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On the retroactive validity of criminal laws

Case No. 7/99-17/99

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Paragraph 2 of Article 7 of the Criminal Code of the Republic of Lithuania with the Constitution of the Republic of Lithuania

 

Vilnius, 11 January 2001

 

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

Gintaras Goda, a senior consultant to the Law Department of the Office of the Seimas, 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 3 January 2001, in its public hearing, considered case No. 7/99-17/99 subsequent to the following petitions:

a petition of the Panevėžys Regional Court requesting an investigation into whether Paragraph 2 of Article 7 of the Criminal Code of the Republic of Lithuania was in compliance with Articles 7, 29, Paragraph 4 of Article 31 of the Constitution of the Republic of Lithuania, as well as the principle of a state under the rule of law entrenched in the Preamble to the Constitution of the Republic of Lithuania;

a petition of the Panevėžys City Local Court requesting an investigation into whether Paragraph 2 of Article 7 of the Criminal Code of the Republic of Lithuania was in compliance with Articles 7, 29, Paragraph 4 of Article 31 of the Constitution of the Republic of Lithuania, as well as the principle of a state under the rule of law entrenched in the Preamble to the Constitution of the Republic of Lithuania.

These petitions were joined into one case by the Constitutional Court’s decision of 13 September 2000.

The Constitutional Court

has established:

I

The petitioner—the Panevėžys Regional Court—was considering a criminal case. By means of its ruling of 5 March 1999, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting the Constitutional Court to investigate whether Paragraph 2 of Article 7 of the Criminal Code of the Republic of Lithuania (hereinafter also referred to as the CC) was in compliance with Articles 7, 29, Paragraph 4 of Article 31 of the Constitution, as well as the principle of a state under the rule of law entrenched in the Constitution.

The petitioner—the Panevėžys City Local Court—was considering a criminal case. By means of its ruling of 1 July 1999, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting the Constitutional Court to investigate whether Paragraph 2 of Article 7 of the CC was in compliance with Articles 7, 29, Paragraph 4 of Article 31 of the Constitution, as well as the principle of a state under the rule of law entrenched in the Constitution.

II

The petitions of the petitioners are based on the following arguments.

1. According to the petitioners, the content of Paragraph 2 of Article 7 of the CC is not clear. In some cases, after Paragraph 2 of Article 7 of the CC is linked with particular norms of the Special Section of the CC, Article 7 of the CC is not applicable, i.e. it is valid under certain conditions. The petitioners maintain that Article 7 of the CC establishes not a universal legal rule but a rule that may be applied with certain reservations.

2. The petitioners have doubts if Paragraph 2 of Article 7 of the CC because of the alleged legal vagueness does not violate Paragraph 4 of Article 31 of the Constitution which establishes that punishments may only be administered or applied on the basis of law, and the principle of equality established in Article 29.

The petitioners also have doubts whether Paragraph 2 of Article 7 of the CC is in conformity with Article 7 of the Constitution wherein it is provided that only laws which are published shall be valid, as, allegedly, the published norm of a law is not valid in certain cases. The petitioners request the Constitutional Court to investigate whether Paragraph 2 of Article 7 of the CC is in conformity with the principle of a state under the rule of law enshrined in the Constitution, which presupposes clarity of legal norms, their unconditional validity and the supremacy of laws in the legal system.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from G. Goda, the representative of the party concerned—the Seimas.

1. The representative of the party concerned pointed out that Paragraph 2 of Article 7 of the CC contains a humane and civilised norm permitting, in light of changes in the penal policy of the state, to ameliorate the situation of persons, who, before the penal law was amended, had been brought to criminal liability.

According to G. Goda, the doubts of the petitioners concerning the conformity of Paragraph 2 of Article 7 of the CC with the provision consolidated in Article 7 of the Constitution that only laws which are published shall be valid, are groundless. The Constitution provides that only laws which are published shall be valid, while the courts raise the problem regarding non-application of valid laws.

2. In the opinion of the representative of the party concerned, the petitioners do not present any arguments as to how in the course of the application or not application of Article 7 of the CC the principle of the equality of persons entrenched in Article 29 of the Constitution might be violated. Article 7 of the CC does not contain any established privileges or discriminatory rules with regard to sex, race, nationality or other bases.

G. Goda maintains that Paragraph 2 of Article 7 of the CC has been worded sufficiently clearly. There are not any exceptions nor preconditions in this paragraph which permit bringing persons to criminal liability otherwise but on the basis of law, therefore, Paragraph 2 of Article 7 of the CC does not violate Paragraph 4 of Article 31 of the Constitution.

According to the representative of the party concerned, Paragraph 2 of Article 7 of the CC does not establish that the impugned norms are valid under certain conditions only. Neither does Paragraph 2 of Article 7 of the CC question the principle of the supremacy of laws in the legal system. Thus, Paragraph 2 of Article 7 of the CC is in conformity with the principle of a state under the rule of law.

IV

In the course of the preparation of the case for the Constitutional Court hearing, written explanations concerning the arguments of the petitioners were received from K. Šimkus, Deputy Advisor on issues of law and order to the President of the Republic of Lithuania, V. Vadapalas, Director General of the European Law Department under the Government of the Republic of Lithuania, R. Budbergytė, Vice-Minister of Justice, A. Dapšys, Director of the Law Institute, as well as from the Criminal Law Department of the Law Faculty, Law University of Lithuania, and Dr. Ancelis, Dean of the Police Faculty of the same university.

V

At the Constitutional Court hearing the representative of the party concerned G. Goda virtually reiterated the arguments set down in his written explanations to the Constitutional Court.

The Constitutional Court

holds that:

I

On the compliance of Paragraph 2 of Article 7 of the Criminal Code with Paragraph 2 of Article 7 of the Constitution.

1. Paragraph 2 of Article 7 of the Criminal Code provides: “A law, abolishing the criminality of a deed, mitigating punishment or otherwise ameliorating the legal situation of a person who has committed the deed, shall be retroactively valid, i.e. it shall applicable to the persons who had committed respective deeds before the said law went into effect, as well as to the persons serving the sentence and to those who have previous record.”

It is pointed out in the petitions of the petitioners that Paragraph 2 of Article 7 of the CC is not clear: in some cases, after Paragraph 2 of Article 7 of the CC is linked with particular norms of the CC, Paragraph 2 of Article 7 of the CC is not applicable, i.e. it is valid under certain conditions. Paragraph 2 of Article 7 of the CC establishes not a universal legal rule but a rule that may be applied with certain reservations. According to the petitioners, the norm established in Paragraph 2 of Article 7 of the CC is not valid in some cases. They doubt if Paragraph 2 of Article 7 of the CC is in compliance with Article 7 of the Constitution wherein it is established that only laws which are published shall be valid.

It needs to be noted that although the petitioners request the Constitutional Court to investigate whether Paragraph 2 of Article 7 of the CC is in compliance with whole Article 7 of the Constitution, however, their petitions contain only the reasoning as for the non-compliance of Paragraph 2 of Article 7 of the CC with not whole Article 7 of the Constitution bot only Paragraph 2 thereof wherein it is established that only laws which are published shall be valid, therefore, the Constitutional Court will investigate whether Paragraph 2 of Article 7 of the CC is in compliance with Paragraph 2 of Article 7 of the Constitution.

2. Paragraph 2 of Article 7 of the Constitution provides: “Only laws which are published shall be valid.”

This constitutional norm means that laws are not valid and may not be applied unless they are officially published. The official publication of laws in pursuance with the procedure established in the Constitution and laws is a necessary condition so that laws be valid and that subjects of legal relations should know as to what laws are valid, what their content is, and that they might follow these laws. There may not be any non-published laws in a democratic state.

Paragraph 2 of Article 7 of the Constitution also reflects the legal principle that the validity of published laws is directed to the future and that these laws are not retroactively valid (lex retro non agit). Thus, laws are applied to the facts and effects which take place after these laws go into effect. The requirement that the validity of published laws be directed to the future and that these laws should not be retroactively valid is an important precondition of legal certainty and an essential element of the rule of law and a state under the rule of law.

3. Alongside, it needs to be noted that the legal principle that the validity of published laws is directed to the future and that these laws are not retroactively valid should to be linked with the constitutional principles of justice and humanness. The Constitutional Court has held that the laws abolishing punishment or mitigating liability for a deed have retroactive validity (lex benignior retro agit) (ruling of 25 March 1998).

The common rule is established in Paragraph 2 of Article 7 of the CC concerning the retroactive validity of penal laws: the newly adopted penal laws which, if compared with earlier adopted laws, ameliorate the legal situation of persons who have committed criminal deeds, i.e. abolish the criminality of the deed, mitigate the punishment or otherwise ameliorate their legal situation, have retroactive validity.

4. It needs to be noted that the norms of Article 7 of the CC are in line with the provisions of international law acts by which no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed, nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed (Paragraph 1 of Article 15 of the International Covenant on Civil and Political Rights, Paragraph 2 of Article 11 of the Universal Declaration of Human Rights, Paragraph 1 of Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms). In addition, Paragraph 1 of Article 15 of the International Covenant on Civil and Political Rights provides: “If, subsequently to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.”

5. The petitioners, requesting the Constitutional Court to investigate whether Paragraph 2 of Article 7 of the CC is in compliance with Paragraph 2 of Article 7 of the Constitution, point out that in some cases Paragraph 2 of Article 7 of the CC is not applicable, i.e. it is valid under certain circumstances and is applied with certain reservations. The petitioners also maintain that Paragraph 2 of Article 7 of the CC has been published, however, in some cases it is not valid.

The Constitutional Court notes that Paragraph 2 of Article 7 of the CC, as a constituent part of the CC, has been published under procedure established by law and is valid. As mentioned before, the common rule is established in Paragraph 2 of Article 7 of the CC that the penal laws abolishing the criminality of a deed, mitigating punishment or otherwise ameliorating the legal situation of persons who have committed the deed have retroactive validity. This rule is based on the constitutional principles of justice and humanness and is in conformity with the Constitution.

The petitioners faced the problem of constitutionality of Paragraph 2 of Article 7 of the CC when they were deciding whether another law, i.e. the Republic of Lithuania’s Law “On Discharge from Criminal Liability and Punishment Established by Article 310 of the Criminal Code for Storing and Shipment of Spirit and Its Solutions (Mixtures)” of 26 March 1998 (hereinafter referred to as the Law of 26 March 1998), had to be applied. This law was recognised as null and void by the Republic of Lithuania’s Law “On the Recognition of the Law ‘On Discharge from Criminal Liability and Punishment Established by Article 310 of the Criminal Code for Storing and Shipment of Spirit and Its Solutions (Mixtures)’ as Null and Void” of 7 April 1998. In the opinion of the petitioners, pursuant to Paragraph 2 of Article 7 of the CC, the Law of 26 March 1998, as ameliorating the legal situation of a certain category of persons, even though abolished, had to be further applied. Thus, in this part of the petitions, the reasoning of the petitioners are linked with issues of applicability of other laws, but not with the conformity of the content of Paragraph 2 of Article 7 of the CC with Paragraph 2 of Article 7 of the Constitution.

The Constitutional Court notes that under the Constitution and the Law on the Constitutional Court, the Constitutional Court does not consider issues of applicability of laws. Doubts concerning applicability of laws must be removed by courts themselves by construing the norms to be applied (the Constitutional Court’s decision of 11 July 1994).

Taking account of the arguments set forth, it should be concluded that Paragraph 2 of Article 7 of the CC is in compliance with Paragraph 2 of Article 7 of the Constitution.

II

On the compliance of Paragraph 2 of Article 7 of the Criminal Code 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 officers.

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 petitioners have doubts as to the compliance of Paragraph 2 of Article 7 of the CC with the principle of the equality of persons established in Article 29 of the Constitution.

The Constitutional Court has noted that this principle must be observed when passing and applying laws, as well as administering justice. This principle obligates one to apply a uniform legal assessment to homogeneous facts and prohibits against any arbitrary assessment of essentially homogeneous facts in a varied manner (ruling of 24 January 1996).

Paragraph 2 of Article 7 of the CC does not single out any categories of persons on the bases indicated in Article 29 of the Constitution in whose regard Paragraph 2 of Article 7 of the CC is applicable. The provisions of Paragraph 2 of Article 7 of the CC are not discriminatory, i.e. on the common bases and under the same conditions they are applicable to all persons who have committed dangerous deeds: suspects, accused, defendants, convicts, as well as persons who have the previous record.

Taking account of the arguments set forth, it should be concluded that Paragraph 2 of Article 7 of the CC is in compliance with Article 29 of the Constitution.

III

On the compliance of Paragraph 2 of Article 7 of the Criminal Code with Paragraph 4 of Article 31 of the Constitution.

Paragraph 4 of Article 31 of the Constitution provides: “Punishments may only be administered or applied on the basis of law.”

This constitutional provision means that punishment may only administered or applied on the basis of not any legal act but a law. Thus, the legal preconditions are created to secure the effective protection of the rights and freedoms of persons to whom punishments are administered or applied.

The provisions of Paragraph 4 of Article 31 of the Constitution are particularised and developed in the Criminal Code and other laws.

As mentioned before, Paragraph 2 of Article 7 of the CC provides that the laws mitigating punishments shall be retroactively valid. Thus, under Paragraph 2 of Article 7 of the CC, issues on mitigating punishments are decided on the basis of law only. Paragraph 2 of Article 7 of the CC does not contain any norms that are not in line with the provisions of Paragraph 4 of Article 31 of the Constitution.

Taking account of the arguments set forth, it should be concluded that Paragraph 2 of Article 7 of the CC is in compliance with Paragraph 4 of Article 31 of the Constitution.

IV

On the compliance of Paragraph 2 of Article 7 of the Criminal Code with the principle of a state under the rule of law enshrined in the Constitution.

The petitioners have doubts if Paragraph 2 of Article 7 of the CC is in conformity with the principle of a state under the rule of law enshrined in the Constitution, which presupposes clarity of legal norms, their unconditional validity and the supremacy of laws in the legal system.

The Constitutional Court has held that the constitutional principle of a state under the rule of law is a universal one upon which the whole Lithuanian legal system as well as the Constitution of the Republic of Lithuania itself are based and that the content of the principle of a state under the rule of law can be detected in various provisions of the Constitution (rulings of 23 February 2000 and 18 October 2000).

It needs to be noted that Paragraph 2 of Article 7 of the CC is worded in a clear manner and that this paragraph, as a constituent part of the CC, has been published and is valid. It is not in conflict with the principle of supremacy of laws entrenched in the Constitution. Paragraph 2 of Article 7 of the CC is based on the constitutional principles of justice and humanness. In addition, in this ruling of the Constitutional Court it has been held that Paragraph 2 of Article 7 of the CC is in compliance with Paragraph 2 of Article 7, Article 29 and Paragraph 4 of Article 31 of the Constitution.

Taking account of the arguments set forth, it should be concluded that Paragraph 2 of Article 7 of the CC is in compliance with the principle of a state under the rule of law enshrined in 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 2 of Article 7 of the Criminal Code of the Republic of Lithuania is in compliance with the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court:

 

Egidijus Jarašiūnas      Egidijus Kūris      Zigmas Levickis

 

Augustinas Normantas      Vladas Pavilonis      Jonas Prapiestis

 

Vytautas Sinkevičius      Stasys Stačiokas      Teodora Staugaitienė