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On the right to compensation for damage inflicted by unlawful actions of interrogatory and investigatory bodies, the prosecutor’s office and courts

Case No. 30/98-13/99

 

THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA

R U L I N G

On the compliance of Paragraph 1 of Article 3 and Item 1 of Paragraph 1 of Article 4 of the Republic of Lithuania’s Law on Compensation for Damage Inflicted by Unlawful Actions of Interrogatory and Investigatory Bodies, the Prosecutor’s Office and Courts with the Constitution of the Republic of Lithuania

Vilnius, 30 June 2000

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

Darius Karvelis, a consultant to the Law Department of the Office of the Seimas of the Republic of Lithuania, acting as the representative 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 13 June 2000, in its public hearing, considered case No. 30/98-13/99 subsequent to the petition of the Kaunas Regional Court, a petitioner, requesting an investigation into whether Item 1 of Paragraph 1 of Article 4 of the Republic of Lithuania’s Law on Compensation for Damage Inflicted by Unlawful Actions of Interrogatory and Investigatory Bodies, the Prosecutor’s Office and Courts was in compliance with Paragraph 2 of Article 20, Article 29 and Paragraph 1 of Article 31 of the Constitution of the Republic of Lithuania, as well as subsequent to the petition of the Court of Appeal of Lithuania, a petitioner, requesting an investigation into whether Paragraph 1 of Article 3 and Paragraph 1 of Article 4 of the same law were in compliance with Paragraphs 1 and 2 of Article 21, Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

1. The Kaunas Regional Court, a petitioner, investigated a civil case concerning damage compensation. On 18 November 1998, by means of its ruling, the court suspended the investigation of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Item 1 of Paragraph 1 of Article 4 of the Law on Compensation for Damage Inflicted by Unlawful Actions of Interrogatory and Investigatory Bodies, the Prosecutor’s Office and Courts (Official Gazette Valstybės žinios, 1997, No. 104-2618; hereinafter also referred to as the Law) was in compliance with Paragraph 2 of Article 20, Article 29 and Paragraph 1 of Article 31 of the Constitution.

The petitioner points out that Item 1 of Paragraph 1 of Article 4 of the Law provides for a group of persons entitled to claim compensation for damage inflicted by unlawful actions of interrogatory and investigatory bodies, the prosecutor’s office and court. Under this item, damage is compensated only in cases when the effective judgment of conviction is reversed. Thus, under the Law, in cases when a judgment of conviction which has not gone into effect is reversed (under procedure of appeal), the person loses his right to claim compensation for damage. In such a way judgments of acquittal which are passed under appeal and cassation procedure are differentiated. Therefore, the petitioner doubts as for the compliance of Item 1 of Paragraph 1 of Article 4 of the Law with the aforesaid articles of the Constitution.

2. The a Court of Appeal of Lithuania, a petitioner, investigated a civil case under the procedure of appeal concerning review of the decision of 17 March 1999 which had been adopted by the Vilnius Regional Court in a civil case concerning damage compensation. On 11 May 1999, by means of its ruling, the Court of Appeal of Lithuania suspended the investigation of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 1 of Article 3 and Paragraph 1 of Article 4 of the Law was in compliance with Paragraphs 1 and 2 of Article 21, Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution.

The petition of the petitioner is based on these arguments.

Under Paragraph 1 of Article 3 of the Law, the persons, who have been unlawfully temporarily detained, unlawfully convicted, unlawfully arrested or who have been unlawfully given administrative arrest or correctional labour, shall have the right to compensation for damage, in case at least one of the procedural decisions established in Paragraph 1 of Article 4 of this Law are effective: the decision of conviction has been reversed by which the person was convicted and criminal punishment imposed on him, the case has been dismissed or the convicted person has been acquitted on the ground that a new or newly discovered circumstance shows conclusively that there has been a miscarriage of justice unless it is proved that the non-disclosure of the said circumstance in time is wholly or partly attributable to the convicted person (Item 1); the unlawful decision of the interrogator, investigator or a public prosecutor, or a court (judge’s) order under which the person was temporarily detained or arrested has been reversed as unreasonable and unlawful (Item 2); there is a court decision to revoke the administrative arrest or correctional labour due to the circumstances vindicating the person (Item 3). The petitioner points out that the person, who has not been detained or arrested, however, who was charged with an offence and tried in court, and after the non-effective decision of conviction against him was subsequently reversed under procedure of appeal and after that he was acquitted by a court’s decision, may not expect protection of his rights under Paragraph 1 of Article 4 of the Law (Article 4 of the Civil Code of the Republic of Lithuania), as in such a case there is not any effective procedural decision regarding his conviction. Even though such a person was declared as the accused, his personal rights were restricted, he had to defend himself from the accusation and it was recognised by the decision of acquittal that the accusation had been unreasonable, in such a case damage compensation is linked with going into effect of the decision of conviction and its subsequent reversal.

3. By its decision of 15 March 2000, the Constitutional Court joined the petitions of the Kaunas Regional Court and the Court of Appeal of Lithuania into one case.

II

In the course of the preparation of the case for the court hearing, written explanations by D. Karvelis, a consultant to the Law Department of the Office of the Seimas, V. Stankevičius, a senior consultant to the Law Department of the Office of the Seimas, and R. Ruškytė, Director of the Department for Law and Order of the Office of the Government, were received.

1. The representative of the party concerned D. Karvelis noted that the Seimas adopted the Law in an attempt to guarantee the constitutional rights of persons, while taking account of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms. The purpose of the adopted Law is regulation of compensation for damage inflicted on a natural person due to unlawful conviction, and unlawful temporary detainment, unlawful detainment, unlawful arrest, unlawful imposition of administrative arrest or correctional labour. In cases when on the grounds established by the Law and under judicial procedure it is proved that the person has suffered moral or material damage, the damage compensation is assumed by the state. The state pays damage compensation to the person also in cases when the European Court of Human Rights or the Committee of Ministers adopt a decision on compensation for damage, and also when a friendly agreement, which is approved by the Government, has been reached between the victim and the representative of the Government at the Commission for Human Rights and the European Court of Human Rights. Thus, the state assumes the duty to pay compensation to a person for material and moral damage inflicted on him by unlawful actions of interrogatory and investigatory bodies, the prosecutor’s office and court in cases when laws of the Republic of Lithuania have been violated. In addition, the Republic of Lithuania, having joined the Convention for the Protection of Human Rights and Fundamental Freedoms and having ratified its protocols, recognised the jurisdiction of the European Court of Human Rights and obligated itself to enforce its judgments.

The representative of the party concerned also noted that Items 1, 2 and 3 of Paragraph 1 of Article 4 of the Law provide for different bases for the appearance of the right to damage compensation.

Item 1 of Paragraph 1 of Article 4 of the Law provides for a basis to damage compensation in the case that a person has been convicted unlawfully, i.e. the effective judgment of conviction by which the person was given a criminal punishment has been reversed. In such a case, under the Law, the person becomes entitled to damage compensation only on the grounds of the legal fact that he has been convicted unlawfully and irrespective of the fact as to what criminal punishment has been given to him. Thus, it is of no importance whether the person was convicted for imprisonment or whether he has been given any other punishment provided for in the Criminal Code of the Republic of Lithuania. Meanwhile, Item 2 of Paragraph 1 of Article 4 of the Law provides that the people who have suffered damage due to unlawful temporary detention, detention or arrest shall have the right to compensation for damage. By Item 3 of Paragraph 1 of Article 4 of the Law the rights of persons are protected due to unlawful administrative arrest or correctional labour when there are circumstances vindicating the person.

The representative of the party concerned emphasised that in the Republic of Lithuania a court decision is adopted and goes into effect under the procedure established by the Criminal Code of the Republic of Lithuania. Paragraph 1 of Article 398 of this code provides that “a decision of the court of the first instance goes into effect upon expiration of the period of lodging an appeal in case this decision has not been appealed against”. Paragraph 4 of the same article provides that “a decision of the court of appeal goes into effect on the day it is pronounced”, Paragraph 7 thereof provides that “a decision of conviction of courts of the first instance and instance of appeal is enforced after its going into effect”. Thus, no rights of a person can be violated by a court until the decision of conviction goes into effect and starts to be enforced. After the court decision of conviction goes into effect and upon its reversal, the convicted person, under Item 1 of Paragraph 1 of Article 4 of the Law, acquires the right to damage compensation.

The representative of the party concerned pointed out that Item 2 of Paragraph 1 of Article 4 of the Law establishes the right of persons to damage compensation due to unlawful conviction, while Paragraph 2 of Article 20 of the Constitution protects persons from unlawful detention or arrest. Thus, in case a person is detained or arrested unlawfully, he would acquire the right to apply to court regarding compensation for damage in pursuance of Item 2 of Paragraph 1 of Article 4 of the Law. The objects of regulation of Item 1 of Paragraph 1 of Article 4 of the Law and Paragraph 2 of Article 20 of the Constitution are different, therefore, there can be no legal collision between them. Item 1 of Paragraph 1 of Article 4 of the Law is in conformity with Paragraph 2 of Article 20 of the Constitution.

In the opinion of the representative of the party concerned, Item 1 of Paragraph 1 of Article 4 of the Law does not single out any group of persons under the criteria pointed out in the Constitution, thus, due to this reason the said item is in compliance with Article 29 of the Constitution.

The representative of the party concerned noted that the provision established in Paragraph 1 of Article 31 of the Constitution guarantees that every person is presumed innocent until proven guilty by effective court sentence. Item 1 of Paragraph 1 of Article 4 of the Law provides for the compensation for damage only in cases when the effective judgment of conviction by which the person was convicted has been reversed. Thus, the said constitutional provision regulates the relations occurring until the court judgment of conviction goes into effect, while the norm of the Law regulates the relations occurring after the court judgment of conviction has gone into effect. Thus, there is not any collision between them and Item 1 of Paragraph 1 of Article 4 of the Law is in conformity with Paragraph 1 of Article 31 of the Constitution.

2. The representative of the party concerned R. Ruškytė presented the following explanations.

Paragraph 1 of Article 30 of the Constitution provides for the procedural right of persons to apply to court regarding damage compensation, while Paragraph 2 of the same article provides that the compensation for moral and material damages inflicted on a person is established by law. One of the laws establishing the right to damage compensation is the Civil Code. In Article 486 thereof it is provided that in cases and under the procedure established by law, the state shall compensate damages inflicted on a natural person due to unlawful conviction, unlawful temporary detention or unlawful imposition of arrest in the course of the criminal procedure, and due to unlawful detention or arrest, or unlawful imposition of correctional labour in the course of the administrative procedure.

The Law on Compensation for Damage Inflicted by Unlawful Actions of Interrogatory and Investigatory Bodies, the Prosecutor’s Office and Courts provides for damage compensation in cases when damage is inflicted by unlawful actions of the interrogator, investigator, public prosecutor, or court (judge). This law does not establish any limitations on persons to apply to court in other cases when the person deems his constitutional rights or freedoms to have been violated (for instance, his property has been damaged or ruined, or he himself has been injured). Besides, the provisions of Paragraph 2 of Article 30 of the Constitution are implemented by other laws as well. Therefore, in the opinion of the representative of the party concerned, the provisions of the Law are in conformity with Paragraph 1 of Article 30 of the Constitution.

The representative of the party concerned pointed out that the Law does not provide for any restrictions or limitations on human rights on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions. The Law is applicable to all persons mentioned in Paragraph 1 of Article 3 of the Law (by not singling out any categories of persons) who have been unlawfully temporarily detained, unlawfully detained, unlawfully convicted, unlawfully arrested or whom administrative arrest or correctional labour have been imposed unlawfully. Paragraph 1 of Article 4 of the Law providing for the bases under which the right to damage compensation appears does not single out any category of persons, either. Item 1 of Paragraph 1 of Article 4 of the Law establishes legal regulation for the persons whose situation is the same, i.e. the person has been convicted, an effective court judgment of conviction regarding him has been adopted, the judgment has been reversed, the judgment has been reversed on the grounds that a new or newly discovered circumstance shows conclusively that there has been a miscarriage of justice unless it is proved that the non-disclosure of the unknown circumstance in time is wholly or partly attributable to the convicted person.

The representative of the party concerned is of the opinion that the legal situation of the person who has been accused of commission of crime, in case his guilt has not been proven under the law and the judgment has not gone into effect, is different from the legal situation of the person in whose regard the judgment has gone into effect: under the Law, the former does not acquire the right to damage compensation. Thus, Paragraph 1 of Article 3 and Paragraph 1 of Article 4 of the Law are in compliance with Paragraph 1 of Article 29 of the Constitution.

The fact of the reversal of an effective judgment does not mean that the court was erroneous in all aspects. An error may appear due to an erroneous conclusion of a specialist or an expert, and because of other reasons (for example, a person is convicted for murder of one citizen, while later it becomes evident that another person was murdered). Due to these reasons the judgment may be reversed but the case undergoes further investigation and a new judgment of conviction regarding the accused is adopted.

In the opinion of the representative of the party concerned, the Law does not establish any new nor change any legal norms regulating the bases and procedures of detention of persons which might violate the person of an individual or his dignity, therefore, the Law is in conformity with Paragraph 1 of Article 21 of the Constitution wherein it is established that the person shall be inviolable.

The representative of the party concerned noted that Articles 3 and 4 of the Law are in conformity with Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 3 of Protocol No. 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms the purpose of which is to provide, according to domestic laws, the unlawfully detained or convicted person with the right to be compensated for damages incurred. Such a provision is also provided for in Paragraph 6 of Article 14 of the International Covenant on Civil and Political Rights by which only such persons have the right to be compensated who were convicted by final decision and who subsequently were acquitted on the grounds of newly discovered facts.

3. In his written explanations, the representative of the party concerned V. Stankevičius noted that the Law was passed, while taking account of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and those of the Constitution. Along with other bases for damage compensation, the Law provides for the right to damage compensation for a convicted person, i.e. the judgment of conviction regarding him went into effect and subsequently was reversed.

In the opinion of the representative of the party concerned, the provisions of Paragraph 1 of Article 3 and Paragraph 1 of Article 4 of the Law are in compliance with the Constitution as they are based on the provisions of Paragraphs 1, 2 and 3 of Article 21, Paragraph 4 of Article 22, Paragraph 2 of Article 30, Paragraph 1 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 111 of the Constitution.

Paragraph 2 of Article 30 of the Constitution provides that the law shall establish the procedure for compensating material and moral damage inflicted on a person. According to the representative of the party concerned, the Constitution does not regulate issues of compensation for material and moral damage as this right is granted to the legislature. Therefore, the fact that as to what persons have the right to damage compensation and under what bases are in essence decided by the legislature that must take account of the requirements of the Constitution. Thus, the legislature was entitled to provide for the right to damage compensation for the person who was convicted unlawfully and not to provide for the right to damage compensation for the person who was tried, but who, however, has not been convicted. The Law does not provide for the right to damage compensation for the latter as the Constitution does not contain any provisions which would guarantee damage compensation for such a person. However, it is possible to find provisions in the Constitution obligating the legislature to provide for damage compensation for the person convicted unlawfully.

Paragraphs 1, 2 and 3 of Article 21 of the Constitution provide that the person shall be inviolable, it shall be prohibited to humiliate human dignity, human dignity shall be protected by law. Paragraph 4 of Article 22 of the Constitution provides that the law and the court shall protect individuals from arbitrary or unlawful interference in their private or family life, and from encroachment upon their honour and dignity. The aforementioned constitutional norms grant respective powers to the legislature when it adopts laws and those to the court when it administers justice, protecting rights of citizens, their personal life, their honour and dignity against any arbitrary or unlawful encroachment or interference.

The representative of the party concerned noted that the legislature, while deciding the question whether the person is entitled to damage compensation regarding whom an adopted judgment of conviction had been reversed before it went into effect or whether such a person is entitled to the said right regarding whom an adopted judgment of conviction went into effect but subsequently was reversed, must conform to Paragraph 1 of Article 31 of the Constitution.

Paragraph 1 of Article 31 of the Constitution provides that every person shall be presumed innocent until proven guilty according to the procedure established by law and until declared guilty by effective court sentence. This is a principal and most important provision in the case at issue, which establishes criteria for the protection of rights, honour and dignity of an individual. The criteria were being followed when in the Law one of the bases was formulated under which the right to damage compensation appeared. This constitutional norm is also important due to the fact that it separates recognition of guilt of the person, which only is possible after the judgment of conviction has gone into effect, from institution of the criminal case, adoption of the judgment of conviction and other acts of application of law. In the process of verification of the guilt of the person until the person is recognised guilty, neither his personal nor property rights are violated, neither his honour nor dignity is encroached upon, neither material nor moral damage is inflicted on him.

In the opinion of the representative of the party concerned, assessing the provisions of Paragraph 1 of Article 31 of the Constitution together with those of Paragraphs 1, 2 and 3 of Article 21 and Paragraph 4 of Article 22 of the Constitution, it is possible to draw the conclusion that it is an effective judgment of conviction which later is recognised unlawful that encroaches upon the rights of the person, his dignity and honour. Thus, it is for an unlawfully convicted person that the Constitution guarantees that after reversal of the unlawful judgment of conviction all his rights are restored and he acquires the right to damage compensation. Nothing but these provisions are established in the Law.

The representative of the party concerned also pointed out that in the case at issue the provision of Paragraph 1 of Article 109 of the Constitution providing that in the Republic of Lithuania, the courts shall have the exclusive right to administer justice is also important. It is linked with the provision of Paragraph 4 of Article 22 of the Constitution obligating the courts to protect individuals from any arbitrary or unlawful interference in their private or family life, and from encroachment upon their honour and dignity. The provisions of Paragraph 1 of Article 109 of the Constitution are supplemented by the provisions of Paragraph 1 of Article 111 of the Constitution establishing the system of courts. Therefore, virtually it is possible to maintain that under the Constitution, justice is administered not by individual courts but by the system of courts in general. The system of courts guarantees the implementation of the provisions of Paragraph 1 of Article 31 of the Constitution, it ensures objective verification of the guilt of an individual so that no one would be convicted unlawfully.

The representative of the party concerned drew his attention to the fact that in Paragraph 2 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms it is also established that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law, while Paragraph 3 thereof provides for the rights of everyone charged with a criminal offence. Among those rights there is not the right of an individual charged with a criminal offence to damage compensation.

III

In the course of the preparation of the case for the judicial consideration, explanations by Habil. Dr. V. Vadapalas, Director of the European Law Department under the Government of the Republic of Lithuania, Dr. G. Švedas, Vice-Minister of Justice of the Republic of Lithuania, A. Dapšys, Director of the Law Institute, Dr. K. Jovaiša, a senior scientific worker at the same institute, the chief specialist J. Misiūnas, the senior specialist P. Ragauskas, Assoc. Prof. Dr. V. Staskonis who works at the Law Faculty of Vilnius University, Dr. T. Birmontienė, Director of the Lithuanian Centre for Human Rights, S. Kaušinis, the secretary-in-chief of the Lithuanian Human Rights Association, were received.

IV

In the court hearing the representative of the party concerned D. Karvelis virtually reiterated the arguments set down in his written explanations.

The Constitutional Court

holds that:

I

1. Paragraph 1 of Article 3 of the Law on Compensation for Damage Inflicted by Unlawful Actions of Interrogatory and Investigatory Bodies, the Prosecutor’s Office and Courts provides that the persons shall have the right to compensation for damage who have been unlawfully temporarily detained, unlawfully detained, unlawfully convicted, unlawfully arrested or who have been given administrative arrest or correctional labour unlawfully in case there are bases for it established in Article 4 of this Law.

Paragraph 1 of Article 4 of the Law provides that persons shall have the right to compensation for damage in case material or moral damage is inflicted on them by unlawful actions and in case there is at least one of the following effective procedural decisions:

1) to reverse the decision of conviction by which the person has been convicted and criminal punishment has been imposed on him, the case has been dismissed or the convicted person has been acquitted on the ground that a new or newly discovered circumstance shows conclusively that there has been a miscarriage of justice unless it is proved that the non-disclosure of the said circumstance in time is wholly or partly attributable to the convicted person;

2) to reverse the decision of the interrogator, investigator or a public prosecutor, or a court (judge’s) order under which the person was temporarily detained or arrested on the ground that the said decision (order) is unreasonable and unlawful;

3) there is a court decision to revoke the administrative arrest or correctional labour due to the circumstances vindicating the person.

Thus, every item of Paragraph 1 of Article 4 of the Law provides for the bases for damage compensation, while taking account of the fact by what unlawful action damage was inflicted.

2. The Kaunas Regional Court, a petitioner, requests an investigation into the compliance of Item 1 of Paragraph 1 of Article 4 of the Law with Paragraph 2 of Article 20, Article 29 and Paragraph 1 of Article 31 of the Constitution. It is pointed out in the ruling of the said court that, under Item 1 of Paragraph 1 of Article 4 of the Law, damage is compensated for an individual due to his unlawful conviction only in cases when the effective judgment of conviction is reversed. Thus, under the Law, in cases when a judgment of conviction which has not gone into effect is reversed, the person loses his right to claim compensation for damage. In such a way judgments of acquittal which are passed under appeal and cassation procedure are differentiated.

The Court of Appeal of Lithuania, a petitioner, requests an investigation into the compliance of Paragraph 1 of Article 3 and Paragraph 1 of Article 4 of the Law with Paragraphs 1 and 2 of Article 21, Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution. The ruling of the said court points out that person, who has not been detained or arrested, however, who was charged with an offence and tried in court, and after the non-effective decision of conviction against him was subsequently reversed under procedure of appeal and after that he was acquitted by a court’s decision, loses his right to compensation for damage as there is not a single condition for the appearance of this right, i.e. there must have been an effective judgment of conviction which subsequently ought to have been reversed. It is evident from the ruling of the said court that even though it points out all Paragraph 1 of Article 4 of the Law, actually the court only questions the compliance of Item 1 of Paragraph 1 of Article 4 of the Law with the Constitution. The said court ruling does not contain any reasoning concerning the non-compliance of Items 2 and 3 of Paragraph 1 of Article 4 of the Law with the Constitution.

Taking account of the reasoning pointed out in the petitions of the petitioners, the Constitutional Court will investigate the compliance of Paragraph 1 of Article 3 and only Item 1 of Paragraph 1 of Article 4 of the Law with the Constitution but not all Paragraph 1 of the latter article. The compliance of the impugned norms of the Law with the Constitution will be investigated only from the aspect that the right of an individual to compensation for damage is linked with reversal of the effective judgment of conviction.

3. The ruling of the Kaunas Regional Court does not contain any reasoning regarding a conflict of the impugned norms of the Law with Paragraph 2 of Article 20 and Paragraph 1 of Article 31 of the Constitution, while the ruling of the Court of Appeal of Lithuania does not contain any reasoning regarding a conflict of the impugned norms of the Law with Paragraphs 1 and 2 of Article 21 of the Constitution.

Taking account of the fact that the courts have not presented any arguments concerning a conflict of the impugned norms with Paragraph 2 of Article 20, Paragraphs 1 and 2 of Article 21 and Paragraph 1 of Article 31 of the Constitution, the Constitutional Court will not investigate whether Paragraph 1 of Article 3 and Item 1 of Paragraph 1 of Article 4 of the Law are in compliance with the said articles of the Constitution.

4. The Constitution is an integral and directly applicable statute, therefore, the Constitutional Court, while investigating the compliance of the impugned norms of the Law with the Constitution, will also investigate whether they are in conformity with Paragraph 2 of Article 30 of the Constitution.

5. Paragraph 1 of Article 3 of the Law provides for a directing norm under which the persons shall have the right to compensation for damage who were unlawfully temporarily detained, unlawfully detained, unlawfully convicted, unlawfully arrested or who were unlawfully given administrative arrest or correctional labour in case there are bases for it established in Article 4 of this Law, therefore, the compliance of Paragraph 1 of Article 3 of the Law with the aforesaid articles of the Constitution should be assessed on the ground whether Item 1 of Paragraph 1 of Article 4 of the Law is in compliance with the aforesaid articles of the Constitution.

II

1. Article 18 of the Law provides: “The rights and freedoms of individuals shall be innate.”

In the Constitution the state is obligated to respect human rights and freedoms, and to guarantee their protection from any unlawful attempt or limitation by legal, material or organisational means.

State institutions, its officials must protect and defend human rights and freedoms, while it is very important that, while discharging the functions entrusted to them, they would not violate human rights and freedoms by themselves.

One of the main ways of protection of violated rights and freedoms is compensation for damage inflicted by unlawful actions.

2. Article 30 of the Constitution provides:

Any person whose constitutional rights or freedoms are violated shall have the right to apply to court.

The law shall establish the procedure for compensating material and moral damage inflicted on a person.”

The norm of Paragraph 2 of Article 30 of the Constitution provides for a duty of the legislature to pass a law or laws providing for compensation for damage for a person who suffered material or moral damage. The laws must provide for factual protection of violated human rights and freedoms, this protection must be coordinated with protection of the other values entrenched in the Constitution.

Thus, the Constitution guarantees the right of an individual to compensation for material or moral damage, including recover of damage under judicial procedure.

3. While deciding the question of legal responsibility of the state for damage caused by actions of its institutions or officials, one should underline the provisions of Article 5 of the Constitution that the scope of powers shall be circumscribed by the Constitution, and that state institutions shall serve the people. On the grounds of these constitutional provisions, the constitutional principle of protection of human rights and freedoms as well as other principles of the state under the rule of law, the conclusion should be drawn that, in the course of implementation of Paragraph 2 of Article 30 of the Constitution, the law must provide for a duty of the state to compensate material and moral damage inflicted by unlawful actions of its institutions and officials. Only when Paragraph 2 of Article 30 of the Constitution is interpreted in such a manner, will it be possible to ensure effective protection of violated constitutional rights and freedoms of individuals.

The character of functions of the state, the diversity of activities of its institutions determine peculiarities of legal responsibility of the state, therefore, compensation for damage in various areas of discharge of functions of the state may be regulated in a different manner.

4. As mentioned before, the norm of Paragraph 2 of Article 30 of the Constitution obligates the legislature to pass laws providing for compensation for damage. The Constitutional Court emphasises that the Constitution is a directly applicable statute, therefore, even in the absence of respective legal regulation, wherein guarantees are established for protection of respective human rights and freedoms, an individual, making direct reference to Paragraph 2 of Article 30 of the Constitution as well as other articles of the Constitution, may claim compensation for damage inflicted on him by unlawful actions of state institutions or its officials.

III

On the compliance of Paragraph 1 of Article 3 and Item 1 of Paragraph 1 of Article 4 of the Law with Paragraph 2 of Article 30 of the Constitution.

1. Paragraph 1 of Article 3 and Item 1 of Paragraph 1 of Article 4 of the Law regulate compensation for material and moral damage suffered by a person due to his unlawful conviction, i.e. due to violations of the Code of Criminal Procedure which were committed by the court while adopting a judgment to convict the person.

Under Item 1 of Paragraph 1 of Article 4 of the Law, persons shall have the right to compensation for damage in case material or moral damage has been inflicted on them by unlawful actions and in case there is an effective procedural decision to reverse the decision of conviction by which the person has been convicted and given criminal punishment, the case has been dismissed or the convicted person has been acquitted on the ground that a new or newly discovered circumstance shows conclusively that there has been a miscarriage of justice unless it is proved that the non-disclosure of the said circumstance in time is wholly or partly attributable to the convicted person.

Deciding whether the impugned norms of the Law are in compliance with the Constitution, it is important to take account of the relation of these norms of the Law with those of the Code of Criminal Procedure, and the fact as to what legal regulation of going into effect of judgments exists in the legal system of Lithuania.

The procedure of going into effect of judgments is established in Article 398 of the Code of Criminal Procedure. For instance, a judgment of a court of the first instance goes into effect upon expiration of the term of appeal in case this judgment has not been appealed against. After the appeal has been filed, the judgment of the court of the first instance goes into effect in case the court of appeal left the judgment unchanged and rejected the appeal; in such a case the judgment goes into effect on the day the decision of the court of appeal is adopted. A judgment of the court of appeal goes into effect on the day it is pronounced.

Thus, upon reversal of a judgment of conviction passed by a court of the first instance or by court of appeal and in case there are other conditions pointed out in Item 1 of Paragraph 1 of Article 4 of the Law, then, under the Law, the person acquires the right to compensation for material and moral damage.

2. The lawfulness and reasonableness of a non-effective judgment may be verified under procedure of appeal. Under the powers established in Article 380 of the Code of Criminal Procedure, the court of appeal, after it has investigated a case concerning a non-effective judgment of the court of the first instance, may reverse the judgment and dismiss the case, as well as reverse the judgment of the court of the first instance and adopt a new judgment. The Code of Criminal Procedure provides for various bases for reversal of judgments and dismissal of cases and those for reversal of judgments and adoption of new judgments. The non-effective judgment by which the person was given criminal punishment may be reversed and the case be dismissed or the convicted person be acquitted, however, such a person, even though there are the said conditions pointed out in Item 1 of Paragraph 1 of Article 4 of the Law, under the Law does not acquire the right to compensation for damage only because of the fact that the judgment of conviction rendered against him has been reversed prior to its going into effect, although the criminal procedure in the case has been completed.

3. Item 1 of Paragraph 1 of Article 4 of the Law provides for the right to compensation for damage only for persons regarding whom the judgment of conviction went into effect and subsequently was reversed, and, thus, the right to compensation for damage is denied for those who also suffered material or moral damage due to the judgment of conviction, however, the judgment of conviction regarding them was reversed prior to its going into effect, i.e. under procedure of appeal. Such legal regulation is not in line with the guarantee for a person to compensate material and moral damage as established in Paragraph 2 of Article 30 of the Constitution.

Item 1 of Paragraph 1 of Article 4 of the Law is legally deficient from the aspect that unlawful actions of the court are linked only with a certain procedural action, i.e. a procedural decision to reverse the judgment of conviction.

The Constitutional Court notes that, under the Constitution, the right of a person to compensation for damage may not be conditioned on the fact as to in which manner—under cassation procedure or that of appeal—the judgment of conviction is reversed. The implementation of the right of a person to demand that damage inflicted on him by unlawful actions of the court in the course of the adoption of a judgment of conviction be compensated should be linked with the fact that either an effective or non-effective judgment of conviction has been reversed and the procedure in the criminal case has been completed, i.e., the case may not be further investigated under the Code of Criminal Procedure (the right to lodge an appeal of cassation has not been made use of; the term to lodge an appeal of cassation and a recommendation of cassation has expired etc.).

Taking account of the arguments set forth, it should be concluded that Item 1 of Paragraph 1 of Article 4 of the Law to the extent that the right of compensation for damage is denied for the persons regarding whom the judgment of conviction has been reversed prior to its going into effect and the case has been dismissed or the convicted person acquitted on the ground that a new or newly discovered circumstance shows conclusively that there has been a miscarriage of justice unless it is proved that the non-disclosure of the said circumstances in time is wholly or partly attributable to the convicted person, and the criminal procedure has been completed, conflicts with Paragraph 2 of Article 30 of the Constitution.

Having held that Item 1 of Paragraph 1 of Article 4 of the Law conflicts with Paragraph 2 of Article 30 of the Constitution, the conclusion should be drawn that due to the same reasoning and to the same extent Paragraph 1 of Article 3 of the Law is also in conflict with Paragraph 2 of Article 30 of the Constitution.

IV

On the compliance of Paragraph 1 of Article 3 and Item 1 of Paragraph 1 of Article 4 of the Law with Article 29 of the Constitution.

Article 29 of the Constitution provides:

All persons shall be equal before the law, the court, and other State institutions and officials.

A person may not have his rights restricted in any way, or be granted any privileges, on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions.”

The constitutional principle of the equality of all persons requires that in law the main rights and duties be established equally to all.

The Constitutional Court, assessing the compliance of the impugned norms of the Law with the Constitution, underlines that the constitutional principle of the equality of all persons before the law, the court, and other state institutions and officials, obligates the state to defend the rights and freedoms of every person by equally effective means.

As it has already been held in this ruling, while construing Paragraph 2 of Article 30 of the Constitution, damage inflicted on a person by unlawful actions must be compensated. The right of a person to compensation for damage inflicted on him by violating his rights and freedoms may not be differentiated according to the fact that the legal situation of persons differs in other respects. Meanwhile, in the impugned norms of the Law the persons who suffered material or moral damage due to miscarriage of justice in the course of adoption of the judgment of conviction are treated depending on a respective procedural decision by which the miscarriage of justice was notified and the judgment of conviction was reversed. Under Item 1 of Paragraph 1 of Article 4 of the Law, the person regarding whom the judgment of conviction has been reversed prior to its going into effect and the case has been dismissed or the convicted person acquitted on the ground that a new or newly discovered circumstance shows conclusively that there has been a miscarriage of justice unless it is proved that the non-disclosure of the said circumstance in time is wholly or partly attributable to the convicted person, does not have the right to compensation for damage even though the whole procedure has been completed.

Taking account of the arguments set forth, it should be concluded that that Item 1 of Paragraph 1 of Article 4 of the Law to the extent that the right of compensation for damage is denied for the persons regarding whom the judgment of conviction has been reversed prior to its going into effect and the case has been dismissed or the convicted person acquitted on the ground that a new or newly discovered circumstance shows conclusively that there has been a miscarriage of justice unless it is proved that the non-disclosure of the said circumstance in time is wholly or partly attributable to the convicted person, and the criminal procedure has been completed, conflicts with Paragraph 1 of Article 29 of the Constitution.

Having held that Item 1 of Paragraph 1 of Article 4 of the Law conflicts with Paragraph 1 of Article 29 of the Constitution, the conclusion should be drawn that due to the same reasoning and to the same extent Paragraph 1 of Article 3 of the Law is also in conflict with Paragraph 1 of Article 29 of the Constitution.

V

On the compliance of Paragraph 1 of Article 3 and Item 1 of Paragraph 1 of Article 4 of the Law with Paragraph 1 of Article 30 of the Constitution.

Paragraph 1 of Article 30 of the Constitution provides: “Any person whose constitutional rights or freedoms are violated shall have the right to apply to court.”

The guarantee of the protection of the rights and freedoms of persons is an essential element of the constitutional institute of rights and freedoms of persons. The guarantee established in Paragraph 1 of Article 30 of the Constitution is of procedural nature. This means that a person must be ensured judicial protection of his rights and freedoms. The right to apply to court is an absolute one.

The Constitutional Court notes that no such legal regulation may be established when a person implementing one his constitutional right would lose an opportunity to implement another constitutional right. The legal regulation established in the Law is deficient because it also presupposes such a legal situation when a person, implementing his constitutional right to apply to court (the right that his case be investigated under procedure of appeal), may not implement his another constitutional right (the right that he be compensated material and moral damage that has been inflicted on him).

Taking account of the arguments set forth, it should be concluded that Item 1 of Paragraph 1 of Article 4 of the Law to the extent that the right of compensation for damage is denied for the persons regarding whom the judgment of conviction has been reversed prior to its going into effect and the case has been dismissed or the convicted person acquitted on the ground that a new or newly discovered circumstance shows conclusively that there has been a miscarriage of justice unless it is proved that the non-disclosure of the said circumstances in time is wholly or partly attributable to the convicted person, and the criminal procedure has been completed, conflicts with Paragraph 1 of Article 30 of the Constitution.

Having held that Item 1 of Paragraph 1 of Article 4 of the Law conflicts with Paragraph 2 of Article 30 of the Constitution, the conclusion should be drawn that due to the same reasoning and to the same extent Paragraph 1 of Article 3 of the Law is also in conflict with Paragraph 1 of Article 30 of the Constitution.

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

ruling:

To recognise that Paragraph 1 of Article 3 and Item 1 of Paragraph 1 of Article 4 of the Republic of Lithuania’s Law on Compensation for Damage Inflicted by Unlawful Actions of Interrogatory and Investigatory Bodies, the Prosecutor’s Office and Courts to the extent that the right of compensation for damage is denied for the persons regarding whom the judgment of conviction has been reversed prior to its going into effect and the case has been dismissed or the convicted person acquitted on the ground that a new or newly discovered circumstance shows conclusively that there has been a miscarriage of justice unless it is proved that the non-disclosure of the said circumstance in time is wholly or partly attributable to the convicted person, and the criminal procedure has been completed, conflict with Paragraph 1 of Article 29 and Paragraphs 1 and 2 of Article 30 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      Egidijus Kūris      Zigmas Levickis

Augustinas Normantas       Vladas Pavilonis       Jonas Prapiestis

Vytautas Sinkevičius       Stasys Stačiokas       Teodora Staugaitienė