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On preliminary investigation, a manner of evidence collection, and the right to defence

Case No. 5/98

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Paragraphs 4 and 5 of Article 255, Paragraph 4 of Article 256, Paragraph 4 of Article 260 and Paragraphs 1, 2 and 6 of Article 280 of the Code of Criminal Procedure of the Republic of Lithuania with the Constitution of the Republic of Lithuania

 

Vilnius, 5 February 1999

 

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

Judge Kristina Paleckaitė, acting as the representative of the Vilnius Regional Court, the petitioner

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 19 January 1999, in its public hearing, considered case No. 5/98 subsequent to the petition submitted to the Constitutional Court by the Vilnius Regional Court, the petitioner, requesting an investigation into whether Paragraphs 4 and 5 of Article 255, Paragraph 4 of Article 256, and Paragraph 4 of Article 260 of the Code of Criminal Procedure of the Republic of Lithuania were in compliance with Paragraphs 1 and 2 of Article 109, Paragraphs 1 and 2 of Article 118, Paragraph 2 of Article 31, and Article 20 of the Constitution of the Republic of Lithuania, as well as whether Paragraphs 1, 2 and 6 of Article 280 of the Code of Criminal Procedure were in compliance with Paragraphs 2 and 6 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution.

The Constitutional Court

has established:

I

On 29 October 1997, in its procedural sitting, the Vilnius Regional Court was considering a criminal case wherein two persons were charged with the crimes provided for by Paragraphs 1 and 2 of Article 82, Paragraph 2 of Article 207, Paragraph 2 of Article 312 of the Criminal Code of the Republic of Lithuania.

The Vilnius Regional Court suspended the case and applied to the Constitutional Court with the petition requesting an investigation into whether Paragraphs 4 and 5 of Article 255, Paragraph 4 of Article 256, and Paragraph 4 of Article 260 of the Code of Criminal Procedure (hereinafter referred to as the CCP) were in compliance with Paragraphs 1 and 2 of Article 109, Paragraphs 1 and 2 of Article 118, Paragraph 2 of Article 31, and Article 20 of the Constitution, as well as whether Paragraphs 1, 2 and 6 of Article 280 of the CCP were in compliance with Paragraphs 2 and 6 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution.

II

The request of the petitioner is based on the following arguments.

The data of the case permit asserting that the preliminary investigation in the case was incomplete in substance, moreover, it is impossible to complement it during the trial, therefore, the norms of Articles 255 and 260 of the CCP should be applied. However, it is clear from the content of Paragraph 4 of Article 255 and Paragraph 4 of Article 260 that the said norms create such a procedural relation between the judge and either the investigator or the interrogative body, where the judge has to assess the quality of the work of the investigator or the interrogative body. After it becomes clear that the work of the investigator has been performed, in substance, in an unsatisfactory manner, the court has the right to rectify it by itself: by not referring the case back for completing the investigation but suspending the case it obligates the investigator or the interrogative body to present new evidence and sets the term during which this work must be accomplished. Such a practice of the court is not in line with the content of justice implementation which is set down in Paragraph 1 of Article 109 of the Constitution. The petitioner is of the opinion that in cases when there is the preliminary investigation that is incomplete in substance, the impugned norms excuse public prosecutors from the control over the activities of the interrogative and investigative bodies, while their function is transferred to the court even though the court must administer justice in cases but never to exercise control over the activities of the interrogative bodies and investigators.

In the opinion of the petitioner, there exist grounds to assert that the impugned norms, which unreasonably diminish the scope of the constitutional duties and responsibilities of public prosecutors in cases where the preliminary investigation is incomplete in substance, impose limitations on the powers of the judiciary. These norms do not permit the court to refer the case back in order to complement the investigation, while the right of the prosecutor to refer the case back in order to complement the investigation as provided for by the norms of Article 238 of the CCP is, in any case, unconditional. This virtually creates supremacy of the prosecutor over the court and violates the principle of the independence of judges and the court when justice is administered. In this case, the court becomes directly dependent on the prosecutor. In cases when the court applies the norms of Paragraph 4 of Article 255 and those of Paragraph 4 of Article 260 it becomes dependent on the investigator or the interrogative body which are obligated by the court to find new evidence. Even though instructions of the court are mandatory for the interrogative body or the investigator but the CCP does not contain any norms which would compel the interrogator or the investigator to carry out the instructions of the court.

The petitioner doubts whether the impugned norms of the CCP are in compliance with the provision of impartiality of a court which is contained by Paragraph 2 of Article 31 of the Constitution. After the judge has given instructions to the investigator or the interrogative body, he maintains organisational ties with the investigator or the interrogator when they become acquainted with the material of the case that they need. The case remains under the supervision of the court, therefore, such ties inevitably acquire the nature of interest.

The constitutionality of the norm of Paragraph 4 of Article 255 of the CCP is impugned as the said norm provides for not adequate means for removing the drawback which has been indicated by the court. Article 255 of the CCP in its effective wording provides for two insufficiencies of the preliminary investigation: an essential violation of the law of criminal procedure and an essential incompleteness of the investigation. The law, however, provides for different removal of such drawbacks. In the case that there was an essential violation of the criminal law in the course of the preliminary investigation, then the court adopts a ruling to refer the criminal case back in order to complement the investigation. In the case that the court has established an essential incompleteness of the investigation, the court is not permitted to refer the case back in order to complement the investigation. Both said drawbacks are linked with each other as a whole and its part, i.e. an essential incompleteness of the investigation is, alongside, an essential violation of the criminal law as well. In cases when the circumstances of a case are investigated incompletely in substance, the court is obstructed to investigate the case in full extent and objectively, the rights of the parties to the proceedings are violated, as well as conditions are created to influence the judgment.

The petitioner is of the opinion that the norms of Paragraph 4 of Article 255, Paragraph 4 of Article 256 and Paragraph 4 of Article 260 of the CCP which provide for the manner of evidence collection when the case remains with the judge and upon its suspension, violate the right of indicted persons to a fair trial which is provided for by Paragraph 2 of Article 31 of the Constitution.

Upon the suspension of a case, as a rule, there remain the conditions and grounds for the imposition of the pretrial detention determined during the preliminary investigation. Then the length of the pretrial detention depends on the length of the suspension of the case. However, the impugned norms permit treating this length in an ambiguous way, and this creates the conditions for delaying carrying out the instructions of the court. The petitioner concludes that the provisions of Paragraph 4 of Article 255, Paragraph 4 of Article 256 and Paragraph 4 of Article 260 of the CCP contradict Article 20 of the Constitution.

In the opinion of the petitioner, the norms of Paragraphs 1, 2 and 6 of Article 280 of the CCP concerning the changing of the accusation during the trial are doubtful as they violate the right of persons to defence which is established by Paragraph 6 of Article 31 of the Constitution. According to the petitioner, alleviating or escalating the accusation under Article 280 of the CCP, the court undertakes the functions of the prosecutor. This violates the limits of functions of courts and prosecutors which are established by Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution, as well as the right of indicted persons to an impartial trial which is established by Paragraph 2 of Article 31 of the Constitution.

In the court hearing, the representative of the petitioner virtually reiterated the arguments set forth in the petition to the Constitutional Court and requested that the impugned norms of the CCP be recognised to be contradicting the Constitution.

III

In the course of the preparation of the case for the judicial investigation, an explanation of P. Ancelis, the representative of the party concerned, a consultant to the Legal Division of the Seimas, was received. Therein it is maintained that Article 118 of the Constitution underlines the institutions which operate alongside of the court and create respective pre-conditions for lawful and just essential decision of criminal cases rather than the separation of functions in the judiciary. The provision “in the Republic of Lithuania, the courts shall have the exclusive right to administer justice” of Paragraph 1 of Article 109 of the Constitution expresses the right of a judicial institution to implement justice but it does not mean that the court performs only this function by ostensibly staying apart from performance of other functions. The broader tasks of courts in the criminal procedure are clearly indicated by the right of the court to decide the question of detention of a person as provided for by Paragraph 2 of Article 20 of the Constitution, by the right to collect information concerning the private life of an individual by a court order as provided for by Paragraph 3 of Article 22 of the Constitution, by the right to enter a person’s dwelling place by a court order as provided for by Paragraph 2 of Article 24 of the Constitution. The legislature links the activities of courts not only with administration of justice upon the investigation of a criminal case in a court hearing but also with the possibility of preventing any possible abuses of human rights and freedoms by applying the measures of detention as well as other measures of procedural suppression, by procedural control over the interrogation in cases investigated by summary proceedings, etc.

In the opinion of the representative of the party concerned, upon reference back of the case in order to complement the investigation, quite often the prospect of judicial investigation of the case is completely ruined as the evidence is changed, versions are raised and checked, the significance of other evidence is devalued, the investigation of the case is procrastinated. The tasks of criminal procedure is prompt and complete exposition of crimes, inculpation of the culprits and proper application of the law so that every person who has committed a crime would be given a just punishment, while under Article 1 of the CCP these tasks are mandatory for the court as well. Therefore, the impugned norms of the CCP ought to be applied, but cases should not be referred back in order to complement the preliminary investigation.

The representative of the party concerned is of the opinion that the petitioner is wrong when he maintains that under Article 118 of the Constitution the function of criminal prosecution is carried out by public prosecutors only. This is clearly reaffirmed by Article 3 of the CCP: “The court, the public prosecutor, the investigator and the interrogative body must, within their powers, institute a criminal case in every case when the signs of a crime come to light, as well as to resort to all measures provided for by law so that the event of crime and the persons guilty of crime would be established and that they would be punished.” The function of criminal prosecution is more conspicuous in judicial cases instituted subsequent to the claim of the victim as in such cases the preliminary investigation is not performed at all (Paragraph 3 of Article 126 of the CCP).

In the opinion of the representative of the party concerned, the allegation of the petitioner concerning an ostensible violation of the adversarial principle is groundless as well.

In the opinion of the representative of the party concerned, there exist no contradictions between the norms of Paragraph 4 of Article 255, Paragraph 4 of Article 256, Paragraph 4 of Article 260 of the CCP and those of Article 20 of the Constitution which protect the freedom of individuals as the necessity and particularity of the measure of pretrial detention may without restrictions be chosen by the court (Articles 65, 98, 106, 112 and 249 of the CCP) irrespective of the degree or influence of the participation of the prosecutor in this procedure.

The representative of the party concerned noted that the whole criminal procedure is divided into consistent phases wherein certain participants take part while tasks peculiar only to this concrete phase are solved with corresponding guarantees of their solution which are established in the law. The opportunity for the judge to give instructions directly to the investigator or the interrogative body to present new evidence is linked with the wish of the legislature to prevent any procrastination of decisions in cases at law due to formalistic grounds. It should be noted that in such a case the prosecutor may not entirely keep away from the control over the activities of the interrogation or the investigator.

The representative of the party concerned is of the opinion that the argumentation of the petitioner concerning the non-compliance of the provisions of Paragraph 4 of Article 255, Paragraph 4 of Article 256 and Paragraph 4 of Article 260 of the CCP with that of Paragraph 2 of Article 31 of the Constitution is groundless. Even though the petitioner maintains that after the judge has given instructions to the investigator or the interrogative body he establishes organisational ties with the investigator or the interrogator and later such ties inevitably acquire the nature of interest, however, the defence as well as other participants to the proceedings often additionally become acquainted with the criminal case which is already at court.

The representative of the party concerned is of the opinion that the norms of the CCP which are impugned by the petitioner are in compliance with the Constitution.

IV

In the course of the preparation of the case for the court hearing, an explanation of the specialist Dr. G. Goda, an associate professor at the Department for Criminalistics and Criminal Procedure of the Law Faculty of Vilnius University, was received.

It is maintained therein that the Constitution does not contain any procedural rules establishing the phases of the investigation of criminal cases as well as the procedure as to how the case is handed over from one phase into the next one etc. The Constitution also does not mention anything as for the role of the court regarding the collection and investigation of evidence. The grammatical comparison of the provisions of the Constitution and those of the CCP do not provide for any reason to speak about any contradictions or disagreements.

In the opinion of the specialist, the constitutional provision that only the court shall administer justice means in the criminal legal proceedings that it is only the court that may recognise that a person is guilty of commission of a crime and give him a punishment. However, the court can establish that the person committed a crime only if it has the evidence proving the guilt of the accused. The Constitution does not provide that in the case the court must adopt a decision on the grounds of only that evidence which has been presented by the parties and that it may not show any initiative on its own in this sphere. In criminal proceedings it is necessary to make an attempt to establish the material truth and not only to limit oneself with the establishment of the formal truth. Therefore, in a situation when the court, seeing that in order to establish the material truth in the case it is necessary and possible to acquire new evidence, would not resort to any measures to demand and obtain this evidence, it would mean not administration of justice but refusal to administer justice.

It is not correct to deem the reference back of cases for complementing the investigation to be the most rational and effective way. The assertions of the petitioner that the discussed norms of the CCP legalise the violation of the distribution of functions among the investigator, the prosecutor and the court which is established by the Constitution are groundless as well. The requirement by the court to present new evidence does mean taking back the control function enjoyed by the prosecutor over the activities of the interrogative bodies and the investigator. The court demands new evidence so that it may be able properly to accomplish its duty, i.e. fairly to decide the case. It is also incorrect to assert that the demand by the court to present new evidence equals to the accomplishment of the control over the activities of the interrogative bodies and the investigators because the content of the notion of control is different and much more diversified (Articles 141 and 160 of the CCP).

In the opinion of the specialist, the doubt that the court by changing the accusation loses its impartiality and takes over the functions of the prosecutor is groundless as well. If, in the course of the investigation of the case in court it becomes clear that the accused may be recognised guilty under a different charge, i.e. when there are signs of another criminal deed in the deed of the accused, then, doubtless to say, the accused must stand trial and be convicted for the deed which he has committed. Until the CCP amendments of 10 June 1993, in cases when the accusation had to be changed by escalating it, the case used to be referred back in order to complement the investigation. Quite often, however, it used to mean noticeable procrastination of the proceedings, although the bodies of a preliminary investigation had to perform mere formal actions without establishing any new factual circumstances. Therefore, it was decided that in cases when the accusation had to be changed without changing the factual aspect of the case it was not necessary to refer the case back to the investigation while it was possible to do so in the course of the judicial investigation.

The specialist noted that the norms of criminal procedure constitute a consistent system. Therefore, by applying the impugned norms of the CCP, pretrial detention (incarceration) may only be applied in case there are the bases for pretrial detention (incarceration) which are directly listed by the CCP. Upon disappearance of the basis due to which pretrial detention (incarceration) was imposed, the pretrial detention (incarceration) for a person must immediately be ended or changed with another measure of suppression.

In the opinion of the specialist, the provisions of Paragraphs 1, 2 and 6 of Article 280 of the CCP are in compliance with Paragraphs 2 and 6 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution.

V

In the course of the preparation of the case for the judicial investigation, explanations by D. Vansevičius, Chairman of the First Vilnius City Local Court, and by V. Masiokas, Chairman of the Kaunas City Local Court, were received wherein virtual agreements were expressed with the statements set forth by the petitioner.

The Constitutional Court

holds that:

In Lithuania, the criminal procedure is established by the CCP which was adopted as early as 1961. Upon the restoration of the independence of the Republic of Lithuania, the norms of the said legal act have been amended and supplemented many a time. By the amendments of the regulation of procedural relations it was attempted to conform the criminal procedure to the new conditions as well as to eliminate the elements alien to democratic systems.

By the norms of the criminal procedure it is attempted to create conditions by lawful means to protect society against criminal deeds. Alongside, it needs to be noted that another aim of the criminal procedure, which is to ensure the protection of the rights and freedoms of indicted persons, is of no less importance. Sufficient protection means as well as their guarantees in the criminal procedure create preconditions for evading any unreasonable criminal prosecution of persons as well as unjust punishments.

The system of the norms of the CCP must be grounded on the principles of democracy (the equality before the law and the court, the presumption of innocence, a public and fair investigation of cases, the impartiality and independence of the court and judges, the separation of the functions of the court and other subjects of criminal procedure, the guarantee of the right to defence, etc.) which are established by the Constitution. It needs to be noted that by amending the elements of a codified system the functioning of the whole such system is influenced. However, even in those cases it is important to ensure the harmony and consistency of the system. Therefore, in the course of the legal assessment of the norms of individual articles of the CCP one has to take account of their relation not only with the Constitution but also with the system of criminal procedure which is established by the CCP.

The relations of the court with other state institutions or officials, as well as the nature of its actions in criminal procedure are determined by the principle of the separation of powers established by the Constitution. Particularising this principle, Paragraph 1 of Article 109 of the Constitution prescribes that in the Republic of Lithuania the courts shall have the exclusive right to administer justice. This norm establishes that the courts are the only state institution administering justice. No other state institution nor any other official may accomplish this function. The court accomplishes this function, conforming to a certain procedure of proceedings which is regulated by law.

The functions of public prosecutors and investigators as subjects of criminal procedure are established by Article 118 of the Constitution. It is provided therein that public prosecutors shall prosecute criminal cases on behalf of the State, shall carry out criminal prosecutions, and shall supervise the activities of the interrogative bodies, while pretrial interrogation shall be carried out by investigators. Thus, it is public prosecutors who are entitled with these functions: criminal prosecution, public charge, control over the activities of interrogative bodies.

1. On the compliance of Paragraphs 4 and 5 of Article 255, Paragraph 4 of Article 256 and Paragraph 4 of Article 260 of the CCP with the Constitution.

Paragraphs 4 and 5 of Article 255 entitled Reference of the Case Back in Order to Complement the Investigation of the CCP provides:

In cases when the court by bringing the accused to trial recognises that the preliminary investigation was incomplete in substance, and that it is impossible to complement it during the trial, then the court, by not referring the case back to complement the investigation, by its ruling shall obligate the investigator or interrogative body to present new evidence while it shall suspend the criminal case.

The instructions of the court shall be mandatory for the investigator or the interrogative body. By giving the instructions, the court shall establish the term within which the said instructions must be carried out.”

Paragraph 4 of Article 256 of the CCP regulating the suspension of a criminal case provides: “In the event that the court recognises that the preliminary investigation is incomplete in substance and it gives instructions to the investigator or the interrogative body to present new evidence, the court shall adopt a ruling to suspend the case until the new evidence is received.”

Paragraph 4 of Article 260 entitled The Actions of the Judge Taken for the Preparation of the Court Hearing of the CCP provides: “In the event that the preliminary investigation is incomplete in substance while it is impossible to complement it during the trial, by his ruling the judge shall give instructions to the investigator or the interrogative body to present new evidence and shall suspend the case until the new evidence is received. The court must make the participants to the proceedings familiar with the newly acquired evidence prior to the judicial examination.”

The impugned norms virtually regulate relations of one type, therefore, the Constitutional Court will investigate the compliance of the whole group of the said norms with the Constitution.

1.1. In the opinion of the petitioner, the impugned norms of the criminal procedure violate the provisions of Paragraph 1 of Article 109, and those of Paragraphs 1 and 2 of Article 118 of the Constitution dealing with the separation of the functions of courts, prosecutors and investigators as the actions prescribed by the impugned norms mean not justice administration but control over the investigator and the interrogative body which is characteristic of the prosecutor. Besides, by these norms the court is also burdened with the function of criminal prosecution as well.

The Constitutional Court notes that the provision of Paragraph 1 of Article 109 of the Constitution by which justice is administered by the courts only, means in criminal procedure law that a person may not by recognised guilty of the commission of a crime nor may he be given a criminal punishment save by court judgment and by law. During the trial, a court of first instance, implementing this function, must thoroughly, fully and objectively investigate all the circumstances of the criminal case and decide the case in substance. It is only the court that may recognise that a person is guilty and sentence him.

Paragraphs 1 and 2 of Article 118 of Chapter IX entitled The Court of the Constitution establish that public prosecutors shall prosecute criminal cases on behalf of the State, shall carry out criminal prosecutions, and shall supervise the activities of the interrogative bodies, while pretrial interrogation shall be carried out by investigators. The Constitution treats prosecutors as part of the judiciary which accomplishes special functions. Thus, the prosecutor is an official who is in charge of the pretrial investigation and who is responsible for the fact that a person is reasonably brought to liability. The competence, rights and duties of the prosecutor are established by law. To implement the functions of the prosecutor, the CCP provides for respective rules. Under the law, the prosecutor shall be autonomous and independent.

Comparing the norms of Paragraph 1 of Article 109 with those of Paragraphs 1 and 2 of Article 118 of the Constitution it becomes clear that the constitutional function of the court—administration of justice—is different from the preliminary investigation, criminal prosecution or support of the charge. Administering justice, the court investigates criminal cases and decides whether the accused are guilty or innocent and gives them criminal punishments or acquits them.

The norms of Paragraphs 4 and 5 of Article 255, Paragraph 4 of Article 256 and Paragraph 4 of Article 260 of the CCP are set forth in Section 23 entitled Bringing the Accused Before Trial and the Preparatory Actions for the Court Hearing of Chapter 4 entitled Case Procedure at the Court of First Instance of the CCP. Elucidating the question of the compliance of the impugned norms with the Constitution, one has to take account of the aims and peculiarities of this phase of criminal procedure.

In the phase when the accused is brought to trial and when preparations are made for the trial the question of guilt of the accused is not decided. The judge or the court during its procedural sitting draws preliminary conclusions only, therefore, the evidence of the case is not investigated but it is decided whether there are enough data for investigating the case in trial. By investigating the case in substance in trial, the court is not bound by the decision to bring the accused to trial. If the questions listed in the CCP are decided attentively and justly during the procedural sitting, pre-conditions are created for a proper consideration of the case in substance.

The public prosecutor may take part in the criminal case from its very beginning. He has broad powers in the phase of the initiation of the civil case and that of the preliminary investigation. Under the procedure established by law, he initiates criminal prosecution and, investigating the crime, he accomplishes actions of prosecution. One of his functions is control over the institutions which carry out the preliminary investigation. The prosecutor, under the procedure established by law, exercises control over the interrogation and is in charge of it, attempting that the interrogative bodies would, precisely under the requirements of laws, resort to all possible actions of search and procedure so that they could establish the person who has committed the crime and against whom they might initiate criminal prosecution. The prosecutor may interrogate himself as far as any crime is concerned. The prosecutor in charge of the interrogation may remove the interrogator from the investigation of a concrete crime etc. for violations of laws as well as for failing to accomplish the instructions given by the prosecutor.

Upon accomplishing the preliminary investigation and considering that there are enough grounds to bring the accused to trial, the investigator draws up an indictment. The case, together with the indictment, is handed over to the prosecutor. Investigating the case together with the indictment, the prosecutor must check on the grounds of the case material, whether there was a deed of which the accused is being accused, whether there is corpus delicti in the said deed, whether the preliminary investigation was performed thoroughly, fully and objectively, whether the accusation is grounded on the evidence that there is in the case, whether the criminal law was applied properly etc. Upon recognising that there are grounds to pass the case over to court and that the indictment is drawn up properly, the prosecutor confirms the indictment. After this, he passes this case over to court. Thus, the prosecutor is responsible for the pretrial phase of criminal procedure. Only properly prepared cases must be passed over to a court.

The obligation of the court is to use all means possible in order to establish the truth in a criminal case. Alongside, it needs to be noted that striving for these ends, the court may not overstep the limits of the justice administration functions which are established by the Constitution.

Assessing the legal situation provided for by the impugned norms of the CCP under which the court, by its ruling, obligates the investigator or the interrogative body to present new evidence, one has to take account of the following circumstances.

First, the impugned norms of Paragraphs 4 and 5 of Article 255 of the CCP link the instructions of the court to the investigator or the interrogative body with a recognition that the preliminary investigation is incomplete in substance. This means that in the case the circumstances are not clarified which are of essential importance for bringing an accusation. In other words, it is held that the pretrial investigation, the prosecutor is in charge of and responsible for, has been carried out improperly. Therefore, upon recognition that the case has been prepared improperly, one has to recognise the obligation of the court to request new evidence which is established by the impugned norms as setting to decide the tasks raised for the prosecution. By means of such a procedural regulation, the conditions are created for handing unprepared criminal cases over to trial. Alongside, the Constitutional Court draws one’s attention to the fact that the commission for the court of appeal instance to obligate the investigator or the interrogative body to perform the required investigative actions which is provided for by Paragraph 8 of Article 378 of the CCP is linked not with a virtually incomplete preliminary investigation but the circumstances which have not been established during the preliminary investigation.

Second, a criminal case in the course of which the court has given obligations to the institutions of a preliminary investigation remains at the disposal of the court. However, the law does not grant the court any procedural means which could ensure that such an obligation be carried out properly and in due time. It should be noted that it is the prosecutor who enjoys procedural means to exercise control over a preliminary investigation.

Third, the court obligates not the prosecutor who has presented the case to the court to present new evidence but directly the investigator or the interrogative body. After it becomes clear that the preliminary investigation has been incomplete in substance, such a requirement by the court shows that the court, in a sense, has taken the functions of the prosecutor who is responsible for the preliminary investigation of the case. This allows one to believe that in the actions of the court there appear elements of criminal prosecution, but administration of justice is uncharacteristic of such elements.

In view of these arguments and reasoning, it should be concluded that the impugned norms of Paragraphs 4 and 5 of Article 255, Paragraph 4 of Article 256 and Paragraph 4 of Article 260 are not in line with the requirements of Paragraph 1 of Article 109, and Paragraphs 1 and 2 of Article 118 of the Constitution.

1.2. In the opinion of the petitioner, the impugned norms of the CCP impose limitations on the powers of the judiciary and make the court dependent on the actions of the prosecutor, the investigator and the interrogative body.

Paragraph 2 of Article 109 of the Constitution prescribes: “While administering justice, judges and courts shall be independent.” This constitutional norm is linked with Paragraph 2 of Article 31 of the Constitution by which every indicted person shall have the right to a fair and public hearing by an independent and impartial court.

The independence of courts and judges is one of the most important principles in administration of justice. The establishment of this principle not only in Chapter IX The Court but also in the norm of Paragraph 2 of Article 31 of the Chapter II The Individual and the State of the Constitution indicates that the independence of the court and the judge is, first of all, a necessary condition for the protection of human rights and freedoms.

The oath which the judge takes before taking office under Paragraph 6 of Article 112 of the Constitution also obligates him to be independent. The judge swears “to be faithful to the Republic of Lithuania and to administer justice only pursuant to law, to protect the rights, freedoms and lawful interests of people, always to be conscientious, humane and never damage the name of the judge by improper behaviour”.

The principle of the independence of the court is entrenched in many international documents as well. Article 10 of the Universal Declaration of Human Rights provides that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. On 29 November 1985, the General Assembly of the United Nations by its resolution 40/32 and by its resolution 40/146 of 13 December 1985 approved “Basic Principles on the Independence of the Judiciary”.

Paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

On 13 October 1994, the Committee of Ministers of the Council of Europe adopted recommendation No. R (94) 12 “On the Independence, Efficiency and Role of Judges”. The responsibility of judges is consolidated therein by which judges must act independently in all cases and free from any outside influence, and conduct cases in an impartial manner in accordance with their assessment of the facts and their understanding of the law, to ensure that a fair hearing is given to all parties and that the procedural rights of the parties are respected pursuant to the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms. It is also required in some cases that judges withdraw from a case or resort to other measures so that the independence and impartiality of courts would be implemented fully.

Upon the assessment of the whole-complex of the guarantees for the independence of judges and courts, in its ruling of 6 December 1995, the Constitutional Court noted that they are closely interrelated: “<...> Therefore, the independence of judges and courts in general may not be examined on the basis of one element, no matter how salient it may be. On the other hand, it must be admitted that if any of the safeguards guaranteeing the independence of judges and courts are violated, it would impede administration of justice and the protection of human rights and freedoms.”

An important aspect of the independence of the judge and the court in criminal procedure is the independence of the court in deciding all questions linked with cases under investigation. The CCP norms establish that the court has the right to join or separate criminal cases, to dismiss a case during a trial, to refer a case back in order to complement the investigation etc. It is only the court that decides how it has to investigate a criminal case. The court is independent in all phases of the criminal case which is under its investigation, as well as in the phase of bringing the accused to trial and preparation for trial.

With regard to the independence of the court, the fact that the court follows respective norms of the CCP does not mean in itself that its independence is denied. The court must follow the norms of the CCP in all cases even though it recognises that the preliminary investigation has been incomplete in substance.

In view of the arguments set forth, the conclusion should be drawn that the impugned norms of Paragraphs 4 and 5 of Article 255, Paragraph 4 of Article 256 and Paragraph 4 of Article 260 of the CCP are in compliance with the provisions on independence of courts contained in Paragraph 2 of Article 109 and Paragraph 2 of Article 31 of the Constitution.

1.3. The petitioner doubts whether in the course of application of the impugned norms of Paragraph 4 of Article 255, Paragraph 4 of Article 256 and Paragraph 4 of Article 260 of the CCP the principle of the impartiality of courts as well as the right of indicted individuals to a fair investigation of his case by a court is not violated.

Paragraph 2 of Article 31 of the Constitution provides that every indicted person shall have the right to a fair and public hearing by an independent and impartial court. This constitutional provision consolidates the principle of the right of individuals to the due process of law. Conformity to it is a necessary condition to decide a case fairly. Guaranteeing individuals’ rights in court proceedings, one has to ensure by means of legal norms that the proceedings be carried out conscientiously and professionally, and that the rights of the parties to the proceedings be respected, and that an impartial judge investigate the case.

Links may be traced between the provisions contained by Paragraph 2 of Article 31 of the Constitution with the norm of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms providing for the right of every individual to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Besides, in an attempt to ensure a fair investigation of cases, the CCP provides that the judge may not investigate the case at any phase of the procedure in cases when he was formerly the victim, the civil claimant or respondent in that case, or if he participated in the case as a witness, prosecutor, an expert etc. Under such circumstances the judge must withdraw from the case. The law of criminal procedure provides that on the same grounds the prosecutor, the accused, the defence, as well as other indicated participants to criminal procedure, may demand that the judge withdraw from the case.

It needs to be noted that in a similar manner these procedural relations are treated by the European institutions for human rights protection as well. For instance, the European Court of Human Rights in its judgment of 26 October 1984 adopted in the case De Cubber vs. Belgium (Publications de la court Européenne des droits de l’homme. Publications of the European Court of Human Rights. Série A: Arrêts et decisions. Series A: Judgments and decisions, Vol. 86) emphasised that the same individual may not be the judge and the investigating judge in the proceedings, while in the 1 October 1982 case Piersack vs. Belgium (Publications de la court Européenne des droits de l’homme. Publications of the European Court of Human Rights. Série A: Arrêts et decisions. Series A: Judgments and decisions, Vol. 53) the same conclusion was drawn on the grounds of the fact that the president of a court earlier acted as a public prosecutor in the same case.

In an attempt to justify the impugned norms of the CCP, sometimes the laws of criminal procedure of other states are invoked, most often of Austria and Germany. It is maintained that the laws of criminal procedure of Austria provide that a court, taking account of requests of the parties, may commission the investigating judge to perform additional investigative actions in the phase of intermediary procedure. In Germany, during an intermediary procedure, a court, in an attempt to better investigate the circumstances of a case, is entitled to give instructions to present special evidence.

It needs to be observed that the aforesaid legal regulation is applied in a different system of criminal procedure norms. For example, the actions of the court are not linked with a preliminary investigation that is incomplete in substance, etc. Therefore, these examples negate rather than substantiate the conformity of the impugned norms with the system of procedural norms established by the CCP of Lithuania.

The stipulation of the Constitution to investigate the case fairly presupposes the fact that the court must justly establish the actual circumstances of the case and justly to apply criminal laws. The safeguarding of the impartiality of a court is one of the conditions for a just investigation of cases. The same condition would be the separation of functions of the subjects of procedural activities. Therefore, a case is justly investigated only if the principles of constitutional procedural activities are not violated and the rights of the participants to the proceedings are ensured.

The requirement by the court, upon the recognition that the preliminary investigation was incomplete in substance, that that investigator or interrogative body present new evidence, which is provided for by the impugned norms, permits asserting that they provide for the functions uncharacteristic of courts. When a court or a judge gives instructions to the investigator or interrogative body, respective procedural links are established between these institutions which may condition the interest of the court. Thereby preconditions are created allowing one to doubt whether the court, applying these norms, is an impartial arbiter. It needs to be noted that in such cases it could be more difficult for the judge himself to assess the circumstances of the case in an objective manner.

In view of these arguments and reasoning, the conclusion should be drawn that the norms of Paragraphs 4 and 5 of Article 255, Paragraph 4 of Article 256 and Paragraph 4 of Article 260 of the CCP contradict Paragraph 2 of Article 31 of the Constitution.

1.4. The petitioner maintains that upon suspension of a case on the bases established by the impugned norms of the CCP the pretrial detention (incarceration) becomes unlawful.

Paragraph 1 of Article 20 of the Constitution provides that personal freedom shall be inviolable. This freedom established by the Constitution is, first of all, the protection of individuals against arbitrary detention or incarceration. The principle of lawfulness of detention of individuals is entrenched in Paragraph 2 of Article 20 of the Constitution: no person may be deprived of freedom except on the bases, and according to the procedures, which have been established in laws.

One of the types of limitation on freedom is pretrial detention (incarceration) which is applied in criminal procedure. The imposition of this measure of detention, its duration, the right of the defence to appeal against the pretrial detention (incarceration) or a ruling to extend the term of pretrial detention (incarceration), as well as other circumstances linked with pretrial detention, are regulated by law.

The bases for pretrial detention (incarceration) are listed in Article 104 of the CCP. Such bases must be grounded on a reasonable assumption that the accused will

(1) escape (hide) from the investigation and trial;

(2) impede to establish the truth in the case;

(3) commit new crimes listed in Paragraph 6 of Article 104 of the CCP.

A request to extradite a person to institutions of law and order of a foreign state is a basis for detention (incarceration) as well.

The impugned norms of the CCP do not provide for new bases for imposition of pretrial detention (incarceration), therefore, when they are applied, pretrial detention is only possible in case there are the bases for pretrial detention directly indicated by the CCP.

In view of these arguments and reasoning, it is possible to conclude that the impugned norms of Paragraphs 4 and 5 of Article 255, Paragraph 4 of Article 256 and Paragraph 4 of Article 260 of the CCP are in compliance with Article 20 of the Constitution.

2. On the compliance of Paragraphs 1, 2 and 6 of Article 280 of the CCP with the Constitution.

Paragraph 6 of Article 31 of the Constitution prescribes: “From the moment of arrest or first interrogation, persons suspected or accused of a crime shall be guaranteed the right to defence and legal counsel.”

The right of the accused to defence ensured by Paragraph 6 of Article 31 of the Constitution presupposes that fact that the accused must be guaranteed sufficient procedural means to defend himself against the brought accusation and that he must have an opportunity to make use of them. The right of the accused to defence is one of the guarantees for establishment of the truth in the case. This right is considered a necessary condition in the implementation of the objective of criminal procedure which is justly to punish every person who committed a crime and to ensure that an innocent person would not be brought to criminal liability and convicted.

It is possible to link the right to defence established in the Constitution with the norms of international law acts providing for respective standards for the protection of the rights of an individual charged with a crime. For instance, the following guarantees are provided for by Paragraph 3 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Such an individual has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

The accused is a person in whose respect a decision has been adopted to charge him with a crime or institute a case against him under a summary procedure. This person must have the right to know what he is being charged with. Only when he knows the accusation against him, may he properly implement his right to defence. The accused must be informed about any change in the accusation at any phase of the criminal procedure. He may defend himself by presenting explanations regarding the brought charge, by presenting evidence, filing requests, demanding withdrawal of persons investigating his case, taking part in the judicial investigation under the established procedure, appealing against the actions and decisions of the interrogator, investigator, prosecutor and the court. Such a person has the right to defence etc.

The rights of the accused enumerated in the CCP mean that the officials of respective institutions have the duty to ensure them. The interrogator, investigator, prosecutor or the court must ensure that the accused should have an opportunity to defend himself from the charge brought against it by means and ways as provided by law, as well as to ensure the protection of his personal and property rights. During the judicial investigation of a case, a guarantee of the right of a person accused of a crime, which is the equality of the rights of the prosecutor, the accused, the defence, the victim and his representative, the civil claimant and respondent, and their representatives, as well as conformity to the adversarial principle, are of importance.

It needs to be noted that the norm of Paragraph 6 of Article 31 of the Constitution by which the right to defence is guaranteed is linked with the norms of Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution wherein the functions of the court and those of the prosecutor are consolidated, as well as the norm of Paragraph 2 of Article 31 of the Constitution which provides for the guarantee for every indicted person that he shall have the right to a fair and public hearing by an independent and impartial court. In the said norms significant guarantees for the protection of human rights are established.

The petitioner is of the opinion that the norms of Paragraphs 1, 2 and 6 of Article 280 of the CCP on changing the accusation in court are doubtful, as they may violate the right of a person to defence guaranteed by Paragraph 6 of Article 31 of the Constitution. According to the petitioner, the court alleviating or escalating the accusation under Article 280 of the CCP takes over the functions of the prosecutor. This violates the limits of the functions of prosecutors and the courts which are established by Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution and the right of an indicted person to an impartial court which is established by Paragraph 2 of Article 31 of the Constitution.

2.1. Paragraph 1 of Article 280 of the CCP provides: “It shall be permitted to alleviate an accusation in court provided the new accusation does not differ in substance by its factual circumstances from the initial accusation. It shall also be permitted to remove from the initial accusation its part or circumstances aggravating the liability of the accused.”

Assessing this norm which permits the court to qualify the deed of the accused under an article of the CC providing for a more moderate punishment, or to remove from the initial accusation its part or the circumstances aggravating the situation of the accused, one has not any reasons to assert that the situation of the accused is being aggravated.

Alleviating the accusation which is provided for by the impugned norm should be treated as an element of a justice function which is accomplished by the court. The court, as an institution administering justice, assesses the circumstances of a case and adopts a corresponding decision in the case. This does not permit asserting that the court has overstepped the limits of the right guaranteed to an individual to an impartial judicial investigation. The legal norms providing for such changing of the accusation also do not violate the separation of the functions between the court and prosecutors (Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution).

In view of these arguments and reasoning, the conclusion should be drawn that Paragraph 1 of Article 280 of the CCP is in compliance with Paragraphs 2 and 6 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution.

2.2. Paragraph 2 of Article 280 of the CCP provides: “In court it shall be permitted to escalate the accusation and qualify the deed of the accused under another criminal law provided the new accusation does not differ in substance by its factual circumstances from the initial accusation. The chairman of the court shall notify the participants of the judicial investigation in trial prior to judicial examination. In such cases the court shall, following a request of the accused or the defence, announce an adjournment of trial so that the defence may become prepared for further procedure.”

Upon escalation of the accusation, the situation of the accused becomes more difficult. Therefore, safeguarding of the right of an indicted person to defence becomes of crucial importance. The legal opportunities of the defence in an attempt to deny the accusation or alleviate liability may not be different as regards the person against whom a charge was brought during the phase of an initial investigation and the person against whom, by applying the impugned norms of Article 280 of the CCP, such a charge was brought in court. Otherwise, the individual’s right to defence would be violated.

Analysing Paragraph 2 of Article 280 of the CCP, first of all one has to note that it has been worded in a defective way: it is not clear as to on whose initiative the accusation is changed, and what concrete actions the participants to the procedure perform. It is possible to understand Paragraph 2 of Article 280 of the CCP that on its basis the court must undertake procedural actions on its own initiative by which the accusation is escalated. It is established in the said norm that the chairman of the court shall notify the participants of the procedure concerning the possibility of such a change of the accusation. Such a notification, which is worded as a notification concerning the possibility of a change of the accusation, is not concrete. It is not clear whether it means that such an accusation may be brought against a person or that it is incriminated. The imprecise wording of the norm permits asserting that the impugned norm does not ensure the right of the accused to know what he is accused of. Applying this norm, the principles of the equality of the prosecution and the defence and the adversarial principle during the judicial investigation might be violated. Therefore, it is possible to presume that the court accomplishes both the functions of justice and prosecution at the same time. Thus, this norm violates the norms of Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution.

As mentioned, the impugned norm may be understood in a way by which the court, by notifying the participants of the procedure on its own initiative, undertakes actions linked with escalation of the accusation. In this procedure this is not in line with the principle of a court’s impartiality. Changing the accusation in such a way, the court virtually shows to what direction it is going to turn the investigation of the case. Such change of the accusation may impede the judge impartially to assess the circumstances of a case. In addition, this creates preconditions for the participants of the procedure reasonably to doubt the impartiality of the court.

In view of these arguments and reasoning, the conclusion should be drawn that Paragraph 2 of Article 280 of the CCP, to the extent that it is permitted to escalate the accusation on the initiative of the court and qualify the deed of the accused under another criminal law, contradicts Paragraphs 2 and 6 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution.

Paragraph 6 of Article 280 of the CCP virtually repeats the norm of Paragraph 2 of Article 280 of the CCP. Therefore, in view of the arguments and reasoning set forth above, the conclusion should also be drawn that Paragraph 6 of Article 280 of the CCP, to the extent that it is permitted to escalate the accusation on the initiative of the court and qualify the deed of the accused under another criminal law, contradicts Paragraphs 2 and 6 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that Paragraphs 4 and 5 of Article 255, Paragraph 4 of Article 256 and Paragraph 4 of Article 260 of the Code of Criminal Procedure of the Republic of Lithuania contradict Paragraph 2 of Article 31, Paragraph 1 of Article 109 and Paragraphs 1 and 2 of Article 118 of the Constitution of the Republic of Lithuania.

2. To recognise that Paragraph 1 of Article 280 of the Code of Criminal Procedure of the Republic of Lithuania is in compliance with the Constitution of the Republic of Lithuania.

3. To recognise that Paragraph 2 of Article 280 of the Code of Criminal Procedure of the Republic of Lithuania, to the extent that it is permitted to escalate the accusation on the initiative of the court and qualify the deed of the accused under another criminal law, contradicts Paragraphs 2 and 6 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution of the Republic of Lithuania.

4. To recognise that Paragraph 6 of Article 280 of the Code of Criminal Procedure of the Republic of Lithuania, to the extent that it is permitted to escalate the accusation on the initiative of the court and qualify the deed of the accused under another criminal law, contradicts Paragraphs 2 and 6 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of 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