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On refusing to consider a petition

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE PETITION OF A GROUP OF MEMBERS OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA, THE PETITIONER, REQUESTING TO INVESTIGATE WHETHER PARAGRAPHS 1 AND 2 OF ARTICLE 16 AND ARTICLE 21 OF THE REPUBLIC OF LITHUANIA LAW ON POLICE ACTIVITIES (WORDING OF 17 OCTOBER 2000) AND ARTICLE 187 (WORDING OF 13 DECEMBER 2007) OF THE CODE OF ADMINISTRATIVE VIOLATIONS OF LAW OF THE REPUBLIC OF LITHUANIA ARE NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

2 July 2010
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Armanas Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,

with the secretary of the hearing—Daiva Pitrėnaitė,

in the procedural sitting of the Constitutional Court considered the petition (No. 1B-37/2010) of a group of Members of the Seimas of the Republic of Lithuania, the petitioner, requesting to investigate whether Paragraphs 1 and 2 of Article 16 and Article 21 of the Republic of Lithuania Law on Police Activities (wording of 17 October 2000) and Article 187 (wording of 13 December 2007) of the Code of Administrative Violations of Law of the Republic of Lithuania, to the extent of their regulation, are not in conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Article 18 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

1. A group of Members of the Seimas, the petitioner, requests to construe “whether:

Paragraphs 1 and 2 of Article 16 and Article 21 of the Republic of Lithuania Law on Police Activities (No.: VIII-2048, Official Gazette Valstybės žinios, 2000, No. 90-2777; 2002, No. 54-2116; 2003, No. 42-1910; 2003, No. 104-4643; 2006, No. 60-2118; 2009, No. 130-5637), to the extent of their regulation, are not in conflict with the constitutional principle of a state under the rule of law and Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Article 18 of the Constitution of the Republic of Lithuania;

Article 187 of the Code of Administrative Violations of Law of the Republic of Lithuania (Official Gazette Valstybės žinios, 1985, No. 1-1; 1992, No. 21-610; 1994, No. 58-1132; 1999, No. 106-3061; 2000, No. 22-552; 2000, No. 41-1164; 2000, No. 92-2866; 2002, No. 33-1252; 2005, No. 137-4911; 2006, No. 102-3937; 2007, No. 138-5641), to the extent of its regulation, is not in conflict with the constitutional principle of a state under the rule of law and Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Article 18 of the Constitution.”

2. Paragraphs 1 and 2 of Article 16 of the Law on Police Activities (wording of 17 October 2000) prescribe:

1. This and other laws shall grant the police official the right to demand, when implementing police tasks, that persons who are not directly subordinate to him carry out his lawful orders and to use coercion in the case of their non-compliance or resistance.

2. When exercising the powers granted to them, police officials shall observe only the law. Law-based demands of police officials shall be obligatory to all natural and legal persons. Persons shall be held liable for non-compliance with such demands in the manner prescribed by the law.”

3. Article 21 of the Law on Police Activities (wording of 17 October 2000) prescribes:

1. The police official must:

1) respect and protect human dignity, ensure and safeguard human rights and freedoms;

2) upon receiving a report concerning a criminal deed or other violation of law that is being committed or upon witnessing such a deed, take urgent measures to stop the criminal deed or other violation of law that is being committed, to protect the scene and evidences of the crime, to detect, apprehend and bring to police quarters a person who has committed a deed prohibited by the law, and inform the police agency about this. The requirements of this item (save the requirement to inform the police agency about the aforesaid deed) shall not apply to the police official in the cases when the performing of such duties would in essence obstruct the fulfilment of tasks of the special competence police agency;

3) guarantee the rights and legitimate interests of persons who have been apprehended or brought to police quarters and provide urgent assistance to victims of law violations and persons who are in a helpless state;

4) take all possible measures to save the property of an individual, the State, public organisations and other organisations in the event of a natural calamity, a catastrophe, accidents, or other emergency situations;

5) refrain from divulging information of a confidential nature, unless the execution of service-related duties requires otherwise.

2. The police official must also perform other duties provided for by the law.

3. The police official must identify himself when performing service-related duties. In the event that the police official does not have any distinguishing police marks (special dress (uniform) or a special official emblem) or upon a personal request, the police official must present his official identification card.”

4. Article 187 (wording of 13 December 2007) of the Code of Administrative Violations of Law prescribes:

Resistance against a police official, Public Security Service official or police supporter who carry out the duties of the protection of public order that are commissioned to them

shall incur a fine from LTL five hundred to LTL one thousand or an administrative arrest from fifteen to thirty days.

Non-compliance with a lawful order or demand of an official of the police or of the Special Investigation Service, the State Border Guard Service, the Public Security Service, the Financial Crime Investigation Service under the Ministry of the Interior of the Republic of Lithuania, the VIP Protection Department under the Ministry of the Interior, and the State Security Department, as well as the insult to the honour and dignity of the said officials, conveyed by words or body gestures, insulting behaviour, harassment or other behaviour,

shall incur a fine from LTL three hundred to LTL five hundred or an administrative arrest from fifteen to thirty days.

Non-compliance with a lawful demand of a police official to arrive at police quarters

shall incur a fine from LTL one hundred to LTL two hundred.

Walking or driving across, also pulling down or breaking a special police ribbon or other barrier with the note STOP POLICE, which limits the perimeter of the area of an accident,

shall incur a fine from LTL one hundred to LTL three hundred.”

The Constitutional Court

holds that:

1. The group of Members of the Seimas, the petitioner, has doubts inter alia as to the compliance (in the aspect of the extent of regulation) of Paragraphs 1 and 2 of Article 16 and Article 21 of the Law on Police Activities (wording of 17 October 2000) with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Article 18 of the Constitution and the constitutional principle of a state under the rule of law.

2. The petitioner disputes the fact which, in its opinion, is not provided for in Paragraphs 1 and 2 of Article 16 and Article 21 of the Law on Police Activities (wording of 17 October 2000), but which, according to the petitioner, ought to be provided for therein. According to the petitioner, the disputed provisions of the law contain a legal gap—a legislative omission—prohibited by the Constitution, since they do not prescribe that:

– “the official who does not perform the duties of the police official may not at the same time issue lawful orders and demands that are obligatory for persons to comply with”;

– “persons shall be under no obligation to comply with unlawful orders of police officials”.

While disputing the compliance of the provisions of the Law on Police Activities with the Constitution, the petitioner invokes inter alia the fragments of the official constitutional doctrine formulated in the Constitutional Court decision of 8 August 2006: “<...> a legal gap, inter alia legislative omission, always means that the legal regulation of corresponding social relations is established neither explicitly, nor implicitly, neither in the said legal act (part thereof), nor any other legal acts, even though there exists a need for legal regulation of these social relations, while the said legal regulation, in the case of legislative omission, must be established, while heeding the imperatives of the consistency and inner uniformity of the legal system stemming from the Constitution and taking account of the content of these social relations, precisely in that legal act (precisely in that part thereof), since this is required by a certain legal act of higher power, inter alia the Constitution itself.”

The petitioner also maintains that, in its opinion, Paragraph 2 of Article 3 of the Constitution “gives each citizen the right to refuse to comply with demands of the officials who encroach on the independence, territorial integrity and constitutional order of the State of Lithuania”; one of the legal consequences of Paragraph 2 of Article 5 of the Constitution “is that the powers of officials which are not provided for in the Constitution and laws are contrary to the Constitution; one is under no obligation to comply with unlawful demands of officials”; one of the legal consequences of Article 18 of the Constitution “is that the demands of officials whereby innate human rights are denied are unlawful and are not to be complied with”.

3. It needs to be noted that Paragraph 1 of Article 16 of the Law on Police Activities (wording of 17 October 2000) provides that the police official has the right to demand that persons who are not directly subordinate to him carry out his lawful orders, while Paragraph 2 of this article provides that, when exercising the powers granted to them, police officials observe the law.

Thus, the legal regulation established in Paragraphs 1 and 2 of Article 16 of the Law on Police Activities (wording of 17 October 2000) virtually also means that persons are under no obligation to comply with unlawful demands and orders of police officials.

4. Consequently, a conclusion is to be made that the legal regulation, proposed by the petitioner, that “persons are under no obligation to comply with unlawful orders of police officials”, which, according to the petitioner, must be set in Paragraphs 1 and 2 of Article 16 of the Law on Police Activities (wording of 17 October 2000), is virtually entrenched in Paragraphs 1 and 2 of Article 16 of the legal act indicated in the petition of the petitioner.

Thus, the matter of investigation, to the aforesaid extent, is absent in the request of the petitioner.

5. It needs to be mentioned that Article 21 of the Law on Police Activities (wording of 17 October 2000), the compliance of which with the Constitution is doubted by the petitioner as well, sets duties of the police official, as, for instance: to respect and protect human dignity; to ensure and safeguard human rights and freedoms; upon receiving a report concerning a criminal deed or other violation of law that is being committed, to take urgent measures to stop the criminal deed or other violation of law that is being committed; to obligatorily identify himself when performing service-related duties. Thus, Article 21 of the Law on Police Activities (wording of 17 October 2000) is not designed to regulate the relations connected with the duties of other persons (not police officials) to carry out lawful or unlawful orders of officials or not to carry them out. Consequently, there is not any legal ground to maintain that the legal regulation, mentioned by the petitioner, that “persons are under no obligation to comply with unlawful orders of police officials” must be entrenched precisely in Article 21 of this law. The Constitutional Court has held that “in the cases when the petitioner disputes the fact that the law or another disputed legal act (part thereof) indicated by the petitioner does not establish certain legal regulation, but the said legal regulation, under the Constitution (or also under the laws in case one disputes a substatutory legal act (part thereof) of the Seimas, the Government or the President of the Republic), need not be established precisely in that particular disputed legal act (part thereof), the Constitutional Court holds that in the case on the request of the petitioner the matter of investigation is absent” (Constitutional Court ruling of 13 May 2003).

Thus, with respect to the aforesaid request of the petitioner the matter of investigation is absent as well.

6. It has been mentioned that, in the opinion of the group of Members of the Seimas, the petitioner, in Paragraphs 1 and 2 of Article 16 and Article 21 of the Law on Police Activities (wording of 17 October 2000) it must be provided that “the official who does not perform the duties of the police official may not at the same time issue lawful orders and demands that are obligatory for persons to comply with”.

7. In this Constitutional Court decision it has been mentioned that Paragraphs 1 and 2 of Article 16 and Article 21 of the Law on Police Activities (wording of 17 October 2000) are designed to regulate the relations of a different nature and that the legal regulation indicated by the petitioner, under the Constitution, need not be established precisely in the aforementioned articles of the said law. It has also been mentioned that “in the cases when the petitioner disputes the fact that the law or another disputed legal act (part thereof) indicated by the petitioner does not establish certain legal regulation, but the said legal regulation, under the Constitution (or also under the laws in case one disputes a substatutory legal act (part thereof) of the Seimas, the Government or the President of the Republic), need not be established precisely in that particular disputed legal act (part thereof), the Constitutional Court holds that in the case on the request of the petitioner the matter of investigation is absent” (Constitutional Court ruling of 13 May 2003).

Thus, also in the aforesaid respect, the matter of investigation is absent in the petition of the petitioner.

8. The absence of the matter of investigation in the petition of the petitioner means that the petition is not within the jurisdiction of the Constitutional Court (Constitutional Court decisions of 6 May 2003 and 13 May 2003, ruling of 13 May 2004, decision of 8 August 2006, rulings of 20 December 2007, 20 March 2008 and 5 November 2008) and it may not be accepted for consideration (Constitutional Court decisions of 31 January 2007 and 14 October 2008).

9. Paragraph 1 of Article 69 of the Law on the Constitutional Court prescribes that, by means of its decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution if the consideration of the petition does not fall under the jurisdiction of the Constitutional Court (Item 2).

10. Taking account of the arguments set forth, one is to refuse to accept the petition of the group of Members of the Seimas, the petitioner, requesting to investigate whether Paragraphs 1 and 2 of Article 16 and Article 21 of the Law on Police Activities (wording of 17 October 2000) are not in conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Article 18 of the Constitution and the constitutional principle of a state under the rule of law, for consideration.

11. The group of Members of the Seimas, the petitioner inter alia requests investigation into whether Article 187 (wording of 13 December 2007) of the Code of Administrative Violations of Law, to the extent of its regulation, is not in conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Article 18 of the Constitution and the constitutional principle of a state under the rule of law.

12. In the opinion of the group of Members of the Seimas, the petitioner, by means of the legal regulation established in Article 187 (wording of 13 December 2007) of the Code of Administrative Violations of Law, one has left a legal gap—a legislative omission—prohibited by the Constitution, since, according to the petitioner, in Article 187 (wording of 13 December 2007) of the Code of Administrative Violations of Law it must be provided that “the official who does not perform the duties of the police official may not at the same time issue lawful orders and demands that are obligatory for persons to comply with” as well as that “persons are under no obligation to comply with unlawful orders of police officials”.

It needs to be noted that the disputed Article 187 (wording of 13 December 2007) of the Code of Administrative Violations of Law sets administrative liability of persons for: resistance against officials who carry out the duties of the protection of public order that are commissioned to them; non-compliance with a lawful order or demand of an official; the insult to the honour and dignity of an official, non-compliance with a lawful demand of a police official to arrive at police quarters; walking or driving across, also pulling down or breaking a special police ribbon or other barrier with the note STOP POLICE, which limits the perimeter of the area of an accident.

13. Consequently, Article 187 (wording of 13 December 2007) of the Code of Administrative Violations of Law is designed to regulate the relations of a different nature and there is not any ground to maintain that the legal regulation aforementioned by the petitioner must be established precisely in the said article of the Code of Administrative Violations of Law. It has also been mentioned that “in the cases when the petitioner disputes the fact that the law or another disputed legal act (part thereof) indicated by the petitioner does not establish certain legal regulation, but the said legal regulation, under the Constitution (or also under the laws in case one disputes a substatutory legal act (part thereof) of the Seimas, the Government or the President of the Republic), need not be established precisely in that particular disputed legal act (part thereof), the Constitutional Court holds that in the case on the request of the petitioner the matter of investigation is absent” (Constitutional Court ruling of 13 May 2003).

Thus, in the petition of the petitioner the matter of investigation, to the said extent, is absent.

14. Attention also needs to be drawn to the fact that the liability of officials inter alia is regulated by Paragraph 2 (wording of 18 July 1994) of Article 14 of the Code of Administrative Violations of Law, wherein it is prescribed:

Officials shall be brought to administrative liability for the administrative violations of law that are related with execution of their duties indicated in the first paragraph of this article, also for the violations that are related with non-observance of the established rules for administration order, state and public order, environment, protection of the residents’ health, etc., ensuring the observance of which constitutes a service-related duty of officials.”

15. As the Constitutional Court has held in its acts more than once, the constitutional principle of a state under the rule of law, Paragraph 1 of Article 30 of the Constitution as well as other provisions of the Constitution give rise to the imperative that a person, who believes that his rights or freedoms have been violated, enjoys an absolute right to an independent and impartial court—an arbiter—which would settle the dispute (Constitutional Court decision of 8 August 2006 and rulings of 21 January 2008, 22 January 2008 and 15 March 2008). Under the Constitution, it is not allowed to establish any such legal regulation which would create preconditions to restrict, let alone deny, the powers of the court to administer justice and which would deny the right of a person, who thinks that his rights or freedoms have been violated, to defend his rights or freedoms in court (Constitutional Court ruling of 22 January 2008).

16. Alongside, it also needs to be noted that, in the opinion of the petitioner, in the course of implementation of the provisions of Article 187 (wording of 13 December 2007) of the Code of Administrative Violations of Law, there might appear such legal situations where an official, upon receiving a report concerning a criminal deed or other violation of law that is being committed or upon witnessing such a deed, takes no urgent measures to stop the criminal deed; also, according to the petitioner, situations might occur where a special police ribbon or other barrier with the note STOP POLICE will be used unlawfully, groundlessly or meaninglessly; it might also be used not by the officials; it might be, in fact, also used without any need; or the meaning and necessity of its use possibly will have already disappeared.

It also needs to be held that the petitioner, in disputing the compliance of the provisions (to the extent indicated by the petitioner) of the Code of Administrative Violations of Law with the Constitution, virtually has doubts as regards not the compliance of the legal regulation established in the disputed legal act with the Constitution, but the capability of police officials to properly apply provisions of the corresponding legal acts.

In this context it needs to be noted that the Constitutional Court, as it has held, under the Constitution and the Law on the Constitutional Court, does not decide the questions concerning application of legal acts, also that such questions are decided by the institution that has the powers to apply legal acts. The petitions requesting to construe as to how the provisions of a law (other legal acts) are to be applied are not within the jurisdiction of the Constitutional Court (Constitutional Court decisions of 20 November 2006, 6 September 2007 and 12 September 2007).

17. It has been mentioned that Paragraph 1 of Article 69 of the Law on the Constitutional Court prescribes that, by means of its decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution if the consideration of the petition does not fall under the jurisdiction of the Constitutional Court (Item 2), also if the petition is grounded upon non-legal motives (Item 5).

18. Taking account of the arguments set forth, one is to refuse to accept the petition of the group of Members of the Seimas, the petitioner, requesting to investigate whether Article 187 (wording of 13 December 2007) of the Code of Administrative Violations of Law, to the extent of its regulation, is not in conflict with Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Article 18 of the Constitution and the constitutional principle of a state under the rule of law, for consideration.

Conforming to Paragraphs 3 and 4 of Article 22, Article 28, Items 2 and 5 of Paragraph 1 and Paragraph 2 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

decision:

To refuse to accept for consideration the petition of the group of Members of the Seimas of the Republic of Lithuania, the petitioner, requesting to investigate “whether:

Paragraphs 1 and 2 of Article 16 and Article 21 of the Republic of Lithuania Law on Police Activities (No.: VIII-2048, Official Gazette Valstybės žinios, 2000, No. 90-2777; 2002, No. 54-2116; 2003, No. 42-1910; 2003, No. 104-4643; 2006, No. 60-2118; 2009, No. 130-5637), to the extent of their regulation, are not in conflict with the constitutional principle of a state under the rule of law and Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Article 18 of the Constitution;

Article 187 of the Code of Administrative Violations of Law of the Republic of Lithuania (Official Gazette Valstybės žinios, 1985, No. 1-1; 1992, No. 21-610; 1994, No. 58-1132; 1999, No. 106-3061; 2000, No. 22-552; 2000, No. 41-1164; 2000, No. 92-2866; 2002, No. 33-1252; 2005, No. 137-4911; 2006, No. 102-3937; 2007, No. 138-5641), to the extent of its regulation, is not in conflict with the constitutional principle of a state under the rule of law and Paragraph 2 of Article 3, Paragraph 2 of Article 5 and Article 18 of the Constitution.”

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

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

Justices of the Constitutional Court: Armanas Abramavičius
                                                                     Toma Birmontienė
                                                                     Pranas Kuconis
                                                                     Kęstutis Lapinskas
                                                                     Zenonas Namavičius
                                                                     Ramutė Ruškytė
                                                                     Egidijus Šileikis
                                                                     Algirdas Taminskas
                                                                     Romualdas Kęstutis Urbaitis