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On certain provisions of the Criminal Code regulating criminal liability of legal persons

Case No. 34/2008-36/2008-40/2008-1/2009-4/2009-5/2009-6/2009-7/2009-9/2009-12/2009-13/2009-14/2009-17/2009-18/2009-19/2009-20/2009-22/2009

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPHS 1, 2 AND 3 (WORDING OF 26 SEPTEMBER 2000) OF ARTICLE 20, PARAGRAPH 5 (WORDING OF 5 JULY 2004) OF ARTICLE 20 AND PARAGRAPH 4 (WORDING OF 26 SEPTEMBER 2000) OF ARTICLE 43 OF THE CRIMINAL CODE OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

8 June 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, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

Seimas member Vydas Gedvilas and advocate Valdemaras Bužinskas, acting as the representatives of a group of members of the Seimas, the petitioner

Girius Ivoška, advisor of the Criminal and Administrative Law Division of the Law Department of the Seimas and Dainius Zebleckis, senior advisor of the Civil Law Department 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 hearings on 21, 25 and 26 May 2009, considered constitutional justice case No. 34/2008-36/2008-40/2008-1/2009-4/2009-5/2009-6/2009-7/2009-9/2009-12/2009-13/2009-14/2009-17/2009-18/2009-19/2009-20/2009-22/2009 subsequent to the following:

1) the petition of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether Paragraphs 1, 2 and 3 (wording of 26 September 2000) of Article 20 of the Criminal Code of the Republic of Lithuania are not in conflict with Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31 of the Constitution of the Republic of Lithuania, and with the constitutional principle of a state under the rule of law, as well as whether Paragraph 5 (wording of 5 July 2004) of Article 20 of this code is not in conflict with Paragraphs 1 and 2 of Article 23, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31 and Paragraphs 1, 2 and 3 of Article 46 of the Constitution of the Republic of Lithuania, and with the constitutional principle of a state under the rule of law (petition No. 1B-37/2008);

2) the petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into whether Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution of the Republic of Lithuania (petition No. 1B-42/2008);

3) the petition of the Kaunas Regional Court, the petitioner, requesting an investigation into whether Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution of the Republic of Lithuania (petition No. 1B-45/2008);

4) the petition of the Kaunas Regional Court, the petitioner, requesting an investigation into whether Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution of the Republic of Lithuania (petition No. 1B-48/2008);

5) the petition of the Second Vilnius City Local Court, the petitioner, requesting an investigation into whether Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution of the Republic of Lithuania (petition No. 1B-1/2009);

6) the petition of the Jonava District Local Court, the petitioner, requesting an investigation into whether Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution of the Republic of Lithuania (petition No. 1B-3/2009);

7) the petition of the Vilnius Regional Court, the petitioner, requesting an investigation into whether Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution of the Republic of Lithuania (petition No. 1B-4/2009);

8) the petition of the Kaunas Regional Court, the petitioner, requesting an investigation into whether Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution of the Republic of Lithuania (petition No. 1B-5/2009);

9) the petition of the Klaipėda District Local Court, the petitioner, requesting an investigation into whether Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution of the Republic of Lithuania (petition No. 1B-6/2009);

10) the petition of the Vilnius Regional Court, the petitioner, requesting an investigation into:

whether Paragraphs 1, 2 and 3 of Article 20 of the Criminal Code of the Republic of Lithuania are not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 2, 4, 5 and 6 of Article 31 of the Constitution of the Republic of Lithuania, and with the constitutional principle of a state under the rule of law,

whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31, Paragraphs 1, 2 and 3 of Article 46 of the Constitution of the Republic of Lithuania, and with the constitutional principle of a state under the rule of law,

whether Paragraph 4 of Article 43 of the Criminal Code of the Republic of Lithuania is not in conflict with Paragraph 1 of Article 29 and Paragraph 4 of Article 31 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law (petition No. 1B-12/2009);

11) the petition of the Kaunas Regional Court, the petitioner, requesting an investigation into:

whether Paragraphs 1, 2 and 3 of Article 20 of the Criminal Code of the Republic of Lithuania are not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 2 and 4 of Article 31 of the Constitution of the Republic of Lithuania, and with the constitutional principle of a state under the rule of law;

whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with Paragraphs 1 and 2 of Article 23, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31 and Paragraphs 1, 2 and 3 of Article 46 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law (petition No. 1B-14/2009);

12) the petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into whether Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with Article 29 and Paragraphs 1 and 5 of Article 31 of the Constitution of the Republic of Lithuania (petition No. 1B-16/2009);

13) the petition of the Vilnius Regional Court, the petitioner, requesting an investigation into:

whether Paragraphs 1, 2 and 3 of Article 20 of the Criminal Code of the Republic of Lithuania are not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 2, 4, 5 and 6 of Article 31 of the Constitution of the Republic of Lithuania, and with the constitutional principle of a state under the rule of law,

whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with Paragraphs 1 and 2 of Article 23, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31 and Paragraphs 1, 2 and 3 of Article 46 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law (petition No. 1B-18/2009);

14) the petition of the Second Vilnius City Local Court, the petitioner, requesting an investigation into whether Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with Paragraph 1 of Article 29 and Paragraphs 1 and 5 of Article 31 of the Constitution of the Republic of Lithuania (petition No. 1B-20/2009);

15) the petition of the Vilnius Regional Court, the petitioner, requesting an investigation into whether Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution of the Republic of Lithuania (petition No. 1B-21/2009);

16) the petition of the Klaipėda Regional Court, the petitioner, requesting an investigation into whether Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution of the Republic of Lithuania (petition No. 1B-23/2009);

17) the petition of the Pasvalys District Local Court, the petitioner, requesting an investigation into whether Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution of the Republic of Lithuania (petition No. 1B-25/2009).

By the Constitutional Court’s Decision “On Joining Petitions into One Case” of 14 May 2009, petition No. 1B-37/2008 (case No. 34/2008) of the group of members of the Seimas of the Republic of Lithuania, the petitioner, petition No. 1B-42/2008 (case No. 36/2008) of the Court of Appeal of Lithuania, the petitioner, petition No. 1B-45/2008 (case No. 40/2008) of the Kaunas Regional Court, the petitioner, petition No. 1B-48/2008 (case No. 1/2009) of the Kaunas Regional Court, the petitioner, petition No. 1B-1/2009 (case No. 4/2009) of the Second Vilnius City Local Court, the petitioner, petition No. 1B-3/2009 (case No. 5/2009) of the Jonava District Local Court, the petitioner, petition No. 1B-4/2009 (case No. 6/2009) of the Vilnius Regional Court, the petitioner, petition No. 1B-5/2009 (case No. 7/2009) of the Kaunas Regional Court, the petitioner, petition No. 1B-6/2009 (case No. 9/2009) of the Klaipėda District Local Court, the petitioner, petition No. 1B-12/2009 (case No. 12/2009) of the Vilnius Regional Court, the petitioner, petition No. 1B-14/2009 (case No. 13/2009) of the Kaunas Regional Court, the petitioner, petition No. 1B-16/2009 (case No. 14/2009) of the Court of Appeal of Lithuania, the petitioner, petition No. 1B-18/2009 (case No. 17/2009) of the Vilnius Regional Court, the petitioner, petition No. 1B-20/2009 (case No. 18/2009) of the Second Vilnius City Local Court, the petitioner, petition No. 1B-21/2009 (case No. 19/2009) of the Vilnius Regional Court, the petitioner, petition No. 1B-23/2009 (case No. 20/2009) of the Klaipėda Regional Court, the petitioner, and petition No. 1B-25/2009 (case No. 22/2009) of the Pasvalys District Local Court, the petitioner, were joined into one case and it was given reference No. 34/2008-36/2008-40/2008-1/2009-4/2009-5/2009-6/2009-7/2009-9/2009-12/2009-13/2009-14/2009-17/2009-18/2009-19/2009-20/2009-22/2009.

The Constitutional Court

has established:

I

1. The group of members of the Seimas, the petitioner, applied to the Constitutional Court with a petition requesting an investigation into whether Paragraphs 1, 2 and 3 (wording of 26 September 2000) of Article 20 of the Criminal Code (hereinafter also referred to as the CC) are not in conflict with Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31 of the Constitution, and with the constitutional principle of a state under the rule of law, as well as whether Paragraph 5 (wording of 5 July 2004) of Article 20 of this code is not in conflict with Paragraphs 1 and 2 of Article 23, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31 and Paragraphs 1, 2 and 3 of Article 46 of the Constitution, and with the constitutional principle of a state under the rule of law (petition No. 1B-37/2008). The petition was received at the Constitutional Court on 31 October 2008.

2. The Court of Appeal of Lithuania, the petitioner, considered a criminal case. By its ruling of 29 October 2008, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 2 of Article 20 of the CC is not in conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution (petition No. 1B-42/2008).

3. The Kaunas Regional Court, the petitioner, considered a criminal case. By its ruling of 8 December 2008, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 2 of Article 20 of the CC is not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution (petition No. 1B-45/2008).

4. The Kaunas Regional Court, the petitioner, considered a criminal case. By its ruling of 22 December 2008, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 2 of Article 20 of the CC is not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution (petition No. 1B-48/2008).

5. The Second Vilnius City Local Court, the petitioner, considered a criminal case. By its ruling of 19 December 2008, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 2 of Article 20 of the CC is not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution (petition No. 1B-1/2009).

6. The Jonava District Local Court, the petitioner, considered a criminal case. By its ruling of 13 January 2009, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 2 of Article 20 of the CC is not in conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution (petition No. 1B-3/2009).

7. The Vilnius Regional Court, the petitioner, considered a criminal case. By its ruling of 19 January 2009, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 2 of Article 20 of the CC is not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution (petition No. 1B-4/2009).

8. The Kaunas Regional Court, the petitioner, considered a criminal case. By its ruling of 23 January 2009, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 2 of Article 20 of the CC is not in conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution (petition No. 1B-45/2008).

9. The Klaipėda District Local Court, the petitioner, considered a criminal case. By its ruling of 27 January 2009, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 2 of Article 20 of the CC is not in conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution (petition No. 1B-5/2009).

10. The Vilnius Regional Court, the petitioner, considered a criminal case. By its ruling of 27 February 2009, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into:

whether Paragraphs 1, 2 and 3 of Article 20 of the CC are not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 2, 4, 5 and 6 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law,

whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC is not in conflict with Paragraphs 1 and 2 of Article 23, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31, Paragraphs 1, 2 and 3 of Article 46 of the Constitution and with the constitutional principle of a state under the rule of law,

whether Paragraph 4 of Article 43 of the CC is not in conflict with Paragraph 1 of Article 29 and Paragraph 4 of Article 31 of the Constitution, and with the constitutional principle of a state under the rule of law (petition No. 1B-12/2009).

11. The Kaunas Regional Court, the petitioner, considered a criminal case. By its ruling of 6 March 2009, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into:

whether Paragraphs 1, 2 and 3 of Article 20 of the CC are not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 2 and 4 of Article 31 of the Constitution, and with the constitutional principle of a state under the rule of law;

whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC is not in conflict with Paragraphs 1 and 2 of Article 23, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31 and Paragraphs 1, 2 and 3 of Article 46 of the Constitution and with the constitutional principle of a state under the rule of law (petition No. 1B-14/2009).

12. The Court of Appeal of Lithuania, the petitioner, considered a criminal case. By its ruling of 6 March 2009, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 2 of Article 20 of the CC is not in conflict with Article 29 and Paragraphs 1 and 5 of Article 31 of the Constitution (petition No. 1B-16/2009).

13. The Vilnius Regional Court, the petitioner, considered a criminal case. By its ruling of 8 April 2009, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into:

whether Paragraphs 1, 2 and 3 of Article 20 of the CC are not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 2, 4, 5 and 6 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law,

whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC is not in conflict with Paragraphs 1 and 2 of Article 23, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31 and Paragraphs 1, 2 and 3 of Article 46 of the Constitution and with the constitutional principle of a state under the rule of law (petition No. 1B-18/2009).

14. The Second Vilnius City Local Court, the petitioner, considered a criminal case. By its ruling of 15 April 2009, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 2 of Article 20 of the CC is not in conflict with Paragraph 1 of Article 29 and Paragraphs 1 and 5 of Article 31 of the Constitution (petition No. 1B-20/2009).

15. The Vilnius Regional Court, the petitioner, considered a criminal case. By its ruling of 9 April 2009, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 2 of Article 20 of the CC is not in conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution (petition No. 1B-21/2009).

16. The Klaipėda Regional Court, the petitioner, considered a criminal case. By its ruling of 30 March 2009, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 2 of Article 20 of the CC is not in conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution (petition No. 1B-23/2009).

17. The Pasvalys District Local Court, the petitioner, considered a criminal case. By its ruling of 14 April 2009, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 2 of Article 20 of the CC is not in conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution (petition No. 1B-25/2009).

II

1. The petition (No. 1B-37/2008) of a group of members of the Seimas, the petitioner, is based upon the following arguments.

1.1. The legislature, while establishing criminal liability for the specific subject—legal person, did not define the notion of this subject and the grounds and conditions of the criminal liability of the legal person. Such regulation implies the conclusion that, in the aspect of bringing to criminal liability, the legislature equalled the status of legal persons to the status of natural persons, therefore, the conditions and grounds of criminal liability of these subjects, following the constitutional principle of equality of all persons, should be equal. However, the said constitutional principle, according to the petitioner, is violated as the natural persons may be brought to criminal liability only for the criminal deeds that they committed themselves, while Paragraphs 2 and 3 of Article 20 of the CC provide for criminal liability for the legal persons not for the criminal deeds that they committed themselves, but for the criminal deeds committed by other subjects—natural persons.

1.2. Bringing a legal person to criminal liability for the criminal deed committed by a natural person which is provided for according to the impugned legal regulation actually means that, while bringing a legal person to criminal liability, one violates the requirements of the criminal laws to establish all the features of the body of a crime, including the guilt. Objective criminal capacity is thus consolidated and this violates the principle of presumption of innocence of persons consolidated in Article 31 of the Constitution, the right of a person to a fair trial, the rule of the imposed punishment only referring to a law, as well as the constitutional principle of a state under the rule of law.

1.3. The petitioner grounds his doubts regarding the compliance of Paragraph 5 of Article 20 of the CC with Paragraphs 1 and 2 of Article 23, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31, Paragraphs 1, 2 and 3 of Article 43 of the Constitution and with the constitutional principle of a state under the rule of law upon the fact that the legislature, while establishing different limits of criminal liability for economic subjects of private capital and for public legal persons, taking account of the nature of their capital, from the viewpoint of criminal liability treats differently the subjects which act in the same sphere of economic activity.

2. The petition (No. 1B-42/2008) of the Court of Appeal of Lithuania, the petitioner, the petition (No. 1B-45/2008) of the Kaunas Regional Court, the petitioner, the petition (No. 1B-49/2008) of the Second Vilnius City Local Court, the petitioner, the petition No. (1B-3/2009) of the Jonava District Local Court, the petitioner, the petition (No. 1B-4/2009) of the Vilnius Regional Court, the petitioner, the petition (No. 1B-5/2009) of the Kaunas Regional Court, the petitioner, the petition (No. 1B-6/2009) of the Klaipėda District Local Court, the petitioner, the petition No. 1B-16/2009) of the Court of Appeal of Lithuania, the petitioner, the petition (No. 1B-20/2009) of the Second Vilnius City Local Court, the petitioner, the petition (No. 1B-21/2009) of the Vilnius Regional Court, the petitioner, the petition (No. 1B-23/2009) of the Klaipėda Regional Court, the petitioner, and the petition (No. 1B-25/2009) of the Pasvalys District Local Court, the petitioner, are based on the following, virtually analogous, arguments.

2.1. The impugned legal regulation consolidated in Paragraph 2 of Article 20 of the CC, under which a legal person shall be brought to criminal liability for the criminal deed committed by other (natural) person, while a natural person, under the criminal laws, shall be brought to criminal liability only for the criminal deed that he committed himself and only if he is recognised guilty, violates the constitutional principle of equality of persons. In addition, when a legal person is brought to criminal liability for the criminal deed committed by other (natural) person, the application of criminal liability to the legal person depends on the result of establishment of the guilt of the natural person who is suspected of commission of the criminal deed. Such way of the legal person’s defence from the brought suspicions and accusations, when the defence depends on the natural person’s defence, may be inefficient, insufficient and incompatible with the principle of equality of persons in the criminal procedure.

2.2. The provisions of Paragraph 2 of Article 20 of the CC, under which the guilt of the natural person is shifted to the legal person, raise doubts also regarding their compliance with the principle of presumption of innocence consolidated in Paragraph 1 of Article 31 of the Constitution.

2.3. The petitioners ground their doubts regarding the compliance of Paragraph 2 of Article 20 of the CC with Paragraph 3 of Article 31 of the Constitution upon the fact that when the legal person informs about the criminal deed of other (natural) person, legal consequences also arose for legal persons. Being an independent subject of criminal law, legal persons, as well as natural persons, may not be compelled by law to give evidence against themselves and create such a situation where the carrying out of a duty (informing about a criminal deed of other (natural) person which corresponds with the features established in Paragraph 2 of Article 20 of the CC) would raise negative consequences (application of criminal liability) to the legal person itself.

2.4. The petitioners state that while applying the legal regulation established in Paragraph 2 of Article 20 of the CC, according to which criminal liability may arise only if there exists a criminal deed committed by a natural person, such situation is created when for the same criminal deed both the natural person who committed that deed and the enterprise (the legal person) are punished and, thus, the provision of Paragraph 5 of Article 31 of the Constitution that no one may be punished for the same crime a second time is violated.

3. The petition (No. 1B-12/2009) of the Vilnius Regional Court, the petitioner, is based upon the following arguments.

3.1. It is obvious from the provisions of Article 20 of the Criminal Code that the legal person is brought to criminal liability not for the criminal deed that he committed himself but for those committed by the natural person. Such shift of the guilt and criminal deeds committed by another subject to the legal person is incompatible with the principles of all subjects’ equality before the law (Paragraph 1 of Article 29 of the Constitution), the presumption of innocence (Paragraph 1 of Article 31 of the Constitution), the right to a fair hearing of the case (Paragraph 2 of Article 31 of the Constitution), the punishment of the person only on the grounds established by law (Paragraph 4 of Article 31 of the Constitution) and a state under the rule of law which are consolidated in the Constitution.

3.1.1. Within the meaning of Paragraphs 2 and 3 of Article 20 of the Criminal Code, the legal person is brought to criminal liability if the natural person is brought to criminal liability. Two persons are thus brought to criminal liability and judged for the same crime. Such legal regulation consolidates the rule of punishing a second time for the same criminal deed, which violates Paragraph 5 of Article 31 of the Constitution.

3.1.2. The provision consolidated in Paragraph 2 of Article 20 of the Criminal Code whereby the legal person shall be liable for the criminal deeds committed by the natural person obviously restricts the legal person’s rights to defence from the brought suspicions and accusations, because the question of application of criminal liability of the legal person directly depends on the realisation of the right to defence of the natural person who purportedly committed the criminal deed. Thus, a situation arises where the only way of the defence of a legal person from the accusations is proving the innocence of a natural person. Such regulation is in conflict with the provision of Paragraph 6 of Article 31 of the Constitution which consolidates the right to defence of the suspect or the accused.

3.2. The petitioner also has doubts regarding the compliance of the legal regulation established in Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC with the constitutional principle of equality before the law, with Paragraphs 1, 2 and 3 of Article 46 of the Constitution, and with the principle of a state under the rule of law to the extent that the state, while regulating the activity of economic subjects and while consolidating by law the regulation of their activity and liability, provides for different criminal liability for them—it absolutely exempts certain economic subjects from criminal liability.

3.3. Impugning the constitutionality of the provision of Paragraph 4 of Article 43 of the Criminal Code, the petitioner noted that the criminal law does not regulate the criteria for establishment of the size of a fine, as punishment, imposed on the legal person, while if the punishment of the same kind—a fine—is imposed on the natural person, the sizes of fines are clearly defined taking account of the danger of the criminal deed. The legislature does not specify the criteria whereby a punishment should be imposed on the legal person, and the kind and size thereof should be determined.

4. The petition (No. 1B-14/2009) of the Kaunas Regional Court, the petitioner, and the petition (No. 1B-18/2009) of the Vilnius Regional Court, the petitioner, are based on the following, essentially analogous arguments.

4.1. It is obvious from the content of the provisions of Article 20 of the Criminal Code that the legal person is brought to criminal liability not for his own criminal deeds, but for the criminal deeds of the natural person. Such shift of the guilt and criminal deeds committed by another person to the legal person is incompatible with the principles of equality of all subjects before the law (Paragraph 1 of Article 29 of the Constitution), the presumption of innocence (Paragraph 1 of Article 31 of the Constitution), the right to a fair hearing of the case (Paragraph 2 of Article 31 of the Constitution), punishment of the person only on the grounds established by law (Paragraph 4 of Article 31 of the Constitution) and a state under the rule of law which are consolidated in the Constitution.

4.2. The petitioners also have doubts regarding the compliance of the legal regulation established in Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC with the constitutional principle of equality before the law, with Paragraphs 1, 2 and 3 of Article 46 of the Constitution, with the principle of a state under the rule of law to the extent that the state, while regulating the activity of economic subjects and while consolidating by law the regulation of their activity and their liability, provides for a different criminal liability for them—it absolutely exempts certain economic subjects from criminal liability.

4.3. The Vilnius Regional Court (petition No. 1B-18/2009), the petitioner, also emphasises that, within the meaning of Paragraphs 2 and 3 of Article 20 of the Criminal Code, the legal person is brought to criminal liability if the natural person is brought to criminal liability. Two persons are thus brought to criminal liability and judged for the same crime. This means that punishment is imposed twice for the same criminal deed: the natural person who committed the criminal deed and the legal person are punished provided the natural person who committed the criminal deed meets the criteria established in Paragraphs 2 or 3 of Article 20 of the CC. Such legal regulation consolidates the rule of punishing a second time for the same criminal deed, which violates Paragraph 5 of Article 31 of the Constitution. In addition, the provision consolidated in Paragraph 2 of Article 20 of the Criminal Code, whereby the legal person is liable for the criminal deeds committed by the natural person, obviously restricts the legal person’s rights to defence from the brought suspicions and accusations because the question of application of criminal liability of the legal person directly depends on the realisation of the right to defence of the natural person who purportedly committed the criminal deed. Such regulation is in conflict with the provision of Paragraph 6 of Article 31 of the Constitution which consolidates the right of the suspect or the accused to defence.

III

In the course of 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 G. Ivoška, advisor of the Division of Criminal and Administrative Law of the Law Department of the Seimas and D. Zebleckis, senior advisor of the Civil Law Division of the same department, in which it is stated that the impugned provisions of the Criminal Code are not in conflict with the Constitution. The position of the representatives of the Seimas, the party concerned, is based upon the following arguments.

1. A systemic analysis of Article 20 of the CC and the articles of the special part thereof, in which it is prescribed that also the legal person shall be liable for the deeds specified in these articles, permits drawing the conclusion that, from the viewpoint of application of criminal liability, the legislature does not equal the legal situation of the legal person to the legal situation of the natural person. In Lithuanian criminal law, the legal person is not regarded as a subject of a criminal deed—it is especially obvious if we take as example such criminal deeds as rape or homicide, for which the criminal liability of the legal person is also provided for. Therefore, different grounds and conditions of application of criminal liability to legal persons and natural persons are constitutionally grounded and may not be assessed as violating the principle of equality consolidated in Article 29 of the Constitution.

2. The fact that the legal person is not a subject of the criminal deed also means that the legal person may not be equalled to the natural person as one who may be brought to liability for a criminal deed if there is guilt, which is independent, separate or which does not depend on the natural person otherwise. This also means that criminal liability of the legal person arises due to the guilt of the natural person. However, it may not be identified with shifting the guilt to the legal person. The legal person may not be regarded as guilty from the criminal law viewpoint, as the policy of his activity, the standards to be applied and the values linked to him are determined by one or more natural persons. Therefore, there is no ground to consider the compliance of the provisions of Article 20 of the CC with Paragraph 1 of Article 31 of the Constitution, which consolidates the principle of presumption of innocence, and with the constitutional principle of a state under the rule of law.

3. There is no ground to apply the procedural guarantees established in Paragraph 3 of Article 31 of the Constitution to the legal person, as not the legal person, but the natural person is the subject of the criminal deed, at the same time being a participant of the process to which the procedural guarantees are applied.

4. Assenting to the statement of the petitioners that, according to the CC, there may be no complicity between the natural person and the legal person, the representatives of the party concerned do not agree that the impugned legal regulation violates the principle non bis in idem. In the explanations it is emphasised that in the jurisprudence of the Constitutional Court the said principle is construed as meaning that a person cannot be punished a second time for the same violation of law, i.e. one person may not be punished a second time by a sanction of the same kind. Meanwhile, the legal person’s liability for the deed committed by the natural person means that there is criminal liability of different persons for the same deed.

5. In the opinion of the representatives of the party concerned, the compliance of Paragraph 5 of Article 20 of the Criminal Code with the provisions of Articles 23 and 46 of the Constitution may not be subject to consideration at this constitutional justice case, because the legal persons specified in Paragraph 5 of Article 20 of the CC are not economic subjects or subjects whose activity is based on the right of private ownership or freedom of individual economic activity and initiative.

IV

At the Constitutional Court’s hearing, Seimas member V. Gedvilas and advocate V. Bužinskas, the representatives of the group of members of the Seimas, the petitioner, repeated the arguments set forth in the petition of the petitioner; advocate V. Bužinskas also answered the questions of the justices and presented additional explanations.

The representatives of the Seimas, the party concerned, who were G. Ivoška and D. Zebleckis, repeated the arguments set forth in the written explanations. G. Ivoška also presented additional explanations and answered the questions of the justices.

The Constitutional Court

holds that:

I

1. As mentioned before, the petitioner—a group of members of the Seimas, requests an investigation into whether Paragraphs 1, 2 and 3 of Article 20 of the CC are not in conflict with Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31 of the Constitution, and with the constitutional principle of a state under the rule of law, whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC is not in conflict with Paragraphs 1 and 2 of Article 23, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31 and Paragraphs 1, 2 and 3 of Article 46 of the Constitution and with the constitutional principle of a state under the rule of law (petition No. 1B-37/2008), the petitioners—the Court of Appeal of Lithuania (petition No. 1B-42/2008), the Kaunas Regional Court (petition No. 1B-45/2008), the Kaunas Regional Court (petition No. 1B-48/2008), the Second Vilnius City Local Court (petition No. 1B-1/2009), the Jonava District Local Court (petition No. 1B-3/2009), the Vilnius Regional Court (petition No. 1B-4/2009), the Kaunas Regional Court (petition No. 1B-5/2009), the Klaipėda District Local Court (petition No. 1B-6/2009), the Court of Appeal of Lithuania (petition No. 1B-16/2009), the Second Vilnius City Local Court (petition No. 1B-20/2009), the Vilnius Regional Court (petition No. 1B-21/2009), the Klaipėda Regional Court (petition No. 1B-23/2009) and the Pasvalys District Local Court (petition No. 1B-25/2009) request an investigation into whether Paragraph 2 of Article 20 of the CC is not in conflict with Article 29 and Paragraphs 1, 3 and 5 of Article 31 of the Constitution, the petitioner—the Vilnius Regional Court (petition No. 1B-12/2009) requests an investigation into whether Paragraphs 1, 2 and 3 of Article 20 of the CC are not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 2, 4, 5 and 6 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law, whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC is not in conflict with Paragraphs 1 and 2 of Article 23, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31 and Paragraphs 1, 2 and 3 of Article 46 of the Constitution and with the constitutional principle of a state under the rule of law, as well as whether Paragraph 4 of Article 43 of the CC is not in conflict with Paragraph 1 of Article 29 and Paragraph 4 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law, the petitioner—the Kaunas Regional Court (petition No. 1B-14/2009) requests an investigation into whether Paragraphs 1, 2 and 3 of Article 20 of the CC are not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 2 and 4 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law, whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC is not in conflict with Paragraphs 1 and 2 of Article 23, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31 and Paragraphs 1, 2 and 3 of Article 46 of the Constitution and with the constitutional principle of a state under the rule of law, and the petitioner—the Vilnius Regional Court (petition No. 1B-18/2009) requests an investigation into whether Paragraphs 1, 2 and 3 of Article 20 of the CC are not in conflict with Paragraph 1 of Article 29 and Paragraphs 1, 2, 4, 5 and 6 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law, and whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC is not in conflict with Paragraphs 1 and 2 of Article 23, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31 and Paragraphs 1, 2 and 3 of Article 46 of the Constitution and with the constitutional principle of a state under the rule of law.

2. Taking account of the content, extent and arguments of the petitions of the petitioners, in this constitutional justice case the Constitutional Court will investigate the following:

the compliance of Paragraphs 1, 2 and 3 of Article 20 of the CC with Articles 29 and 31 of the Constitution and with the constitutional principle of a state under the rule of law;

the compliance of Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC with Paragraphs 1 and 2 of Article 23, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31 and Paragraphs 1, 2 and 3 of Article 46 of the Constitution, and with the constitutional principle of a state under the rule of law;

the compliance of Paragraph 4 of Article 43 of the CC with Paragraph 1 of Article 29 and Paragraph 4 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law.

II

1. Upon restoration of the independent State of Lithuania on 11 March 1990, the Criminal Code adopted on 26 June 1961 was in effect. This code did not include the provisions consolidating criminal liability of legal persons.

2. On 25 January 2002, the Seimas adopted the Republic of Lithuania’s Law on Amending Articles 71, 32, 35, 282, 284 and 290 of the Criminal Code, on Supplementing the Code with Articles 111, 221, 321, 322 and 3022 and on Recognition of Articles 319 and 320 as no Longer Valid. By this law, in the then effective Criminal Code (wording of 26 June 1961), inter alia, the provisions linked to the criminal liability of the legal persons were consolidated, such as:

Article 11(1). Criminal liability of the legal person

The legal person shall be liable according to the criminal laws only for taking the bribe (Article 282), bribing (Article 284) and money laundering (Article 326).

The legal person shall be liable for crimes committed by a natural person in the case when the crime was committed for the benefit or in the interests of the legal person by the natural person who acted individually or on behalf of the legal person, if he, while holding a leading office in the legal person, had the right:

1) to represent the legal person, or

2) to take decisions on behalf of the legal person, or

3) to control activities of the legal person.

The legal person may be liable for the crimes also in such case where there crimes were committed by the employee of the legal person or his authorised representative for the benefit of the legal person due to insufficient supervision or control over the person specified in the Second Paragraph of this Article.

The criminal liability of the legal person does not remove the criminal liability of the natural person who committed the crime, organised it, instigated or helped to commit the crime.

According to this Code, the state, the state or municipal institution and establishment and international public organisation shall not be liable.

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Article 22(1). Kinds of punishments for the legal persons.

The following punishments may be imposed on the legal person for the committed crime:

1) a fine;

2) confiscation of property;

3) restriction of activity of the legal person;

4) liquidation of the legal person.

The court, having imposed a punishment on the legal person, may decide to announce this judgment through the mass media.

Not more than two punishments may be imposed upon the legal person for one crime.

The punishments imposed on the legal persons are not specified in the sanctions of the articles of the special part of this Code. While imposing a punishment on the legal person, the court follows the list of punishments established in the First Paragraph of this Article.

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Article 32(1). Restriction of activity of the legal person

When imposing the penalty of restriction of activity of a legal person, a court shall prohibit the legal person from engaging in certain activities or oblige it to close a certain division of the legal person.

Activities of a legal person may be restricted for a period from one year up to five years. The term of this punishment shall be counted in years and months.

Article 32(2). Liquidation of the legal person

When imposing the punishment of liquidation of a legal person, a court shall order the legal person to terminate, within the time limit laid down by the court, the entire economic, commercial, financial or professional activity and to close all divisions of the legal person.”

3. On 26 September 2000, the Seimas adopted the Republic of Lithuania’s Law on the Approval and Entry into Force of the Criminal Code, whereby the Criminal Code was approved (Article 1) and it was prescribed that it shall come into force only together and only harmonised with the new Code of Criminal Procedure of the Republic of Lithuania and the new Code of Execution of Punishments whose date of the entry into force (together with the Criminal Code) is established by means of a separate law (Article 2).

On 29 October 2002, the Seimas adopted the Republic of Lithuania’s Law on the Procedure of Entry into Effect and Implementation of the Criminal Code as Confirmed by Law No. VIII-1968 of 26 September 2000, the Code of Criminal Procedure, as Confirmed by Law No. IX-785 of 14 March 2002, and the Code of Execution of Punishments as Confirmed by Law No. IX-994 of 27 June 2002, in which it established, inter alia, that the Criminal Code shall come into force on 1 May 2003 (Article 1) and that upon the entry into force of the new Criminal Code, the former Criminal Code shall become no longer effective (Paragraph 1 of Article 47).

3.1. Article 20 (wording of 26 September 2000) of the CC, whose provisions are impugned in this constitutional justice case, consolidates the legal regulation linked to the criminal liability of the legal persons. This article provides:

Article 20. Criminal liability of a legal person

1. A legal person shall be held liable solely for the criminal deeds the commission whereof is subject to liability of a legal person as provided for in the Special Part of this Code.

2. A legal person shall be held liable for the criminal deeds committed by a natural person solely where a criminal deed was committed for the benefit or in the interests of the legal person by a natural person acting independently or on behalf of the legal person, provided that he, while holding a leading office in the legal person, was entitled:

1) to represent the legal person, or

2) to take decisions on behalf of the legal person, or

3) to control activities of the legal person.

3. A legal person may be held liable for criminal deeds also where they have been committed by an employee or authorised representative of the legal person as a result of insufficient supervision or control by the person indicated in Paragraph 2 of this Article.

4. Criminal liability of a legal person shall not release from criminal liability a natural person who has committed, organised, instigated or assisted in commission of the criminal deed.

5. The State, a state and municipal institution and establishment as well as international public organisation shall not be held liable under this Code.”

3.2. Article 43 (wording of 26 September 2000) of the CC, the provisions of Paragraph 4 whereof are impugned in this constitutional justice case, consolidates the kinds of punishments applied to the legal persons and certain peculiarities of imposition of punishments on the legal persons. This article provides:

Article 43. Kinds of punishments in respect of legal persons

1. The following punishments may be imposed upon a legal person for the commission of a criminal deed:

1) fine;

2) restriction of activity of the legal person;

3) liquidation of the legal person.

2. Having imposed a penalty upon a legal person, a court may also decide to announce this judgment in the media.

3. Only one punishment may be imposed upon a legal person for one criminal deed.

4. The sanctions of articles of the Special Part of this Code shall not specify the punishments to which legal persons are subject. In imposing a punishment upon a legal person, a court shall refer to the list of punishments specified in Paragraph 1 of this Article.”

3.3. In this context, the other provisions of the CC linked to the grounds and conditions of the application of criminal liability to legal persons should also be mentioned, such as, inter alia:

Paragraph 4 (wording of 26 September 2000) of Article 47 of the CC which regulates the conditions of imposition of punishment—fine both to natural persons as well as legal persons prescribed: “The amount of a fine for a legal person shall be up to 10 000 MSLs”;

Article 52 (wording of 26 September 2000) of the CC regulates only the punishments applied to the legal person—imposition of restriction of activity of the legal person. This article provides: “When imposing the penalty of restriction of operation of a legal person, a court shall prohibit the legal person from engaging in certain activities or oblige it to close a certain division of the legal person” (Paragraph 1); “The activity of a legal person may be restricted for a period from one year up to five years. The term of this punishment shall be counted in years and months” (Paragraph 2);

Article 53 (wording of 26 September 2000) of the CC also regulates only the punishments applied to the legal person—imposition of liquidation of the legal person. This article prescribed: “When imposing the punishment of liquidation of a legal person, a court shall oblige the legal person to terminate, within the time limit laid down by the court, the entire economic, commercial, financial or professional activity and to close all divisions of the legal person”;

Paragraph 4 (wording of 26 September 2000) of Article 67 of the CC which regulates the purpose and types of penal measures prescribed that confiscation of property may be imposed on the legal person;

Article 72 (wording of 26 September 2000) of the CC establishes the procedure of application of the penal measure (confiscation of property) which is established for in Article 67 of the CC.

4. On 5 July 2004, the Seimas adopted the Republic of Lithuania’s Law on Amending and Supplementing Articles 20, 42, 63, 67, 68, 72, 75, 77, 82, 90, 91, 92, 95, 97, 128, 144, 148, 150, 178, 182, 194, 195, 201, 204, 205, 210, 211, 212, 220, 221, 222, 223, 230, 236, 246, 248, 260, 263, 287 and 306 of the Criminal Code and on Supplementing the Code by Article 228-1 which came into force on 13 July 2004.

4.1. Article 1 of this law amended Paragraph 5 (wording of 26 September 2000) of Article 20 of the Criminal Code and set it forth as follows:

5. The State, a municipality, a state and municipal institution and establishment as well as international public organisation shall not be held liable under this Code.”

This amendment expanded the list of the legal persons which are not held liable according to the CC—municipalities were categorised as belonging to such legal persons.

4.2. In addition, in Paragraph 4 of Article 4 of the said law adopted on 5 July 2004, Paragraph 4 (wording of 26 September 2000) of Article 67 was recognised to be regarded as Paragraph 5 of Article 67 without changing the content of the provisions.

5. Article 3 of the Republic of Lithuania’s Law on Amending Articles 7, 38, 47, 63. 66, 70, 75, 82, 93, 129, 166, 167, 172, 178, 180, 181, 182, 183, 184, 185, 189, 194, 196, 197, 198, 198-1, 198-2, 199, 202, 213, 214, 215, 225, 227, 228, 231, 233, 235, 252, 256, 257, 262, 284, 285 and 312 and the Annex of the Criminal Code, on Amending the Titles of Chapters XXVI and XXX and on Supplementing the Code with Articles 256-1 and 257-1 adopted on 28 June 2007 amended the size of maximum punishment established with regard to legal persons in Paragraph 4 (wording of 26 September 2000) of Article 47 of the CC—it was increased to 50 000 MSLs.

6. While construing the legal regulation established in Paragraphs 1, 2, 3 and 5 of Article 20 of the CC, it needs to be noted that the provisions of Article 20 of the CC which are impugned in this constitutional justice case consolidate the grounds of criminal liability of the legal person and the conditions for its application.

7. It needs to be noted that the CC does not define the notions of the legal person, representation of the legal person, the leading office and other notions which are important in the course of construction of the content of the provisions of Article 20 of the CC. Therefore, the provisions of the impugned legal regulation must be construed not only in a systemic manner with regard to each other, but also together with the provisions consolidated in other laws which regulate the formation of the bodies administrating the legal person, implementation of the rights and duties, as well as the legal relations of representation.

8. Paragraph 1 of Article 2.33 of the Civil Code of the Republic of Lithuania consolidates the definition of the notion of the legal person: “A legal person shall be an enterprise or an organisation which has its business name, which may in its name gain and enjoy rights and assume obligations as well as act as a plaintiff or as a defendant in courts.”

Article 2.34 of the Civil Code has consolidated the kinds of the legal persons and their definitions:

Article 2.34. Public and Private Persons

1. Legal persons shall be divided into public and private persons.

2. Public legal persons shall be legal persons established by the state or municipalities, their institutions or other non-profit-seeking persons whose goal is to meet public interests (state and municipality enterprises, state or municipality institutions, public institutions, religious communities, etc.).

3. Private legal persons shall be legal persons, which aim at meeting private interests.”

Article 2.35 of the Civil Code provides that the state and municipalities shall be legal persons (Paragraph 1); state and municipality institutions the existence whereof is prescribed by the Constitution shall be legal persons in the cases prescribed by law (Paragraph 2).

Article 2.81 of the Civil Code provides that legal persons achieve civil rights, assume civil duties and implement them through their bodies (Paragraph 1); only natural persons may be members of managing bodies of a legal person (Paragraph 4).

Therefore, the legal person is an independent, specific subject of legal relations. The specificity of the legal person, as an independent subject of legal relations, is determined, inter alia, by the fact that he, having an independent structure, legal capacity and capability, i.e. being an independent subject of legal relations, is a participant of these relations through natural persons (head, authorised representative, etc.). Thus, the activity of the legal person is inseparable from the activity of the corresponding natural persons through which he acts and without their activity it would be essentially impossible.

9. Under Paragraph 1 of Article 20 of the Criminal Code, the legal persons may be held criminally liable only for the criminal deeds, for the commission of which the criminal liability of the legal persons is provided for in the special part of this code. The list of such criminal deeds established by the legislature is rather broad: the crimes against life of a human being, against his health and freedom; the crimes and criminal offences against the person’s right to sexual self-determination and inviolability, against the child and the family; the crimes against inviolability of a person’s private life, against intellectual and industrial property, against safety of electronic data and information systems; the crimes and criminal offences against economy and business order, against financial system, state service and public interests, against justice, etc. It needs to be noted that the dispositions of the articles of the special part of the Criminal Code which establish criminal liability of both natural persons and legal persons are equal in defining both the deeds committed by the natural persons as well as the deeds committed by legal persons.

10. In cases when a criminal deed is committed for which criminal liability of legal persons is provided for in the special part of the CC, the question of bringing the legal person to criminal liability is decided taking account of the conditions established in Paragraphs 2 and 3 of Article 20 of this code, i.e. such criminal deed must be committed by a natural person, who meets the features specified in the CC; it must be committed by acting individually or on behalf of the legal person and acting for the benefit or in the interests of the legal person. In other words, there are two essential groups of conditions of bringing the legal person to criminal liability: one is linked to the specific features of the subject upon commission of a criminal deed whereof also the legal person may be brought to criminal liability, while the other describes the deed itself, the purpose and reason of its commission (it was committed individually or on behalf of the legal person and seeking to serve the interests of the legal person or the benefit for him).

10.1. While construing the specific features of a natural person, who committed the criminal deed, it needs to be noted that Paragraph 2 of Article 20 of the CC defines two of the features describing such subject: first, that person must take a leading office in the legal person and, second, he must have one of the following rights (alternative features): either to represent the legal person, or to adopt decisions on behalf of the legal person, or to control the activity of the legal person. However, Paragraph 3 of Article 20 of the CC provides that criminal liability may arise for the legal person also in such a case if the employee of the legal person or his authorised representative committed criminal deeds for the benefit of the legal person due to insufficient supervision or control over the person specified in Paragraph 2 of Article 20 of the CC.

10.2. Therefore, under Paragraphs 2 and 3 of Article 20 of the CC, criminal liability may arise to the legal person when the natural person, who holds a leading office in that legal person and has the right either to represent the legal person, or to adopt decisions on behalf of the legal person, or to control the activity of the legal person, commits a criminal deed for the benefit or in the interests of the legal person, or when a criminal deed is committed for the benefit of the legal person not by the person holding a leading office, but by an employee or authorised representative, however, on the condition that this deed was committed due to insufficient supervision or control over the person who holds a leading office.

10.3. While construing these provisions, it is important to note that the notion “leading office” is not defined in the Criminal Code (it is not specified, what concrete office in the legal person falls into this category), however, the essential aspects of this notion may be revealed referring to the provisions of the legal acts which regulate the activity of economic subjects and which are linked to the management of legal persons.

10.3.1. In this context, the following provisions of the Civil Code linked to the concept of the bodies of the legal persons, their authority and functions should be mentioned:

Article 2.81. Bodies of a legal person

1. Legal persons achieve civil rights, assume civil duties and implement them through their bodies which are formed and act in accordance with laws and documents of incorporation of legal persons.

2. In cases prescribed by law and by incorporation documents, legal persons may achieve civil rights and assume duties through their members.

3. Members of legal persons enjoy the right to institute an action at law requesting the imposition of a prohibition on the managing bodies of a legal person against entering into contracts which contravene the goals of the activities of a legal person or overstep the authority of a managing body of a legal person.

4. Only natural persons may be members of managing bodies of a legal person whereas both natural and legal persons may be members of other bodies.

Article 2.82. Authority and functions of the bodies of legal persons

1. Authority and functions of the natural persons’ bodies shall be established by law and by incorporation documents of a legal person, which regulate legal persons of a respective juridical form.

2. Where incorporation documents and laws regulating the activities of a legal person fail to provide a different structure of managing bodies, each legal person must have a single-person or a collegial managing body and the general meeting of members. Laws regulating individual juridical forms of legal persons may stipulate that a managing body and the general meeting of members may be considered to be the same body of a legal person.

3. A managing body shall be responsible for the financial accountability, convening the general meeting of members of a legal person, the production of documents and data to the register of legal persons, the notification of the members of a legal person about the essential events, which are important for the activities of a legal person, the organisation of the legal person’s activities, the accounting of the members of a legal person and actions specified in Paragraph 3 of Article 2.4 of the given Code, except as otherwise provided in laws regulating the activities of legal persons or incorporation documents of a legal person.

4. Decisions of the bodies of a legal person may, in judicial proceedings, be declared void where they contravene the imperative provisions of the law, incorporation documents of a legal person or principles of reasonableness and good faith. Where the decision infringes their rights or interests, action can be taken by the creditors of a legal person, a respective managing body of a legal person, member of a legal person or other persons prescribed by law. A three-month statutory limitation period shall be set for the said actions. It shall be counted as of the day on which the defendant found out or had to find out about the contested decision where the given Code and other laws fail to set another statutory limitation period for actions or a different procedure for the challenging of the decision.”

10.3.2. Article 37 of the Republic of Lithuania’s Law on Companies (wording of 11 December 2003) consolidates the notion of the manager of the company, the procedure of his election and removal from office, the grounds of his activity and his competence. This article, inter alia, prescribes: the manager of the company is a single-person management organ of the company (Paragraph 1); the manager of the company must be a natural person; a person may not be the manager of the company if under the legal acts he is not entitled to hold the position (Paragraph 2); the manager of the company shall be elected and removed from office by the Board (the Supervisory Board if the Board is not formed or the General Meeting if the Supervisory Board is not formed either) which shall also fix his salary, approve his job description, provide incentives and impose penalties (Paragraph 3); the employment contract shall be concluded with the manager of the company (Paragraph 4); in his activities, the manager of the company shall comply with laws and other legal acts, the Statutes of the company, decisions of the General Meeting, decisions of the Supervisory Board and the Board, and his job description; the manager of the company shall organise daily activities of the company, hire and release employees, conclude and terminate employment contracts with them, provide incentives and impose penalties (Paragraph 6); the manager of the company shall act on behalf of the company and shall be entitled to enter into the transactions at his own discretion, save in cases where the Statutes of the company provide for quantitative representation of the company (Paragraph 8).

Paragraph 10 (wording of 11 July 2006) of Article 37 of the Law on Companies provides that the manager of the company shall be responsible for: 1) the organisation of activities and the implementation of objects of the company; 2) the drawing up of the annual accounts; 3) the conclusion of the contract with the firm of auditors where the audit is mandatory or required under the Statutes of the company; 4) the submission of information and documents to the General Meeting, the Supervisory Board and the Board in cases laid down in this law or at their request; 5) the submission of documents and particulars of the company to the administrator of the Register of Legal Persons; 6) the submission of the documents of a joint-stock company to the Securities Commission and the Central Securities Depository of Lithuania; 7) the publication of information referred to in this Law in the daily indicated in the Statutes; 8) the submission of information to shareholders; 9) the fulfilment of other duties laid down in this law and other laws and legal acts as well as in the Statutes and the staff regulations of the manager of the company.

10.3.3. Paragraph 2 of Article 11 of the Republic of Lithuania State and Municipal Enterprise Law (wording of 16 December 2003) prescribed that “the head of the enterprise shall organise the activity of the enterprise and shall act on behalf of the enterprise in the presence of the relations with other persons. The head of the enterprise: shall employ and fire employees; shall conclude and terminate employment contracts with them; shall approve of the statutes of the branches and representations of the enterprise; shall appoint and recall the managing bodies of the branches and representations of the enterprise; having the rights of the management board, and if the board is not composed—the advance consent of the institution which implements the rights and duties of the owner, shall establish the methods and norms of calculation of amortisation of property applied in the enterprise; shall prepare the rules of payment and awarding premiums for the employees of the enterprise; shall provide the institution which implements the rights and duties of the owner of the enterprise with information about the forecasts and plans of the activity of the enterprise specifying the amounts of the necessary investments for the coming financial year, and about the events which are of essential importance for the activity of the enterprise. If the board is not composed in the enterprise, the head of the enterprise shall also perform the functions assigned to the competence of the board save the exceptions specified in Paragraph 4 of Article 10 of this Law.” Paragraph 3 of the same article provides that the head of the enterprise shall have the right to conclude transactions at his discretion, while Paragraph 6 thereof provides that the head of the enterprise shall be responsible for the following: 1) organisation of the activity of the enterprise; 2) informing the institution which implements the rights and duties of the owner of the enterprise about the events which are of essential importance for the activity of the enterprise; 3) drawing up of the annual financial accountability report and its presentation together with the conclusion from the auditor and the report of the auditor to the institution which implements the rights and duties of the owner of the enterprise within 3 months from the end of the financial year; 4) presentation of the report on the activity of the enterprise to the institution which implements the rights and duties of the owner of the enterprise; 5) submission of the data and documents of the enterprise to the register of the legal persons; 6) announcing public information; 7) keeping documents and other information about the enterprise; 8) management, use of disposition of property of the enterprise according to the procedure and conditions established in the statutes; 9) other actions which are established for the head of the enterprise by this law, other legal acts and statutes of the enterprise.

10.4. It needs to be noted that while construing the concept of a leading office in the context of the criminal liability of the legal persons, not only the legal regulation related to the subjects (enterprises) of the economic subjects is important, but also those provisions of the laws which are linked to public legal persons that usually are non-profit ones.

10.4.1. Article 7 of the Republic of Lithuania’s Law on Associations (wording of 22 January 2004) which regulates “the formation, management, activities, specific features of restructuring, termination (reorganisation and liquidation) of legal persons whose legal form is an association” (Article 1) provides:

Article 7. Bodies of an association

1. An association shall acquire the civil rights, undertake the civil obligations and shall implement them through its management bodies.

2. An association must have a general meeting of members or any other body (conference, convention, congress, assembly or other), which enjoys all or part of the rights of the general meeting of members.

3. The provisions of this Law applicable to a general meeting of members shall apply to the body of an association (conference, convention, congress, assembly or other), which enjoys all rights of a general meeting of members.

4. In the event any other body of an association is being set up (conference, convention, congress, assembly or other) which enjoys only a part of the rights of a general meeting of members, then a general meeting of members shall be obligatory. The provisions of this Law applicable to a general meeting of members, with the exception of Items 1 and 6 of Paragraph 6 of Article 8 of this Law, the decisions provided for in which may be taken by a general meeting of members, shall apply to the body of an association which enjoys a part of the rights of a general meeting of members.

5. The management body (sole or/and collegiate) must function in an association.

6. Several bodies may be set up in an association.

7. The structure of the association bodies, their competence, the procedure for convening and taking decisions shall be laid down in the statutes of an association.

8. Members of the collegiate bodies, set in the statutes of an association, which are not the management bodies, shall not be remunerated for activities.

9. Minutes must be taken of general meetings of members and sittings of collegiate bodies.”

In Article 9 of this law, the management bodies of the association and their competence is determined:

Article 9. Management bodies

1. The management bodies shall act in the name of an association in the presence of relations with other persons, and the said bodies shall also conclude transactions in the name of the association.

2. Besides the functions provided for in Article 2.82 of the Civil Code, the management body shall employ and release employees, conclude employment contracts with them, prepare and present to a general meeting of members a report on activities of the association, announce or organise dissemination of public information, organise voluntary works in accordance with the procedure laid down by the Government, resolve other issues within the competence of the management bodies as prescribed in this Law and the statutes of the association. The management body shall also take decisions on setting up branches and representative offices, and on the termination of activities thereof, approve their regulations, unless otherwise provided for in the statutes of the association.

3. If several management bodies are set up in an association, the statutes of the association must define the competence of each body.

4. A member of the management bodies of an association may be reimbursed for his activities in these bodies.

5. Natural persons—members of the association—and natural persons proposed by the members of the association—legal persons—may be members of a collegiate management body. The statutes of the association may lay down additional requirements for a member of the collegiate management body.

6. A collegiate management body may take decisions when more than 1/2 of members attend its meeting.”

10.4.2. The Republic of Lithuania’s Law on Political Parties (wording of 23 March 2004) which regulates “formation, activities, rights, specific features of the termination (reorganisation and liquidation) and restructuring of legal persons whose legal form is a political party” does not establish any special formation of the management body of a political party, the activity or regulation of competence thereof, however, Paragraph 2 of Article 6 which consolidates the requirements for the founding documents of a political party provides that a statute of a political party must indicate inter alia: the competence, periodicity of a congress (meeting, conference) of the political party, as well as the procedure for convening it and taking decisions (Item 8); the collegiate management bodies of the political party, their competence, the procedure for electing and recalling them, the period of time for which the collegiate management bodies may be elected, the procedure for taking their decisions (Item 9); the procedure for electing and recalling the leader of the political party, the period of his competence for which he may be elected (Item 10); the procedure of accountability of the management bodies of the political party to a congress (meeting, conference) and the procedure of control over their activities.

10.4.3. Paragraph 1 of Article 2 of the Republic of Lithuania’s Law on Charity and Sponsorship Funds (wording of 22 December 2003) defines the notion of the fund: “A fund is a public legal person of limited civil liability having its own name and the objective of providing charity and/or sponsorship and other support, in accordance with the procedure laid down in the Law on Charity and Sponsorship of the Republic of Lithuania (hereinafter referred to as the Law on Charity and Sponsorship) and this Law, to legal and natural persons in the fields of science, culture, education, arts, religion, sports, health care, social care and assistance, environmental protection as well as in other fields recognised as selfless and beneficial to society.”

Paragraph 1 of Article 7 of this law provides that the fund must hold general meetings of stakeholders and shall set up a managing body (single-person and/or collegiate).

The legal regulation of the managing bodies of the fund is consolidated in Article 9 of the Law on Charity and Sponsorship Funds:

Article 9. Managing bodies

1. The managing body shall act on behalf of the fund in respect of relations with other persons and it shall also conclude transactions on behalf of the fund.

2. In addition to performing the functions specified in Article 2.82 of the Civil Code, the managing body shall hire and release employees, conclude employment contracts, prepare a report on the fund’s activities and present it to the general meeting of stakeholders, allocate funds for charity and sponsorship, confirm the valuation of property contributions, analyse the results of the fund’s activities, estimates of income and expenditure, the findings of audits, stocktaking and other inventory records, publish or arrange the publication of public information, organise voluntary work in accordance with the procedure established by the Government as well as deal with other issues within the scope of its competence as prescribed by this Law and the articles of association. The managing body shall also adopt decisions on the establishment of branches and representative offices as well as on the termination of their activities and shall approve their regulations, unless otherwise provided by the articles of association.

3. Where several managing bodies are set up within a fund, the articles of association shall determine the scope of competence for each such body.

4. Members of a managing body may be remunerated for carrying out its work.

5. Natural persons who are members of the fund and natural persons nominated by the fund’s stakeholders who are legal persons may be members of a collegiate managing body. The articles of association of the fund may stipulate additional requirements for members of a collegiate managing body.

6. A collegiate managing body may adopt decisions if more than 1/2 members are present at the meeting.”

10.5. In the context of the constitutional justice case at issue, while summing up the said legal regulation linked to the structure of management of legal persons of various forms and the competence of the management bodies, it needs to be noted that a leading office is usually linked with the competence of a certain management body to give obligatory instructions to other employees of the legal person or the possibility of forming the directions of the activity of the legal person or its structural unit.

Both a single-person subject of management of the legal person—the head of a company, the director, president of an enterprise—and the person who manages the collegial body of a legal person, for example, the chairperson of the board, should be regarded as leading persons.

However, in this context, it is also necessary to emphasise the fact that taking account of the today’s variety of forms of establishment and activity of the legal persons and the variety of the management structure, it would be very difficult to define a leading office in the legal manner, in addition, it could create preconditions for the enterprises to manipulate the management structure in order to avoid liability. Therefore, the construction of the notion “leading office” from the point of view of application of criminal liability to the legal persons must be not a linguistic one, but a systemic one, where several criteria are applied which help to assess in a complex manner the role of a concrete natural person for the activity of the legal person, i.e. the structure of management of the legal person, the office held by the concrete person, the description of this office (instruction of the office), and the functions implemented by him. For example, when the legal person is an enterprise or organisation of a complex structure, also the heads of divisions or units of legal persons may be regarded as leading persons.

10.6. As mentioned before, the natural person specified in Paragraph 2 of Article 20 of the CC, upon commission of a criminal deed for which also a legal person may be brought to criminal liability, in addition to the already discussed feature of the “leading office”, may be described also by the fact that such natural person, holding a leading office in the legal person, must have the right either to represent the legal person, or to adopt decisions on behalf of the legal person, or to control the activity of the legal person.

10.6.1. It needs to be noted that taking account of the fact that the said features of a person, who committed a criminal deed for the benefit or in the interests of the legal person, which are enumerated in Paragraph 2 of Article 20 of the CC, are applied only to the person who holds a leading office, in this case, representation should be understood as non-contractual representation (i.e. the right to act on behalf of the legal person is linked to a leading office of the corresponding natural person).

10.6.2. The right to adopt decisions on behalf of the legal person means the right to decide questions linked to the activity of the legal person and his relations with third persons. This right usually may include the competence to decide the questions of the structure of the legal person and staff thereof (to employ and release employees, to define their functions, to establish the system of payment for work, including incentive measures, to impose disciplinary punishments on employees, etc.), the questions linked to the strategy of activity of the legal person (for example, drawing up business plans) and questions of management of finance.

10.6.3. The right to control the activity of the legal person, as well as other features, should be construed taking account also of the said provisions of the legal acts which regulate the competence of the management bodies of the legal persons of various kinds. This right is linked to the system of internal control over the legal person, whereby one seeks to ensure the lawfulness, results, efficiency of the activity of the legal person, implementation of his strategic goals, effective and lawful use and accounting of the financial resources, observation of fulfilment of obligations to the third persons and management of risk factors linked to all that. Therefore, the control implemented by the person who holds a leading office means, inter alia, the right to control whether the activity of the legal person is implemented properly, as well as the right to take certain measures so that the activity would be implemented properly and that ultimate results of activity would be achieved. This right includes not only the control over the management of the results of the activity and financial resources of an organisation, but it can also include, for example, the control over the fulfilment of safety requirements in an enterprise, etc.

10.7. Paragraph 3 of Article 20 of the CC also establishes the possibility of bringing a legal person to criminal liability for a deed committed by an employee or an authorised representative of the legal person, if this deed has been committed due to insufficient supervision or control over the person who holds a leading office.

Under Paragraph 3 of Article 20 of the CC, the legal person may also be liable for the criminal deed committed by the employee of the legal person or his authorised representative, however, only in the case where such deed has been committed due to insufficient supervision or control over the person who holds a leading office. Differently from the formula “the legal person shall be liable” used in Paragraph 2 of Article 20 of the CC, the formula “the legal person may be liable” entrenched in Paragraph 3 of the same article should be construed as meaning that the court, in this case deciding the question of criminal liability of the legal person, must assess the nature of lack of non-supervision or control over the person who holds a leading office and the influence thereof on the commission of the criminal deed: whether the person who holds a leading office did not implement the functions of supervision and control authorised to him deliberately or even intentionally, or implemented them negligently, whether these functions were carried out not carefully enough and whether that could determine (or even encourage) the commission of the criminal deed, etc.

The concept of the employee of the legal person should be construed referring to the provisions of the Labour Code of the Republic of Lithuania which regulates the legal employment relations that define the notion of the employee. Article 15 of the Labour Code provides that the employee is a natural person possessing legal capacity and capability in employment relations according to Article 13 of this code, employed under employment contract for remuneration. Paragraph 1 of Article 95 of the Labour Code specifies the necessary conditions of the employment contract on which the parties must agree, i.e. the employee’s place of work (enterprise, establishment, organisation, structural subdivision, etc.), and job functions (work in a certain profession, speciality, qualification, or specific duties).

Thus, while applying Paragraph 3 of Article 20 of the CC, the employee shall be considered a person, who is linked to a legal person by employment relations, when it is agreed on the necessary conditions of the employment contract.

While defining the right of representation by applying Paragraph 3 of Article 20 of the CC, one should take account of the provisions of the Civil Code which regulate the relations of contractual representation, inter alia, on the ground of authorisation or procuracy.

Article 2.137 of the Civil Code prescribes:

Article 2.137. Power of Attorney

1. Power of attorney shall be a written document granted by a person (principal) to other person (authorised representative) to represent the principal in establishing and maintaining relations with the third persons.

2. An authorised representative whose rights in the power of attorney are not clearly defined shall enjoy the right to perform only those actions, which are necessary for the protection of the principal’s property and property interests as well as supervision of the principal’s property.”

Article 2.176 of the Civil Code defines the concept of procuracy: “Procuracy shall be a power of attorney, which a legal person (entrepreneur) grants to his employee or other person to perform, in the principal’s name and in his interests, all legal acts related to the legal person’s (entrepreneur’s) undertaking.”

The rules of the conclusion of contracts by representatives should also be mentioned:

Article 2.132. Conclusion of Contracts by Representatives

1. Persons shall enjoy the right to conclude contracts through representatives with the exception of those contracts which, due to their character, may be concluded only personally as well as other contracts prescribed by law.

2. Agency shall be possible on the basis of contract, law statute, court judgment or an administrative act.

3. Legally capable natural persons as well as legal persons may act as representatives.

4. Persons who act in their own name although in the interest of other person shall not be deemed to be representatives (sales intermediaries, etc.).”

Namely on the contractual representation relations, inter alia, regulated by the said provisions of the Civil Code, should the concept of the legal person be grounded also by applying Paragraph 3 of Article 20 of the CC.

10.8. Another condition for criminal liability of the legal person is commission of a criminal deed individually or on behalf of the legal person and for the benefit or in the interests of the legal person. It is important to note that the feature of the benefit is usually construed as linked to the guarantee of the material benefit, while the guarantee of the interests—as meaning the implementation of other (non-material) objectives of the legal person. It also needs to be noted that this feature helps to qualify the deed and to establish when the criminal deed committed by the natural person may be regarded as a criminal deed of the legal person, i.e. when from this deed, the legal person has a specific benefit and when he recognises that benefit, or when the legal person is interested in such deed and the consequences created by it.

11. Therefore, under the legal regulation established in Paragraphs 1, 2 and 3 of Article 20 of the CC, the legal person may be brought to criminal liability on the following conditions:

1) the committed criminal deed falls within the list of criminal deeds specified in the special part of the CC for which criminal liability of legal persons is provided for;

2) a) the criminal deed was committed by the natural person who acted on behalf of the legal person or individually which holds a leading office in the legal person (depending on the structure of the legal person, the leading office may be both a single-person management body of the legal person—the head of a company, the director, president of an enterprise—or a member, who represents the collegial management body of the legal person, for example, the chairperson of the board or the head of a division or a unit) and has the right either to represent the legal person (it is a non-contractual representation including the right to act on behalf of the legal person which is linked to a leading office of the corresponding natural person), or to adopt decisions on behalf of the legal person (it is the right to decide questions linked to the activity of the legal person and relations with the third persons) or to control the activity of the legal person (it is the right to control whether the activity of the legal person is implemented properly, as well as the right to take certain measures so that the activity would be implemented properly and that ultimate results of activity would be achieved); b) or the criminal deed was committed by the natural person who is an employee of the legal person (the person who is linked to the legal person by employment relations) or an authorised representative (when the person and the legal person are linked to each other by the contractual representation relations grounded on the letter of attorney, procuracy, etc.) and the deed has been committed due to insufficient supervision or control over the person who holds a leading office;

3) the criminal deed was committed for the benefit or in the interests of the legal person (when from the deed committed by the natural person, the legal person has a specific benefit and when he recognises that benefit or when the legal person is interested in such deed and the consequences created by it) or only for the benefit thereof.

12. The provision of Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC which is impugned in this constitutional justice case consolidates the exceptions of application of the criminal liability for certain legal persons. Under the said provision of the CC, criminal liability shall not be applied to the state, the state or municipal institutions and establishments and international public organisations.

12.1. While construing this exception of criminal liability of the legal persons provided for in the CC, one must assess the concepts of the legal persons and their types consolidated in the laws. As mentioned before, Article 2.34 of the Civil Code consolidates the division of the legal persons into public and private persons (Paragraph 1); it defines that public legal persons shall be legal persons established by the state or municipalities, their institutions or other non-profit-seeking persons whose goal is to meet public interests (state and municipality enterprises, state or municipality institutions, public institutions, religious communities, political parties, charity and relief funds, etc.) (Paragraph 2); it also defines the notion of private legal persons: private legal persons shall be legal persons, which aim at meeting private interests (Paragraph 3). According to Paragraph 1 of Article 2.35 of the Civil Code, the state and municipalities shall be legal persons.

12.2. In this context, one should discuss how the notions of the subjects specified in Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC for which criminal liability is not applied are defined.

12.2.1. While construing the constitutional concept of the state, the Constitutional Court has held in its acts more than once that the state is an organisation of the entire society (the Constitutional Court’s rulings of 25 November 2002, 4 March 2003, 30 September 2003, 3 December 2003, 30 December 2003, and 13 December 2004); the power of the state, as a political organisation of the entire society, covers all the territory of the state, and it is designated for ensuring human rights and freedoms and guaranteeing the public interest (the Constitutional Court’s rulings of 30 December 2003 and 13 December 2004); the state, when exercising its functions, must act in the interests of entire society (the Constitutional Court’s rulings of 4 March 2003 and 13 December 2004).

12.2.2. In the official constitutional doctrine, the constitutional concept of local self-government is construed as self-regulation and self-action of the communities of the administrative units of state territory, in accordance with the competence defined by the Constitution and laws, which are provided for by law (i.e. territorial or local communities), and which are composed of permanent residents of these units (citizens of the Republic of Lithuania and other permanent residents). The Constitutional Court has also held that the Constitution names communities of state administrative territorial units (territorial communities) as municipalities (or local municipalities). However, due to the fact that the right of self-government is inseparable from the institutions through which the said right is implemented and/or from the organisation and activities of the institutions which are accountable to them, it is not coincidence that the Constitution employs the notion of “municipality” not only in the sense of the territorial community of an administrative unit but also in the sense of local self-government institutions and/or the institutions which are accountable to them (the Constitutional Court’s rulings of 24 December 2002 and 13 December 2004).

12.2.3. In the Constitutional Court’s ruling of 13 December 2004, it is emphasised that the state exercises its functions through the system of respective establishments; the system of state institutions comprises various state institutions; the notion “state institutions” is of general type and it comprises various state institutions through which the state exercises its functions.

12.2.4. While construing the constitutional concept of self-government institutions in the acts of the Constitutional Court, it needs to be noted that the right of self-government is implemented through self-government institutions-municipal councils; no other self-government institutions, save the municipal councils, are specified in the Constitution; the notion “self-government institutions” expresses the constitutional purpose of corresponding institutions of territorial communities of administrative units: they are institutions through which the right of self-government of respective communities is implemented (the Constitutional Court’s rulings of 24 December 2002 and 13 December 2004).

In this context, it needs to be noted that while acting according to the competence defined by the Constitutions and laws, while exercising public administration and/or providing public service, the municipalities (their institutions) ensure the public interest not only of the territorial community, but the public interest of the entire community of the state—the civil Nation, which is ensured, according to their competence, by state institutions as well (the Constitutional Court’s ruling of 13 December 2004).

When summing up the concepts of the said legal persons, it needs to be noted that a specific legal status is typical for the state, municipalities and state and municipal institutions and establishments: the rights and duties of these subjects may not be in conflict with the objectives and tasks of the state.

12.2.5. The international public organisation is a subject of international law. The international public organisations are defined as permanent formations of intergovernmental (cross-border) nature which were founded on the basis of an international agreement in order to help solving international problems specified in their founding documents as well as to comprehensively develop international cooperation. The main features of such organisations are as follows: 1) contractual basis of international organisation; 2) the members of the organisations are states; 3) cross-border objectives; 4) international legal subjectiveness; 5) compliance with international law.

Therefore, the enumerated features describing the specified public legal persons—the state, the municipality, the state and municipal institutions and establishments, international public organisations—testify that these subjects, in comparison with other public legal persons, are specific ones according to their legal situation and functions.

13. The content of the said provisions of the Civil Code and the content of laws which regulate the activity of the legal persons of various kinds and forms (the Law on Associations, the State and Municipal Enterprise Law, etc.) reveal that the concept of the public legal persons includes not only the state, municipalities, state or municipal institutions and establishments, but also other legal persons the purpose of which is to satisfy the public interests, inter alia, the state and municipal enterprises, public establishments, religious communities, etc. Therefore, not only the state or municipal institutions and establishments which implement the public functions commissioned by the state or municipalities fall within the category of the public legal persons, but also those subjects which are engaged in economic activities (state and municipal enterprises), and non-governmental public organisations (religious communities, public establishments, associations, charity and relief funds).

Taking account of this, it needs to be noted that not all public legal persons are categorised as the legal persons specified in Paragraph 5 of Article 20 of the CC to whom criminal liability is not applied. In this provision of the CC, the specific legal persons are specified—they should be singled out from the whole category of the public legal persons according to the following essential features: they are founded for implementation of purposes which are important to society (for implementation of functions of public significance, for provision and administration of public services) and usually they are not engaged into economic activity.

14. It has been mentioned that according to the CC, the legal person shall be liable only for those criminal deeds, for the commission of which liability is provided for such person in this code. Therefore, taking account of this fact, it needs to be noted, for what criminal deeds criminal liability is provided for legal persons in the CC.

14.1. The CC (wording of 26 September 2000) provides for the criminal liability of the legal person for the following criminal deeds: for negligent homicide in violation of the special conduct security rules as specified by legal acts (Paragraph 3 of Article 132), severe health impairment caused through negligence, when it is committed in violation of the special conduct security rules as specified by legal acts (Paragraph 3 of Article 137), unlawful violation of inviolability of a person’s correspondence, other messages, postal items or telephone conversations (Item 166), unauthorised disclosure or use of information about a person’s private life (Article 168), incitement against any national, racial, ethnic, religious or other group of persons (Article 170), unlawful use of energy and communication services (Article 179), swindling (Paragraphs 1 and 2 of Article 182), misappropriation of property (Paragraphs 1 and 2 of Article 183), causing pecuniary damage by deceit (Paragraph 1 of Article 186), destruction of or damage to property through negligence (Paragraph 2 of Article 188), unlawful reproduction of a literary, scientific, artistic or other work, distribution, transportation or storage of illegal copies thereof (Article 192), destruction or alteration of information about management of author’s rights or related rights (Article 193), unlawful removal of technical protection means of author’s rights or related rights (Article 194), violation of industrial property rights (Article 195), destruction or modification of computer data (Article 196), destruction or modification of software (Article 197), appropriation and distribution of computer data (Article 198), smuggling (Article 199), unlawful failure to bring goods or products outside the Republic of Lithuania (Article 200), unauthorised engagement in economic, commercial, financial or professional activities (Article 202), unlawful activities of a legal subject on a large scale (Paragraph 1 of Article 203), use of another’s trademark or service mark (Article 204), misleading declaration about the activities of a legal subject (Article 205), use of a credit or a loan not in accordance with its purpose (Article 206), credit fraud (Article 207), dishonesty of a debtor (Article 208), realisation of counterfeit currency or securities (Paragraph 3 of Article 213), legalisation of money or property which has been obtained by criminal means (Article 216), trade in securities by using non-public information (Article 217), manipulating the price of securities (Article 218), failure to pay taxes (Article 219), provision of inaccurate data on income, profit or assets (Article 220), failure to submit declaration (Article 221), fraudulent management of accounts (Article 222), negligent management of accounts (Article 223), bribery (Article 225), bribe (Article 227), violation of the rules governing the storage of a firearm, ammunition, explosives or explosive materials (Article 255), violation of the rules governing lawful possession of nuclear or radioactive materials (Article 257), violation of the regulations governing lawful possession of psychotropic, highly active or toxic substances (Article 268), violation of the rules governing environmental protection or the use of natural resources (Article 270), destruction or devastation of protected areas or protected natural objects (Article 271), unauthorised forest cutting (Article 273), unauthorised pharmaceutical activities (Article 275), production of or trading in the products harmful to human health or life (Article 276), violation of the regulations governing the control over epidemics or contagious diseases (Article 277), unlawful transportation of persons across the state border (Article 292), organisation of travels of citizens of the Republic of Lithuania abroad for the purpose of staying there illegally or abandoning them without assistance (Article 293), forgery of a document or possession of a forged document (Article 300), forgery of a seal, stamp or form (Article 301), seizure of a seal, stamp or document or use of the seized seal, stamp or document (Article 302), destruction or concealment of a seal, stamp or document (Article 303), provision of false information for the purpose of acquisition of a document (Article 304), release and use of measuring devices without undergoing state metrological control or alteration of parameters thereof (Article 305) and the seizure, forgery or handling of the stamp of a state control mark or the use of a counterfeit stamp (Article 306).

14.2. On 10 April 2003, the Seimas adopted the Republic of Lithuania’s Law on Amending and Supplementing Articles 4, 7, 9, 23, 25, 37, 39, 44, 46, 47, 48, 51, 61, 62, 65, 67, 74, 75, 90, 92, 95, 97, 102, 105, 118, 119, 143, 175, 178, 186, 187, 188, 189, 199, 202, 212, 213, 215, 227, 249, 250, 251, 257, 260, 263, 272, 281 and 291 of the Criminal Code as Approved by Law No. VIII-1968 of 26 September 2000 and Supplementing the Code with Articles 39-1 and 306-1 which came into force on 1 May 2003. This law established, inter alia, the criminal liability of the legal persons also for the following criminal deeds: the acquisition or handling of the property obtained by criminal means (Paragraphs 1 and 2 of Article 189), the act of terrorism (Article 250). In addition, by the said law, the CC (wording of 26 September 2000) was supplemented with Article 306-1 (forgery, unlawful destruction or alteration of the number plate of a vehicle), which provided for the criminal liability also for the legal persons.

14.3. On 29 January 2004, the Republic of Lithuania’s Law on Amending and Supplementing Articles 13, 162, 191, 196, 197, 203, 206, 216, 219, 221 and 309 of the Criminal Code and on Supplementing the Code with Articles 198-1 and 198-2 was adopted, which came into force on 14 February 2004. By this law, criminal liability of legal persons was established also for the following criminal deeds: use of a child for pornography (Article 162), misappropriation of authorship (Article 191) and possession of pornographic material (Article 309). In addition, the CC (wording of 26 September 2000) was supplemented with the following articles which also provide for criminal liability of legal persons: with Article 198-1 (unlawful connection to an information system), and with Article 198-2 (unlawful possession of installations, software, passwords, login codes and other data).

14.4. Article 17 of the Republic of Lithuania’s Law on Amending and Supplementing Articles 20, 42, 63, 67, 68, 72, 75, 77, 82, 90, 91, 92, 95, 97, 128, 144, 148, 150, 178, 182, 194, 195, 201, 204, 205, 210, 211, 212, 220, 221, 222, 223, 230, 236, 246, 248, 260, 263, 287 and 306 of the Criminal Code and on Supplementing the Code with Article 228-1, which was adopted by the Seimas on 5 July 2004 and which came into force on 13 July 2004, established criminal liability of legal persons also for restriction of freedom of a person’s actions (Article 148).

14.5. On 28 October 2004, the Republic of Lithuania’s Law on Amending the Title of Chapter XXXVI of the Criminal Code and on Supplementing the Code with Article 253-1 was adopted, which came into force on 16 November 2004. By this article, the CC (wording of 26 September 2000) was supplemented with Article 253-1 titled “Unauthorised intermediation in the transfer of military equipment” which provided for also the criminal liability of the legal persons for this criminal deed.

14.6. On 11 November 2004, the Republic of Lithuania’s Law on Supplementing the Criminal Code with Article 250-1 was adopted, which came into force on 26 November 2004. By this law, the CC (wording of 26 September 2000) was supplemented with Article 250-1 titled “Incitement of terrorism” which also provided for criminal liability of legal persons for this criminal deed.

14.7. On 23 June 2005, the Seimas adopted the Republic of Lithuania’s Law on Amending and Supplementing Articles 48, 60, 145, 147, 157, 212, 213, 214, 215, 226, 249, 251, 252, 256, 267, 270, 272, 274 and 280 and the Annex of the Criminal Code and on Supplementing the Code with Articles 147-1, 199-1, 199-2, 267-1, 270-1 and 308-1 which came into force on 30 June 2005. By this law, the CC (wording of 26 September 2000) was supplemented, inter alia, with the following articles which also provide for criminal liability of legal persons: Article 147-1 (use for forced labour), Article 199-1 (deceit of the customs), Article 199-2 (unlawful possession of the goods subject to excise duties), Article 267-1 (creation or unlawful possession of biological weapons), Article 270-1 (illicit trade in the substances depleting the ozone layer) and Article 308-1 (prohibited biomedical research involving a human being or a human embryo). By this law, the following criminal deeds were categorised as crimes for which criminal liability of legal persons was provided for: threatening to murder or cause a severe health impairment to a person or terrorisation of a person (Article 145), trafficking in human beings (Article 147), purchase or sale of a child (Article 157), the production, storage or handling of counterfeit currency or securities (Article 213), bribery of an intermediary (Article 226), criminal association (Article 249), hijacking an aircraft, ship or fixed platform on a continental shelf (Article 251), hostage taking (Article 252), unlawful possession of nuclear or radioactive materials or other sources of ionising radiation (Article 256), unlawful possession of highly active or toxic substances (Article 267), illegal hunting or fishing or other use of wild fauna resources (Article 272), unlawful picking, destruction, handling or other possession of protected wild plants, fungi or parts thereof (Article 274) and damage to vehicles or roads, the facilities located thereon (Article 280).

14.8. On 20 January 2006, the Republic of Lithuania’s Law on Amending Articles 300 and 302 of the Criminal Code and on Supplementing the Code with Article 302-1 was adopted, which came into force on 11 February 2006. By this law, the CC (wording of 26 September 2000) was supplemented with Article 302-1 titled “Production, storage, transportation, forwarding or handling of equipment for the forgery of seals, stamps, documents or special accounting document forms” which also provided for criminal liability of legal persons for this activity.

14.9. The Republic of Lithuania’s Law on Amending and Supplementing Articles 149, 150, 151, 162, 260, 265, 266, 307, 308 and 309 and the Annex of the Criminal Code and on Supplementing the Code with Article 151-1 which was adopted on 22 June 2006 and which came into force on 14 July 2006 supplemented the CC (wording of 26 September 2000) with Article 151-1 titled “Satisfaction of sexual desires by violating a minor’s freedom of sexual self-determination and/or inviolability”, in which also criminal liability of legal persons was provided for this criminal deed. By this law, the following criminal deeds are also categorised as crimes for which criminal liability of legal persons is provided for: rape of a minor or a young child (Paragraphs 3 and 4 of Article 149), sexual assault of a minor or a young child (Paragraphs 3 and 4 of Article 150), sexual abuse in respect of a minor (Paragraph 2 of Article 151), unlawful possession of narcotic or psychotropic substances for the purpose of distribution thereof or unlawful possession of a large quantity of narcotic or psychotropic substances (Article 260), illegal cultivation of poppies or hemp (Article 265), unlawful possession of category I precursors of narcotic or psychotropic substances (Article 266), gaining profit from another person’s prostitution (Article 307) and involvement in prostitution (Article 308).

14.10. On 28 June 2007, the Republic of Lithuania’s Law on Amending and Supplementing Articles 7, 38, 47, 63, 66, 70, 75, 82, 93, 129, 166, 167, 172, 178, 180, 181, 182, 183, 184, 185, 189, 194, 196, 197, 198, 198-1, 198-2, 199, 202, 213, 214, 215, 225, 227, 228, 231, 233, 235, 252, 256, 257, 262, 284, 285 and 312 and the Annex, on Amending the Titles of Chapters XXVI and XXX and on Supplementing the Code with Articles 256-1 and 257-1 was adopted, which came into force on 21 July 2007. By this law, in the CC (wording of 26 September 2000), one provided, inter alia, for criminal liability of legal persons for the following criminal deeds: squandering property (Paragraphs 1 and 2 of Article 184), production of a counterfeit electronic means of payment, forgery of a genuine electronic means of payment or unlawful possession of an electronic means of payment or data thereof (Article 214), unlawful use of an electronic means of payment or data thereof (Article 215), abuse of office (Article 228), hindering the activities of a judge, prosecutor, pre-trial investigation officer, lawyer or bailiff (Article 231), influence on a witness, victim, expert witness, specialist or translator (Article 233). In addition, the CC (wording of 26 September 2000) was supplemented with the following articles which also provided for criminal liability of legal persons: Article 256-1 (threat to use or otherwise influence or unlawfully acquire nuclear or radioactive materials or other sources of ionising radiation) and Article 257-1 (production of installations for the production of explosive materials, explosives or radioactive materials or development or distribution of production technologies or specifications thereof).

14.11. Thus, as it is clear from the legal regulation which consolidates criminal liability of the legal person for the specific criminal deeds, the legislature expanded the list of criminal deeds for which legal persons are held criminally liable. Such expansion of the list was linked, inter alia, to the objective of the legislature to harmonise the provisions of the CC with the requirements which stem from international documents, inter alia, EU law. However, it needs to be noted that the legal regulation consolidated in the aforementioned articles of the CC is not a matter of investigation in this constitutional justice case.

15. As mentioned before, in this constitutional justice case, the compliance of Paragraph 4 of Article 43 of the CC with the Constitution is impugned. This provision of the CC should be construed referring to the systemic analysis of the impugned provision in the context of other provisions of the CC, inter alia, of Paragraph 1 of Article 43 and Paragraph 4 (wording of 28 June 2007) of Article 47 of the CC.

15.1. Paragraph 4 of Article 43 of the CC consolidates the provision that the sanctions of articles of the Special Part of this code shall not specify the penalties to which legal subjects are subject, in imposing a penalty upon a legal subject, a court shall refer to the list of punishments specified in Paragraph 1 of this article: fine, restriction of activity of the legal person, liquidation of the legal person. Therefore, under the impugned legal regulation, while imposing a punishment on the legal person, the court must choose one of the punishments specified in Paragraph 1 of Article 43 of the CC. If a fine is selected, it is imposed pursuant to Paragraph 4 (wording of 28 June 2007) of Article 47 of the CC, which establishes the size of the fine established for the legal person—up to 50 000 MSLs. It needs to be noted that the CC does not consolidate any special rules following which a court would have to establish the size of the fine imposed on the legal person in a concrete case, which is not bigger that the specified one.

15.2. In this context it needs to be noted that namely the specificity of the legal person, as a subject of legal relations, inter alia, penal legal relations, as well as criminal liability, also determines that the system of punishments established for him differs from that established for the natural person. Those punishments which are applied to the natural person such as restriction of freedom, arrest, public works, deprivation of the right to work in a certain job may not be objectively imposed on the legal person. On the other hand, certain punishments provided for the legal person, for example, liquidation, may not be imposed on the natural person.

15.3. Neither Article 43 of the CC which provides for the kinds of punishments imposed on the legal person, nor Article 47 which regulates the rules of imposition of a fine, nor Articles 52 and 53 which correspondingly establish the rules for application of punishments of restriction of activity and liquidation of the legal person, provide any criteria under which a certain punishment must be imposed on the legal person and the size (if it is a fine) or term and extent (if restriction of activity is imposed) of that punishment must be established. However, it does not mean that the legal regulation established in the said articles of the CC may be construed that the court, while imposing a punishment on the legal person, may not follow other norms of the CC and the principles consolidated therein, inter alia, the basic principles of imposition of a punishment (to take account of the degree of dangerousness of the criminal deed, the reasons and objectives of the deed, etc.) which are provided for in Article 54 of the CC. Therefore, by the legal regulation consolidated in Article 43 of the CC, one does not prohibit the court from taking account of the basic requirements of imposition of punishments, inter alia, the rules of individualisation of punishments, the rules of summation of punishments, etc.

16. While speaking about regulation of application of criminal liability to legal persons, certain legal norms of criminal procedure and the implementation of punishments should also be mentioned.

16.1. Article 388 of the Code of Criminal Procedure provides:

1. The head or employee of the legal person, or an advocate authorised by the legal person to be the representative in the procedure may be the representative of the legal person which is to be brought to criminal liability.

2. When a letter of attorney to act as the representative in the procedure is presented, the official of a pre-trial investigation adopts a decision to recognise the person as the representative of the legal person.

3. If the legal person delegates an inappropriate person as representative or does not delegate any representative at all, the official of a pre-trial investigation shall have the right to delegate the representative of the legal person by means of a decision.

4. In the procedure, the representative of the legal person shall enjoy full rights which are granted by this Code to the suspect or the accused, as well as shall carry out the duties of these participants of the procedure.”

16.2. Chapter VI of the Code of Execution of Punishments consolidates the legal regulation of the procedure and conditions of implementation of punishments of restriction of activity of the legal person and liquidation of the legal person. Article 27 of this Code established the following:

Article 27. Implementation of punishment of restriction of activity of the legal person

1. The bailiff shall send the inducement paper to implement the judgment at goodwill to the legal person within seven working days as from the date of receipt of a copy of the judgment. In the inducement paper it is specified what activity of the legal person must be terminated or which unit of the legal person must be closed and the term is established within which the legal person must do that.

2. The legal person, having implemented the actions specified in the inducement paper, must inform the bailiff about it in writing. The bailiff, having verified the actions done by the legal person, must draw up an act of execution of the judgment. The form of this act shall be established by the Ministry of Justice.

3. If the legal person, due to objective reasons, may not perform the actions specified in the inducement paper within the established term, the bailiff shall have the right to extend the term subsequent to a reasoned request by the legal person. The ordinance not to extend the term established in the inducement paper may be appealed against in the local court of the territory of the bailiff’s activity under the procedure established in the Civil Code.

4. If, within the established term, the legal person does not implement the actions specified in the inducement paper, the bailiff or person commissioned by him shall perform the actions necessary for the judgment.

5. During the whole period of implementation of punishment, the bailiff himself of through the commissioned person shall control, how the legal person complies with the restrictions of activity established in the judgment.”

Article 28 of the Code of Execution of Punishments consolidates the procedure of liquidation of the legal person. It provides:

Article 28. Execution of punishment of liquidation of the legal person

1. Within seven working days as from the date of receipt of a copy of the judgment, the bailiff shall send the inducement paper to the legal person to terminate all economic, commercial, financial or professional activity and to close all the units of the legal person within the term specified in the judgment, as well as to perform other procedures of liquidation and to strike the legal person off the register of legal persons. In addition, in the inducement paper one specifies the term in which the liquidator of the legal person must be assigned and a plan of execution of liquidation of the legal person must be prepared if the bailiff decides so.

2. If the body of the legal person does not assign the liquidator within the established term, the bailiff or other person who meets the requirements raised for the liquidator shall be designated as the liquidator by the ordinance of the bailiff within up to ten working days.

3. The Civil Code and other legal acts establish the actions of the body of the legal person and the liquidator in the execution the liquidation of the legal person. The liquidator shall announce in public once and shall inform all the creditors in writing about liquidation of the legal person subsequent to the court judgment.

4. If the body of the legal person or the liquidator may not liquidate the legal person within the term established in the judgment due to objective reasons, the local court of the territory of the bailiff’s activity, upon receipt of the reasoned request from the legal person or the liquidator and the a conclusion of the bailiff, shall have the right to extend the established term.”

III

1. It needs to be noted that criminal liability of legal persons is not a novel of criminal law. Criminal liability of legal persons is provided for in the penal laws of most European states, for example, in the Criminal Code of Finland, the Penal Code of France, the Croatian Law on Liability of Legal Persons for Criminal Violations, the Prevention of Corruption Act of Ireland and criminal laws of Portugal and Belgium.

2. It has been mentioned that the consolidation of criminal liability of the legal person in the CC is linked, inter alia, to the objective of the legislature to harmonise the provisions of the CC with the requirements which stem from international documents, inter alia, EU law. In the context of the constitutional justice case at issue, the following provisions of international documents should be mentioned:

Article 5 of the International Convention for the Suppression of the Financing of Terrorism signed on 9 December 1999 (ratified by the Seimas by Law No. IX-1216 of 3 December 2002) provides: each State Party, in accordance with its domestic legal principles, shall take the necessary measures to enable a legal entity located in its territory or organised under its laws to be held liable when a person responsible for the management or control of that legal entity has, in that capacity, committed an offence; such liability may be criminal, civil or administrative (Paragraph 1); such liability is incurred without prejudice to the criminal liability of individuals having committed the offences (Paragraph 2); each State Party shall ensure, in particular, that legal entities liable in accordance with Paragraph 1 above are subject to effective, proportionate and dissuasive criminal, civil or administrative sanctions; such sanctions may include monetary sanctions (Paragraph 3);

the provisions linked to liability of the legal person consolidated in Article 10 of the United Nations Convention against Transnational Organised Crime signed on 13 December 2000 in Palermo (ratified by the Seimas by Law No. IX-794 of 19 March 2002) are essentially analogous to those established in Article 5 of the International Convention for the Suppression of the Financing of Terrorism;

Article 18 titled “Corporate Liability” of the Criminal Law Convention against Corruption signed by the member states of the Council of Europe and other states on 27 January 1999 in Strasbourg (ratified by the Seimas by Law No. IX-736 of 25 January 2002) established the following: each Party shall adopt such legislative and other measures as may be necessary to ensure that legal persons can be held liable for the criminal offences of active bribery, trading in influence and money laundering established in accordance with this Convention, committed for their benefit by any natural person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on a power of representation of the legal person; or an authority to take decisions on behalf of the legal person; or an authority to exercise control within the legal person; as well as for involvement of such a natural person as accessory or instigator in the above-mentioned offences (Paragraph 1); apart from the cases already provided for in Paragraph 1, each Party shall take the necessary measures to ensure that a legal person can be held liable where the lack of supervision or control by a natural person referred to in Paragraph 1 has made possible the commission of the criminal offences mentioned in Paragraph 1 for the benefit of that legal person by a natural person under its authority (Paragraph 2); liability of a legal person under paragraphs 1 and 2 shall not exclude criminal proceedings against natural persons who are perpetrators, instigators of, or accessories to, the criminal offences mentioned in Paragraph 1 (Paragraph 3);

in Paragraph A of Item 3 of Chapter I titled “Liability” of Recommendation No. R (88)18 of the Council of Europe Committee of Ministers to Member States Concerning Liability of Enterprises Having Legal Personality for Offences Committed in the Exercise of their Activities adopted on 20 October 1988, it is recommended for the Member States to render enterprises criminally liable taking into account the nature of the offence, the degree of guilt on the part of the enterprise, the consequences for society and the need to prevent further offences;

in Section VI titled “Penal Legislation and Judicial Co-operation” of Recommendation No. R(2000)11 of the Committee of Ministers of the Council of Europe of 19 May 2000, in addition to the necessity to introduce or increase penal sanctions that are in proportion to the gravity of the offences including custodial sentence (Item 43), it is specified, inter alia, that rules governing the liability of legal persons, with specific penalties, must be envisaged (Item 46);

Item 12 of Appendix 11 of Recommendation No. R(2001)11 of the Committee of Ministers of the Council of Europe to the Member States Concerning Guiding Principles on the Fight against Organised Crime of 19 September 2001 specifies that member states should ensure that legal persons can be held liable for offences committed on their behalf and linked to organised crime;

Article 3 of the Second Protocol of the Convention on the Protection of the European Communities’ Financial Interests drawn up on the basis of Article K.3 of the Treaty on European Union of 26 July 1995 (ratified by the Seimas by Law No. IX-2021 of 12 February 2004) established the following: each Member State shall take the necessary measures to ensure that legal persons can be held liable for fraud, active corruption and money laundering committed for their benefit by any person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on a power of representation of the legal person, or an authority to take decisions on behalf of the legal person, or an authority to exercise control within the legal person, as well as for involvement as accessories or instigators in such fraud, active corruption or money laundering or the attempted commission of such fraud (Paragraph 1); apart from the cases already provided for in Paragraph 1, each Member State shall take the necessary measures to ensure that a legal person can be held liable where the lack of supervision or control by a person referred to in Paragraph 1 has made possible the commission of a fraud or an act of active corruption or money laundering for the benefit of that legal person by a person under its authority (Paragraph 2); liability of a legal person under Paragraphs 1 and 2 shall not exclude criminal proceedings against natural persons who are perpetrators, instigators or accessories in the fraud, active corruption or money laundering (Paragraph 3).

It needs to be noted that in the Preamble of the Second Protocol of this convention the Member States of the European Union noted, inter alia, that they sign this protocol “aware that the financial interests of the European Communities may be damaged or threatened by acts committed on behalf of legal persons and acts involving money laundering” and “convinced of the need for national law to be adapted, where necessary, to provide that legal persons can be held liable in cases of fraud or active corruption and money laundering committed for their benefit that damage or are likely to damage the European Communities’ financial interests.”

The definition of the notion “legal person” presented in Item d of Article 1 of the Second Protocol of this convention should also be mentioned: “legal person shall mean any entity having such status under the applicable national law, except for States or other public bodies in the exercise of State authority and for public international organisations”;

Article 39 of the Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering and Terrorist Financing which regulates the sanctions provides:

1. Member States shall ensure that natural and legal persons covered by this Directive can be held liable for infringements of the national provisions adopted pursuant to this Directive. The penalties must be effective, proportionate and dissuasive.

2. Without prejudice to the right of Member States to impose criminal penalties, Member States shall ensure, in conformity with their national law, that the appropriate administrative measures can be taken or administrative sanctions can be imposed against credit and financial institutions for infringements of the national provisions adopted pursuant to this Directive. Member States shall ensure that these measures or sanctions are effective, proportionate and dissuasive.

3. In the case of legal persons, Member States shall ensure that at least they can be held liable for infringements referred to in paragraph 1 which are committed for their benefit by any person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on:

a) a power of representation of the legal person;

b) an authority to take decisions on behalf of the legal person, or

c) an authority to exercise control within the legal person.

4. In addition to the cases already provided for in paragraph 3, Member States shall ensure that legal persons can be held liable where the lack of supervision or control by a person referred to in paragraph 3 has made possible the commission of the infringements referred to in paragraph 1 for the benefit of a legal person by a person under its authority.”

Article 9 of Council Regulation (EC) No 2580/2001 of 27 December 2001 on Specific Restrictive Measures Directed against Certain Persons and Entities with a View to Combating Terrorism provides that each Member State shall determine the sanctions to be imposed where the provisions of this regulation are infringed; such sanctions shall be effective, proportionate and dissuasive.

Article 10 of this regulation provides that this regulation shall apply to any legal person, group or entity incorporated or constituted under the law of a Member State (Item 4); to any legal person, group or entity doing business within the Community (Item 5);

In Item 10 of the Preamble to the Council Framework Decision 2004/68/JHA of 22 December 2003 on Combating the Sexual Exploitation of Children and Child Pornography it is noted that “the specific characteristics of the combat against the sexual exploitation of children must lead Member States to lay down effective, proportionate and dissuasive sanctions in national law. Such sanctions should also be adjusted in line with the activity carried on by legal persons.”

Article 6 of this decision which regulates liability of legal persons provides, inter alia, that each Member State shall take the necessary measures to ensure that legal persons can be held liable for an offence referred to in Articles 2, 3 and 4 committed for their benefit by any person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on a power of representation of the legal person, an authority to take decisions on behalf of the legal person or an authority to exercise control within the legal person.

Article 7 of this decision which regulates the sanctions provides:

1. Each Member State shall take the necessary measures to ensure that a legal person held liable pursuant to Article 6(1) is punishable by effective, proportionate and dissuasive sanctions, which shall include criminal or non-criminal fines and may include other sanctions such as:

(a) exclusion from entitlement to public benefits or aid;

(b) temporary or permanent disqualification from the practice of commercial activities;

(c) placing under judicial supervision;

(d) a judicial winding-up order; or

(e) temporary or permanent closure of establishments which have been used for committing the offence.

2. Each Member State shall take the necessary measures to ensure that a legal person held liable pursuant to Article 6(2) is punishable by effective, proportionate and dissuasive sanctions or measures.”

In Item 6 of the Preamble of the Council Framework Decision 2005/667/JHA of 12 July 2005 to Strengthen the Criminal-law Framework for the Enforcement of the Law against Ship-Source Pollution, it is noted that “due to the specific nature of the conduct, common penalties with regard to legal persons should be introduced.”

Article 5 of the decision establishes liability of legal persons for the offences specified in Articles 2 and 3 of this decision.

Paragraph 1 of Article 6 of this decision, which regulates the sanctions, provides:

1. Each Member State shall take the measures necessary to ensure that a legal person held liable pursuant to Article 5(1) is punishable by effective, proportionate and dissuasive penalties. The penalties:

a) Shall include criminal or non-criminal fines, which, at least for cases where the legal person is held liable for offences referred to in Article 2, are:

i) of a maximum of at least between EUR 150 000 and EUR 300 000;

ii) of a maximum of at least between EUR 750 000 and EUR 1 500 000 in the most serious cases, including at least the intentionally committed offences covered by Article 4(4) and (5).

b) may, for all cases, include penalties other than fines, such as:

i) exclusion from entitlement to public benefits or aid;

ii) temporary or permanent disqualification from engaging in commercial activities;

iii) placing under judicial supervision;

iv) a judicial winding-up order;

v) the obligation to adopt specific measures in order to eliminate the consequences of the offence which led to the liability of the legal person.”

3. While summing up the legal regulation consolidated in the said acts of international law linked to establishment of liability for legal persons for deeds of criminal nature, it needs to be noted that the states are obliged or they are recommended (taking account of the obligation of the legal act) to establish, for deeds of criminal nature, such sanctions to legal persons, which would be effective, proportionate and dissuasive measures. Thus, on the one hand, certain freedom is left for the states to establish the kind of liability and the conditions of its application to legal persons taking account of the specificity of the national law. On the other hand, the main requirement for the states while establishing the liability and sanctions to be applied to legal persons is that such sanctions must be proportionate to the committed violations. In other words, while establishing liability to legal persons for unlawful deeds, the states should assess whether these unlawful deeds are regarded as crimes according to the national law, or whether they are regarded as offences of different nature (torts, administrative violations, etc.), and, taking account of that, apply the corresponding liability and sanctions provided for these deeds in the national law.

4. It also needs to be noted that certain legal acts of international law not only consolidate the basic requirements and principles for establishment of liability of the legal persons for the deeds of criminal nature, but also regulate the conditions of application of that liability.

For example, Article 18 of the aforementioned Criminal Law Convention on Corruption signed by the Member States of the Council of Europe and other states in Strasbourg on 27 January 1999 provides that legal persons can be held liable for the criminal offences of active bribery, trading in influence and money laundering established in accordance with this Convention, committed for their benefit by any natural person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on a power of representation of the legal person, an authority to take decisions on behalf of the legal person or an authority to exercise control within the legal person. Under Paragraph 2 of the same article, a legal person can be held liable where the lack of supervision or control by a natural person referred to in Paragraph 1 has made possible the commission of the criminal offences mentioned in Paragraph 1 for the benefit of that legal person by a natural person under its authority.

It needs to be noted that the provisions of Article 20 of the CC which are impugned in this constitutional justice case consolidate an essentially analogous regulation of application of criminal liability to the legal persons to the one mentioned.

IV

1. In this constitutional justice case the petitioners request an investigation into the compliance of the provisions of the CC which regulate criminal liability of the legal person with Paragraphs 1 and 2 of Article 23, Article 29, Article 31 and Paragraphs 1, 2 and 3 of Article 46 of the Constitution and with the constitutional principle of a state under the rule of law.

2. The Constitutional Court has held more than once that:

the striving for an open, just, and harmonious civil society and a state under the rule of law established in the Preamble to the Constitution implies that every individual and the whole society must be safe from unlawful attempts against them (the Constitutional Court’s rulings of 8 May 2000 and 16 January 2006);

crimes are violations of law by which human rights and freedoms as well as other values protected and defended by the Constitution are especially grossly violated, negative impact is made on the living conditions, the subsistence level of people, and by which the fundamentals of life of the state and society are encroached upon (the Constitutional Court’s rulings of 8 May 2000, 29 May 2004 and 16 January 2006);

one of the means for protection of rights and freedoms of the human being as well as other constitutional values is criminal liability for criminal deeds (the Constitutional Court’s rulings of 10 June 2003 and 4 July 2003);

the purpose of the state as a political organisation of the entire society is to ensure human rights and freedoms and to guarantee the public interest, therefore, while exercising its functions and acting in the interests of the entire society, the state has the obligation to efficiently ensure effective protection of human rights and freedoms, other values protected and defended by the Constitution, of every individual and the whole society from, inter alia, criminal attempts (the Constitutional Court’s rulings of 29 December 2004 and 16 January 2006);

if the state did not resort to proper actions attempting to prevent crimes, the trust in state power and laws would be ruined, disrespect for the legal order and various social institutes would increase. Therefore, under the Constitution, the state, as the organisation of the entire society, which must guarantee the public interest, not only has the right but also an obligation to resort to various lawful measures, which prevent crimes and limit and decrease criminality (the Constitutional Court’s rulings of 8 May 2000 and 16 January 2006);

the measures established and applied by the state, which prevent crimes and limit and decrease criminality must be efficient (the Constitutional Court’s rulings of 8 May 2000 and 16 January 2006);

in a state under the rule of law, the legislature has the right and the duty to legislatively prohibit the deeds by which essential harm is inflicted upon interests of persons, society or of the state or which pose the threat that such harm will appear; the laws define as to what deeds are considered crimes and establish punishment for their commission; by threatening with criminal punishments, they protect individuals and society from criminal attempts against them and establish bases on the grounds of which the persons who have committed crimes are punished in an attempt to correct them (the Constitutional Court’s rulings of 8 May 2000, 10 June 2003, and 16 January 2006);

when regulating the relations linked with the establishment of criminal liability for criminal deeds, the legislature enjoys broad discretion: it, inter alia, may, while taking account of the nature, danger (gravity), scale and other signs of the criminal deeds, consolidate differentiated legal regulation and establish different legal liability for corresponding criminal deeds. However, this discretion of the legislature is not absolute: the legislature must pay heed to the norms and principles of the Constitution, inter alia, the imperatives of regularity and inner consistency of the legal system, which arise from the Constitution (the Constitutional Court’s ruling of 16 January 2006).

3. It needs to be noted that the Constitution does not prescribe expressis verbis that only a natural person may be a subject of criminal liability or that a legal person cannot be a subject of such liability.

It has been mentioned that the specificity of the legal person is determined, inter alia, by the fact that having legal capacity and capability, he is a participant of legal relations through natural persons (head, authorised representative, etc.). It has also been mentioned that the activity of the legal person is inseparable from the activity of the corresponding natural persons through which he acts and without their activity it would be essentially impossible. In the context of the constitutional justice case at issue, it needs to be noted that, while establishing criminal liability of the legal person, the legislature must also take account of the aforementioned specificity of the legal person as a subject of legal relations. The specificity of the legal person also determines the particularities of application of certain legal institutes of criminal law to legal persons. In this context it also needs to be noted that due to such specificity of the legal person, in comparison with the natural person, one cannot apply certain norms of criminal law, which are established for the natural persons to the legal person.

Thus, the specificity of the legal person as a subject of legal relations is determined by the fact that in the Criminal Code one may establish a differentiated legal regulation linked to the criminal liability of the natural person and the legal person. However, in this context it needs to be noted that, while regulating also criminal liability of legal persons, the legislature must heed the norms and principles of the Constitution, inter alia, those consolidated in Article 31 thereof.

4. The following doctrinal provisions linked to the construction of Article 31 of the Constitution should be mentioned in the context of the constitutional justice case at issue:

the provisions of Article 31 of the Constitution should be construed while taking account of the fact that the Constitution establishes the principle of a state under the rule of law, as well as that the Constitution consolidates human rights and freedoms, other constitutional values which must be protected and defended. One of the means for protection of rights and freedoms of the human being as well as other constitutional values is criminal liability for punishable deeds (the Constitutional Court’s ruling of 10 June 2003);

when he regulates relations of criminal procedure, the legislature enjoys rather broad discretion. For instance, the legislature may establish, by means of a law, different kinds of criminal procedure, as well as the peculiarities of the criminal procedure in an investigation into certain criminal deeds and/or in the consideration of criminal cases of individual categories, inter alia, different rules of an investigation into certain criminal deeds, the peculiarities of the legal status of participants of the criminal procedure etc. However, when implementing the said discretion, the legislature must pay heed to the norms and principles of the Constitution (the Constitutional Court’s ruling of 16 January 2006);

the legal regulation of criminal procedure must be based on the constitutional principles of lawfulness, equality before the law and the court, presumption of innocence, public and fair trial, impartiality and independence of the court and the judge, separation of the functions of the court and other state institutions (officials) which participate in the criminal procedure, the guarantee of the right to defence as well as on other principles (the Constitutional Court’s rulings of 5 February 1999, 8 May 2000, 19 September 2000, and 16 January 2006);

the presumption of innocence is one of the most important guarantees of administration of justice in a democratic state under the rule of law and, alongside, an important guarantee for human rights and freedoms (the Constitutional Court’s rulings of 12 April 2001, 29 December 2004 and 16 January 2006);

an important condition for solving cases justly is a due judicial process (the Constitutional Court’s rulings of 5 February 1999, 16 January 2006, and 28 May 2008);

the constitutional principle of a state under the rule of law implies the right of the person to the due process of law. One of legal processes is a judicial process. Thus, the right of a person to due judicial process also arises from the constitutional principle of a state under the rule of law. Certain requirements for a judicial process arise from Paragraph 2 of Article 31 of the Constitution, too, in which it is prescribed that a person charged with the commission of a crime shall have the right to a public and fair hearing of his case by an independent and impartial court (the Constitutional Court’s ruling of 16 January 2006);

the principle of the right of the person to a due judicial process entrenched in Paragraph 2 of Article 31 of the Constitution means, inter alia, that the court must unconditionally follow the constitutional principles and the requirements of laws establishing them as regards the equality of the parties of criminal proceedings before the law and the court, and be impartial and independent. These are the most important pre-conditions ensuring that the circumstances of the case be investigated thoroughly, completely and objectively and the truth be established, as well as that penal laws be applied correctly (the Constitutional Court’s rulings of 19 September 2000, 16 January 2006, and 28 May 2008);

the right of the person to a due judicial process, which is an important condition for a just solution of the case and which arises from Paragraph 2 of Article 31 of the Constitution and the principle of a state under the rule of law, means that, during the criminal procedure in a court, heed must be paid to the clarity of the process, the equal rights of participants of the process, their participation in the procedure of proving, their right to a translator, the principle of adversarial argument and other principles, so that the circumstances of committing the criminal deed would be investigated comprehensively, objectively and impartially and a just decision would be adopted in the criminal case. The Constitution obliges the legislature to establish, while regulating the relations of criminal procedure, such legal regulation so that the rights of participants of criminal procedure could be ensured as well: the procedure must be such so that the efficient protection of the rights of the person who has suffered from the criminal deed and that such person would be able to make use of all the rights arising from the Constitution. The criminal procedure must be such so that the constitutional rights of the person suspected of committing a criminal deed are not violated: his rights to defence, his right to have an advocate, his right to know what he is accused of, etc., must be ensured (the Constitutional Court’s ruling of 16 January 2006);

Paragraph 2 of Article 31 of the Constitution consolidates the right of a person to a fair, impartial and independent court. While construing Paragraph 2 of Article 31 alongside with Paragraph 4 of this article, according to which punishment may be imposed or applied only on the grounds established in law, it is noteworthy in the context of the case under consideration that, under the Constitution, an independent and impartial court may not, by considering a case and investigating all circumstances of a case, impose a punishment by failing to observe the law. It should be noted that the constitutional right to a fair trial means, inter alia, not only that, during the judicial procedure, principles and norms of law of criminal procedure must be observed, but also that the punishment established in the penal law and imposed by the court must be just; the penal law must provide for all opportunities for the court to impose, while taking consideration of all circumstances of the case, a just punishment on the person who committed a criminal deed. The imposition of an unjust punishment would imply that the right of a person to a fair trial is violated, consequently, Paragraph 2 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law are violated as well (the Constitutional Court’s ruling of 10 June 2003);

Paragraph 4 of Article 31 of the Constitution according to which punishment may be imposed or applied only on the grounds established in law means, inter alia, that, under the Constitution, the legislature has the duty to establish by law as to what deeds are crimes, as well as criminal liability for such deeds. Upon establishing as to what deeds are crimes, as well as criminal liability for them, the legislature is bound by the principles of natural justice and proportionality established by the Constitution as well as other requirements of a state under the rule of law. Under the Constitution, the legislature may specify, by means of a penal law, only those deeds as crimes which are really dangerous and by which huge harm is inflicted on the interests of persons, society and those of the state. Paragraph 4 of Article 31 of the Constitution according to which punishment may be imposed or applied only on the grounds established in law also means that the legislature must establish punishments for criminal deeds and sizes of these punishments by law only; punishments must be established for each criminal deed. The principle of natural justice consolidated in the Constitution presupposes that punishments established by means of a penal law must be just. The constitutional principles of justice and a state under the rule of law imply, inter alia, that the means which are applied by the state must be adequate to the sought objective. Thus, punishments must be adequate to the criminal deeds for which they have been established; it is not permitted to establish the punishments for criminal deeds and their sizes which would be obviously inadequate to the criminal deed and the purpose of the punishment. Punishments and their sizes must be differentiated in a penal law, while taking account of the danger of criminal deeds (the Constitutional Court’s ruling of 10 June 2003);

the constitutional principle non bis in idem means a prohibition on punishing a second time for the same deed that is contrary to law, i.e. for the same crime, as well as for the same violation of law which is not a crime (the Constitutional Court’s rulings of 7 May 2001, 2 October 2001, 10 November 2005, and 21 January 2008). However, this constitutional principle does not mean that different kinds of liability may not be applied to the person for a violation of law (the Constitutional Court’s rulings of 7 May 2001, 10 November 2005, and 21 January 2008). In addition, in itself, the constitutional principle non bis in idem does not deny a possibility of applying more than one sanction of the same kind (i.e. defined by the norms of the same branch of law) to a person for the same violation, i.e. the main and additional punishment or the main and additional administrative penalty (the Constitutional Court’s rulings of 10 November 2005 and 21 January 2008);

Paragraph 6 of Article 31 of the Constitution provides: “From the moment of arrest or first interrogation, persons suspected or accused of a crime shall be guaranteed the right to defence and legal counsel.” This constitutional provision establishes the right of an individual suspected of commission of crime and that of the accused to defence. It is one of the guarantees of protection of human rights and a necessary condition so that every person who committed a crime would be justly punished and that an innocent person would not be brought to criminal responsibility nor punished (the Constitutional Court’s ruling of 12 April 2001);

the right of the accused to defence ensured by Paragraph 6 of Article 31 of the Constitution presupposes that fact that the accused must be guaranteed sufficient procedural means to defend himself against the brought accusation and that he must have an opportunity to make use of them. The right of the accused to defence is one of the guarantees for establishment of the truth in the case. This right is considered a necessary condition in implementation of the objective of criminal procedure which is justly to punish every person who committed a crime and to ensure that an innocent person would not be brought to criminal responsibility and convicted. During the judicial investigation of a case, a guarantee of the right of a person accused of a crime, which is the equality of the rights of the prosecutor, the accused, the defence, the victim and his representative, the civil claimant and respondent, and their representatives, as well as the conformity to the principle of adversarial argument, are of importance (the Constitutional Court’s ruling of 5 February 1999).

5. The provisions of Article 31 of the Constitution should also be construed in the context of the imperatives of equal rights which stem from Article 29 of the Constitution. The following constitutional doctrinal provisions linked to the construction of the principle of equality consolidated in Article 29 of the Constitution should be mentioned:

the constitutional principle of equality of persons should be applied not only to natural, but also to legal persons (the Constitutional Court’s rulings of 28 February 1996, 18 April 1996, 23 February 2000, 6 December 2000, 17 November 2003, and 26 January 2004);

this provision of Article 29 of the Constitution consolidates formal equality of all persons. The constitutional principle of equality of all persons before the law requires that in law the main rights and duties be established equally to all (the Constitutional Court’s rulings of 18 April 1994, 30 June 2000, 23 September 2008, 24 December 2008, and 2 March 2009);

this constitutional principle of equality of all persons must be followed in the course of enactment of laws and their application. This principle does not deny a possibility of providing in a law for different legal regulation in respect to certain categories of persons who are in different situations (the Constitutional Court’s rulings of 23 April 2002, 4 July 2003, 3 December 2003, 26 September 2007, 24 December 2008, and 2 March 2009);

the constitutional principle of equality of all persons before the law would be violated when a certain group of people to which the legal norm is established, if compared to other addressees of the same legal norm, were treated differently, even though there are not any differences in their character and extent between these groups that such an uneven treatment would be objectively justified (the Constitutional Court’s rulings of 20 November 1996, 30 December 2003, 13 December 2004, 26 September 2007, 24 December 2008, and 2 March 2009);

while assessing whether an established different legal regulation is a grounded one, concrete legal circumstances must be taken into account. First of all, differences of the legal situation of subjects and objects to which different legal regulation is applied must be considered (the Constitutional Court’s rulings of 28 February 1996, 13 November 1997, 4 July 2003, 24 December 2008, and 2 March 2009). The compliance of a concrete legal norm with Article 29 of the Constitution may be assessed only by taking into account all significant circumstances (the Constitutional Court’s rulings of 4 July 2003, 24 December 2008, and 2 March 2009);

when relations of criminal procedure are regulated, heed must be paid to the constitutional principle of equal rights of persons; the constitutional principle of equal rights of persons must be followed in passing laws and in their implementation as well as in administration of justice; under the Constitution, the legal regulation must be such so that participants of criminal procedure who enjoy the same procedural status (the victims, the persons suspected of commission of the criminal deed, the accused, witnesses, counsel for the defence etc.) would be treated equally (the Constitutional Court’s ruling of 16 January 2006).

In this context, it also needs to be noted that the constitutional principle of equal rights must be heeded also in those cases, when by means of a law one regulates the questions linked to the subjects of criminal liability. It also needs to be noted that certain objective differences of the corresponding subjects of criminal liability may also determine a differentiated legal regulation of their criminal liability. However, while establishing a differentiated legal regulation, heed must be paid to the norms and principles of the Constitution.

6. The provisions of Article 31 of the Constitution are also inseparable from the requirements which stem from Articles 23 and 46 of the Constitution. In the context of the constitutional justice case at issue, one should note the following doctrinal statements formulated in the acts of the Constitutional Court which are linked to the interpretation of the constitutional imperatives of protection of the rights of ownership and regulation of economic activity:

the inviolability of ownership should not be treated as absolute: “Neither the Constitution nor universally recognised international legal norms deny a possibility of establishing by law certain limits on management, use or disposal of one’s property. Meanwhile, such restrictions may not deny the essence of the ownership right” (the Constitutional Court’s rulings of 13 December 1993, 6 May 1997, 10 July 1997, 1 October 1997, and 1 June 1998);

under the Constitution, the right of ownership is not absolute, it can be limited by means of a law due to the character of the object of ownership, due to committed deeds, which are contrary to law, and/or due to the need which is necessary to the society and constitutionally grounded. When one limits the rights of ownership, in all cases the following conditions must be followed: it may be limited only by invoking the law; the limitations must be necessary in a democratic society in order to protect the rights and freedoms of other persons, the values established in the Constitution and the objectives which are necessary to society and which are constitutionally grounded; heed must be paid to the principle of proportionality (the Constitutional Court’s ruling of 14 March 2006);

various sanctions, including proprietary ones, are imposed for performed transgressions of law: a fine, confiscation of property, etc. A fine, as well as confiscation of property, is seizure of property from the transgressor and its conversion into state property due to his transgression of law. This means that the protection of property for the person who has transgressed law narrows to the limits as specified by the sanction. Such a provision may be derived from the Constitution, as well as international legal acts which have been ratified by Lithuania and which are a constituent part of the system of law of Lithuania. Such a standpoint regarding restriction of the ownership rights is considered acceptable also under Article 1 of Protocol No. 1 of the European Convention on Human Rights. It is established therein that states shall have the right to enforce such laws as they deem necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties (the Constitutional Court’s ruling of 8 April 1997);

the conclusion should be drawn from the analysis of the content of Articles 23 and 28 of the Constitution that it is possible to establish by law restriction of the ownership rights, as well as property sanctions for violations of law. However, this must not deny the essence of the right to property (the Constitutional Court’s ruling of 8 April 1997);

the principles set down in Article 46 of the Constitution constitute a whole, which is the constitutional basis of the economy of this country. The principles are in harmony with each other, and this implies their balance, therefore, each of them must be interpreted without denying another constitutional principle (the Constitutional Court’s rulings of 6 October 1999, 17 March 2003, and 2 March 2009);

the freedom of individual economic activity and initiative implies, inter alia, freedom of conclusion of contracts, freedom of fair competition, opportunities to restructure economic subjects without restrictions, to change the character of their activity, not to obstruct establishment of new economic subjects or liquidate the existing ones when one reacts to changes in the market; it is inseparable from an opportunity of a person, who is willing to engage in an economic activity or, conversely, who is willing to drop it, to get into the market without artificial barriers and to abandon it without artificial barriers (the Constitutional Court’s rulings of 13 May 2005 and 31 May 2006). However, freedom of economic activity is not absolute, the person makes use of it only by following certain obligatory requirements and limitations (the Constitutional Court’s rulings of 20 April 1995, 18 October 2002, 14 March 2002, 9 April 2002, 13 May 2005, and 31 May 2006);

the provision that the state shall support economic efforts and initiative that are useful to society (Paragraph 2 of Article 46 of the Constitution) constitutes, inter alia, the constitutional legal preconditions for differentiated legal regulation of economic activity, the main criterion whereof is the common welfare of the Nation, it also implies the duty of the state and municipal institutions and officials by no decisions or actions to hinder the expression and development of the initiative or economic efforts of persons, if this initiative or economic efforts are not harmful to society, even if their benefit to society is not evident (the Constitutional Court’s ruling of 31 May 2006).

In the context of the constitutional justice case at issue, it needs to be noted that under the Constitution, inter alia, Article 31 thereof, and according to the principle of a state under the rule of law, the legislature, while regulating the relations linked to criminal liability of the legal person, must establish such legal regulation so that the court, while deciding the question of criminal liability of the legal person, inter alia, the question of imposition of punishment on him, could take account of all the circumstances, inter alia, the circumstances which increase or decrease the dangerousness of the criminal deed committed by the legal person. In this context it needs to be noted that the specificity of the legal person, as a subject of legal relations (inter alia, the fact that the legal person has an independent structure and is a participant of the legal relations through certain natural persons) also implies that the law may also recognise such circumstances as circumstances increasing or decreasing the dangerousness of the criminal deed committed by the legal person, which normally may not be regarded as circumstances increasing or decreasing the dangerousness of the criminal deed committed by the natural person. For example, the dangerousness of the criminal deed committed by the legal person may be determined by the politics of activity of the legal person, its strategy, organisational culture, etc. For example, the dangerousness of the criminal deed committed by the legal person is assessed in one way when the policy of activity of the legal person and its organisational structure were targeted so that the legal person could not act criminally, while it is assessed in another way, when the strategy of activity of the legal person and its internal procedures create preconditions for the legal person to act in a criminal manner (or are even oriented so that the legal person would act in a criminal manner), when the legal person recognises the results of the criminal deed committed for his benefit ex post facto, etc.

It also needs to be noted that the existence or non-existence of the said circumstances in the criminal deed committed by the legal person may be of crucial importance for exoneration of the legal person from the criminal liability.

V

On the compliance of Paragraphs 1, 2 and 3 (wording of 26 September 2000) of Article 20 of the Labour Code with Articles 29 and 31 of the Constitution and with the constitutional principle of a state under the rule of law.

1. As mentioned before, the petitioners request an investigation, inter alia, into whether Paragraphs 1, 2 and 3 of Article 20 of the CC are not in conflict with Article 31 of the Constitution.

2. Paragraphs 1, 2 and 3 of Article 20 of the CC provide:

1. A legal person shall be held liable solely for the criminal deeds the commission whereof is subject to liability of a legal person as provided for in the Special Part of this Code.

2. A legal person shall be held liable for the criminal deeds committed by a natural person solely where a criminal deed was committed for the benefit or in the interests of the legal person by a natural person acting independently or on behalf of the legal person, provided that he, while holding a leading office in the legal person, was entitled:

1) to represent the legal person, or

2) to take decisions on behalf of the legal person, or

3) to control activities of the legal person.

3. A legal person may be held liable for criminal deeds also where they have been committed by an employee or authorised representative of the legal person as a result of insufficient supervision or control by the person indicated in Paragraph 2 of this Article.”

3. It has been mentioned that the legal regulation established in Paragraphs 1, 2 and 3 of Article 20 of the CC means that the legal person may be brought to criminal liability under the following conditions: the committed criminal deed falls within the list of criminal deeds specified in the special part of the CC for which criminal liability of legal persons is provided for; the criminal deed was committed by the natural person who acted on behalf of the legal person or individually which has the following features: holds a leading office in the legal person (depending on the structure of the legal person, the leading office may be both a single-person management body of the legal person—the head of the company, the director, president of the enterprise—or a member, who represents the collegial management body of the legal person, for example, the chairperson of the board or the head of a division or unit) and has the right either to represent the legal person (it is a non-contractual representation including the right to act on behalf of the legal person which is linked to a leading office of the corresponding natural person), or to adopt decisions on behalf of the legal person (it is the right to decide questions linked to the activity of the legal person and relations with the third persons), or to control the activity of the legal person (it is the right to control whether the activity of the legal person is implemented properly, as well as the right to take certain measures so that the activity would be implemented properly and that ultimate results of activity would be achieved) or the criminal deed was committed by the natural person who is an employee of the legal person (the person who is linked to the legal person by employment relations) or an authorised representative (when the person and the legal person are linked to each other by the contractual representation relations grounded on the letter of attorney, procuracy, etc.) and the deed has been committed due to insufficient supervision or control over the person who holds a leading office; the criminal deed was committed for the benefit or in the interests of the legal person (when from the deed committed by the natural person, the legal person has a specific benefit and when he recognises that benefit or when the legal person is interested in such deed and the consequences created by it) or only for the benefit thereof.

4. The provisions of Paragraphs 1, 2 and 3 of Article 20 of the CC are inseparable, therefore, in this constitutional case, the Constitutional Court will investigate not the compliance of each provision with the Constitution individually, but the compliance of the overall legal regulation consolidated in them with the Constitution.

5. The petitioners ground their doubts regarding the compliance of Paragraphs 1, 2 and 3 of Article 20 of the CC with Paragraphs 1 of Article 31 of the Constitution (in which it is prescribed that a person shall be presumed innocent until proved guilty according to the procedure established by law and declared guilty by an effective court judgment) upon the fact that, under the impugned legal regulation, according to the petitioners, the legal person is brought to criminal liability for the criminal deeds committed by another (natural) person, thus, the principle of presumption of innocence is violated.

In this context it needs to be noted that the Constitutional Court has emphasised more than once that the presumption of innocence is one of the most important guarantees of administration of justice in a democratic state under the rule of law and, alongside, an important guarantee for human rights and freedoms (the Constitutional Court’s rulings of 12 April 2001, 29 December 2004, and 16 January 2006).

6. As it has already been held, the necessary condition of criminal liability of the legal person according to Paragraphs 2 and 3 of Article 20 of the CC is the fact that the natural person commits a criminal deed for the benefit or in the interests of the legal person. It has also been held that this feature helps to establish when a criminal deed committed by a natural person may be regarded as a criminal deed of a legal person, i.e. when from this deed the legal person has a specific benefit and when he recognises that benefit or when the legal person is interested in such deed and the consequences created by it.

The specificity of the legal person as the subject of a criminal deed, i.e. the fact that he is an independent subject of legal relations having legal capacity and capability, independent name, organisational integrity, that his property is separated from the property of his participants, however, that he is a participant of legal relations through the natural persons who act on his behalf, also implies specificity of his guilt. The guilt of the legal person should be linked to the guilt of the natural person who acts for the benefit or in the interests of the legal person. Thus, by the legal regulation established in Paragraphs 1, 2 and 3 of Article 20 of the CC, one does not create preconditions for the legal person’s liability without guilt.

7. Thus, such legal regulation established in Paragraphs 1, 2 and 3 of Article 20 of the CC, under which the liability of the legal person is linked to the criminal deed committed by the natural person, does not mean that the guilt of the legal person should not be proved according to the procedure established by law and recognised by an effective court judgment.

Taking account of the arguments set forth, the conclusion should be drawn that by the legal regulation established in Paragraphs 1, 2 and 3 of Article 20 of the CC, one does not create preconditions for violating the requirement of the presumption of innocence which stems from Article 31 of the Constitution.

8. The doubts of the petitioners regarding the compliance of Paragraphs 1, 2 and 3 of Article 20 of the CC with Paragraph 2 of Article 31 of the Constitution, in which it is prescribed that a person charged with the commission of a crime shall have the right to a public and fair hearing of his case by an independent and impartial court, are grounded upon the fact that under the impugned legal regulation, according to the petitioners, the guilt for the criminal deed committed by another subject is shifted to the legal person and he is brought to criminal liability and sentenced for the criminal deed that was committed by someone else. In addition, according to the petitioners, this means that the question of application of criminal liability of the legal person directly depends on the result of the defence of the natural person from the accusations brought to him.

As mentioned before, it was held in the Constitutional Court’s ruling of 10 June 2003 that the constitutional right to a fair trial means, inter alia, not only that during the judicial procedure principles and norms of law of criminal procedure must be observed, but also that the punishment established in the penal law and imposed by the court must be just; the penal law must provide for all opportunities for the court to impose, while taking consideration of all circumstances of the case, a just punishment on the person who committed a criminal deed.

In the context of this constitutional justice case at issue, it needs to be noted that the constitutional right to a fair trial also means that when the court decides the question of criminal liability, one must determine all the conditions for applying criminal liability, which are provided for in the law, inter alia, the guilt of a person, who is brought to criminal liability, for the commission of a crime.

In this context it also needs to be noted that the specificity of the legal person, as a subject of legal relations and a subject of liability, also determines the fact that the activity of the legal person is inseparable from the activity of the natural person which acts on behalf of that legal person, therefore, the guilt of the legal person is also linked to the criminal deed of the natural person who acts on behalf of and for the benefit or in the interests of the legal person.

As it has already been held, the legal regulation established in Paragraphs 1, 2 and 3 of Article 20 of the CC, under which the liability of the legal person is linked to the criminal deed committed by the natural person, does not mean that the guilt of the legal person should not be proved according to the procedure established by law and recognised by an effective court judgment.

According to the impugned legal regulation, the legal person is brought to criminal liability only if his guilt for the incriminated criminal deeds is proven. Thus, the legal regulation established in Paragraphs 1, 2 and 3 of Article 20 of the CC does not prevent an independent and impartial court from investigating cases of legal persons who are accused of the commission of a crime.

9. In the opinion of the petitioners, the provisions of Paragraphs 1, 2 and 3 of Article 20 of the CC are in conflict with Paragraph 3 of Article 31 of the Constitution, in which it is prescribed that it shall be prohibited to compel one to give evidence against himself, his family members or close relatives, in the aspect that the impugned legal regulation creates preconditions for bringing the legal person to criminal liability for the criminal deed committed by the natural person who meets the features established in Article 20 of the CC about which the legal person reported himself.

The legal regulation consolidated in Paragraph 3 of Article 31 of the Constitution is virtually linked to the features and legal situation of the natural person as a subject of legal relations. Only a natural person may be a subject of the family or kinship legal relations. The legal person who is not a participant of the family or kinship legal relations may not be a subject of compelling to give evidence against his family members or close relatives. Therefore, Paragraph 3 of Article 31 of the Constitution regulates the legal relations (linked to the situation of a natural person in the procedure of application of criminal liability) of different nature than those which are regulated by the impugned provisions of Paragraphs 1, 2 and 3 of Article 20 of the CC which are linked to criminal liability of a legal person.

It also needs to be noted that the legal regulation established in Paragraph 3 of Article 31 of the Constitution may not be construed as meaning that the natural person may not voluntarily (i.e. without anybody compelling him) give evidence against himself, members of his family or close relatives.

Thus, in itself, the legal person’s report about the criminal deed of a natural person, even if the legal person is brought to criminal liability afterwards, may not be regarded as a violation of the prohibition consolidated in Paragraph 3 of Article 31 of the Constitution.

The legal regulation consolidated in Paragraphs 1, 2 and 3 of Article 20 of the CC may not be construed as meaning that it permits compelling individuals to give evidence against themselves, their family members or close relatives.

Taking account of the arguments set forth, it needs to be held that the legal regulation established in Paragraphs 1, 2 and 3 of Article 20 of the CC does not create preconditions for violating the prohibition consolidated in Paragraph 3 of Article 31 of the Constitution.

10. The petitioners ground their doubts regarding the compliance of Paragraphs 1, 2 and 3 of Article 20 of the CC with Paragraph 4 of Article 31 of the Constitution (in which it is prescribed that punishment may be imposed or applied only on the grounds established by law) upon the fact that, under the impugned legal regulation, according to the petitioners, the legal person is brought to criminal liability for the criminal deeds committed by another (natural) person, i.e. when in the activity of the legal person the features of criminal deed for which criminal liability is provided for in the law are not established. Therefore, in the opinion of the petitioners, the legal person is brought to criminal liability and punished by failing to follow the rules provided for in the law.

As mentioned before, it was held in the Constitutional Court’s ruling of 10 June 2003 that Paragraph 4 of Article 31 of the Constitution, according to which punishment may be imposed or applied only on the grounds established in law, means, inter alia, that, under the Constitution, the legislature has the duty to establish by law as to what deeds are crimes, as well as criminal liability for such deeds; upon establishing as to what deeds are crimes, as well as criminal liability for them, the legislature is bound by the principles of natural justice and proportionality established by the Constitution as well as other requirements of a state under the rule of law; under the Constitution, the legislature may specify, by means of a penal law, only those deeds as crimes which are really dangerous and by which huge harm is inflicted on the interests of persons, society and those of the state.

While deciding, whether Paragraphs 1, 2 and 3 of Article 20 of the CC are not in conflict with Paragraph 4 of Article 31 of the Constitution, it needs to be noted that, as mentioned before, the legal person is a specific subject of legal relations, inter alia, in the aspect that he is a participant of legal relations through natural persons. It has also been mentioned that the specificity of the legal person also determines the particularities of application of certain legal institutes of criminal law to legal persons.

In this context it needs to be noted that such specificity of the legal person implies also the establishment of the corresponding grounds and conditions for his criminal liability in the CC, inter alia, the fact that, under the CC, criminal liability of the legal person arises only when a natural person, who has certain features that relate him to the legal person, commits a criminal deed for the benefit or in the interests (or only for the benefit) of the legal person. Thus, if one wishes to bring the legal person to criminal liability, it is necessary to establish whether the corresponding criminal deed was committed by the natural person. Therefore, the legal regulation consolidated in Paragraphs 1, 2 and 3 of Article 20 of the CC may not be regarded as meaning that the legal person may be held liable also when the criminal deed is not established.

It has been mentioned that Paragraph 4 of Article 31 of the Constitution consolidates the constitutional requirements, inter alia, for defining criminal deeds, establishment of punishment and its imposition.

It has also been mentioned that Paragraphs 1, 2 and 3 of Article 20 of the CC consolidate the grounds of criminal liability of the legal person and the conditions for its application: it is defined for what criminal deeds the legal person shall be liable (Paragraph 1), the conditions for application of criminal liability for legal persons are established (Paragraphs 2 and 3). These provisions of the CC do not regulate the questions linked to definition of criminal deeds and imposition of punishment. The legal relations linked to the imposition of punishment on the legal person are regulated in Article 43 of the CC, Paragraph 4 of Article 47, Article 53, Paragraph 5 of Article 67, Article 72 thereof, etc. The criminal deeds are defined in Articles 10, 11 and 12 of the CC and in the articles of the special part of the CC.

Taking account of the arguments set forth, there is no legal ground to state that Paragraphs 1, 2 and 3 of Article 20 of the CC are in conflict with Paragraph 4 of Article 31 of the Constitution.

11. In the opinion of the petitioners, the legal regulation established in Paragraphs 1, 2 and 3 of Article 20 of the CC are also in conflict with Paragraph 5 of Article 31 of the Constitution, in which it is prescribed that no one may be punished for the same crime a second time. The petitioners ground their doubts regarding the compliance of the impugned provisions with Paragraph 5 of Article 31 of the Constitution upon the fact that, within the meaning of the impugned provisions, the legal person is brought to criminal liability if the natural person is brought to criminal liability and this means that two persons are brought to criminal liability and punished for the same crime.

It has been mentioned that while construing Paragraph 5 of Article 31 of the Constitution, the Constitutional Court held that the constitutional principle non bis in idem means a prohibition on punishing a second time for the same deed that is contrary to law, i.e. for the same crime, as well as for the same violation of law which is not a crime. However, this constitutional principle does not mean that different kinds of liability may not be applied to the person for a violation of law. In addition, in itself, the constitutional principle non bis in idem does not deny a possibility of applying more than one sanction of the same kind (i.e. defined by the norms of the same branch of law) to a person for the same violation, i.e. to apply the main and additional punishment or the main and additional administrative penalty.

While construing the constitutional principle consolidated in Paragraph 5 of Article 31 of the Constitution in the context of this constitutional justice case, it needs to be noted that the principle non bis in idem means that it is prohibited to punish the same person a second time for the same criminal deed, however, this constitutional principle does not deny a possibility of bringing two or more persons whose guilt is proved to criminal liability.

As it has already been held, while bringing to criminal liability the natural person for the commission of a deed which was committed by a natural person, who has certain defined features and the legal person who is recognised guilty of the fact that the natural person with certain defined features committed the criminal deed for the benefit (or in the interests) of the legal person, two different subjects—the natural person and the legal person—are brought to criminal liability for one deed. Therefore, the natural person and the legal person, as subjects of criminal liability, may not be identified.

Therefore, the legal regulation consolidated in Paragraphs 1, 2 and 3 of Article 20 of the CC does not create any preconditions for violating the prohibition established in Paragraph 5 of Article 31 of the Constitution.

12. The doubts of the petitioners regarding the compliance of Paragraphs 1, 2 and 3 of Article 20 of the CC with Paragraph 6 of Article 31 of the Constitution, in which it is prescribed that a person suspected of the commission of a crime and the accused shall be guaranteed, from the moment of their detention or first interrogation, the right to defence as well as the right to an advocate, are grounded upon the fact that, under the impugned legal regulation, the question of application of criminal liability of the legal person directly depends on the realisation of the right to defence of the natural person who purportedly committed a criminal deed, i.e. the only way of defence of the legal person from the accusations brought to him is proving that the natural person is not guilty.

As mentioned before, the right of the accused to defence ensured by Paragraph 6 of Article 31 of the Constitution implies that the accused must be guaranteed sufficient procedural means to defend himself against the brought accusation and that he must have an opportunity to make use of them. The right of the accused to defence is one of the guarantees for establishment of the truth in the case. This right is regarded as a necessary condition in implementation of the objective of the criminal procedure, which is justly to punish every person who committed a crime and to ensure that an innocent person would not be brought to criminal responsibility and convicted.

Thus, Paragraph 6 of Article 31 of the Constitution consolidates the guarantees which are applied in the criminal procedure both to the suspect and the accused.

In this context it needs to be noted that Paragraphs 1, 2 and 3 of Article 20 of the CC do not regulate the relations linked to the right of the suspect or the accused to defence. In Lithuanian legal system, the relations linked to the right of the suspect or the accused to defence are regulated not in the CC, but in other legal acts, inter alia, the Code of Criminal Procedure. The provisions of other legal acts, inter alia, the Code of Criminal Procedure, are not a matter of investigation in this constitutional justice case.

Therefore, in itself, the legal regulation established in Paragraphs 1, 2 and 3 of Article 20 of the CC may not be assessed as violating the requirements which stem from Paragraph 6 of Article 31 of the Constitution.

13. Taking account of the arguments set forth, the conclusion should be drawn that Paragraphs 1, 2 and 3 of Article 20 of the CC are not in conflict with Article 31 of the Constitution.

14. As mentioned before, the petitioners request an investigation, inter alia, into whether Paragraphs 1, 2 and 3 of Article 20 of the CC are not in conflict with Article 29 of the Constitution.

While assessing the impugned legal regulation in the aspect of its compliance with Article 29 of the Constitution, it needs to be noted that two essential groups of arguments should be singled out in the petitions of the petitioners, upon which the doubts regarding the compliance of Paragraphs 1, 2 and 3 of Article 20 of the CC with Article 29 of the Constitution are grounded, i.e. different treatment of grounds for application of criminal liability with regard to the legal persons and natural persons (according to the petitioners, the legal person is brought to criminal liability for the criminal deed of other (natural) person, while the natural person, according to the penal laws, is brought to criminal liability only for the criminal deed that he committed himself and only if he is guilty) and procedural non-equality (application of criminal liability to the legal person depends on the defence results of the natural person who is suspected of commission of a criminal deed).

14.1. While assessing the impugned legal regulation in the first aspect specified by the petitioners, it needs to be noted that, as it has already been mentioned, the Constitutional Court has held more than once that the constitutional principle of equality of persons consolidated in Article 29 of the Constitution should be applied not only to natural, but also to legal persons (the Constitutional Court’s rulings of 28 February 1996, 18 April 1996, 23 February 2000, 6 December 2000, 17 November 2003, and 26 January 2004).

It has also been mentioned that in the acts of the Constitutional Court it has been held more than once: constitutional principle of equality of all persons must be followed in the course of enactment of laws and their application; this principle does not deny a possibility of providing in a law for different legal regulation in respect to certain categories of persons who are in different situations; while assessing whether an established different legal regulation is a grounded one, concrete legal circumstances must be taken into account; first of all, differences of the legal situation of subjects and objects to which different legal regulation is applied must be considered; the compliance of a concrete legal norm with Article 29 of the Constitution may be assessed only by taking into account all significant circumstances.

It has also been mentioned that the constitutional principle of equal rights must be heeded also in those cases, when by means of a law one regulates the questions linked to the subjects of criminal liability; certain objective differences of the corresponding subjects of criminal liability may also determine a differentiated legal regulation of their criminal liability.

It has been mentioned in this ruling of the Constitutional Court that the legal person is a specific subject of legal relations; according to his features, the legal person as a subject of legal relations, inter alia, that of penal relations, is different from the natural person as a subject of legal relations, inter alia, penal relations; the legal situation of legal persons and natural persons is different.

In this context, it also needs to be noted that the legal regulation consolidated in Paragraphs 1, 2 and 3 of Article 20 of the CC, whereby the legal person shall be held liable only when the corresponding natural person commits a crime for the benefit or in the interests (or only for his benefit) of the legal person, may not be interpreted as meaning that the legal person shall be held liable without guilt. The aforementioned specificity of the legal person as a subject of the legal relations (the fact that the activity of the legal person is inseparable from the activity of the natural person through which the legal person acts) also implies that in this case the guilt of the legal person for commission of a crime is inseparable from the guilt of the natural person through which the legal person acts, which, in a certain aspect, determines the content of guilt of the legal person for the criminal deed committed for his benefit.

14.2. While assessing the impugned legal regulation in the second aspect (procedural non-equality) specified by the petitioners, it needs to be noted that Paragraphs 1, 2 and 3 of Article 20 of the CC do not regulate the relations of criminal procedure. These relations are regulated by the Code of Criminal Procedure.

In this context, one should mention the provision of Paragraph 4 of Article 388 of the CCP that “in the procedure, the representative of the legal person shall enjoy all the rights which are granted by this Code to the suspect and the accused, as well as shall perform the duties of participants of this procedure.”

It also needs to be noted that the norms of the CCP, inter alia, Paragraph 4 of Article 388 of the CCP, are not a matter of investigation in this constitutional justice case.

Taking account of the arguments set forth, it needs to be held that the legal regulation established in Paragraphs 1, 2 and 3 of Article 20 of the CC which consolidates criminal liability of legal persons does not violate the principle of equal rights of persons which is consolidated in Article 29 of the Constitution.

15. The petitioners also request an investigation into the compliance of Paragraphs 1, 2 and 3 of Article 20 of the CC with the constitutional principle of a state under the rule of law. The petitioners ground their doubts regarding the compliance of the impugned provisions with this principle on the same arguments as their doubts regarding the compliance of those provisions with Articles 29 and 31 of the Constitution. According to the petitioners, the fact that the impugned legal regulation violates the requirements which stem from Articles 29 and 31 of the Constitution at the same time means that the constitutional principle of a state under the rule of law is violated.

In this ruling it has been held that the legal regulation consolidated in Paragraphs 1, 2 and 3 of Article 20 of the CC is not in conflict with Articles 29 and 31 of the Constitution. Therefore, there are no sufficient arguments to state that the said impugned regulation is in conflict with the constitutional principle of a state under the rule of law.

Taking account of the arguments set forth, the conclusion should be drawn that Paragraphs 1, 2 and 3 of Article 20 of the CC are not in conflict with the constitutional principle of a state under the rule of law.

VI

On the compliance of Paragraph 5 (wording of 5 July 2004) of Article 20 of the Criminal Code with Paragraphs 1 and 2 of Article 23 of the Constitution, Paragraph 1 of Article 29, Paragraphs 1, 2 and 4 of Article 31, Paragraphs 1, 2 and 3 of Article 46 thereof and with the constitutional principle of a state under the rule of law.

1. As mentioned before, Paragraph 5 (wording of 5 July 2004) of Article 20 of CC provides that ,under the CC, the state, the municipality, the state and the municipal institution and establishment and international public organisation shall not be liable. Thus, under the legal regulation established in Paragraph 5 of Article 20 of the CC, certain public legal persons are singled out which may not be brought to criminal liability.

2. The petitioners ground their doubts regarding the compliance of Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC with the constitutional principles of a state under the rule of law and equality before the law upon the fact that in this provision of the CC one unreasonably provides for a different criminal liability of economic subjects, when individual economic subjects, in violation of the constitutional imperatives of a state under the rule of law and equal rights of persons which stem from the Constitution, are totally exempted from criminal liability.

The petitioners ground the incompliance of Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC with the provisions of Articles 23, 31 and 46 of the Constitution upon the fact that the constitutional principles of a state under the rule of law and equal rights are violated. Thus, one will first of all decide whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC is not in conflict with the constitutional principle of a state under the rule of law and with the principle of equal rights of persons which is consolidated in Paragraph 1 of Article 29 of the Constitution.

3. While deciding whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC is not in conflict with the constitutional principle of a state under the rule of law and with the principle of equal rights of persons which is consolidated in Paragraph 1 of Article 29 of the Constitution, it needs to be noted that:

as mentioned before, the constitutional principle of equality of all persons must be followed in the course of enactment of laws and their application. This principle does not deny a possibility of providing in a law for different legal regulation in respect to certain categories of persons who are in different situations;

it has been mentioned that the constitutional principle of equality of all persons before the law would be violated when a certain group of people to which the legal norm is established, if compared to other addressees of the same legal norm, were treated differently, even though there are not any differences in their character and extent between these groups that such an uneven treatment would be objectively justified;

it has also been mentioned that, while assessing whether an established different legal regulation is a grounded one, concrete legal circumstances must be taken into account. First of all, differences of the legal situation of subjects and objects to which different legal regulation is applied must be considered. The compliance of a concrete legal norm with Article 29 of the Constitution may be assessed only by taking into account all significant circumstances;

it has been mentioned that the subjects specified in Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC—certain public legal persons as the state, a municipality, a state and municipal institution and establishment, international public organisation—which may not be held liable, are specific according to their legal situation and functions in comparison with other public legal persons which may be brought to criminal liability;

therefore, the legal situation of the public legal persons—the state, a municipality, a state and municipal institution and establishment, international public organisation—which are enumerated in Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC, is different in comparison with the legal situation of other public legal persons. Between these public legal persons there are differences of such nature and size that different treatment thereof in the aspect that some of them may be brought to criminal liability while others may not is objectively justifiable;

there are no legal arguments to state that Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC is in conflict with the constitutional principles of a state under the rule of law and equal rights of persons.

4. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 5 of Article 20 of the CC is not in conflict with the constitutional principles of equal rights and a state under the rule of law.

5. While deciding whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC is in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution, it needs to be noted that:

as mentioned before, the inviolability and protection of property consolidated in Article 23 of the Constitution, inter alia, Paragraphs 1 and 2 thereof, mean, inter alia, that the owner has the right to perform any actions with the property which belongs to him, save those prohibited by law, to use his property and to determine its destiny in any way which does not violate the rights and freedoms of other persons; the owner has the right to demand that other persons would not violate his rights of ownership, and the state has the duty to defend and protect property against unlawful encroachment upon it. It has also been mentioned that the provision of Paragraph 2 of Article 23 of the Constitution means, inter alia, that laws must protect the rights of ownership of all owners;

the legal regulation established in Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC under which certain public legal persons may not be brought to criminal liability may not be construed as meaning that it regulates legal relations linked to inviolability and protection of property;

thus, Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC regulates the relations of different nature than those regulated in Paragraphs 1 and 2 of Article 23 of the Constitution;

therefore, the said legal regulation may not be regarded as violating the imperatives of inviolability and protection of property which stem from Article 23 of the Constitution, inter alia, Paragraphs 1 and 2 thereof.

6. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 5 of Article 20 of the CC is not in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution.

7. While deciding whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC is not in conflict with Paragraphs 1, 2 and 3 of Article 46 of the Constitution, it needs to be noted that:

as mentioned before, the principles consolidated in Article 46 of the Constitution, inter alia, Paragraphs 1, 2 and 3 of this article, constitute a whole, which is the constitutional basis of the economy of this country;

it has also been mentioned that Paragraph 1 of Article 46 of the Constitution defines the basis of the economy of the Nation which is constituted of the following values: the right of private ownership, freedom of individual economic activity and initiative. Paragraph 2 of Article 46 consolidates one of the main rules of regulation of the economy of this country. Paragraph 3 of Article 46 consolidates the constitutional principle which defines the purposes, directions, ways and limits of regulation of the economic activity;

Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC does not regulate the relations linked to economic activity and to the economy of the country in general—this provision of the CC regulates the relations linked to the criminal liability of certain public legal persons;

thus, Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC regulates the relations of different nature than those regulated in Paragraphs 1, 2 and 3 of Article 46 of the Constitution.

8. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 5 of Article 20 of the CC is not in conflict with Paragraphs 1, 2 and 3 of Article 46 of the Constitution.

9. While deciding whether Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC is not in conflict with Paragraphs 1, 2 and 4 of Article 31 of the Constitution, it needs to be noted that:

as mentioned before, Paragraph 1 of Article 31 of the Constitution consolidates the principle of presumption of innocence which means that a person shall be presumed innocent until proved guilty according to the procedure established by law and declared guilty by an effective court judgment. Paragraph 2 of Article 31 of the Constitution consolidates the principle of the right of the person, inter alia, who is charged with the commission of a crime, to a due judicial process. From Paragraph 4 of Article 31 of the Constitution, the duty arises for the legislature to establish by law what deeds are criminal as well as criminal liability for these deeds;

thus, the imperatives which stem from Paragraphs 1, 2 and 4 of Article 31 of the Constitution are applied, inter alia, while regulating legal relations linked to the rights of a person, who is charged with the commission of a criminal deed, and to the consolidation of criminal liability for commission of criminal deeds in a law;

Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC does not regulate the relations linked to the rights of a person, who is charged with the commission of a criminal deed, and to the establishment of criminal liability for commission of criminal deeds; on the contrary, Paragraph 5 of Article 20 of the CC specifies the corresponding public legal persons which, according to the CC, may not be subjects of criminal liability;

thus, Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC regulates the relations of different nature than those regulated in Paragraphs 1, 2 and 4 of Article 31 of the Constitution.

10. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 5 (wording of 5 July 2004) of Article 20 of the CC is not in conflict with Paragraphs 1, 2 and 4 of Article 31 of the Constitution.

VII

On the compliance of Paragraph 4 (wording of 26 September 2000) of Article 43 of the Criminal Code with Paragraph 1 of Article 29 and Paragraph 4 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law.

1. Paragraph 4 of Article 43 of the CC provides that the punishments imposed on legal persons are not specified in the sanctions of the articles of the special part of this code and that while imposing a punishment on the legal person, the court follows the list of punishments established in the first paragraph of this article.

2. The petitioners ground their doubts regarding the compliance of Paragraph 4 of Article 43 of the CC with Paragraph 1 of Article 29 and Paragraph 4 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law upon the fact that in the impugned provision of the CC, the legislature does not specify the criteria, under which one should impose a punishment on the legal person, choose its kind and size, inter alia, the criteria for establishment of the size of a fine, as a punishment, are also not regulated.

3. While deciding, whether Paragraph 4 of Article 43 of the CC is not in conflict with Paragraph 4 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law, it needs to be noted that:

as mentioned before, Paragraph 4 of Article 31 of the Constitution according to which punishment may be imposed or applied only on the grounds established in law also means that the legislature must establish punishments for criminal deeds and sizes of these punishments by law only; punishments must be established for each criminal deed; the penal law must provide for all opportunities for the court to impose, while taking consideration of all circumstances of the case, a just punishment on the person who committed a criminal deed;

it has also been mentioned that imposition of an unjust punishment would imply that the constitutional principle of a state under the rule of law is also violated;

it has been mentioned that the requirements of clarity, accuracy, consistency and inner non-contradiction of the legal regulation stem, inter alia, from the constitutional principle of a state under the rule of law;

the Criminal Code, inter alia, Articles 43, 47, 52 and 53 thereof, provides for the punishments and their sizes with respect to legal persons for criminal deeds;

it has been mentioned that the fact that Article 43 of the CC, inter alia, Paragraph 4 thereof, does not specify the criteria under which the kind of punishment and its size for the legal person should be chosen does not mean in itself that the court is prevented from, having taken account of all the circumstances of the case and referring to other provisions of the CC which consolidate the purpose of the punishment, the general requirements for imposition of punishments, inter alia, the rules for individualisation of punishments and summation of punishments, etc., to impose a just punishment upon the legal person who has committed a criminal deed.

Thus, in itself, the legal regulation consolidated in Paragraph 4 of Article 43 of the CC may not be regarded as violating the imperatives which stem from Paragraph 4 of Article 31 of the Constitution and from the constitutional principle of a state under the rule of law.

4. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 4 of Article 43 of the CC is not in conflict with Paragraph 4 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law.

5. Having held that Paragraph 4 of Article 43 of the CC is not in conflict with Paragraph 4 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law, there is also no legal ground to state that Paragraph 4 of Article 43 of the CC is in conflict with the principle of equal rights which is consolidated in Paragraph 1 of Article 29 of the Constitution.

6. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 4 of Article 43 of the CC is not in conflict with Paragraph 1 of Article 29 of the Constitution.

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 Paragraphs 1, 2 and 3 (wording of 26 September 2000, Official Gazette Valstybės žinios, 2000, No. 89-2741) of Article 20 of the Criminal Code of the Republic of Lithuania are not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that Paragraph 5 (wording of 5 July 2004, Official Gazette Valstybės žinios, 2004, No. 108-4030) of Article 20 of the Criminal Code of the Republic of Lithuania is not in conflict with the Constitution of the Republic of Lithuania.

3. To recognise that Paragraph 4 of Article 43 (wording of 26 September 2000, Official Gazette Valstybės žinios, 2000, No. 89-2741) of the Criminal Code of the Republic of Lithuania is not in conflict with the Constitution of the Republic of Lithuania.

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

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

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