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On not returning the towed-away vehicle

Case No. 27/08-29/08-33/08

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 7 (WORDINGS OF 13 DECEMBER 2007 AND 3 JULY 2008) OF ARTICLE 269 OF THE CODE OF ADMINISTRATIVE VIOLATIONS OF LAW OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

10 April 2009
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

The court reporter—Daiva Pitrėnaitė

Seimas member Vidmantas Žiemelis, and Girius Ivoška, an advisor of the Criminal and Administrative Law Unit of the Legal Department of the Office of the Seimas, acting as the representatives of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 3 April 2009, considered case No. 27/08-29/08-33/08 subsequent to the petitions of the Supreme Administrative Court of Lithuania requesting an investigation into:

1) whether Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the Code of Administrative Violations of Law of the Republic of Lithuania, to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, was/is not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and with the constitutional principles of a state under the rule of law and proportionality (petition No. 1B-27/2008);

2) whether Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the Code of Administrative Violations of Law of the Republic of Lithuania, to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, was/is not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and with the constitutional principles of a state under the rule of law and proportionality (petition No. 1B-30/2008);

3) whether Paragraph 7 (wording of 3 July 2008) of Article 269 of the Code of Administrative Violations of Law of the Republic of Lithuania, to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, is not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and with the constitutional principles of a state under the rule of law and proportionality (petition No. 1B-36/2008).

By the Constitutional Court’s Decision “On Joining Petitions into One Case” of 4 March 2009, petitions Nos. 1B-27/2008, 1B-30/2008, and 1B-36/2008 were joined into one case and it was given reference No. 27/08-29/08-33/08.

The Constitutional Court

has established:

I

1. The Supreme Administrative Court of Lithuania, the petitioner, considered a case of an administrative violation of law. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with the petition (No. 1B-27/2008) requesting an investigation into whether Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the Code of Administrative Violations of Law (hereinafter also referred to as the CAVL), to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, was/is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of a state under the rule of law and proportionality.

2. The Supreme Administrative Court of Lithuania, the petitioner, considered a case of an administrative violation of law. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with the petition (No. 1B-30/2008) requesting an investigation into whether Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, was/is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of a state under the rule of law and proportionality.

3. The Supreme Administrative Court of Lithuania, the petitioner, considered a case of an administrative violation of law. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with the petition (No. 1B-36/2008) requesting an investigation into whether Paragraph 7 (wording of 3 July 2008) of Article 269 of the CAVL, to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of a state under the rule of law and proportionality.

II

The petitions (Nos. 1B-27/2008, 1B-30/2008, and 1B-36/2008) of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, was/is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of a state under the rule of law and proportionality, are substantiated by the following arguments.

The impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL is formulated in an imperative manner. The court is not granted a right to order, while taking account of the principles of justice, reasonableness, proportionality, and good faith as well as other important circumstances, to return the vehicle prior to the time provided for in the law (i.e. prior to the payment of the imposed fine or serving the time of the administrative arrest). In the opinion of the petitioner, such legal regulation groundlessly restricts court powers, i.e. it limits the exclusive powers of the court to administer justice, which are entrenched in Article 109 of the Constitution, therefore, there are doubts as to the compliance of the impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL with Paragraph 1 of Article 109 of the Constitution.

In the opinion of the petitioner, the legal regulation, which is entrenched in the impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, implicitly established and establishes at present that in case a vehicle is lawfully towed away, it cannot be returned under any circumstances until the adoption of a ruling in the administrative violation case, since, otherwise, it would be impossible to ensure that it will be permitted to retrieve the vehicle only upon payment of the imposed fine or serving the time of the administrative arrest. The impugned provision may be interpreted as not permitting returning the vehicle lawfully seized and towed away from the person (who is not necessarily the violator of law) prior to the payment of the imposed fine or serving the time of the administrative arrest also in the following situations: when confiscation of the vehicle is not imposed for the committed violation of law; the sanction for the violation of law for the commission of which the vehicle is towed away does not provide for confiscation of this vehicle at all; when the violation of law is committed and a fine or an administrative arrest is imposed not upon the owner and/or rightful possessor of the vehicle, but upon the unlawful possessor thereof (for example, upon a person who unlawfully took possession of the vehicle (stole it)); when upon towing the vehicle away to the place of safekeeping the direct threat to the security to the traffic or to the rights of other persons is removed.

The towing away of a vehicle and not returning thereof until the imposed fine is paid or the time of the administrative arrest is served restricts the rights of the owner and/or the rightful possessor of the vehicle. Upon the towing away the vehicle and its not returning, neither the owner, nor the rightful possessor can use and possess it under its purpose, they cannot in fact hand it over to other persons to be used according to its purpose, and the right of the owner of the vehicle to dispose of it is restricted.

In the opinion of the petitioner, there is no fair and reasonable balance between the restrictions, the extent (duration) and character thereof, which are applied to persons by the impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, and the objectives sought by these measures. The assumption should be made that in case it is permitted to retrieve the towed-away vehicle only after the imposed fine has been paid or the time of the administrative arrest has been served, the rights of the person are limited more than needed (more than necessary) in order to protect public interests, there is not a reasonable and adequate proportion between this measure and the objectives sought by this measure, this measure is disproportionate, since the state can secure the payment of the imposed fine or serving the time of the administrative arrest also by other means, which would less restrict the rights of the person.

The petitioner refers to the provisions of the official constitutional doctrine formulated in the Constitutional Court’s ruling of 2 October 2001; it was held in the said ruling of the Constitutional Court that the provision of Paragraph 4 of Article 269 of the CAVL that in cases of decisions to impose a fine the driving licence is not be returned until the payment of the imposed fine was in conflict with the principle of a state under the rule of law entrenched in the Constitution. According to the petitioner, the non-returning of the vehicle until the imposed fine is paid or the time of the administrative arrest is served restricts the rights of the interested persons much more than the non-returning of a driving licence until the payment of the imposed fine. The petitioner doubts as regards the compliance of the impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL with the constitutional principles of a state under the rule of law and proportionality.

III

In the course of the preparation of the case for the Constitutional Court’s hearing written explanations were received from the representatives of the Seimas, the party concerned, who were Seimas member V. Žiemelis, and G. Ivoška, an advisor of the Criminal and Administrative Law Unit of the Legal Department of the Office of the Seimas. It is maintained therein that the provision of Paragraph 7 of Article 269 of the CAVL, which is impugned by the petitioner, was adopted together with the CAVL amendments which made the administrative liability for violations of the Road Traffic Rules stricter in order that the violations of the Road Traffic Rules made by drunk persons, or those who are intoxicated from narcotic or psychotropic substances, or the violations with grave consequences, would decrease, because in 2007 there was an increase in such violations. According to the representatives of the Seimas, the party concerned, by means of the impugned provision of Paragraph 7 of Article 269 of the CAVL one seeks to secure that a person who has committed the violation provided for in Paragraph 7 of Article 269 of the CAVL would not be able to make use of the tool of the commission of the administrative violation of law until the imposed fine is paid or the administrative arrest is served.

IV

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from T. Vaitkevičius, Vice-minister of Justice of the Republic of Lithuania.

V

1. At the Constitutional Court’s hearing, Seimas member V. Žiemelis and G. Ivoška, the representatives of the Seimas, the party concerned, took the floor.

V. Žiemelis, the representative of the Seimas, the party concerned, noted, inter alia, that the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 of Article 269 of the CAVL was supplemented too hastily. According to him, the impugned provision of Paragraph 7 of Article 269 of the CAVL is formulated in an imperative manner, the court is not granted a right to order, while taking account of the principles of justice, reasonableness, and good faith, as well as of other important circumstances, that the towed-away vehicle be returned prior to the payment of the imposed fine or serving the time of the administrative arrest, thus, there is not a fair and reasonable balance between the measures established in the impugned provision of Paragraph 7 of Article 269 of the CAVL and the objectives sought by these measures. V. Žiemelis noted that in legal acts of other states (Estonia, France, Germany, Switzerland) no such provision has been entrenched.

2. At the Constitutional Court’s hearing Gintaras Aliksandravičius (Chief of the Traffic Supervision Service of the Police of Lithuania) took the floor and gave answers to questions.

G. Aliksandravičius emphasised the preventive objectives of the impugned provision of Paragraph 7 of Article 269 of the CAVL, which should discourage persons from the commission of violations. According to him, in some aspects the impugned provision of Paragraph 7 of Article 269 of the CAVL restricts the discretion of the court; in some cases the towed-away vehicle could perhaps be returned earlier, i.e. before the payment of the imposed fine. G. Aliksandravičius noted that not in all situations when the violations provided for in Paragraph 7 of Article 269 of the CAVL are committed the vehicles are towed away.

The Constitutional Court

holds that:

I

1. It has been mentioned that in its petitions Nos. 1B-27/2008 and 1B-30/2008, the Supreme Administrative Court of Lithuania, the petitioner, requests an investigation into whether the impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, was/is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of a state under the rule of law and proportionality, and in its petition No. 1B-36/2008 the same court requests an investigation into whether the impugned provision of Paragraph 7 (wording of 3 July 2008) of Article 269 of the CAVL, to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of a state under the rule of law and proportionality.

These petitions of the petitioner should be treated as a petition requesting an investigation into whether the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, was/is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of a state under the rule of law and proportionality.

2. The Constitutional Court has held more than once that the constitutional principle of proportionality is one of the elements of the constitutional principle under the state of law (the Constitutional Court’s rulings of 29 December 2004 and 29 September 2005); taking account of this, the petitions of the petitioner requesting an investigation into whether the impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL was/is not in conflict with the constitutional principles of a state under the rule of law and proportionality should be regarded as a petition requesting an investigation into whether this provision was/is not in conflict with the constitutional principle of a state under the rule of law.

Thus, in the constitutional justice case at issue the Constitutional Court will investigate whether:

the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL was not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principle of a state under the rule of law;

the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wording of 3 July 2008) of Article 269 of the CAVL is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principle of a state under the rule of law.

II

1. On 17 February 2000, the Seimas adopted the Republic of Lithuania’s Law on Amending and Supplementing the Code of Administrative Violations of Law which came into force on 15 March 2000. Paragraph 4 of Article 341 of the said law supplemented Article 269 (wording of 1 July 1997) of the CAVL, inter alia, with Paragraph 7.

Paragraph 7 (wording of 17 February 2000) of Article 269 of the CAVL prescribed: “If the violations provided for in Article 1241 of this Code (stopping (parking) a vehicle on a pavement, unless it is permitted by appropriate road signs, riding up the lawn, pavement, pedestrian (bicycle) path, stopping and parking a vehicle upon level crossings and within a 50-metre strip of road before and beyond them, within tunnels, on and under bridges and viaducts, on and within 5 metres of pedestrian crossings, and in other places where it obstructs the vehicle or pedestrian traffic) have been committed, police officers shall have the right to tow away the vehicle or to block the wheels of such a vehicle by means of a special device under procedure established by the Government of the Republic of Lithuania or an institution authorised by it.”

2. On 10 May 2001, the Seimas adopted the Republic of Lithuania’s Law on Amending and Supplementing Articles 264, 269 and 271 of the Code of Administrative Violations of Law which came into force on 1 July 2001 (Article 5). Paragraph 1 of Article 2 of the said law amended Paragraph 7 (wording of 17 February 2000) of Article 269 of the CAVL and it was set forth as follows: “If the violations provided for in Article 1241 (stopping (parking) a vehicle on a pavement, unless it is permitted by appropriate road signs, riding up the lawn, pavement, pedestrian (bicycle) path, stopping and parking a vehicle upon level crossings and within a 50-metre strip of road before and beyond them, within tunnels, on and under bridges and viaducts, on and within 5 metres of pedestrian crossings, and in other places where it obstructs the vehicle or pedestrian traffic), and in Article 1321 (failing to comply with the procedure for parking vehicles in home zones and yards) of this Code have been committed, police officers shall have the right to tow away the vehicle or to block the wheels of such a vehicle by means of a special device under procedure established by the Government of the Republic of Lithuania or an institution authorised by it.”

3. On 29 January 2004, the Seimas adopted the Republic of Lithuania’s Law on Amending and Supplementing Articles 301, 35, 51, 1241, 209, 21414, 21416, 21417, 21418, 224, 2252, 239, 2413, 242, 254, 259, 2591, 260, 261, 262, 263, 265, 266, 267, 269, 281, 286, 288, 320, 329, 330 of the Code of Administrative Violations of Law and Supplementing the Code with Articles 5114, 5115, 5116, 5117, 891, and 21423 which came into force on 14 February 2004. Paragraph 2 of Article 31 of this law amended Paragraph 7 (wording of 10 May 2001) of Article 269 of the CAVL and it was set forth as follows: “If the violations provided for in Article 1241 (stopping (parking) a vehicle on a pavement, unless it is permitted by appropriate road signs, parking on the lawn, pavement, pedestrian (bicycle) path, stopping and parking a vehicle upon level crossings and within a 50-metre strip of road before and beyond them, within tunnels, on and under bridges and viaducts, on and within 5 metres of pedestrian crossings, and in other places where it obstructs the vehicle or pedestrian traffic), and Article 1321 (failing to comply with the procedure for parking vehicles in home zones and yards) of this Code have been committed, if it obstructs the vehicle or pedestrian traffic or otherwise violates the rights of other persons, police officers shall have the right to tow away the vehicle under procedure established by the Government of the Republic of Lithuania or an institution authorised by it.”

4. It needs to be noted that the right of police officers to tow away the vehicle under procedure established by the Government of the Republic of Lithuania or an institution authorised by it was consolidated in the CAVL after the Seimas adopted the Law on Amending and Supplementing the Code of Administrative Violations of Law on 17 February 2000 whereby Article 269 (wording of 1 July 1997) of the CAVL was supplemented, inter alia, with Paragraph 7. The police officers were allowed to implement this right in case the administrative violations of law specified in Paragraph 7 of Article 269 of the CAVL had been committed.

After the Seimas adopted the 10 May 2001 Law on Amending and Supplementing Articles 264, 269 and 271 of the Code of Administrative Violations of Law whereby Paragraph 7 (wording of 17 February 2000) of Article 269 of the CAVL was amended, the aforesaid provision remained intact.

If one compares the legal regulation entrenched in Paragraph 7 of Article 269 of the CAVL of the wordings of 17 February 2000 and 10 May 2001 with the legal regulation entrenched in Paragraph 7 of Article 269 of the CAVL with its wording of 29 January 2004, it is clear that the right of police officers to tow away the vehicle persisted, however, the implementation of this right was connected with the condition that such a vehicle obstructed the vehicle or pedestrian transport or otherwise violated the rights of other persons.

5. On 13 December 2007, the Seimas adopted the Republic of Lithuania’s Law on Amending and Supplementing Articles 21, 26, 27, 301, 32, 123, 124, 1241, 1242, 125, 126, 127, 128, 129, 130, 1302, 131, 134, 187, 224, 225, 2591, 269, 281, 312, 313, 314, 315, 320, 326, 330 of the Code of Administrative Violations of Law and Recognising Article 1243 Thereof as No Longer Valid, which (save Article 32 thereof) came into force on 1 January 2008 (Article 33).

5.1. The explanatory note to the draft of this law specifies that the objective of the prepared draft law is, inter alia, “to reduce the number of road accidents during which people are injured or killed”; Item 4 of this explanatory note points out that it is proposed that Article 269 of the CAVL should be amended and that it should stipulate that if the violations specified in Articles 1241, 126, Paragraphs 2 and 3 of Article 127, Articles 129, 1302 or 1321 of this code have been committed, police officers shall have the right to tow away the vehicle under procedure established by the Government of the Republic of Lithuania or an institution authorised by it; “This provision would prevent or limit possibilities to the drivers to make use of the vehicle after their inebriation (drunkenness) or intoxication from psychotropic substances is established”.

5.2. This law amended Article 127 (wording of 17 February 2000) and Article 1302 of the CAVL in the aspect that, inter alia, the sanction—the confiscation of a vehicle—was provided for violation of the administrative violations of law specified in the said articles:

Article 127 titled “Violation of the Road Traffic Rules Resulting in a Minor Health Disturbance or in Damage to Property” (wording of 13 December 2007) provides, inter alia, that a violation of the Road Traffic Rules resulting in a minor health disturbance of other persons, or a violation of the Road Traffic Rules resulting in damage (lesser damage) to vehicles, freight belonging to other persons, also a violation resulting in damage (lesser damage) to roads and other road structures or other property, if committed by a person who was inebriate (drunk) or intoxicated from narcotic, psychotropic, or other mind-influencing substances, shall incur, to the persons who do not have the right to drive vehicles, a fine from LTL five thousand to LTL five thousand five hundred with or without confiscation of the vehicle, or an administrative arrest from ten to twenty days with confiscation of the vehicle;

Article 1302 of the CAVL titled “Repeated Driving Vehicles When the Drivers are Inebriate or Intoxicated from Narcotic, Psychotropic, or Other Mind-Influencing Substances” (wording of 13 December 2007) provides, inter alia, that driving vehicles when the drivers are inebriate or intoxicated form narcotic, psychotropic, or other mind-influencing substances, after the person was imposed an administrative penalty for violations provided for in Paragraphs 1, 4, and 5 of Article 126, Paragraph 3 of Article 127 and Article 129 of this code, shall incur, to the persons who do not have the right to drive vehicles, an administrative arrest from twenty to thirty days with confiscation of the vehicle.

Paragraph 1 (wording of 3 July 2007) of Article 26 of the CAVL titled “Confiscation of the Item Which Was the Tool or Direct Object of the Commission of an Administrative Violation of Law and of the Receipts Received by the Commission of the Administrative Violation of Law” of Article 26 of the CAVL was correspondingly amended—it was provided for therein that the item which was the tool of the commission of the administrative violation of law specified in Paragraph 3 of Article 127 and Article 1302 of the CAVL can be confiscated. Article 224 (wording of 3 July 2007) of the CAVL was amended as well—it was provided for therein that the district (city) local courts (judges of local courts) shall consider, inter alia, cases of the administrative violations of law provided for in Paragraph 3 of Article 127 and Article 1302 of the CAVL.

5.3. Article 24 of the aforesaid law amended Paragraph 7 (wording of 29 January 2004) of Article 269 of the CAVL and set it forth as follows:

If the violations provided for in Article 1241 (parking a vehicle on a pavement, unless it is permitted by appropriate road signs, parking on the lawn, pavement, pedestrian (bicycle) path, stopping and parking a vehicle upon level crossings and within a 50-metre strip of road before and beyond them, within tunnels, on and under bridges and viaducts, on and within 5 metres of pedestrian crossings, and in other places where it obstructs the vehicle or pedestrian traffic), Article 126 (driving vehicles when the drivers are inebriate or intoxicated form narcotic, psychotropic, or other mind-influencing substances), the Second and Third Paragraphs of Article 127 (violation of the Road Traffic Rules resulting in a minor health disturbance of other persons), Article 128 (driving vehicles without the right to drive them), Article 129 (driving vehicles when the drivers are inebriate or intoxicated form narcotic, psychotropic, or other mind-influencing substances and do not have the right to drive vehicles), Article 1302 (repeated driving vehicles when the drivers are inebriate or intoxicated form narcotic, psychotropic, or other mind-influencing substances and do not have the right to drive vehicles) and Article 1321 (failing to comply with the procedure for parking vehicles in home zones and yards) of this Code have been committed, if it obstructs the vehicle or pedestrian traffic or otherwise violates the rights of other persons, police officers shall have the right to tow away the vehicle under procedure established by the Government of the Republic of Lithuania or an institution authorised by it. It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest.”

5.4. If one compares the legal regulation established in Paragraph 7 (wording of 29 January 2004) of Article 269 of the CAVL with that established in Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL, it needs to be noted that Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL was supplemented with new legal regulation whereby “it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest”, which is impugned by the petitioner at the constitutional justice at issue.

Thus, under Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL, the retrieval of the towed-away vehicle is linked (save the cases when it is confiscated) with the payment of the imposed fine or serving the time of the administrative arrest.

Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL was also amended in the aspect that also the administrative violations of law, inter alia, were specified therein for the commission of which, as mentioned before, courts had the right to impose the administrative penalty—the confiscation of a vehicle—upon violators of law (Paragraph 3 of Article 127 (wording of 13 December 2007), Article 1302 (wording of 13 December 2007), Paragraph 1 (wording of 13 December 2007) of Article 26).

6. On 3 July 2008, the Seimas adopted the Republic of Lithuania’s Law on Amending and Supplementing Articles 21, 26, 27, 29, 414, 415, 442, 461, 50, 504, 507, 513, 561, 562, 64, 918, 111, 112, 1121, 1122, 119, 1191, 1192, 120, 121, 122, 1221, 130, 136, 138, 1381, 141, 143, 1722, 18810, 18813, 2077, 224, 225, 2252, 227, 229, 233, 234, 237, 2411, 242, 244, 2591, 261, 262, 266, 269, 270, 281, 320 of the Code of Administrative Violations of Law and Supplementing the Code with Articles 4111, 5123, 842, 843, 844, 1123, 1124, 1125, 1126, 1127, 1128, 1193, 18818, which came into force (save Article 9 thereof) on 17 July 2008.

6.1. Item 4 of the explanatory note of this draft law points out that it is proposed that Paragraph 7 of Article 269 of the CAVL should be amended and that it should stipulate that “if the violations of Par. 1 of art. 130 of this code are committed, police officers have the right to tow away the vehicle under procedure established by the Government of the Republic of Lithuania or an institution authorised by it. If this provision were legislatively established, a condition would be created to more efficiently implement a court ruling whereby confiscation of the vehicle is ruled, while the person would not be able to continue performing unlawful deeds by means of the tool of the violation after the violation has been detected. Also, after a vehicle, which has retired from the accident, is found, and when the driver thereof is absent, it would be possible to efficiently secure safeguard thereof and retain the evidence of the violation. In addition, such persons would experience additional inconveniences and this would induce them to follow the duties established in legal acts”.

6.2. The said law amended Paragraph 1 (wording of 13 December 2007) of Article 130 of the CAVL in the aspect that, inter alia, the sanction—the confiscation of a vehicle—was provided for the commission of the administrative violations specified therein. Paragraph 1 (wording of 3 July 2008) of Article 130 of the CAVL provides, inter alia, that non-compliance with a legitimate demand of a police officer in uniform to stop the vehicle, as well as retirement from the place of a traffic accident with which the driver is related because of violation of the Road Traffic Rules, to persons who do not have the right to drive vehicles, shall incur a fine from LTL four thousand to LTL five thousand with confiscation of the vehicle, or without confiscation thereof, or an administrative arrest from twenty to thirty days together with confiscation of the vehicle or without confiscation thereof.

Correspondingly Paragraph 1 (wording of 29 January 2008) of Article 26 of the CAVL was amended—it was provided for therein that the item which was the tool of the commission of the administrative violation of law specified in Paragraph 1 of Article 130 of the CAVL can be confiscated. In addition, Article 224 (wording of 18 December 2007) of the CAVL was amended as well—it was established therein that the district (city) local courts (judges of local courts) shall consider, inter alia, cases of the administrative violations of law provided for in Paragraph 1 of Article 130 of the CAVL.

6.3. Article 67 of the aforesaid law amended Paragraph 7 (wording 13 December 2007) of Article 269 of the CAVL and set it forth as follows:

If the violations provided for in Article 1241 (parking a vehicle on a pavement, unless it is permitted by appropriate road signs, parking on the lawn, pavement, pedestrian (bicycle) path, parking on a parking place where parking is permitted only to the vehicles marked with the sign “Disabled”, parking a vehicle upon level crossings and within a 50-metre strip of road before and beyond them, within tunnels, on and under bridges and viaducts, on and within 5 metres of pedestrian crossings, and in other places where it obstructs the vehicle or pedestrian traffic), Article 126 (driving vehicles when the drivers are inebriate or intoxicated form narcotic, psychotropic, or other mind-influencing substances), the Second and Third Paragraphs of Article 127 (violation of the Road Traffic Rules resulting in a minor health disturbance of other persons), Article 128 (driving vehicles without the right to drive them), Article 129 (driving vehicles when the drivers are inebriate or intoxicated form narcotic, psychotropic, or other mind-influencing substances and do not have the right to drive vehicles), Paragraph 1 of Article 130 (non-compliance with a demand to stop the vehicle, or retirement from the place of a traffic accident with which the driver is related), Article 1302 (repeated driving vehicles when the drivers are inebriate or intoxicated form narcotic, psychotropic, or other mind-influencing substances and do not have the right to drive vehicles) and Article 1321 (failing to comply with the procedure for parking vehicles in home zones and yards) of this Code have been committed, if it obstructs the vehicle or pedestrian traffic or otherwise violates the rights of other persons, police officers shall have the right to tow away the vehicle under procedure established by the Government of the Republic of Lithuania or an institution authorised by it. It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest.”

6.4. If one compares the impugned legal regulation established in Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL with the impugned legal regulation established in Paragraph 7 (wording of 3 July 2008) of Article 269 of the CAVL, it needs to be noted that Paragraph 7 (wording of 3 July 2008) of Article 269 of the CAVL was amended in the aspect that it, inter alia, specified the administrative violations of law for the commission of which courts had the right to impose, inter alia, the administrative penalty—the confiscation of a vehicle—upon violators (Paragraph 1 (wording of 3 July 2008) of Article 130 and Paragraph 1 (wording of 3 July 2008) of Article 26).

It needs to be noted that if one compares the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL with the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wording of 3 July 2008) of Article 269 of the CAVL, both of which are impugned by the petitioner in the constitutional justice case at issue, the conclusion should be drawn that the legal regulation entrenched in both these provisions is virtually identical.

7. The provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, which is impugned by the petitioner, regulates the relations connected with the non-returning of a towed-away vehicle within a certain time period related with the fulfilment of an imposed administrative penalty (a fine or an administrative arrest), i.e. the towed-away vehicle is returned only after the person who committed the violation of law pays the fine imposed on him or serves the time of the administrative arrest.

Thus, the non-returning of a towed-away vehicle within a certain time period (i.e. until the imposed fine is paid or the time of the administrative arrest is served) should be regarded as a measure to secure the execution of the said administrative penalties. It needs to be noted that the time period of the non-returning of a towed-away vehicle encompasses, inter alia, the time period within which the case of administrative violation of law must be considered, the administrative penalty must be imposed and executed.

The impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL does not provide for a possibility of returning the towed-away vehicle before the payment of the imposed fine or serving the time of the administrative arrest also in cases when the person who committed the violation of law is not the owner (rightful possessor) of the towed-away vehicle.

8. The impugned provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL is designed to regulate the relations connected with securing the payment of the imposed fine or the service of the time of the administrative arrest. This provision is not directly designed for regulation of the relations connected with securing the execution of the imposed administrative penalty—the confiscation of a vehicle—however, in cases when, in addition to the imposed administrative penalty—a fine or an administrative arrest—also another administrative penalty—the confiscation of a vehicle—is imposed, and such a vehicle is towed away, the prohibition on returning such a vehicle entrenched in the impugned provision alongside secures the execution of the administrative penalty—confiscation of the vehicle.

9. The impugned provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL should be construed in the context of other provisions (which are not impugned by the petitioner) of Paragraph 7 of Article 269 of the CAVL, inter alia, the provision which provides that if the violations specified in this paragraph were committed, “<…> if it obstructs the vehicle or pedestrian traffic or otherwise violates the rights of other persons, police officers shall have the right to tow away the vehicle under procedure established by the Government of the Republic of Lithuania or an institution authorised by it”.

By means of such towing away of a vehicle one virtually seeks to avoid the disturbance of the vehicle or pedestrian traffic and to remove the negative consequence caused by the violation of law (inter alia, to avoid damage or loss of property).

10. It needs to be noted that not in all cases when the administrative violations of law specified in Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL are committed the vehicle must be towed away and it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest.

10.1. When the legal regulation entrenched in Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL is assessed in the aspect impugned by the petitioner, it needs to be noted that different legal consequences occur, due to different legal situations, to the persons who commit the violations of law specified in Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL:

the vehicle is not towed away if, due to such administrative violation of law, the vehicle or pedestrian traffic is not obstructed, or the rights of other persons are not otherwise violated; in this case the right of the owner (rightful possessor) of the vehicle to use the vehicle is not connected with the fact whether the imposed fine was paid or the time of the administrative arrest was served;

the vehicle is not towed away, even if, due to such administrative violation of law, the vehicle or pedestrian traffic is obstructed, or the rights of other persons are violated otherwise, however, the police officer, while following the provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, which grants him the right to decide as regards the towing away the vehicle, and, while assessing all the circumstances related with the committed administrative violation of law, decides that the vehicle need not be towed away; thus, in this case the right of the owner (rightful possessor) of the vehicle to use the vehicle is not connected with the fact whether the imposed fine was paid or the time of the administrative arrest was served, as well;

the vehicle is towed away, if, due to such administrative violation of law, the vehicle or pedestrian traffic is obstructed, or the rights of other persons are violated otherwise, and the police officer, while following the provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, which grants him the right to decide as regards the towing away the vehicle, and, while assessing all the circumstances related with the committed administrative violation of law, decides that the vehicle must be towed away; only in this case it will not be permitted to retrieve the towed-away vehicle until the imposed fine is paid or the time of the administrative arrest is served; thus, in this case the right of the owner (rightful possessor) of the vehicle to use the vehicle is restricted in the aspect that he will be able to use the vehicle only after paying the imposed fine or serving the time of the administrative arrest; it needs to be noted that in cases when in addition to the said administrative penalties (a fine or administrative arrest) also another administrative penalty—the confiscation of a vehicle—is imposed, such a vehicle will not be returned to the person regardless of whether the imposed fine is paid or the time of the administrative arrest is served.

10.2. Thus, under Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, the vehicle is towed away, if:

a corresponding administrative violation of law provided for in Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL has been committed and

the vehicle obstruct the vehicle or pedestrian traffic or otherwise violates the rights of other persons, and

the police officer, having assessed all circumstances connected with the commission of the administrative violation of law, decides to tow away such a vehicle.

10.3. The conclusion should be drawn that the emergence of different legal consequences (inter alia, the fact whether the owner (rightful possessor) will have the right to use the vehicle) to the persons who committed the administrative violation of law specified in Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL is, first of all, to be connected with the fact whether upon the corresponding administrative violation of law the vehicle obstructs the vehicle and pedestrian traffic or otherwise violates the rights of other persons, and whether the police officers decide to tow away such a vehicle.

11. The impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL should be construed in the context of other articles (parts thereof) of the CAVL and other laws.

12. The towing away of vehicles is provided for in Article 264 (wording of 18 December 2007, which came into force on 1 January 2008) of the CAVL.

Article 264 titled “Measures for Securing the Legal Proceedings of Cases of Administrative Violations of Law” (wording of 18 December 2007) provides:

In cases directly established in laws of the Republic of Lithuania, in an attempt to put a stop to administrative violations of law, to draw up protocols, to ensure that cases be considered timely and fairly and decisions be implemented in legal cases of administrative violations of law, an administrative detention, the frisk of a person, an inspection of items, the seizure of items and documents, the towing away of vehicles, blocking the wheels of a vehicle by means of a special device or the removal of the driver from driving the vehicle and testing the driver in order to establish his inebriety (drunkenness) or intoxication from narcotic or psychotropic substances or medicines or from other intoxicating substances, the testing of persons, who are apprehended for the commission of administrative violations of law and are suspected of being inebriate or intoxicated from narcotic or psychotropic substances in order to establish the inebriation or intoxication, stopping a ship, an inspection of a ship, the apprehension of a ship, shall be permissible.

For the purposes provided for in this article, the procedure for administrative apprehension, the frisk of a person, an inspection of items, the seizure of items and documents, the towing away of vehicles, blocking the wheels of a vehicle by means of a special device or the removal of the driver from driving the vehicle and testing the driver in order to establish his inebriety (drunkenness) or intoxication from narcotic or psychotropic substances or medicines or from other intoxicating substances, the testing of persons, who are apprehended for the commission of administrative violations of law and suspected of being inebriate or intoxicated from narcotic or psychotropic substances in order to establish the inebriation or intoxication, stopping a ship, an inspection of a ship, the apprehension of a ship, shall be established by this Code and other laws of the Republic of Lithuania.”

Thus, the towing away of a vehicle is one of the measures to secure the legal proceedings in cases of administrative violations of law, the procedure of application of the legal proceedings is established by the CAVL and other laws of the Republic of Lithuania, the objectives of the towing away of vehicles are, inter alia, prevention of administrative violations of law and securing the execution of rulings adopted in cases of administrative violations of law.

13. In this context, one should mention the Republic of Lithuania’s Law on Road Traffic Safety (wording of 22 November 2007), Paragraph 1 of Article 1 titled “Purpose and Application of the Law” of the said law provides that this law shall, inter alia, establish obligations of the state and municipal institutions and establishments in implementing the policy of traffic safety, and the principal rights and obligations of traffic participants, the persons responsible for road supervision, police and customs officers, and other officers performing check-ups.

13.1. Article 33 “Towing Away the Vehicle or the Prohibition on Driving” of the said law provides: the towed-away vehicle can be moved to a parking lot of vehicles belonging to the economic subject which, under procedure established in legal acts, enjoys the right to engage in such economic-commercial activity, or driving thereof is prohibited if the possessor of the vehicle, while using it, threatens the health or life of other participants of the traffic or of other persons, or obstructs safe vehicle or pedestrian traffic and violates requirements of the Road Traffic Rules approved by the Government or those of other legal acts (Paragraph 1); the decision regarding the towing away of a vehicle or the prohibition on continuing driving, provided there are the grounds established in Paragraph 1 of this article, can be adopted by officials of the police or of the State Road Transport Inspectorate under the Ministry of Transport and Communications (Paragraph 3); the police officers who adopted a decision regarding towing away the vehicle, shall, under procedure established in laws, inform the owner (possessor) of the vehicle of the adopted decision regarding towing away the vehicle (Paragraph 4); the procedure for towing away vehicles or the prohibition on driving shall be established by the Government or an institution authorised by it (Paragraph 5); the expenses connected with the towing away of a vehicle in the cases specified in Paragraph 1 of this article and its safekeeping in the parking lot, shall be reimbursed jointly and severally by the owner and the possessor of the vehicle; the expenses must be reimbursed prior to taking the vehicle back from the parking lot (Paragraph 6).

13.2. Article 2 of the Law on Road Traffic Safety (wording of 22 November 2007) provides, inter alia, that the owner of a vehicle shall mean a person to whom the vehicle belongs by right of ownership (Paragraph 57); the possessor of the vehicle shall mean a person who possesses and uses the vehicle on the grounds of property, trust, rent, use or on other legitimate grounds (Paragraph 61).

13.3. Summing up the said legal regulation entrenched in the Law on Road Traffic Safety, it should be held that a vehicle can be towed away in the cases when the possessor of the vehicle, while making use of the vehicle, commits corresponding violations of law and threatens the health or life of other participants of the traffic or of other persons, or obstructs safe vehicle or pedestrian traffic. It also needs to be noted that the expenses connected with the towing away of a vehicle and its safekeeping in the parking lot shall be reimbursed by the owner and the possessor of the vehicle jointly and severally.

14. As mentioned before, under the legal regulation entrenched in the impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, the retrieval of the towed-way vehicle is connected with the execution of the imposed administrative penalty (a fine, administrative arrest). It was also mentioned that in the cases when the administrative penalty—the confiscation of a vehicle—is imposed for administrative violations of law specified in Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, the towed-away vehicle cannot be retrieved also in the case when the imposed fine is paid and the time of the administrative arrest is served.

14.1. It needs to be noted that, under Paragraph 4 (wording of 13 December 2007) of Article 313 titled “The Terms and Procedure of the Execution of the Decision on Imposing a Fine” of the CAVL, the body (official), while taking account of the financial condition of the person, who is being brought or who has been brought to administrative liability, as well as of other important circumstances, upon a written request of the person, while taking account of the size of the fine in the course of adoption of a decision in the case of administrative violation of law and not later than forty days of the day of the adoption of the decision, may arrange the payment of the fine in portions within the period of up to two years.

Thus, when the legal regulation entrenched in Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL is construed by relating it with the legal regulation entrenched in Paragraph 4 (wording of 13 December 2007) of Article 313 of the CAVL, it needs to be noted that also in the cases when, under Article 313 of the CAVL, the payment of the fine is arranged in portions within the period of up to two years, it is allowed to retrieve the towed-away vehicle (save the cases when it is confiscated) only after the payment of the imposed fine is completed.

As mentioned before, under Article 33 of the Law on Road Traffic Safety (wording of 22 November 2007), the expenses connected with the towing away of a vehicle and its safekeeping in the parking lot shall be reimbursed by the owner and the possessor of the vehicle jointly and severally.

14.2. Paragraph 1 (wording of 18 July 1994) of Article 29 titled “Administrative Arrest” of the CAVL provides that an administrative arrest shall be established and imposed, for the time of up to thirty days, only in exceptional cases for administrative violations of law of individual types; an administrative arrest shall be imposed by a court.

Article 3381 titled “Conditional Postponement of the Execution of the Administrative Arrest” (wording of 17 February 2000) of the CAVL provides: with regard to the person to whom the administrative arrest is imposed or to whom the fine is exchanged for an administrative arrest under procedure established in Article 314 of this code, the district (city) local court (the judge of the local court) can, with the consent of the violator, postpone the execution of the administrative arrest from 1 to 12 months (Paragraph 1); while postponing the execution of the imposed administrative arrest, the court orders that the violator perform, free of charge, public work from 25 to 400 hours; alongside, the court shall establish the time within which the person must perform the public work free of charge (Paragraph 2); if the person, with whose regard the execution of the administrative arrest is postponed, has performed the public work free of charge as ordered by the court within the time of the postponement, the establishment within whose jurisdiction is the performance of the said public work shall draw up a decision to deem the time of the administrative arrest to be served (Paragraph 3).

If a court imposed the penalty—an administrative arrest—for the administrative violations provided for in Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, regardless of whether its execution is postponed or not, the expenses related to the safekeeping of the vehicle at the parking lot must be reimbursed for the whole time period until the serving of the time of the administrative arrest or the consideration that the administrative arrest has been served.

14.3. It needs to be noted that confiscation of the vehicle is forceful and unpaid making thereof as state property; the vehicle that was the tool of the commission of an administrative violation of law may be confiscated; the vehicle that was the tool of the commission of an administrative violation of law may be confiscated regardless of whether it belongs to the violator of law, or to another person by right of ownership (Paragraph 1 of Article 26 (wordings of 13 December 2007, 29 January 2008 and 3 July 2008).

Item 1 (wording of 13 December 2007 and 3 July 2008) of Article 320 of the CAVL provides that the decision to confiscate the item which was the tool or direct object of the commission of an administrative violation of law, as well as the receipts received by means of the administrative violation of law, shall be executed by bailiffs (inter alia, after the violations of law provided for in Paragraph 3 of Article 127, Paragraph 1 of Article 130 and Article 1302 of the CAVL were committed).

15. Summing up, it should be held that the regulation “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest”, which is impugned by the petitioner, was entrenched in Paragraph 7 of Article 269 of the CAVL after the Seimas adopted the Law on Amending and Supplementing Articles 21, 26, 27, 301, 32, 123, 124, 1241, 1242, 125, 126, 127, 128, 129, 130, 1302, 131, 134, 187, 224, 225, 2591, 269, 281, 312, 313, 314, 315, 320, 326, 330 of the Code of Administrative Violations of Law and Recognising Article 1243 Thereof as No Longer Valid on 13 December 2007. When the aforesaid 3 July 2008 law adopted by the Seimas amended Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL, the legal regulation impugned by the petitioner was not amended and virtually remained identical.

The non-returning of the towed-away vehicle within a certain time period (i.e. until the imposed fine is paid or the time of the administrative arrest is served) should be regarded as a measure which secures the execution of the said administrative penalties—the fine and the administrative arrest.

III

On the compliance of the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL with Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

1. It has been mentioned that, subsequent to the petitions of the Supreme Administrative Court, the petitioner, in the constitutional justice case at issue the Constitutional Court will investigate whether:

the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL was not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principle of a state under the rule of law;

the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wording of 3 July 2008) of Article 269 of the CAVL is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principle of a state under the rule of law.

2. While deciding whether the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL is/was not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principle of a state under the rule of law, it should be noted that:

while construing Article 109 of the Constitution (wherein it is prescribed that, in the Republic of Lithuania, justice shall be administered only by courts (Paragraph 1), while administering justice, the judge and courts shall be independent (Paragraph 2), when considering cases, judges shall obey only the law (Paragraph 3), the court shall adopt decisions in the name of the Republic of Lithuania (Paragraph 4)), the Constitutional Court has held more than once (inter alia, in the Constitutional Court’s rulings of 21 December 1999, 9 May 2006, 6 June 2006, 27 November 2006, and 24 October 2007) that, while administering justice, the courts must ensure the implementation of law expressed in the Constitution, the laws and other legal acts, to guarantee the rule of law and to protect human rights and freedoms. From Paragraph 1 of Article 109 of the Constitution the duty of courts arises to consider cases justly and objectively, to adopt reasoned and substantiated decisions (the Constitutional Court’s rulings of 15 May 2007 and 24 October 2007). The principle of justice entrenched in the Constitution as well as the provision that justice is administered solely by courts mean that the constitutional value is not the adoption of a decision in court, but rather the adoption of a just court decision; the constitutional concept of justice implies not only a formal and nominal justice administered by the court, not only an outward appearance of justice administered by the court, but, most importantly, such court decisions (other court final acts), which by their content are not unjust; the justice administered only formally by the court is not the justice which is consolidated in and protected and defended by the Constitution (the Constitutional Court’s rulings of 21 September 2006, 24 October 2007, and 21 January 2008).

the constitutional principles of justice and a state under the rule of law also imply that the measures established by the state for the violations of law must be proportionate (adequate) to the violation of law and must comply with the lawful and socially significant objectives sought and do not have to restrain a person more than it is necessary in order to reach these objectives; there must be a fair balance (proportionality) between the objective sought to punish the violators of law and to ensure the prevention of the violations of law and the measures chosen for reaching this objective (the Constitutional Court’s rulings of 6 December 2000, 2 October 2001, 26 January 2004, 3 November 2005, 10 November 2005, 21 January 21, 15 March 2008, and 17 September 2008); the measures established by the state for violations of law must be necessary in a democratic society; in the context of the constitutional justice case at issue it needs to be noted that also such measures, which secure the implementation of liability established by law, should be categorised as belonging to the aforesaid measures;

the Constitutional Court, while construing Article 23 of the Constitution (wherein it is prescribed that property shall be inviolable (Paragraph 1), that the rights of ownership shall be protected by law (Paragraph 2), and that property may be taken over only for the needs of society according to the procedure established by law and shall be justly compensated for (Paragraph 3)), has held that the provisions of Article 23 of the Constitution, which constitute a whole, reveal the essence of the protection of the rights of ownership (the Constitutional Court’s rulings of 27 May 2002 and 30 October 2008); Article 23 of the Constitution enshrines the principle of inviolability of property; under the Constitution, the owner has the right to perform any actions in regard of his property, save those prohibited by law, as well as to use his property and determine its future in any way, which does not violate the rights and freedoms of other persons (the Constitutional Court’s rulings of 14 March 2006, 20 May 2008, and 30 October 2008);

the Constitutional Court has held more than once that, under the Constitution, the right of ownership is not absolute also in the respect that it may be restricted by law in connection with the nature of an object of property, deeds committed against law and/or a need which is necessary for society and which is constitutionally justified; the restriction of the right of ownership is not impossible, however, in all cases one must follow these conditions: the right of ownership is restricted by law only; the restrictions are necessary in a democratic society in an attempt to protect the rights and freedoms of other persons, the values entrenched in the Constitution and/or constitutionally important objectives; one follows the proportionality principle under which the measures provided for in laws must be in line with the sought objectives which are necessary to society and which are constitutionally justified.

3. In this context it needs to be noted that, on 2 October 2001, the Constitutional Court, having considered a constitutional justice case, adopted the Ruling “On the Compliance of Paragraph 4 of Article 269 of the Code of Administrative Violations of Law of the Republic of Lithuania with the Constitution of the Republic of Lithuania”.

In the said constitutional justice case, the Constitutional Court was requested to investigate whether the provision of Paragraph 4 of Article 269 of the Republic of Lithuania’s Code of Administrative Violations of Law that in cases of the decisions to impose a fine the driving licence shall not be returned until the payment of the imposed fine was in compliance with Paragraph 5 of Article 31 and Paragraph 1 of Article 32 of the Constitution.

In its ruling of 2 October 2001, the Constitutional Court held that the administrative measure of ensuring the legal proceedings in legal cases established in the impugned provision of Paragraph 4 of Article 269 of the CAVL was not line with the principle of proportionality, thus, with the constitutional principle of a state under the rule of law as well.

The Constitutional Court held in the said ruling, inter alia, that, in the course of legislative establishment of liability and its implementation, one must sustain a fair balance between the interests of society and those of a person so as to evade unreasonable restriction of the rights of the person. On the basis of this principle, the rights of a person may be restricted by law to the extent only necessary for protection of public interests, and there must be a reasonable relation between the adopted measures and the sought legitimate and commonly important objective. To attain this objective, such measures may be established which would be sufficient and which would restrict the rights of the person not more than it is necessary.

4. In the context of the constitutional justice case at issue, one should mention the position which was formulated in the Constitutional Court’s Ruling “On the Compliance of Paragraph 1 of Article 26 of the Code of Administrative Violations of Law of the Republic of Lithuania with the Constitution of the Republic of Lithuania” of 8 April 1997 regarding the administrative penalty—the confiscation of items which were the tool of an administrative violation of law (contraband).

In the said constitutional justice case, the Constitutional Court was requested to investigate whether the provision “The confiscation of the item which was an instrument or immediate object of violation of administrative law shall be a coercive conversion of this item into state property for no consideration. Only the item which is property of the violator shall be subject to confiscation with the exception of the item which was either an immediate instrument or an immediate object of administrative violation of law pertaining to legal cases of administrative violations of law as provided for by Article 210 of this Code” of Paragraph 1 (wording of 23 April 1996) of Article 26 of the CAVL, whereby in the cases of an administrative violation of law of contraband, the items which were either an instrument or immediate object of performing the said violation shall be subject to confiscation irrespective of the fact whether these items belonged by right of ownership to the violator or other persons who had temporarily transferred the said item to the violator of law, was not in conflict with Article 23 of the Constitution.

In its ruling of 8 April 1997, the Constitutional Court held that the said provision of Paragraph 1 (wording of 23 April 1996) of Article 26 of the CAVL was not in conflict with the Constitution.

5. As mentioned before, the petitioner impugns the compliance of the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL with Paragraph 1 of Article 109 of the Constitution and with the constitutional principle of a state under the rule of law.

The provision of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL, which is impugned by the petitioner, is also connected with the right of police officers to tow away a vehicle, if, due to the commission of the administrative violation of law specified in Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL, the vehicle or pedestrian traffic is obstructed or the rights of other persons are violated otherwise; in this case the right of the owner (rightful possessor) of the vehicle to use it is restricted.

By means of such towing away of a vehicle one virtually seeks to avoid the disturbance of the vehicle or pedestrian traffic, to remove the negative consequences caused by the violation of law or to prevent the emergence of such consequences (inter alia, to avoid damage or loss of property). Thus, such a measure—the towing away of a vehicle—should be assessed as proportionate and adequate to the objectives sought. It needs to be noted that after the vehicle is towed away, the duty arises to take the necessary measures in order that such a vehicle be protected, inter alia, from unlawful destruction, damage or loss.

It has also been mentioned that after the violation of law specified in Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL has been committed, in certain cases the vehicle is not towed away:

if, due to such administrative violation of law, the vehicle or pedestrian traffic is not obstructed, or the rights of other persons are not otherwise violated; in this case the right of the owner (rightful possessor) of the vehicle to use the vehicle is not connected with the fact whether the imposed fine was paid or the time of the administrative arrest was served;

even if, due to such administrative violation of law, the vehicle or pedestrian traffic is obstructed, or the rights of other persons are violated otherwise, however, the police officer, while following the provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, which grants him the right to decide as regards the towing away the vehicle, and, while assessing all the circumstances related with the committed administrative violation of law, decides that the vehicle need not be towed away; thus, in this case the right of the owner (rightful possessor) of the vehicle to use the vehicle is not connected with the fact whether the imposed fine was paid or the time of the administrative arrest was served, as well.

6. As mentioned before, the impugned provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL is designed to regulate the relations connected with securing the payment of the imposed fine or the serving the time of the administrative arrest. It was also mentioned that although this provision is not directly designed for regulation of the relations connected with securing the execution of the imposed administrative penalty—the confiscation of a vehicle—however, in cases when, in addition to the imposed administrative penalty—a fine or an administrative arrest—also another administrative penalty—the confiscation of a vehicle—is imposed, and such a vehicle is towed away, the prohibition on returning such a vehicle entrenched in the impugned provision alongside secures the execution of the administrative penalty—confiscation of the vehicle.

6.1. Under the impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, when a fine or administrative arrest is imposed upon a person for a corresponding committed administrative violation of law, it is allowed to retrieve the towed-away vehicle only after the imposed fine is paid or the time of the administrative arrest is served, therefore, the non-returning of the towed-away vehicle within a certain time period (i.e. until the imposed fine is paid or the time of the administrative arrest is served) should be regarded as a measure which secures the execution of the said administrative penalties—the fine and the administrative arrest. In this case, by means of the non-returning of the vehicle, one virtually strives to secure not the safe vehicle or pedestrian traffic and public order, but the execution of the said administrative penalties—the fine and the administrative arrest.

6.2. In this context, it needs to be noted that the non-returning of the towed-away vehicle within a certain time period (i.e. until the imposed fine is paid or the time of the administrative arrest is served) should be regarded as a measure which secures the execution of the said administrative penalties. It needs to be noted that the period of the non-returning of the towed-away vehicle encompasses, inter alia, the time period within which the case of the commission of the administrative violation of law must be considered and the corresponding administrative penalty must be imposed and executed.

7. While deciding whether the impugned provision of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL is not in conflict with the Constitution, it needs to be noted that, as mentioned before, under Paragraph 4 (wording of 13 December 2007) of Article 313 titled “The Terms and Procedure of the Execution of the Decision on Imposing a Fine” of the CAVL, the body (official), while taking account of the financial condition of the person, who is being brought or who has been brought to administrative liability, as well as of other important circumstances, upon a written request of the person, while taking account of the size of the fine in the course of adoption a decision in the case of administrative violation of law and not later than forty days of the day of the adoption of the decision, may arrange the payment of the fine in portions within the period of up to two years, meanwhile, under Paragraph 1 of Article 3381 titled “Conditional Postponement of the Execution of the Administrative Arrest” (wording of 17 February 2000) of the CAVL, with regard to the person to whom the administrative arrest is imposed, with the consent of the violator, the execution of the administrative arrest can be postponed from 1 to 12 months. However, in these cases, too, the return of the towed-away vehicle is directly connected with the payment of the fine or serving the time of the administrative arrest, i.e. such a vehicle cannot be returned before the completion of the payment of the imposed fine, the payment of which was made to be done in portions, or the completion of serving the time of the administrative arrest, the execution of which was postponed, or the service of the time of the arrest the execution whereof was postponed will be deemed to be completed.

7.1. It was also mentioned that, under Article 33 of the Law on Road Traffic Safety (wording of 22 November 2007), which is connected with the legal regulation entrenched in the impugned provision of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL, the expenses related to the safekeeping of the vehicle at the parking lot must be reimbursed for the whole time period until the payment of the imposed fined or the service of the time of the administrative arrest.

7.2. It needs to be noted that neither the impugned provision of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL, nor other provisions of the CAVL provide for a possibility of returning the towed-away vehicle to the owner (rightful possessor) prior to the payment of the imposed fine or the service of the time of the imposed administrative arrest also in the cases when the person who committed the violation of law and upon whom the administrative penalty—the fine or administrative arrest—was imposed is not the owner (rightful possessor) of the towed-away vehicle.

8. It has been mentioned that the constitutional principles of justice and a state under the rule of law imply that the measures established by the state for the violations of law must be proportionate (adequate) to the violation of law and must comply with the lawful and universally significant objectives sought and do not have to restrain a person more than it is necessary in order to reach these objectives; there must be a fair balance (proportionality) between the objective sought to punish the violators of law and to ensure the prevention of the violations of law and the measures chosen for reaching this objective.

It was also mentioned that in the course of legislative establishment of liability and its implementation, one must sustain a fair balance between the interests of society and those of a person so as to evade unreasonable restriction of the rights of the person; on the basis of this principle, the rights of a person may be restricted by law to the extent only necessary for protection of public interests, and there must be a reasonable relation between the adopted measures and the sought legitimate and commonly important objective; to attain this objective, such measures may be established which would be sufficient and which would restrict the rights of the person not more than it is necessary.

It has been mentioned that the Supreme Administrative Court of Lithuania, the petitioner, grounds its doubt regarding the constitutionality of the impugned provision of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL on the fact that the towing away of a vehicle and not returning thereof until the imposed fine is paid or the time of the administrative arrest is served restricts the rights of the owner (rightful possessor) of the vehicle; after the vehicle is towed away and is not returned, neither the owner, nor the rightful possessor thereof may use the vehicle.

As mentioned before, under the Constitution, the right of ownership is not absolute also in the respect that it may be restricted by law in connection with the nature of an object of property, deeds committed against law and/or a need which is necessary for society and which is constitutionally justified; the restriction of the right of ownership is not impossible, however, in all cases one must follow these conditions: the right of ownership is restricted by law only; the restrictions are necessary in a democratic society in an attempt to protect the rights and freedoms of other persons, the values entrenched in the Constitution and/or constitutionally important objectives; one follows the proportionality principle under which the measures provided for in laws must be in line with the sought objectives which are necessary to society and which are constitutionally justified.

9. It has been mentioned that by means of the impugned regulation entrenched in the provision of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL one seeks to secure the execution of the administrative penalty (the payment of the imposed fine or the serving the time of the administrative arrest).

The person, to whom the towed-away vehicle belongs by right of ownership (or he is the rightful possessor thereof), may not freely use it at his discretion until the payment of the imposed fine or serving the time of administrative arrest, although by means of such non-returning of the towed-away vehicle one does not seek to avoid the obstruction of the vehicle or pedestrian traffic, to remove the negative consequences caused by the violation of law or to prevent the emergence of such consequences (inter alia, to avoid the damage or loss of property). It also needs to be noted that the owner (rightful possessor) of the towed-away vehicle and the person who committed the administrative violation of law due to which the vehicle was towed away can be different persons, since also such situations are possible when the person, who committed the administrative violation of law due to which the vehicle was towed away, had took possession of the vehicle unlawfully.

10. Thus, the legal regulation entrenched in Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL is not in line with the imperatives of inviolability and protection of Paragraphs 1 and 2 of Article 23 of the Constitution, and, in addition, the said legal regulation deviates from the constitutional principle of proportionality—one of the elements of a state under the rule of law.

11. Taking account of the arguments set forth, the conclusion should be drawn that the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL, to the extent that it provided that it is permitted to retrieve the towed-away vehicle only after paying the imposed fine or serving the time of the administrative arrest, was in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of a state under the rule of law.

12. Having held that the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL, to the extent that it provided that it is permitted to retrieve a towed-away vehicle only after paying the imposed fine or serving the time of the administrative arrest, was in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of a state under the rule of law, the Constitutional Court will not further investigate whether the impugned provision of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL was not in conflict with Paragraph 1 of Article 109 of the Constitution.

14. Taking account of this and on the grounds of the arguments which are analogous to those on the grounds of which the Constitutional Court recognised in this ruling that the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL, to the extent that it provided that it is permitted to retrieve a towed-away vehicle only after paying the imposed fine or serving the time of the administrative arrest, was in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of a state under the rule of law, it should be held that the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wording of 3 July 2008) of Article 269 of the CAVL, to the extent that it provided that it is permitted to retrieve a towed-away vehicle only after paying the imposed fine or serving the time of the administrative arrest, is in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of a state under the rule of law.

15. Having held that the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wording of 3 July 2008) of Article 269 of the CAVL, to the extent that it provided that it is permitted to retrieve a towed-away vehicle only after paying the imposed fine or serving the time of the administrative arrest, is in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of a state under the rule of law, the Constitutional Court will not further investigate whether the impugned provision of Paragraph 7 (wording of 3 July 2008) of Article 269 of the CAVL is not in conflict with Paragraph 1 of Article 109 of the Constitution.

16. In the context of the constitutional justice case at issue, it also needs to be noted that, under the legal regulation entrenched in Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, the vehicle may be towed away also in the case when the administrative violations of law are committed, the sanctions whereof provide confiscation of the vehicle as one of the penalties (Article 127 (wording of 13 December 2007), Paragraph 1 (wording of 3 July 2008) of Article 130, and Article 1302 (wording of 13 December 2007) of the CAVL).

It has been held in this ruling that in the situations when by means of the towing away of a vehicle one seeks to avoid the obstruction of the vehicle and pedestrian traffic, to remove the negative consequences caused by the violation of law and to prevent the emergence of such consequences (inter alia, to avoid the damage or loss of property), such a measure—the towing away of a vehicle—should be regarded as one proportionate and adequate to the objectives sought.

It has also been held in this ruling of the Constitutional Court that the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, to the extent that it provided that it is permitted to retrieve a towed-away vehicle only after paying the imposed fine or serving the time of the administrative arrest, was/is in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of a state under the rule of law.

It needs to be noted that after the legislature establishes the administrative penalty—the confiscation of a vehicle—for the commission of the corresponding administrative violations of law, the measures securing a possible confiscation of a vehicle must consolidated by heeding the norms and principles of the Constitution. For instance, the legislature can also establish the legal regulation whereby upon the commission of an administrative violation of law for which the confiscation of a vehicle can be imposed, a towed-away vehicle may be not returned temporarily until the consideration of the case of the administrative violation of law is over.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wording of 13 December 2007) (Official Gazette Valstybės žinios, 2007, No. 138-5641, correction in Official Gazette Valstybės žinios, 2008, No. 9) of Article 269 of the Code of Administrative Violations of Law of the Republic of Lithuania, to the extent that it provided that it is permitted to retrieve a towed-away vehicle only after paying the imposed fine or serving the time of the administrative arrest, was in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

2. To recognise that the provision “It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest” of Paragraph 7 (wording of 3 July 2008) (Official Gazette Valstybės žinios, 2008, No. 81-3181) of Article 269 of the Code of Administrative Violations of Law of the Republic of Lithuania, to the extent that it provided that it is permitted to retrieve a towed-away vehicle only after paying the imposed fine or serving the time of the administrative arrest, is in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

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: Armanas Abramavičius
                                                                      Toma Birmontienė
                                                                      Pranas Kuconis
                                                                      Kęstutis Lapinskas
                                                                      Egidijus Šileikis
                                                                      Algirdas Taminskas
                                                                      Romualdas Kęstutis Urbaitis