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On the manufacture, storage, transporting, sale and realisation of alcohol of various kinds

Case No. 10/97-3/98-10/98

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of the laws of 2 July 1996 and that of 9 January 1997 by which amendments of and supplements to Article 310 of the Criminal Code of the Republic of Lithuania were made with the Constitution of the Republic of Lithuania

 

Vilnius, 9 July 1998

 

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

Stasys Šedbaras, the Minister of the Interior, and Alfonsas Čepas, an assistant to the Legal Committee of the Seimas, both acting as representatives 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, on 18 June 1998, in its public hearing, considered case No. 10/97-3/98-10/98 subsequent to the petition submitted to the Court by the petitioners—the Kėdainiai District Local Court, the Trakai District Local Court, the Tauragė District Local Court—requesting an investigation into whether the amendments of and supplements to Article 310 of the Criminal Code of the Republic of Lithuania made by the laws of 2 June 1996 and 9 January 1997 were in compliance with the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 6 May 1997, the Kėdainiai District Local Court, a petitioner, was considering a criminal case wherein Ms. R. K. was charged with the offence specified by Paragraph 2 of Article 310 of the Criminal Code (hereinafter referred to as the CC). By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether the Republic of Lithuania’s Law on Amending and Supplementing of Articles 35, 283, 284, 289, 290 and 310 of the Criminal Code of 2 July 1996 (Official Gazette Valstybės žinios, 1996, No. 67-1159), by Article 6 whereof Paragraphs 2, 3 and 4 of Article 310 of the CC had been amended, was in compliance with Article 23 of the Constitution.

On 23 December 1997, the Trakai District Local Court, a petitioner, was considering a criminal case wherein Ms. I. D. was charged with the offence specified by Paragraph 2 of Article 310 of the CC. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 2 of Article 310 of the CC which provides for criminal liability for keeping 5 or more litres of non-denatured ethyl alcohol providing the said alcohol had been lawfully acquired before the 2 July 1996 Republic of Lithuania’s Law on Amending and Supplementing of Articles 35, 283, 284, 289, 290 and 310 of the Criminal Code and the Republic of Lithuania’s Law on Amending and Supplementing Article 310 of the Criminal Code of 9 January 1997 (Official Gazette Valstybės žinios, 1997, No. 5-71) came into force was in compliance with the Constitution.

On 17 March 1998, the Tauragė District Local Court, a petitioner, was considering a criminal case wherein Mr. J. J. was charged with the offences specified by Paragraph 2 of Article 310 and Paragraph 1 of Article 207 of the CC. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether the Republic of Lithuania’s Law on Amending and Supplementing of Articles 35, 283, 284, 289, 290 and 310 of the Criminal Code of 2 July 1996, Article 6 whereof provides for criminal liability for keeping non-denatured ethyl alcohol, denatured ethyl alcohol, ethyl alcohol for technical use, as well as solutions (mixtures) thereof without a permit, and without establishment of the legalisation procedure, conditions, ways and time limits of these products acquired prior to the adoption of the said law was in compliance with the Constitution.

The Constitutional Court, taking account of the fact that all three requests concern the compliance of the same norms with the Constitution, by its decision of 9 June 1998 joined them into one case.

II

The petitioners ground their requests on the following arguments.

1. The Kėdainiai District Local Court points out that in amending Paragraph 2 of Article 310 of the CC by the impugned law which was adopted on 2 July 1996, a new norm was set down which not only established new relations between the State and citizens concerning manufacture, storage, transporting, sale and other realisation of ethyl alcohol of various kinds but also affected the former social relations, especially those of ownership, in this sphere. By at once recognising almost all circumstances of storage and circulation of the aforesaid objects as criminal ones, this law not only did not regulate the established social relations at all but, in essence, the said law contradicts the main provisions of the Constitution and violates the constitutional rights and freedoms of part of the citizens of this country.

Adopting the impugned legal norm, the legislature did not take into consideration several important circumstances.

1.1. The legal regulation of the aforesaid relations in the past.

Prior to the entry into force of the law of 2 July 1996, the circulation of ethyl alcohol and its products was not subject to limitation, since they were ordinary objects of the ownership right the management, use and disposal of which were regulated by means of valid laws of this country, which did not provide for any special restrictions or limitations. Then part of the residents, the accused among them, acquired and managed ethyl alcohol and its products lawfully (Article 109 of the Civil Code (hereinafter referred to as the CivC)). The impugned law did not single it out.

1.2. The property status according to present-day conception.

Recognising the inborn nature of human rights and freedoms, the Constitution emphasises that property shall be inviolable. This is an imperative provision, thus, other laws, substatutory acts and the practice of their application must be harmonised with it. The impugned law encroaches upon private property of citizens and contradicts the requirements of Paragraph 1 of Article 23 of the Constitution.

1.3. The scope of the ownership rights.

When property is understood in its subjective sense as the rights of the owner to manage, use and dispose of his property (Article 96 of the CivC), the principle of inviolability of property directly ensures all the elements of this entirety of rights. The provision of Paragraph 2 of Article 23 of the Constitution that the rights of ownership are protected by law does not mean that there is an opportunity to limit one or another right of the owner in the case that the legal treatment of the managed item has already been established.

1.4. The possibilities of legal limitation on the rights of ownership.

Paragraph 3 of Article 23 of the Constitution provides for an opportunity to change the legal treatment, against the will of the owner, of the item of property under these circumstances: when this is done for the needs of society; by one way only—it seizure from the owner; by compensating it adequately.

Adopting the said law, the latter two conditions were ignored: the legal treatment of lawfully acquired property was changed, where such property was neither seized from the owner nor compensated. Nor was this question solved by means of a special normative act which had to provide for the procedure of the entry into force of the impugned law.

By the amendment of the impugned law, at the moment of the entry into force of the law the legislature indirectly acknowledged that a part of the population of this country are persons who have committed criminal deeds, since storing this alcohol and its products is in itself deemed to be an offence. One did not decide as to how the persons who kept them had to behave.

2. The Trakai District Local Court points out that under the norms of Article 310 of the CC (wordings of 2 July 1996 and 9 January 1997), storing non-denatured ethyl alcohol without a permit provided 5 or more litres of such alcohol is kept is considered an offence. The amendments of Article 310 of the CC dot not regulate at all whether the persons who had lawfully acquired such a quantity of ethyl alcohol prior to coming into force of the new wording of the said article and who continue storing it are criminally liable. Therefore, it is not clear to the court whether now in force Article 310 of the CC or its individual parts or certain badges of the deeds indicated therein are in compliance with the Constitution.

3. The Tauragė District Local Court points out that the legislature, by establishing criminal liability for deeds for which no one was being penalised prior to the establishment of such liability, should decide the question of the procedure, conditions, ways and time limits of legalisation of the property which becomes the object of prosecution of the penal law. These questions have not been settled, therefore, there exist the grounds for maintaining that Paragraph 2 of Article 310 of the CC may contradict Article 23 of the Constitution.

III

In the course of preparation of the case for the Constitutional Court hearing, the representative of the party concerned A. Čepas pointed out that by the law of 2 July 1996 a new norm of Article 310 of the CC was set down which changed the relations between the State and the natural person concerning manufacture, storage, transporting and realisation of ethyl alcohol of various sorts. This law changed the content of the rights of ownership to the kept goods—various sorts of ethyl alcohol substances—of many residents of Lithuania as it provided for criminal liability not only for manufacture or realisation of these substances but also for their transporting or storing without a permit.

The representative noted that Article 4 of the Republic of Lithuania’s Law on Alcohol Control of 18 April 1995 provides that alcohol products are categorised as special products to which, under the laws, a special state regulatory regime must be applied, while Chapter 3 of this law regulates in detail the manufacture of alcohol products, their realisation, as well as the prohibitions on and the permits of the use of alcohol. After the limitations on the rights of ownership to alcohol products had been established in the laws, one was given an opportunity to choose: either to acquire a permit to use them, or realise them, or destroy them.

The violations of the law-established limitations on the manufacture and realisation of ethyl alcohol of various sorts as alcohol products induced the legislature to set down amendments to Paragraphs 2, 3, and 4 of Article 310 of the CC. These amendments are not new. Actually, they merely recapitulate the former limitations made by various government resolutions.

The representative emphasised that by the amendments and supplements of Article 310 of the CC which were made by the law of 2 July 1996 one did not encroach on the lawfully acquired property, therefore, they do not contradict the provisions of property inviolability as established by Article 23 of the Constitution.

IV

In the court hearing the representative of the party concerned A. Čepas virtually reiterated the arguments set forth in his paper and additionally explained that the law of 2 July 1996 came into force as from the day of its publication. Thus part of the population storing alcohol products became persons who had committed criminal deeds. In the opinion of the representative, the circumstances of the enforcement of the said law were not regulated, i.e. one did not indicate any conditions under which one could evade the liability for storing or transporting of lawfully acquired alcohol products. Therefore, on 26 March 1998, the Law “On the Exemption from the Criminal Liability and Punishment Which are Established by Article 310 of the Criminal Code for Storing and Transporting Spirit and Its Solutions (Mixtures)” was passed wherein opportunities for realisation of the kept alcohol products were provided for. Even though this law was valid for 5 days only, it was enough time to inform the police about the alcohol kept.

The representative of the party concerned S. Šedbaras pointed out that in many states there is the monopoly of spirit and liquor trade. This was also the case in Lithuania in 1923–1940. After Lithuania had been occupied by the Soviet Union, the monopoly of liquor and spirit trade which was valid in the Soviet Union was introduced. The Law on the Procedure for the Enforcement of the Constitution of the Republic of Lithuania and the Basic Provisional Law of the Republic of Lithuania contain provisions that legal acts shall be effective not only till 11 March 1990 but also after adoption of the Constitution provided that they do not contradict either the Basic Provisional Law or the Constitution. Legal acts remain effective until they are either harmonised, amended or declared null and void. There are no legal acts that abolish the monopoly of spirit manufacture and trade. After the independence of Lithuania had been restored, one attempted to regulate this issue. On 7 May 1991 the Ministry of Health Care issued the Decree “On the Procedure of Prescribing Medicines and Giving Out Medicines in Pharmacies” wherein it was indicated that irrespective of the concentration of pure alcohol or its being a component of a medicine, the doctor may prescribe no more than 100 grams of spirit in one prescription form. By the government resolution of 20 November 1992, from 1 December of the same year, enterprises of all ownership forms, except pharmacies, were banned to sell spirit to the population. By the government resolution of 26 January 1993, the right to import ethyl spirit was granted to 7 enterprises. The said resolution also pointed out that ethyl spirit was allowed to be sold to the population only in pharmacies, while trade enterprises and those of public catering were prohibited from selling it. On 19 March 1993, 23 enterprises were allowed to import food ethyl spirit, however, as early as 21 March 1994, any import of food ethyl spirit to Lithuania was prohibited altogether.

The representative noted that spirit may be lawfully acquired only by means of sale and purchase. Due to the prohibition provided for by the legal acts, individuals, by lawfully buying 100 grams of spirit each time, may not accumulate more than 10 litres of it. Thus, an item which has been unlawfully acquired never becomes property in the sense which is protected by Article 23 of the Constitution.

Alongside, the representative mentioned the fact that this year Article 310 of the CC has not been amended. The 26 March 1998 Law “On the Exemption from the Criminal Liability and Punishment Which are Established by Article 310 of the Criminal Code for Storing and Transporting Spirit and Its Solutions (Mixtures)” attempted to regulate the procedure of its application. On 7 April 1998, a new Law “On Recognising the Law ‘On the Exemption from the Criminal Liability and Punishment Which are Established by Article 310 of the Criminal Code for Storing and Transporting Spirit and Its Solutions (Mixtures)’ as Null and Void” was passed.

V

In the course of the preparation of the case for the judicial investigation, explanations of the specialists—Assoc. Prof. Dr. A. Vileita who works at the Chair of Civil Law and Procedure of the Law Faculty at Vilnius University, Assoc. Prof. Dr. A. Vaišvila, Head of the Chair of Philosophy of Law at the Law Academy, and G. Švedas, a vice-minister of justice—were received.

A. Vileita, on the grounds of Article 23 of the Constitution, as well as an analysis of the articles of the CivC and CC, drew the conclusion that both the prohibition against acquiring of non-denatured ethyl alcohol, denatured ethyl alcohol and ethyl alcohol for technical use without a permit and the criminal liability may be applied only to those persons who acquired the said alcohol after the entry into force of Article 310 of the CC in its new wording. Until that date, persons had the right to acquire, store or transfer to other persons the aforesaid sorts of alcohol, i.e. they were able to realise the rights of the owner to the property which belonged to him. All lawfully acquired items are property of the person who acquired them, and this property shall be inviolable (Article 23 of the Constitution). The legislature is entitled to change the legal treatment of respective items of the right of ownership, i.e., to impose limitations on their acquisition, storage, use and sale, but it may not deprive the owner of the rights of ownership, nor penalise the owner for storing, using and disposing of lawfully acquired items.

It is emphasised in the explanation that the legislature, assuming that the aforementioned alcohol is harmful to society, should have adopted a decision to requisition the alcohol which persons had lawfully acquired, i.e. to purchase it by coercive means by establishing the procedure and time limits of such purchase. Upon the expiration of the time limits of such purchase, any further storage of the said alcohol would have become unlawful and one would have been able to bring the guilty persons to criminal liability and confiscate the unlawfully stored alcohol. The legislature did nothing of this.

A. Vaišvila maintained in his explanation that Paragraphs 2, 3, and 4 of Article 310 of the CC, by establishing criminal liability for storing and transporting spirit without a permit, pre-supposes an assumption that there must be another (civil) regulatory law which stipulates that the spirit which was lawfully acquired may further be stored and transported provided there is a permit for it. If a penal law, along with the function of punishment, begins to accomplish the function of prohibition (which pertains to the general legal regulation) uncharacteristic of it, then it must reckon with other elements characteristic of regulatory laws, i.e. to give time to carry out these orders. In the case of Article 310 of the CC, the prohibition and punishment occur at the same time (the date of the publication and that of the entry into force of the law of 2 July 1996 are the same, i.e. 17 July 1996). Moreover, A. Vaišvila noted that Article 310 of the CC, establishing that spirit may be stored or transported only with a permit, however, not providing for any time limit to acquire such a permit, creates a situation when storing or transporting of spirit becomes as if unlawful from the very moment of its acquiring. Meanwhile, this means that it also includes those deeds which had occurred before the amendments of the said article were adopted, which burdens the legal situation of the person who had lawfully acquired a certain amount of ethyl alcohol.

G. Švedas explained that criminal liability for manufacture, storage, transporting, sale or any other realisation of non-denatured or denatured ethyl alcohol or that for technical use without a permit was established only after the Seimas had passed the Law on Amending and Supplementing of Articles 35, 283, 284, 289, 290 and 310 of the Criminal Code. However, upon adoption of the said law, one did not decide the issue of lawfully acquired alcohol products. It is pointed out in the explanation that the right of ownership is the right of a person which is the broadest one in its content, however, limitations on such a right are also possible, as, otherwise, there would occur pre-conditions for violating the rights of other persons. The fact that alcohol products are categorised as special products for the manufacture, import, trade and consumption whereof a special state regulatory regime is applied was also established by Article 4 of the Law on Alcohol Control. Thus, any limitation on the rights of ownership should be established by law.

The Constitutional Court

holds that:

1. On 2 July 1996, the Seimas passed the Law on Amending and Supplementing of Articles 35, 283, 284, 289, 290 and 310 of the Criminal Code. By Article 6 of the said law, Article 310 of the CC was set forth as follows:

Article 310. Manufacture, storage, transporting and realisation of home-distilled liquor, brew, other home-made strong alcoholic beverages, non-denatured ethyl alcohol, denatured ethyl alcohol, ethyl alcohol for technical use and their solutions, as well as devices for their manufacture.

Manufacture, storage, transporting, sale or any other realisation of home-distilled liquor, brew, other home-made strong alcoholic beverages, as well as devices for their manufacture—

shall be punished by up to 3 years of imprisonment and a fine or a fine only.

Manufacture, storage, transporting, sale or any other realisation of non-denatured ethyl alcohol, denatured ethyl alcohol, ethyl alcohol for technical use and solutions (mixtures) thereof, as well as devices for their manufacture without a permit—

shall be punished by up to 4 years of imprisonment and a fine or a fine only.

In case the same deeds which are provided for in Paragraphs 1 and 2 of this Article are accomplished in big amounts, they shall be punishable up to 5 years of imprisonment.

There appears criminal liability for the deeds provided in Paragraphs 1 and 2 of this Article in the case that one has manufactured, or stored, transported, sold or realised otherwise of 10 or more litres of home-distilled liquor, brew or other home-made strong alcohol beverages, non-denatured ethyl alcohol, denatured ethyl alcohol and ethyl alcohol for technical use or solutions (mixtures) thereof.

The big amount shall be held by this Article as 500 or more litres of home-distilled liquor, brew or other home-made strong alcohol beverages, non-denatured ethyl alcohol, denatured ethyl alcohol and ethyl alcohol for technical use or solutions (mixtures) thereof.”

By the law of 9 January 1997 the Seimas amended Article 310 of the CC once again by partly broadening and making stricter liability for the aforementioned deeds.

In the new wording of the article, such deeds were singled out as being more dangerous ones when one manufactures, stores, transports, sells or realises otherwise solutions (mixtures) of non-denatured ethyl alcohol, denatured ethyl alcohol and ethyl alcohol for technical use, which contain dangerous for human life or health substances or the like additives.

Such cases were judged to be specially qualified deeds in the situations where the sale or other realisation of solutions (mixtures) of non-denatured ethyl alcohol, denatured ethyl alcohol, and ethyl alcohol for technical use, which had been manufactured by making use of substances or like additives dangerous for human life or health, caused the death of an individual or other dire consequences.

By this law, the criminal liability was also broadened in that it appears when one manufactures, stores, transports, sells or realises otherwise 5 or more litres of non-denatured ethyl alcohol, denatured ethyl alcohol or ethyl alcohol for technical use (under Article 310 of the CC in its previously effective wording, the minimum limit when the possibility of bringing a person to criminal liability was provided for was 10 litres).

2. The petitioners doubted: the Kėdainiai District Local Court—whether the amendment of Article 310 of the CC made by the law of 2 July 1996 establishing criminal liability by Paragraphs 2, 3 and 4 of the said article for manufacture, storage, transporting, sale or any other realisation of non-denatured ethyl alcohol, denatured ethyl alcohol, ethyl alcohol for technical use, as well as solutions (mixtures) thereof was in compliance with Article 23 of the Constitution; the Tauragė District Local Court—whether the amendment of Article 310 of the CC made by the said law of 2 July 1996 establishing criminal liability by Paragraph 2 of the said article for storage of the same alcohol products was in compliance of Article 23 of the Constitution; the Trakai District Local Court—whether the fact that the amendment of Paragraph 4 of Article 310 of the CC made by the said law of 2 July 1996, and the amendment of Article 310 of the CC made by the law of 9 January 1997 by which criminal liability is established for storing five or more litres of lawfully acquired non-denatured ethyl alcohol was in compliance with the Constitution.

It should be noted that the Kėdainiai and Tauragė courts had doubts whether the norms of Paragraph 2 of Article 310 of the CC as established by the law of 2 July 1996 were in compliance with Article 23 of the Constitution. Even though the said norms were later amended by the law of 9 January 1997, however, the petition of the petitioners requesting an investigation into the compliance of the norms of Article 310 of the CC (the wording of 1996) with the Constitution should be considered, since such a request is linked with the future consideration of the suspended cases, as by the subsequent law the criminal liability for respective deeds has been broadened and made stricter.

The petitioners essentially doubt whether the norms of Article 310 providing for criminal liability for manufacture, storage, sale or other realisation of non-denatured ethyl alcohol, denatured ethyl alcohol, ethyl alcohol for technical use and solutions (mixtures) thereof without a permit violate the constitutional personal ownership rights. Taking account of the nature of the prohibited deeds, one should single out the compliance of establishing penalty for, first, storing the said products without a permit, and, second, the compliance of the sale or other realisation of the said products without a permit, with Article 23 of the Constitution.

Defining the notions employed therein, the Law on Alcohol Control indicates that: alcohol products are non-denatured ethyl alcohol, denatured ethyl alcohol, ethyl alcohol for technical use, alcoholic beverages, ingredients and raw materials that contain ethyl alcohol; alcoholic beverages are beverages which contain from 1 to 50 per cent of ethyl alcohol by volume etc. Hereinafter in this ruling of the Constitutional Court the modified notion alcohol products will be used which covers non-denatured ethyl alcohol, denatured ethyl alcohol, ethyl alcohol for technical use as well as solutions (mixtures) thereof.

3. On the compliance of the criminal liability for storing alcohol products without a permit as established by Article 310 of the CC with Article 23 of the Constitution.

3.1. When one assesses the compliance of the establishment of the criminal liability for storing alcohol products without a permit with Article 23 of the Constitution, the historical aspects of the legal regulation of the manufacture, storage and sale of these products are of importance.

In Lithuania, under the 1934 Law on Excises and Financial Monopolies, the spirit monopoly constituted the exclusive right of the State: (1) to purchase manufactured raw spirit; (2) to manufacture drinkable spirit, liquor and denatured spirit from raw spirit; (3) to import spirit and liquor from abroad. Under this law, retail shops of alcoholic beverages which had acquired excise patents for selling alcoholic beverages were entitled to sell liquor and spirit.

During the period of the Soviet occupation, the state monopoly was stricter. Only enterprises of food industry were permitted to distil ethyl spirit from food raw-materials. State and co-operative trade enterprises were prohibited from selling spirit at all. After the independence of Lithuania had been restored, these prohibitions were not officially abolished.

On 20 November 1992, the Government of the Republic of Lithuania adopted the Resolution (No. 871) “On the Trade of Alcoholic Beverages”. As early as 1 December of the same year, enterprises of all ownership forms, except pharmacies, were banned to sell ethyl spirit imported into Lithuania to the population. “The Rules for the Trade of Alcoholic Beverages” (Items 7.3 and 8) which were confirmed by the same resolution also prohibited selling faked alcoholic drinks and ethyl spirit imported to Lithuania.

Taking into consideration the fact that a large number of alcoholic beverages that are officially registered as export goods reach the Lithuanian market by evading taxes, by its resolution No. 1094 of 8 November 1994, the Government prohibited enterprises from exporting ethyl spirit and selling it to private entities of economy and natural persons without a permit of the Ministry of Finance and the Ministry of Agriculture.

On 18 April 1995, the Law on Alcohol Control was passed. It has regulated the relations linked with manufacture, internal trade, storage, transporting, import, export, and use of alcohol products, food products with alcohol additives, as well as that of those containing ethyl alcohol, and established the fundamentals of alcohol control in Lithuania. The said law also established the legal grounds of introduction of the monopoly of manufacture and trade of alcohol products, as well as granting of the monopolistic right of the State to manufacture alcohol products to economic entities. Item 12 of Article 20 of the said law contains the prohibition on selling to the population non-denatured or denatured ethyl alcohol as well as ethyl alcohol for technical use with the exception of non-denatured ethyl alcohol sold to the population by pharmacies in accordance with the procedure established by the Ministry of Health Care.

Thus, it is possible to hold that, after 11 March 1990, no legal acts were adopted which directly consolidated a permission to sell ethyl spirit to the population except pharmacies. Meanwhile, from 1 December 1992, special governmental acts prohibited selling imported ethyl spirit, while, since 8 November 1994, the sale of ethyl spirit has been prohibited altogether. Later this prohibition was confirmed by the Law on Alcohol Control.

3.2. Assessing the legal regulation of acquiring alcohol products by the population, the Constitutional Court draws one’s attention to other circumstances as well.

On 21 December 1991, the Government adopted the Resolution (No. 578) “On the Taxation of Publications Which are of Erotic Nature and the Procedure of Alcoholic Beverages Trade”. Item 3 of the said resolution provided that every trade or public catering enterprise which sells alcoholic beverages must have a special permit issued by the board of a town or district.

Actually, the boards of towns or districts used to issue permits to trade or public catering enterprises not only for selling of traditional alcoholic beverages but also that of spirit. For instance, the Vilnius City Board during July-November 1992 issued more than 50 permits to various enterprises in which one particularly indicated, along with other alcoholic beverages, the right to sell spirit, too.

It should be noted that for some time there was no special legal regulation of import of ethyl alcohol. The Government regulated these questions by the Resolution (No. 26) “On the Trade of Alcohol Beverages” of 26 January 1993. Item 2.1 of this resolution permitted seven enterprises of this country to import, along with alcohol beverages, ethyl spirit as well which could only be sold to enterprises.

Item 2.7 of Government Resolution (No. 187) “On a Partial Amendment of and Supplement to the 26 January 1993 Resolution (No. 26) of the Government of the Republic of Lithuania” provided that the procedure shall be established, and permits and quotas for importing of ethyl spirit for technical use to the Republic of Lithuania which is necessary for manufacture process shall be issued by the Ministry of Economy and Trade.

3.3. After the prohibitions on selling ethyl spirit to the population had been consolidated by legal acts, sanctions for their violation were established for the seller only. Until the adoption of the 2 July 1996 amendments of Article 310 of the CC, criminal liability for acquiring of alcohol products was not established. It was possible to bring a person to criminal liability and penalise him only in the case that the said alcohol products had been acquired by illicit means (e.g. contraband). Likewise, until the 2 July 1996 amendments and supplements of Article 310 of the CC, criminal liability for storing alcohol products was not established.

The Law “On the Exemption from the Criminal Liability and Punishment Which are Established by Article 310 of the Criminal Code for Storing and Transporting Spirit and Its Solutions (Mixtures)” which was enacted by the Seimas on 26 March 1998 and which on 4 April of the same year was recognised as null and void also indicates the inconsistency and even certain discrepancy of the legal regulation of acquiring and storing alcohol products by the population.

Taking account of the above analysis of the earlier valid legal norms, one cannot deny an assumption that there may exist persons who, without violating the former order, had acquired and stored alcohol products.

3.4. From the standpoint of property law, the norms of Article 23 of the Constitution, which constitute an indivisible whole, disclose the essence of the protection of the ownership rights, and emphasise the constitutional protection of property. Alongside, the Constitutional Court notes that the rights of ownership are protected only when property has been acquired and stored lawfully.

An analysis of the Constitution, other laws, as well as the norms of international law, allows drawing the conclusion that the rights of ownership may be subject to limitation so that violations of the rights of other persons might be avoided. The subjective rights of the owner to manage, use and dispose of his property may be limited by law in the interest necessary to society (problems of ecology, etc.), due to the nature of the property (arms, narcotic substances, etc.) etc. Alcohol products are categorised as special products for the manufacture, import, trade or any other realisation of which a special state regulatory regime is needed. It is linked with the fact that, due to the uncontrolled or insufficiently controlled sale of alcohol products to the population, certain phenomena of social pathology are increasing (murders or bodily injuries in private life, suicides, intoxication and death in the cases of alcohol consumption etc.).

Having assessed various social factors which, in its opinion, were essential, the legislature had the reasons for establishing limitations on storing alcohol products and, thus, for restricting the implementation of the ownership rights. In order to implement such limitations, various legal means were possible. The fact that the means of penal law were opted is within the prerogative of the legislature. The establishment of criminal liability for storing alcohol products does not, in itself, violate the ownership rights of persons, however, the establishment of implementation of such liability is linked with certain requirements.

Prohibitions in criminal laws are always directed to the future. Paragraph 1 of Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The norm of Paragraph 3 of Article 7 of the CC also consolidates the prohibition against the retroactive validity of penal laws: “A law which establishes criminality for a deed, or makes a penalty stricter, or burdens the legal situation of the person who has committed a deed, shall not be retroactively valid.” Thus, in all these norms 2 chief principles of criminal law have been set down: nullum crimen sine lege and nullum poena sine lege which mean that a person may be brought to criminal liability only for such a deed which at the time when it was committed was qualified by a penal law as an offence, and that the application of a stricter penalty to a person than that established by a penal law at the time when the deed was committed is prohibited. Only in exceptional cases, after specially deliberating on it, the legislature may establish the retroactive validity of a penal law.

3.5. The impugned laws established criminal liability for the continuing deed—storing alcohol products without a permit—in Article 310 of the CC. Meanwhile, as noted above, the assumptions cannot be denied that there may exist individuals who had acquired alcohol products lawfully and stored them until adoption and coming into force of the impugned law.

In this case at law, an analysis of the norms of the impugned Article 310 of the CC which provide for criminal liability for storing alcohol products without a permit allows asserting that these are prohibitions of general nature. The establishment of the said prohibitions is within the prerogative of the legislature. Thus, in themselves, these norms are not unlawful. The problems as raised by the petitioners are virtually connected with the deficiencies of legal regulation due to which there occurs indistinctness as to how one should apply these norms. Therefore, the conclusion should be drawn that the question of the lawfulness of alcohol products storage without a permit, in fact, is the problem of not the essence, i.e. the content, of these norms, but the one of their practical application.

In the law-making of penal laws, especially when continuing deeds are criminalised, as a rule, the legal rules for the implementation procedure of these norms are set down. This is done in an attempt to solve problematic issues which might occur in the course of implementation of new legal norms.

The questions of the application of legal norms that have not been decided by the legislature are a matter of the judicial practice. This means that they may be decided by a court of general jurisdiction when it adopts a respective judicial act in a particular case at law. In such instances one follows common principles of law, as well as the principle that without a special indication a penal law may not be retroactively valid.

It should be noted that the legislature twice amended the norms which provide for criminal liability for storing alcohol products, however, he decided the question of application of these norms in neither of them. Therefore, it should be concluded that these norms are applicable to the deeds which were committed after coming into force of these laws.

3.6. Assessing the established criminal liability for storing alcohol products, one cannot fail to notice that, in Lithuania, a dangerous crime has become a widespread phenomenon, i.e. contraband of ethyl alcohol, as well as the sale of solutions (mixtures) manufactured from it. For instance, in 1997 alone, the Customs Department at the Ministry of Finance registered 10 cases of spirit contraband where one was attempting to transport more than 600 thousand litres of ethyl spirit.

The contraband of ethyl spirit and the sale of solutions (mixtures) of such spirit are recognised as offences by penal laws and incur criminal liability. Other illicit ways of acquiring of alcohol products (e.g. theft) may be offences as well. Storing alcohol products acquired by illicit means is either continuation of a previous crime, e.g. contraband, or corresponds with badges of another crime which is provided for in Article 310 of the CC, and it may concur with other crimes as well. Thus, in these cases alcohol products are the target of crime, there never appears any right of ownership to them, therefore, they may not be protected by legal means on the grounds of Article 23 of the Constitution.

4. On the compliance of the criminal liability for manufacture, sale or any other realisation of alcohol products without a permit as established by the amendments of Article 310 of the CC with Article 23 of the Constitution.

Raising the question whether the amendment of Article 310 of the CC as made by the law of 2 July 1996 is in compliance with Article 23 of the Constitution, the Kėdainiai District Local Court, a petitioner, also points out other deeds, i.e. manufacture, sale or any other realisation of alcohol products, for the prohibition of which one may raise the lawfulness question.

As mentioned, alcohol products are categorised as special products to the manufacture, import, sale and use whereof a special state regulatory regime is applied. The Law on Alcohol Control provides that only such enterprises shall be permitted to produce alcohol products which have been granted a permit by the Government or, upon its authorisation, by the State Tobacco and Alcohol Control Service. This means that individuals did not have the right to manufacture in any way alcohol products under the Law on Alcohol Control. The prohibition against the manufacture of alcohol products as established by Article 310 of the CC virtually does not provide for any new restrictions. Essentially, the said article merely makes the sanctions for these deeds stricter.

The population is altogether prohibited from engaging in the sale or any other realisation of alcohol products. The legislature merely made this prohibition stricter by establishing criminal liability for the manufacture, sale or any other realisation of alcohol products without a permit.

Thus, the amendments of Article 310 of the CC made by the impugned law, the norms of which established criminal liability for the manufacture, sale or any other realisation of alcohol products, are in compliance with the Constitution.

In view of the arguments set forth above and conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 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 norms of Article 6 of the Republic of Lithuania’s Law on Amending and Supplementing of Articles 35, 283, 284, 289, 290 and 310 of the Criminal Code of 2 July 1996 and those of the Republic of Lithuania’s Law on Amending and Supplementing Article 310 of the Criminal Code of 9 January 1997 which establish criminal liability for the manufacture, storage, transporting, sale or any other realisation of ethyl alcohol, denatured ethyl alcohol, ethyl alcohol for technical use and solutions (mixtures) thereof are 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