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On refusing to consider a petition

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION

ON THE PETITION OF THE VILNIUS REGIONAL COURT, THE PETITIONER, REQUESTING TO INVESTIGATE WHETHER ITEM 3 OF PARAGRAPH 2 OF ARTICLE 72 OF THE CRIMINAL CODE OF THE REPUBLIC OF LITHUANIA IS NOT IN CONFLICT WITH THE CONSTITUTIONAL PRINCIPLE OF A STATE UNDER THE RULE OF LAW

16 November 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—Daiva Pitrėnaitė,

in the procedural sitting of the Constitutional Court considered the petition (No. 1B-127/2010) of the Vilnius Regional Court, the petitioner, requesting “to investigate whether Item 3 (wording of 13-07-2004) of Paragraph 2 of Article 72 of the CC of the Republic of Lithuania wherein it is established that a court must confiscate the money and other items of material value used in the commission of the criminal act until the civil claimant has not been repaid damages by the crime is not in conflict with the principle of a state under the rule of law entrenched in the Constitution of the Republic of Lithuania”.

The Constitutional Court

has established:

The Vilnius Regional Court, the petitioner, was investigating a civil case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting “to investigate whether Item 3 (wording of 13-07-2004) of Paragraph 2 of Article 72 of the CC of the Republic of Lithuania wherein it is established that a court must confiscate the money and other items of material value used in the commission of the criminal act until the civil claimant has not been repaid damages by the crime is not in conflict with the principle of a state under the rule of law entrenched in the Constitution of the Republic of Lithuania”.

The Constitutional Court

holds that:

1. The Vilnius Regional Court, the petitioner, requests investigation into whether Item 3 of Paragraph 2 of Article 72 of the Criminal Code of the Republic of Lithuania is not in conflict with the constitutional principle of a state under the rule of law.

2. Paragraph 2 (wording of 18 September 2000) of Article 72 of the Criminal Code prescribes: “Confiscation of property shall be applicable only in respect of the property used as an instrument or a means to commit a crime or as the result of a criminal act. A court must confiscate: <…> 3) the money and other items of material value obtained as a result of the commission of the criminal act.”

Thus, Paragraph 2 of Article 72 of the Criminal Code has entrenched the duty of the court that investigates a criminal case inter alia to confiscate the money and other items of material value obtained as a result of the commission of the criminal act.

3. It needs to be noted that in a criminal case the corresponding person had been convicted under Paragraph 2 of Article 183 of the Criminal Code and he had been imposed a fine, also property of high value misappropriated by him had been confiscated. No civil claim had been filed in the criminal case, but it had been held that there existed all conditions for civil liability.

The Vilnius Regional Court, the petitioner, was considering a civil case on repayment of the damage inflicted by the criminal actions established in the aforesaid criminal case by effective court decisions and an effective court ruling. The Vilnius Regional Court adopted a ruling to suspend this civil case and to apply to the Constitutional Court with a petition requesting to investigate whether Item 3 of Paragraph 2 of Article 72 the Criminal Code wherein it is established that a court must confiscate the money and other items of material value obtained as a result of the commission of the criminal act is not in conflict with the constitutional principle of a state under the rule of law.

It needs to be noted that the provisions of Item 3 of Paragraph 2 of Article 72 the Criminal Code are applied only in the course of consideration of criminal cases, but not civil cases. Thus, the Vilnius Regional Court should not (and must not) apply Item 3 of Paragraph 2 of Article 72 the Criminal Code in the civil case in which it adopted the ruling to apply to the Constitutional Court, since only the court considering a criminal case may apply the criminal sanction (confiscation of property gained by a criminal deed) provided for in the said item.

4. Taking account of the circumstances set forth, one is to draw a conclusion that the Vilnius Regional Court, the petitioner, adopted a ruling in a civil case to suspend the consideration of the case and apply to the Constitutional Court regarding the compliance of Item 3 of Paragraph 2 of Article 72 the Criminal Code (which should not (must not) be applied by this court in the course of consideration of this case) with the Constitution.

5. Under Paragraph 2 of Article 110 of the Constitution, in cases when there are grounds to believe that the law or other legal act which should be applied in a concrete case is in conflict with the Constitution, the judge shall suspend the consideration of the case and shall apply to the Constitutional Court requesting it to decide whether the law or other legal act in question is in compliance with the Constitution.

Under Paragraph 1 of Article 67 of the Law on the Constitutional Court, a court applies to the Constitutional Court whether a law or other legal act is in compliance with the Constitution in case there are grounds to believe that the law or other legal act which should be applied in a concrete case is in conflict with the Constitution.

6. In its decision of 13 November 2007, the Constitutional Court held that the application of a court to the Constitutional Court with a petition requesting to investigate the compliance of a legal act with a legal act of higher power, inter alia with the Constitution, and the investigation of that compliance are not an end in itself, and the purpose of the application (as a constitutional institute) of a court to the Constitutional Court is to ensure administration of justice.

The Constitutional Court has held in its acts that, under the Constitution, a court of general jurisdiction or a specialised court established under Paragraph 2 of Article 111 of the Constitution may apply to the Constitutional Court with a petition requesting to investigate and decide whether not any constitutional law (part thereof) is not in conflict with the Constitution, but only such constitutional law, which must be applied in the corresponding case considered by that court, also whether not any law (part thereof) (as well as the Statute of the Seimas (part thereof)) is not in conflict with the Constitution and constitutional laws, but only that which must be applied in the corresponding case considered by that court, also whether not any sub-statutory legal act (part thereof) of the Seimas is not in conflict with the Constitution, constitutional laws and laws as well as the Statute of the Seimas, but only that which must be applied in the corresponding case considered by that court, also whether not any act (part thereof) of the President of the Republic is not in conflict with the Constitution, constitutional laws and laws, but only that which must be applied in the corresponding case considered by that court, as well as whether not any act (part thereof) of the Government (part thereof) is not in conflict with the Constitution, constitutional laws and laws, but only that which must be applied in the corresponding case considered by that court (Constitutional Court ruling of 28 March 2006 and decisions of 5 July 2007 and 29 October 2009).

Therefore, under the Constitution and the Law on the Constitutional Court, a court may apply to the Constitutional Court with a petition requesting to investigate whether not any law (part thereof) or other legal act (part thereof) is not in conflict with the Constitution, but only such law (part thereof) or other legal act (part thereof), which must be applied in the corresponding case considered by that court.

Under the Constitution and the Law on the Constitutional Court, no court has locus standi to apply to the Constitutional Court with a petition requesting to investigate whether a law (part thereof) or another legal act (part thereof), which should not (could not) be applied in the case considered by the said court, is not in conflict with the Constitution (Constitutional Court decisions of 22 May 2007, 27 June 2007, 5 July 2007, and 29 October 2009 as well as ruling of 24 October 2007).

7. It has been mentioned that the disputed provisions of Item 3 of Paragraph 2 of Article 72 the Criminal Code are applied only in the course of consideration of criminal cases, but not civil cases. Thus, the Vilnius Regional Court, the petitioner, does not have locus standi in the civil case considered by it to apply to the Constitutional Court with a petition requesting to investigate whether Item 3 of Paragraph 2 of Article 72 of the Criminal Code is not in conflict with the Constitution.

8. Under Item 1 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by a decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the petition was filed by an institution or person who does not have the right to apply to the Constitutional Court.

9. It is clear from the petition of the Vilnius Regional Court that that the petitioner doubts inter alia regarding the compatibility of Item 3 of Paragraph 2 of Article 72 of the Criminal Code with Article 6.245 of the Civil Code of the Republic of Lithuania, which establishes the notion of civil liability and its types and with Article 6.263 titled “Obligation to compensate for damage caused” of the same code.

10. Under the Constitution, the Constitutional Court does not decide issues of compatibility and rivalry of legal acts of the same power (Constitutional Court decisions of 29 September 1999, 13 November 2006, and 27 June 2007); if the laws contain obscurities, ambiguities, and gaps, it is the duty of the legislature to eliminate them (Constitutional Court decisions of 23 September 2002 and 20 November 2006). If the Constitutional Court is requested to decide the issue of compatibility and rivalry of legal acts of the same legal power, such petition is not within the jurisdiction of the Constitutional Court (Constitutional Court decisions of 13 November 2006 and 27 June 2007).

11. Under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, 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.

12. Taking account of the arguments set forth, one is to refuse to accept for consideration the petition of the Vilnius Regional Court, the petitioner, requesting to investigate whether Item 3 of Paragraph 2 of Article 72 of the Criminal Code is not in conflict with the constitutional principle of a state under the rule of law.

13. It also needs to be mentioned that, in the operative part of its ruling to suspend the case and apply to the Constitutional Court, the Vilnius Regional Court requests to investigate the compliance of Item 3 of Paragraph 2 of Article 72 of the Criminal Code with the Constitution, however, erroneously indicates what is established in this item, thus, the petition of the petitioner is not sufficiently clear and consistent. As it has been held by the Constitutional Court more than once, the petition requesting to investigate the compliance of a legal act (part thereof) with the Constitution according to the content of norms and/or the scope of regulation must clearly indicate concrete items, articles (parts thereof) of the disputed legal act, the compliance of which with the Constitution is doubtful to the petitioner, otherwise, the request to investigate the compliance of a legal act (part thereof) with the Constitution according to the content of norms and/or the scope of regulation must be considered to be not in line with the requirements of Article 66 of the Law on the Constitutional Court.

Conforming to Paragraphs 3 and 4 of Article 22, Article 28, Items 1 and 2 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 Vilnius Regional Court, the petitioner, requesting to investigate whether Item 3 of Paragraph 2 of Article 72 of the Criminal Code of the Republic of Lithuania is not in conflict with the constitutional principle of a state under the rule of law.

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