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On criminal liability for contraband

Case No. 13/02-22/02

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF ARTICLE 45 (WORDING OF 2 JULY 1998) AND PARAGRAPH 3 OF ARTICLE 312 (WORDING OF 3 FEBRUARY 1998) OF THE CRIMINAL CODE OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

10 June 2003
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas

The court reporter—Daiva Pitrėnaitė

Antanas Jatkevičius, a senior consultant to the Legal Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to 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, on 3 June 2003, in its public hearing, considered case No. 13/02-22/02 subsequent to these petitions:

1) the petition of the Court of Appeal of Lithuania requesting an investigation into whether Paragraph 4 of Article 45 (wording of 2 July 1998) and the minimum punishment of a five-year imprisonment established in Paragraph 3 of Article 312 (wording of 3 February 1998) of the Criminal Code of the Republic of Lithuania were not in conflict with Paragraph 2 of Article 31 of the Constitution of the Republic of Lithuania as well as the principle of a state under the rule of law that is entrenched in the Constitution of the Republic of Lithuania;

2) the petition of the Panevėžys Regional Court requesting an investigation into whether Paragraph 4 of Article 45 (wording of 2 July 1998) of the Criminal Code of the Republic of Lithuania was not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 31 of the Constitution of the Republic of Lithuania.

By the Constitutional Court’s decision of 28 January 2003, these petitions were joined into one case.

The Constitutional Court

has established:

I

1. The Court of Appeal of Lithuania, a petitioner, was considering a criminal case. The said court suspended the consideration of the case by its ruling and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 4 of Article 45 (wording of 2 July 1998; Official Gazette Valstybės žinios, 1998, No. 67-1937) and the minimum punishment of a five-year imprisonment established in Paragraph 3 of Article 312 (wording of 3 February 1998; Official Gazette Valstybės žinios, 1998, No. 17-397) of the Criminal Code (hereinafter also referred to as the CC) were not in conflict with Paragraph 2 of Article 31 of the Constitution as well as the principle of a state under the rule of law that is entrenched in the Constitution.

2) The Panevėžys Regional Court, a petitioner, was considering a criminal case. The said court suspended the consideration of the case by its ruling and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 4 of Article 45 (wording of 2 July 1998) of the Criminal Code was not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 31 of the Constitution.

II

1. The petition of the Court of Appeal of Lithuania, a petitioner, is based on the following arguments.

The state must ensure an effective protection of the human being against criminal attempts and create a system, on the basis of which the persons who have violated the prohibitions established in the penal law would be held criminally liable. The establishment of the sanctions for the commission of the deeds provided for in the penal law is within the prerogative of the legislature, meanwhile, it is a court that must recognise the person guilty of the commission of the crime and to impose on him the punishment which is adequate to the nature of the crime and the degree of its danger.

According to the petitioner, the sanctions provided for in the CC ought to be designed so that a court, conforming to the grounds of imposition of punishment established by penal laws, might impose a just punishment on the accused, thus ensuring the realisation of the principle of a state under the rule of law and the right of the person to a fair investigation of his case.

The persons who commit crimes must be punished justly, i.e. the imposed punishment must depend on the significance of the value protected by the penal law, the nature of the crime committed, its consequences, the degree of danger of the person who violated law, and other important circumstances. Under Paragraph 2 of Article 31 of the Constitution, a person charged with the commission of a crime shall have the right to a fair public hearing of his case by an independent and impartial court. In the opinion of the petitioner, justice means not only that one establishes the circumstances important to the cases in an exhaustive, thorough and objective manner, but also that the punishment imposed on the person who is recognised guilty is adequate to the crime committed: the punishment for a criminal deed must correspond to the nature and degree of the danger of this deed.

The petitioner believes that Paragraph 3 of Article 312 (wording of 3 February 1998) of the CC, the sanction established by which provides for the minimum punishment of a five-year imprisonment, encompasses a wide range of deeds, which vary according to the degree of danger. Although, according to the CC, in some situations a court is permitted to impose a milder punishment on the culprit than that provided for in the law (Article 45 of the CC), however, the application of these provisions are strictly limited by formal conditions and prohibitions. In the absence of these conditions, the opportunity of a court to impose a just punishment on the culprit becomes restricted. In case of the application of Paragraph 3 of Article 312 (wording of 3 February 1998) of the CC, a court is obligated to impose the punishment of not less than five years of imprisonment and a fine on the person who violated the penal law, although the imposition of such strict punishment is not always in line with the principle of justice. Under Article 45 of the CC, under certain conditions and in certain situations a court is permitted to avoid the imposition of a clearly unjust punishment and to impose a milder punishment than that provided for by law, if the limits of a concrete sanction does not permit taking into account the nature of the crime and of the person who committed it. However, Paragraph 4 of Article 45 (wording of 2 July 1998) of the CC provides for the criminal deeds, for which the persons who committed them are not applied Paragraph 2 of Article 45 of the CC, permitting the imposition of a milder punishment than that provided for in the law. The petitioner is of the opinion that thus singling out certain elements of the crime, under which the imposition of a milder punishment than that provided for in the concrete sanction (i.e. application of Article 45 of the CC) is prohibited, one thereby imposes limitations on the opportunity of a court to investigate the case justly and to individualise the punishment.

2. The petition of the Panevėžys Regional Court, a petitioner, is based on the following arguments.

Paragraph 2 of Article 31 of the Constitution provides that a person charged with the commission of a crime shall have the right to a fair public hearing of his case by an independent and impartial court. Justice means not only that one establishes the circumstances important to the cases in an exhaustive, thorough and objective manner, but also that the punishment imposed on the person who is recognised guilty is adequate to the crime committed. Paragraph 1 of Article 29 of the Constitution provides that all persons shall be equal before the law, the court, and other state institutions and officials.

In the opinion of the petitioner, after Paragraph 4 of Article 45 (wording of 2 July 1998) of the CC had singled out certain elements of the crime, which, by their nature are not among the most dangerous to the society, and after it had been prohibited to impose a milder punishment than that provided for in the concrete sanction, the opportunity of a court to investigate the case justly and to individualise the punishment is restricted.

III

1. In the course of the preparation of the case for the Constitutional Court hearing, written explanations (dated 12 September 2002 and 27 January 2003) were received from the representative of the party concerned, the Seimas, who was M. Girdauskas, a senior consultant to the Legal Department of the Office of the Seimas.

The representative of the party concerned noted that, under Paragraph 4 of Article 31 of the Constitution, punishment may be imposed or applied only on the grounds established in law. By Article 109 of the Constitution, while considering cases, judges shall obey only the law. Thus, a court has the right to impose only the punishment provided for in the law on the person who was recognised guilty. However, the legislature is not completely free in the establishment of punishment for criminal deeds. The scope of power shall be limited by the Constitution (Paragraph 2 of Article 5 of the Constitution). According to the representative of the party concerned, on the grounds of the constitutional principles of justice and a state under the rule of law, the state has to provide for sanctions for violations of law, which must be proportionate (adequate) for the violation of law, they must be in line with the sought legitimate and generally important objectives, they should not restrict the person evidently more than it is necessary to achieve these objectives. In other words, laws must create opportunities for a court to impose the punishment for every crime, which is adequate and proportionate to the crime, so that the constitutional right of the person might be implemented that his case be investigated fairly and impartially by a court.

According to M. Girdauskas, under Paragraph 4 of Article 45 (wording of 2 July 1998) of the CC, a court is not permitted to impose a milder punishment on a person of age charged with contraband on a large scale than the minimum punishment provided in the sanction for contraband on a large scale, which is a five-year imprisonment, provided the circumstances specified in Paragraph 1 of Article 45 of the CC are absent, although those specified in Paragraph 2 of the same article are present. In the opinion of the representative of the party concerned, the formula of Paragraph 3 of Article 312 (wording of 3 February 1998) includes not only the features of very dangerous deeds for which strict punishments must be applied, but also the features of less dangerous deeds.

The representative of the party concerned believes that there are grounds to doubt whether Paragraph 4 of Article 45 (wording of 2 July 1998) and the minimum punishment of a five-year imprisonment established in Paragraph 3 of Article 312 (wording of 3 February 1998) of the CC is in conformity with the Constitution.

2. In the course of the preparation of the case for the Constitutional Court hearing, a letter of 30 May 2003 was received from the representative of the party concerned, the Seimas, who was Antanas Jatkevičius, a senior consultant to the Legal Department of the Office of the Seimas, in which he assented to the arguments set forth in the written explanations of M. Girdauskas, the representative of the party concerned, the Seimas.

IV

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from D. Grybauskaitė, Minister of Finance of the Republic of Lithuania, P. Čėsna, Minister of Economy of the Republic of Lithuania, G. Švedas, Vice-minister of Justice, J. Liaudanskas, Secretary of the Ministry of the Interior of the Republic of Lithuania, A. Klimavičius, Prosecutor General of the Republic of Lithuania, Prof. Dr. V. Pavilonis, Head of the Department of Criminal Law of the Faculty of Law, Vilnius University, Prof. Dr. G. Babachinaitė, Head of the Department of Criminology, the Law University of Lithuania, and specialists of the Institute of Law.

V

At the Constitutional Court hearing, the representative of the party concerned, the Seimas, who was A. Jatkevičius, virtually reiterated the arguments set forth in the written explanations of the representative of the Seimas M. Girdauskas.

Alongside, A. Jatkevičius noted that the punishment of imprisonment provided for in Paragraph 3 of Article 312 (wording of 3 February 1998) of the CC may be regarded as being in compliance with the Constitution, if the general part of the CC provided that a court might impose a milder punishment than the minimum established in relevant articles of the special part of the CC.

The Constitutional Court

holds that:

I

1. On 3 February 1998, the Seimas adopted the Republic of Lithuania’s Law on the Amendment of Articles 81, 11, 26, 35, 49, 54, 55, 207, 231, 2312, 2313, 2321, 2322, 2324, 2325, 2326, 234, 2341, 2342, 2343, 2344, 236, 285, 287, 288, 289, 290, 294, 295, 312 of the Criminal Code and Supplement Thereof with Articles 1321, 2141, 3121, 3212, by Article 29 whereof it amended and supplemented Article 312 of the CC.

On 2 July 1998, the Seimas adopted the Republic of Lithuania’s Law on the Amendment and Supplement of Articles 81, 25, 32, 35, 45, 471, 531, 54, 55, 131, 239, 241, 242, 306, 3212 of the Criminal Code and Supplement Thereof with Articles 1313, 3101, by Article 5 whereof it amended and supplemented Article 45 of the CC.

2. The Court of Appeal of Lithuania, a petitioner, requests an investigation into whether Paragraph 4 of Article 45 (wording of 2 July 1998) of the CC and the minimum punishment of a five-year imprisonment established in Paragraph 3 of Article 312 (wording of 3 February 1998) of the CC are not in conflict with Paragraph 2 of Article 31 of the Constitution as well as the principle of a state under the rule of law that is entrenched in the Constitution.

The Panevėžys Regional Court, a petitioner, requests an investigation into whether Paragraph 4 of Article 45 (wording of 2 July 1998) of the CC is not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 31 of the Constitution.

3. On 10 December 2002, the Seimas adopted the Republic of Lithuania’s Law on the Amendment of Articles 81, 111, 45, 531, 2321, 2322, 2325, 2328, 312, 3212 of the Criminal Code, Recognition of Article 2323 Thereof as no Longer Valid and Supplement Thereof with Article 3401, by Article 3 whereof it recognised Paragraph 4 of Article 45 of the CC as no longer valid, while by Article 10 whereof it amended Article 312 of the CC and, inter alia, reduced the minimum punishment of a five-year imprisonment provided for in Paragraph 3 thereof till three-year imprisonment.

On 9 January 2003, the Seimas adopted the Republic of Lithuania’s Law on the Recognition of Article 151 of the Criminal Code as no Longer Valid, the Amendment and Supplement of Articles 411, 45, 2271 Thereof and Supplement with Article 512 Thereof, by Article 3 whereof it supplemented Article 45 of the CC with new Paragraph 6, while amended Paragraph 7 thereof.

4. On 26 September 2000, the Seimas adopted the Law on the Confirmation and Entry into Force of the Criminal Code of the Republic of Lithuania, whereby a new Criminal Code was confirmed.

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 the Execution of Punishments as Confirmed by Law No. IX-994 of 27 June 2002, in Article 1 whereof it established that the new Criminal Code shall become effective as of 1 May 2003.

5. Under the Constitution, it is only the Constitutional Court that decides whether the laws and other acts of the Seimas are not in conflict with the Constitution and whether acts of the President of the Republic and the Government are not in conflict with the Constitution or laws (Paragraph 1 of Article 102). Paragraph 1 of Article 110 of the Constitution provides that a judge may not apply a law, which is in conflict with the Constitution. Under Paragraph 2 of Article 110 of the Constitution, in cases when there are grounds to believe that the law or other legal act applicable in a concrete case is in conflict with the Constitution, the judge shall suspend the consideration of the case and shall apply to the Constitutional Court requesting it to decide whether the law or other legal act in question is in compliance with the Constitution.

These constitutional provisions imply that in cases when the Constitutional Court is applied by a court considering a case and such a court has doubts as to the compliance of a law applicable in that case with the Constitution, as well as concerns the compliance of an act adopted by the Seimas, an act of the President of the Republic or the Government with the Constitution or laws, the Constitutional Court is obligated to consider the request of the court regardless of the fact whether the impugned law or other legal act is in force or not (the Constitutional Court’s ruling of 21 August 2002).

6. It has been mentioned that the Court of Appeal of Lithuania, a petitioner, requests an investigation into whether the minimum punishment of a five-year imprisonment established in Paragraph 3 of Article 312 of the CC (wording of 3 February 1998) is not in conflict with Paragraph 2 of Article 31 of the Constitution as well as the principle of a state under the rule of law that is entrenched in the Constitution.

It has also been mentioned that the Court of Appeal of Lithuania, a petitioner, requests an investigation into whether Paragraph 4 of Article 45 of the CC (wording of 2 July 1998) is not in conflict with Paragraph 2 of Article 31 of the Constitution as well as the principle of a state under the rule of law which is entrenched in the Constitution, while the Panevėžys Regional Court, a petitioner, as to whether the same paragraph is not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 31 of the Constitution. It is clear from the arguments set forth in the petition that the petitioners have doubts concerning the compliance of not entire Paragraph 4 of Article 45 of the CC (wording of 2 July 1998) with the Constitution, but only whether this paragraph was not in conflict with the Constitution to the extent that it established that Paragraph 2 of the same article should be not applied to the persons convicted for the criminal deed provided for by Paragraph 3 of Article 312 of the CC (wording of 3 February 1998).

7. Subsequent to the petitions of the petitioners the Constitutional Court will investigate whether the provision of Paragraph 3 of Article 312 of the CC “shall be punished by imprisonment from five years <...>” and Paragraph 4 of Article 45 of the CC to the extent that it established that Paragraph 2 of the Article should be not applied to the persons convicted for the criminal deed provided for by Paragraph 3 of Article 312 of the CC (wording of 3 February 1998) were not in conflict with the Constitution.

II

On the compliance of the provision of Paragraph 3 of Article 312 of the CC “shall be punished by imprisonment from five years” with Paragraph 2 of Article 31 of the Constitution as well as the constitutional principle of a state under the rule of law.

1. Article 312 of the CC (wording of 3 February 1998) provided:

Article 312. Contraband

Transportation of goods, money, valuables of art or other items which must be declared at the customs through the state border of the Republic of Lithuania by not declaring them at the customs or by evading customs control in another way, or with a forged declaration of customs or other documents, or transporting goods or items under different name from that indicated in the customs declaration or in other documents

shall be punished by imprisonment up to five years together with a fine, or without a fine, or by a fine.

Transportation of goods, money, valuables of art or other items which must be declared at the customs through the state border of the Republic of Lithuania not through the customs, as well as transportation of firing arms, ammunition, explosives, explosive, radioactive and other strategic goods, poisonous and toxic, psychotropic or narcotic substances, precursors through the state border of the Republic of Lithuania by not declaring them at the customs or evading customs control in another way, or without the permission to transport them

shall be punished by imprisonment from three years to six years either together with a fine or without a fine.

The deeds provided for in Paragraphs 1 and 2 of this Article, if they are committed by a group of persons with a premeditated intent, or repeatedly, or on a large scale, or contraband of a large amount of firing arms, ammunition, explosives or explosive substances

shall be punished by imprisonment from five years to ten years together with a fine.”

2. The Court of Appeal of Lithuania, a petitioner, requests an investigation into whether the minimum punishment of a five-year imprisonment established in Paragraph 3 of Article 312 of the CC (wording of 3 February 1998) was not in conflict with Paragraph 2 of Article 31 of the Constitution as well as the principle of a state under the rule of law that is entrenched in the Constitution.

3. Article 31 of the Constitution provides:

A person shall be presumed innocent until proven guilty and must be declared guilty by an effective court judgment in accordance with the procedure established by law.

A person charged with the commission of a crime shall have the right to a fair public hearing of his case by an independent and impartial court.

It shall be prohibited to compel to give evidence against oneself or against one’s family members or close relatives.

Punishment may be imposed or applied only on the grounds established in law.

No one may be punished a second time for the same crime.

A person suspected of the commission of a crime or an accused, from the moment of his detention or first interrogation, shall be guaranteed the right to defence as well as the right to have an advocate.”

3.1. This article of the Constitution consolidates constitutional grounds of criminal law and law of criminal procedure. 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.

3.2. The legislature in a state under the rule of law has the right and, alongside, a duty to prohibit by law the deeds by which essential harm is inflicted on the interests of persons, society and those of the state or in case there occurs a threat that such damage will be inflicted; 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 ruling of 8 May 2000).

It should be noted in the context of the case under consideration 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.

3.3. 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 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. It should be noted that, under Paragraph 3 of Article 21 of the Constitution, it shall be prohibited to torture, injure a human being, degrade his dignity, treat him in a cruel manner, as well as to establish punishments of such kind. Punishments and their sizes must be differentiated in a penal law, while taking account of the danger of criminal deeds.

According to Article 109 of the Constitution, in the Republic of Lithuania, justice shall be administered solely by courts (Paragraph 1), while administering justice, the judge and courts shall be independent (Paragraph 2), while considering cases, judges shall obey only the law (Paragraph 3). Therefore, punishments established in a penal law and their system must be such as to enable a court to administer justice, while imposing punishments.

Under the Constitution, it is impossible to establish the legal regulation (punishments or their sizes) in a penal law on the basis of which a court, while taking account of all circumstances of a case and applying the penal law, would not be able to individualise the punishment which is imposed on a concrete person for a concrete criminal deed.

3.4. The legislature, having constitutional powers to establish punishments for criminal deeds and sizes of these punishments, has the duty to provide maximum limits of punishments for certain criminal deeds. If the maximum limit of the punishment for a particular criminal deed were not established in the penal law, pre-requisites for the imposition of unreasonably strict punishments and violation of human rights and freedoms would be created. According to the Constitution, the legislature may also establish minimal limits of punishments for certain criminal deeds.

The legislature, by specifying certain deeds as crimes and establishing minimal and maximum limits of punishments for these deeds, may employ various ways of consolidation of sizes of the said punishments, as well as indicate the minimal or maximum limit of a punishment in the sanction of the norm of a penal law which establishes liability for a certain criminal deed.

The legislature, by choosing the way of creation of the sanction for the commission of a criminal deed when the article itself, establishing liability for the specified criminal deed, provides such minimum punishment of imprisonment which is strict, alongside must establish by law the legal regulation according to which a court, by imposing a punishment for this criminal deed, must have an opportunity to take account of all circumstances of the case mitigating criminal liability, as well as of those which have not been expressis verbis established by law, and to impose a milder punishment than that provided for by law.

3.5. It has been mentioned that, according to Paragraph 2 of Article 31 of the Constitution, a person charged with the commission of a crime shall have the right to a fair public hearing of his case by an independent and impartial court.

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 a court must be just; the penal law must provide for all opportunities for a 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.

4. Under Paragraph 3 of Article 312 of the CC (wording of 3 February 1998), transportation of goods, money, valuables of art or other items which must be declared at the customs through the state border of the Republic of Lithuania by not declaring them at the customs or evading customs control in another way, or with a forged declaration of customs or other documents, or transporting goods or items under different name from that indicated in the customs declaration or in other documents, transportation of goods, money, valuables of art or other items which must be declared at the customs through the state border of the Republic of Lithuania not through the customs, as well as transportation of firing arms, ammunition, explosives, explosive, radioactive and other strategic goods, poisonous and toxic, psychotropic or narcotic substances, precursors through the state border of the Republic of Lithuania by not declaring them at the customs or evading customs control in another way, or without the permission to transport them, if these deeds are committed by a group of persons with a premeditated intent, or repeatedly, or on a large scale, or contraband of a large amount of firing arms, ammunition, explosives or explosive substances, shall be punished by imprisonment from five years to ten years together with a fine.

Thus, the minimum limit of the imprisonment punishment established in Paragraph 3 of Article 312 of the CC (wording of 3 February 1998) for a crime specified therein, is five years.

5. It has been mentioned that, under the Constitution, the legislature may establish minimum limits of punishments for certain criminal deeds.

The fact that Paragraph 3 of Article 312 of the CC (wording of 3 February 1998) established the minimum limit of imprisonment punishment for a crime specified therein and that this limit was five years does not itself mean that a court, by applying the penal law, could not individualise the punishment for a concrete person for a concrete criminal deed specified in this paragraph, and that a court, by imposing a punishment, could not administer justice.

6. Taking account of the arguments set forth, it should be concluded that the provision of Paragraph 3 of Article 312 of the CC (wording of 3 February 1998) “shall be punished by imprisonment from five years <…>” was not in conflict with Paragraph 2 of Article 31 of the Constitution, as well as the constitutional principle of a state under the rule of law.

III

On the compliance of Paragraph 4 of Article 45 of the Criminal Code (wording of 2 July 1998) with Paragraph 1 of Article 29, Paragraph 2 of Article 31 of the Constitution, as well as the constitutional principle of a state under the rule of law.

1. Article 45 of the CC (wording of 2 July 1998) provided:

Article 45. Imposition of a milder punishment than that provided for by law

Taking account of all circumstances of the case, the court may impose a milder punishment than that established by law if the person who has committed a crime, arrives voluntarily and confessed about the commission of the crime and, in addition, sincerely regrets, has compensated the inflicted harm and helped the investigation and the court to disclose the crime.

Taking account of all circumstances of the case, the court may as well impose a milder punishment than that established by law if the harm inflicted by the crime has been compensated, if there are other circumstances mitigating the liability in the case, and:

1) persons supported by the convict are ill with a grave illness and there is no one to take care of them, or

2) the convict supports children and there will be no one to take care of them because of the imposition of the punishment established by law, or

3) the role of the convict in the crime committed by his accomplices was of minor importance, or

4) the crime, under Article 16 of this Code, was terminated at the preparatory or attempt stage.

Also the court, taking account of the circumstances mitigating the liability, which are present in the case and if the harm inflicted by the crime has been at least partially compensated, may impose a milder punishment than that established by law, if the crime was committed by a minor.

Paragraph 2 of this Article shall not be applied to persons convicted for crimes against public service (Articles 282–290), for illegal storage, transportation and realisation of taxable goods (Article 3101), contraband (Article 312), illegal non-exportation of goods or production from the Republic of Lithuania (Article 3121), deceptive book-keeping (Article 323), tax or payment evasion (Article 325), as well as to members of an organised group or a criminal association.

A milder punishment than that established by law may also be imposed if a crime has been committed exceeding the limits of indispensable defence.

If the conditions specified in Paragraphs 1, 2, 3 or 5 of this Article exist, the court may:

1) impose a milder punishment than the minimum limit for the committed crime provided for by law, or

2) impose a milder type of punishment for the committed crime than that provided for by law, or

3) not impose the additional punishment in cases when its imposition is obligatory according to the law, except for the punishment of confiscation of property.”

2. The Court of Appeal of Lithuania, a petitioner, requests an investigation into whether Paragraph 4 of Article 45 of the CC (wording of 2 July 1998) was not in conflict with Paragraph 2 of Article 31 of the Constitution, as well as the constitutional principle of a state under the rule of law that is entrenched in the Constitution.

The Panevėžys Regional Court, a petitioner, requests an investigation into whether Paragraph 4 of Article 45 of the CC (wording of 2 July 1998) was not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 31 of the Constitution.

3. According to the Constitution, the legislature, specifying certain deeds as crimes in the penal law and establishing punishments for them and the minimum limit of these punishments, is empowered to establish the grounds under which a milder punishment than that provided for by law may be imposed.

4. Article 45 of the CC (wording of 2 July 1998) established the grounds for imposition of a milder punishment than that provided for by law. These grounds are different.

4.1. Under Paragraphs 1, 3 and 5 of Article 45 of the CC, a court could, upon the presence of the grounds established therein and taking account of all circumstances of the case, impose a milder punishment than that provided for by law on a person, who had committed any crime. According to Paragraph 1 of Article 45 of the CC (wording of 2 July 1998), taking account of all circumstances of the case, a court may impose a milder punishment than that provided for by law for a person, who has committed any crime, if the person who has committed a crime, arrived voluntarily and confessed about the commission of a crime and, in addition, he sincerely regretted, if he had compensated the inflicted harm and helped the investigation and a court to disclose the crime; under Paragraph 3—if the crime was committed by a minor, and, in addition, there were circumstances mitigating the liability and the harm inflicted by the crime had been at least partially compensated; under Paragraph 5—if the crime had been committed exceeding the limits of indispensable defence.

4.2. Under Paragraph 2 of Article 45 of the CC (wording of 2 July 1998), taking account of all circumstances of the case, a court could impose a milder punishment than that established by law on a person who had committed a crime (except for the crimes specified in Paragraph 4 of Article 45 of the CC), if the harm inflicted by the crime had been compensated, if there were other circumstances mitigating the liability in the case, and at least one of the following conditions were present: (1) persons supported by the convict were ill with a grave illness and there was no one to take care of them, or (2) the convict supported children and there would be no one to take care of them because of the imposition of punishment established by law, or (3) the role of the convict in the crime committed by accomplices had been of minor importance, or (4) the crime, under Article 16 of the Code, had been terminated at the preparatory or attempt stage.

It should be noted in the context of the case under consideration that the circumstances mitigating the liability for a committed crime, which are mentioned in Paragraph 2 of Article 45 of the CC (wording of 2 July 1998), and the account of which should be taken when imposing a punishment, were established in Paragraph 1 of Article 40 of the CC: (1) the culprit prevented harmful consequences of the committed crime or voluntarily compensated the damage or eliminated the harm which had been inflicted; (2) the crime had been committed because of grave personal or family circumstances; (3) the crime had been committed because of threatening or violence, or material, official or other dependence; (4) the crime had been committed because of great agitation caused by illegal actions of the victim; (5) the crime had been committed in the event of defence from a dangerous attempt to the society, though exceeding the limits of indispensable defence; (6) the crime had been committed by a minor; (7) the crime had been committed by a pregnant woman; (8) the culprit sincerely regretted or arrived voluntarily and confessed about the commission of the crime, or actively helped to disclose the crime or to trace other criminals. Paragraph 2 of Article 40 of the CC established that a court, by imposing the punishment, might also take account of mitigating circumstances which were not specified in the law.

Under Paragraph 2 of Article 45 of the CC (wording of 2 July 1998), the imposition of a milder punishment than that provided for by law was bound by compensation of the harm which had been inflicted by the crime, the presence of other circumstances mitigating the liability and other conditions specified in this paragraph: persons supported by the convict were ill with a grave illness and there was no one to take care of them, the convict supported children and there would be no one to take care of them because of the imposition of the punishment established by law, the role of the convict in the crime committed by his accomplices had been of minor importance, or the crime, under Article 16 of the CC, had been terminated at the preparatory or attempt stage.

One of the crimes specified in Paragraph 4 of Article 45 of the CC for the commission of which a court could not impose on persons a milder punishment than that provided for by law, even if the conditions established in Paragraph 2 of this Article existed, was contraband (Article 312 of the CC).

Thus, Paragraphs 2 and 4 of Article 45 of the CC (wording of 2 July 1998) established the legal regulation according to which, inter alia, a court could not impose a milder punishment than that provided for by law on a person who had committed a criminal deed specified in Paragraph 3 of Article 312 of the CC (wording of 3 February 1998), even if the conditions established in Paragraph 2 of Article 45 of the CC (wording of 2 July 1998) existed.

5. It has been mentioned that the legislature, by choosing the way of creation of the sanction for the commission of a criminal deed when the article itself establishing liability for the specified criminal deed provides the minimum punishment of imprisonment which is strict, alongside must establish by law the legal regulation according to which a court, by imposing a punishment for this criminal deed, must have an opportunity to take account of all circumstances of the case mitigating criminal liability, as well as of those which have not been expressis verbis established by law, and to impose a milder punishment than that provided for by law.

It has been also noted that Constitution consolidates human rights and freedoms, other constitutional values which must be protected and defended, and that one of the means for protection of rights and freedoms of the human being, and other constitutional values is criminal liability for committed deeds. Therefore, imposition of a milder punishment than that provided for by law is not a rule, but an exception: a court may impose a milder punishment than that provided for by law only if there exist special circumstances mitigating the liability, while the punishment imposed without taking account of those circumstances would obviously be unjust. A court has the duty to apply the institution of a milder punishment than that provided for by law especially attentively and carefully, so that the interests of the victim, society and those of the state would not be violated. In each particular case the decision of a court to impose a milder punishment than that provided for by law must be reasoned. In case of ungrounded and/or unreasoned imposition of a milder punishment than that provided for by law, justice would not be administered. It would be in conflict with justice and the constitutional principle of a state under the rule of law.

6. The minimum limit of the imprisonment punishment established in Paragraph 3 of Article 312 of the CC (wording of 3 February 1998) for contraband committed by a group of persons with a premeditated intent, or repeatedly, or on a large scale, or contraband of a large amount of firing arms, ammunition, explosives or explosive substances, is five years.

It has been held in this ruling of the Constitutional Court that the provision of Paragraph 3 of Article 312 of the CC (wording of 3 February 1998) “shall be punished by imprisonment from five years <…>” was not in conflict with Paragraph 2 of Article 31 of the Constitution, as well as the constitutional principle of a state under the rule of law.

It should be noted that the minimum five-year limit of imprisonment punishment established in Paragraph 3 of Article 312 of the CC (wording of 3 February 1998) means that the minimum imprisonment punishment established for a criminal deed, specified in this paragraph is strict.

Though the legislature categorised contraband (thus, the contraband committed by a group of persons with a premeditated intent, or repeatedly, or on a large scale, or for a contraband of a large amount of firing arms, ammunition, explosives or explosive substances as well) as a grave crime (Article 81 of the CC), however, in every particular case of the commission of this grave crime there may exist circumstances which are not specified in Article 45 of the CC (wording of 3 February 1998), under which the five-year imprisonment punishment provided in Paragraph 3 of Article 312 (wording of 3 February 1998) might be obviously too strict, and if imposed, this punishment would be unjust.

8. The legislature, by choosing such a way of creation of the sanction for contraband committed by a group of persons with a premeditated intent, or repeatedly, or on a large scale, or contraband of a large amount of firing arms, ammunition, explosives or explosive substances (Paragraph 3 of Article 312 of the CC (wording of 3 February 1998)), when the article itself, establishing liability for the specified criminal deed, provides the minimum punishment of imprisonment which is strict (five years in this case), alongside must establish by law the legal regulation according to which a court, by imposing a punishment for this criminal deed, must have an opportunity to take account of all circumstances of the case mitigating criminal liability, as well as of those which have not been expressis verbis established by law, and to impose a milder punishment than that provided for by law.

9. Article 45 of the CC (wording of 3 February 1998) established the legal regulation according to which a court could impose a milder punishment than that provided for by law on a person who had committed the criminal deed specified in Paragraph 3 of Article 312 of the CC only if there existed conditions expressis verbis established in Paragraphs 1, 3 and 5 of this Article—mitigating circumstances, while Paragraph 2 of this article could not be in general applied to such a person under Paragraph 4 of this article.

Thus, according to the legal regulation established by Article 45 of the CC (wording of 2 July 1998), a court, while deciding the question of imposition of punishment for a criminal deed specified in Paragraph 3 of Article 312 of the CC (wording of 3 February 1998), was restricted by the conditions specified in Paragraphs 1, 2, 3, 4 and 5 of Article 45 of the CC (wording of 2 July 1998). According to the law, a court, even having held that there existed other mitigating circumstances which were not expressis verbis specified in Paragraphs 1, 2, 3, 4 and 5 of Article 45 of the CC (wording of 2 July 1998), was not able to take account of them and could not impose on the person a milder punishment than that provided for by Paragraph 3 of Article 312 of the CC (wording of 3 February 1998), even in cases when the minimum five-year imprisonment punishment specified in this paragraph, if imposed, would have been obviously unjust.

Such legal regulation established in Article 45 of the CC (wording of 2 July 1998) was not in line with the right of a person to a fair trial consolidated in Paragraph 2 of Article 31 of the Constitution, as well as the principle of a state under the rule of law.

10. Taking account of the arguments set forth, it should be concluded that Article 45 of the CC (wording of 2 July 1998) to the extent that it restricted the right of a court, while taking account of all circumstances mitigating the liability, as well as those not specified by law, to impose a milder punishment than the punishment specified for a criminal deed as provided for by Paragraph 3 of Article 312 of the CC (wording of 3 February 1998) was in conflict with Paragraph 2 of Article 31 of the Constitution as well as the constitutional principle of a state under the rule of law.

11. It has been mentioned that the Panevėžys Regional Court, a petitioner, requested an investigation into whether Paragraph 4 of Article 45 of the CC (wording of 2 July 1998) was not in conflict with Paragraph 1 of Article 29 of the Constitution.

It has been held in this ruling of the Constitutional Court that Article 45 of the CC (wording of 2 July 1998) to the extent that it restricted the right of a court, while taking account of all circumstances mitigating the liability, as well as those not specified by law, to impose a milder punishment than the punishment specified for a criminal deed as provided for by Paragraph 3 of Article 312 of the CC (wording of 3 February 1998) was in conflict with Paragraph 2 of Article 31 of the Constitution as well as the constitutional principle of a state under the rule of law.

Having held this, the Constitutional Court will not investigate whether Paragraph 4 of Article 45 of the CC (wording of 2 July 1998) was 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 Article 45 of the (wording of 2 July 1998) of the Criminal Code of the Republic of Lithuania to the extent that it restricted the right of a court, while taking account of all circumstances mitigating the liability, as well as those not specified by law, to impose a milder punishment than the punishment specified for a criminal deed as provided for by Paragraph 3 of Article 312 (wording of 3 February 1998) of the Criminal Code of the Republic of Lithuania was in conflict with Paragraph 2 of Article 31 of the Constitution of the Republic of Lithuania as well as the constitutional principle of a state under the rule of law.

2. To recognise that the provision of Paragraph 3 of Article 312 (wording of 3 February 1998) of the Criminal Code of the Republic of Lithuania “shall be punished by imprisonment from five years <…>” was not in conflict with Paragraph 2 of Article 31 of 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

Egidijus Jarašiūnas

Egidijus Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Augustinas Normantas

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas