to take over the constitutional powers of the prosecutor to organise and direct pre-trial investigation.

Consequently, there are no legal arguments to maintain that the legal regulation laid down in Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, under which a complaint may be filed, with a higher court, against the decision of the judge of pre-trial investigation regarding the ruling of the prosecutor to refuse to institute pre-trial investigation or the decision of the prosecutor not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation, denies the imperatives stemming from the Constitution, inter alia Paragraph 1 of Article 109 and Paragraph 1 of Article 118 (wording of 20 March 2003) thereof.

14. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 4 (wording of 28 June 2007) of Article 168 of the CCP, insofar as, under the regulation established therein, a complaint may be filed, with a higher court, against the decision of the judge of pre-trial investigation regarding the ruling of the prosecutor to refuse to institute pre-trial investigation or the decision of the prosecutor not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation, is not in conflict with Paragraph 1 of Article 109 and the provision “Pre-trial investigation shall be organised and directed <...> by the prosecutor” of Paragraph 1 of Article 118 (wording of 20 March 2003) of the Constitution.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

ruling:

To recognise that Paragraph 4 (wording of 28 June 2007, Official Gazette Valstybės žinios, 2007, No. 81-3312) of Article 168 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as, under the regulation established therein, a complaint may be filed, with a higher court, against the decision of the judge of pre-trial investigation regarding the ruling of the prosecutor to refuse to institute pre-trial investigation or the decision of the prosecutor not to rescind the ruling of the official of pre-trial investigation refusing to institute pre-trial investigation, is not in conflict with the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court: Egidijus Bieliūnas
                                                                     Toma Birmontienė
                                                                     Pranas Kuconis
                                                                     Gediminas Mesonis
                                                                     Ramutė Ruškytė
                                                                     Egidijus Šileikis
                                                                     Algirdas Taminskas
                                                                     Romualdas Kęstutis Urbaitis
                                                                     Dainius Žalimas