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On refusing to consider a petition

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE PETITION OF THE PANEVĖŽYS CITY LOCAL COURT, THE PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER ARTICLE 291 (WORDING OF 2 DECEMBER 1997) OF THE CODE OF ADMINISTRATIVE VIOLATIONS OF LAW OF THE REPUBLIC OF LITHUANIA IS NOT IN CONFLICT WITH PARAGRAPH 1 OF ARTICLE 5, PARAGRAPH 2 OF ARTICLE 31 AND PARAGRAPH 2 OF ARTICLE 109 OF THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

29 October 2009
Vilnius

 

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

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, in its procedural sitting, considered the petition (No. 1B-45/2009) of the Panevėžys City Local Court, the petitioner, requesting an investigation into “whether a part of Art. 291 (wording of Law No. VIII-545 of 2 December 1997) of the CAVL of the RL establishing that the body, the official of which drew up a protocol of administrative violation of law, is granted the right to dispute the ruling adopted in the case of an administrative violation of law, according to its content and scope is not in conflict with Par. 1 of Art. 5, Par. 2 of Art. 31, and Par. 2 of Art. 109 of the Constitution of the Republic of Lithuania”.

The Constitutional Court

has established:

The Panevėžys City Local Court, the petitioner, considered a case of administrative violation of law. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into “whether a part of Art. 291 (wording of Law No. VIII-545 of 2 December 1997) of the CAVL of the RL establishing that the body, the official of which drew up a protocol of administrative violation of law, is granted the right to dispute the ruling adopted in the case of an administrative violation of law, according to its content and scope is not in conflict with Par. 1 of Art. 5, Par. 2 of Art. 31, and Par. 2 of Art. 109 of the Constitution of the Republic of Lithuania”.

The Constitutional Court

holds that:

1. The Panevėžys City Local Court, the petitioner, requests an investigation into whether Article 291 (wording of 2 December 1997) of the Code of Administrative Violations of Law of the Republic of Lithuania (hereinafter also referred to as CAVL) to the extent that the body, the official of which drew up a protocol on administrative violation of law, is granted the right to lodge a complaint against the ruling adopted in the case of an administrative violation of law, is not in conflict with Paragraph 1 of Article 5, Paragraph 2 of Article 31, and Paragraph 2 of Article 109 of the Constitution.

2. Article 291 (wording of 2 December 1997) of the CAVL provides: “A complaint against the ruling in a case of administrative violation of law may be lodged by the person in whose regard it was adopted, by the body whose official drew up the protocol on administrative violation of law, and by the victim.”

Thus, Article 291 (wording of 2 December 1997) of the CAVL regulates the relations that originate upon consideration of a case of administrative violation of law and passing a ruling in it, namely the relations that are linked to lodging a complaint against the ruling handed down in the examined case of administrative violation of law by a court or other institutions (officials) that are empowered to consider cases of administrative violation of law.

It should be noted that the Panevėžys City Local Court, the petitioner, commenced the consideration of the case of administrative violation of law related to the administrative violations of law that are provided for in Paragraph 6 of Article 1241 and Paragraph 1 of Article 126 of the CAVL, which, under Article 224 (wording of 15 July 2009) of the CAVL, must be investigated by the district (city) local courts (judges of local courts). Under Paragraph 2 of Article 292 (wording of 19 September 2000) of the CAVL, in a case of administrative violation of law one may lodge a complaint against a ruling of the district (city) court (judge) with the Supreme Administrative Court of Lithuania.

This means that, after the aforementioned case of administrative violation of law (related to administrative violations of law provided for in Paragraph 6 of Article 1241 and Paragraph 1 of Article 126 of the CAVL) has been considered, one can lodge a complaint against a ruling handed down by the Panevėžys City Local Court, the petitioner, with the Supreme Administrative Court of Lithuania.

Thus, the Panevėžys City Local Court, the petitioner, is not the subject who considers complaints against the rulings that are handed down in cases on administrative violations of law. Alongside, it should be noted that for the moment the case on administrative violation of law (related to the administrative violations of law that are provided for in Paragraph 6 of Article 1241 and Paragraph 1 of Article 126 of the CAVL) has not been examined and no ruling has been handed down in it, therefore in this procedural stage the right to lodge a complaint against the ruling with the Supreme Administrative Court of Lithuania may not be implemented.

3. Having taken account of the aforementioned circumstances, it should be concluded that the Panevėžys City Local Court, the petitioner, has adopted a ruling in the case on administrative violation of law to suspend the investigation of the case and to apply to the Constitutional Court with the request to investigate the compliance of Article 291 (wording of 2 December 1997) of the CAVL (to the extent that the body, the official of which drew up a protocol on administrative violation of law, is granted the right to lodge a complaint against the ruling adopted in the case of an administrative violation of law), namely the article that it should not apply in the course of examination of the above-mentioned case, with the Constitution.

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

According to Paragraph 1 of Article 67 of the Law on the Constitutional Court, provided that there are grounds to believe that a law or other legal act applicable in a concrete case is in conflict with the Constitution, the court shall apply to the Constitutional Court with a petition to decide whether the law or other legal is in compliance with the Constitution.

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

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

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

6. It has been mentioned that the Panevėžys City Local Court, the petitioner, adopted a ruling in the case of administrative violation of law to suspend the consideration of the case and to apply to the Constitutional Court with the petition requesting an investigation into the compliance of Article 291 (wording of 2 December 1997) of the CAVL (to the extent that the body, the official of which drew up a protocol on administrative violation of law, is granted the right to lodge a complaint against the ruling adopted in the case of an administrative violation of law), namely the article that it should not apply in the course of examination of the above mentioned case, with the Constitution.

Thus the Panevėžys City Local Court, the petitioner, in the considered case on an administrative violation of law does not have any locus standi to apply to the Constitutional Court with the petition requesting an investigation into whether Article 291 (wording of 2 December 1997) of the CAVL is not in conflict with the Constitution.

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

The petition of the Panevėžys City Local Court, the petitioner, requesting an investigation into whether Article 291 (wording of 2 December 1997) of the CAVL, to the extent that the body, the official of which drew up a protocol on administrative violation of law, is granted the right to lodge a complaint against the ruling adopted in the case of an administrative violation of law, is not in conflict with Paragraph 1 of Article 5, Paragraph 2 of Article 31, and Paragraph 2 of Article 109 of the Constitution, should be refused.

8. Alongside it should be mentioned that, as already held by the Constitutional Court, the position of the petitioner concerning the compliance of a legal act (part thereof) with the Constitution according to the content of the norms and/or the scope of regulation must be indicated clearly, unambiguously, the petition must contain the arguments and reasoning grounding the doubt of the petitioner that the legal act (part thereof) is in conflict with the Constitution. The petition requesting an investigation into the compliance of a legal act (part thereof) with the Constitution according to the content of norms and/or the scope of regulation must also clearly indicate the legal arguments grounding the doubt of the petitioner as regards every concretely indicated article (part thereof) or item of the disputed legal act, the compliance of which with the concretely indicated provision of the Constitution is doubtful to the petitioner (the Constitutional Court’s decision of 16 April 2004, its ruling of 12 December 2005, its decisions of 14 March 2006 (Case No. 14/03) and 29 March 2006, as well as its ruling of 20 December 2007).

The Constitutional Court has also held that “the courts that apply to the Constitutional Court with the petition requesting an investigation into whether the law or other legal act (part thereof) is not in conflict with the Constitution, while arguing their opinion presented in the petition that the law or other legal act (part thereof) is in conflict with the Constitution, may not confine themselves to general reasoning or statements that the law or other legal act (part thereof), in their opinion, is in conflict with the Constitution, but must clearly indicate which impugned articles (paragraphs, items thereof) and to what extent, in their opinion, are in conflict with the Constitution, and to reason their position on the compliance of every impugned provision of the legal act (part thereof) with the Constitution with clearly formulated legal arguments” (the Constitutional Court’s rulings of 12 December 2005, 16 January 2006, 17 January 2006, its decisions of 17 January 2006, 5 July 2007, 6 September 2007, 12 September 2007, 24 October 2007, 20 December 2007, and 14 October 2008).

9. In this context, it should be noted that the petitioner grounds his doubts concerning the compliance of Article 291 (wording of 2 December 1997) of the CAVL with the Constitution on various assumptions, the already formed practise of application of norms of the CAVL, the consequences and expediency of implementation of legal norms, etc.

9.1. The petitioner, by referring to the statements of explanatory notes to the Draft Law on Amending Articles 1635, 1721, 1731, 2461, 2475, 2591, and 259 of the Code of Administrative Violations of Law of the Republic of Lithuania and Supplementing it with Articles 16312 and 17312 of 25 November 1997—“while striving in the cases on administrative violations of law to adopt only objective, reasoned and legitimate rulings, it is proposed to amend Article 291 (The Right to Appeal Against a Ruling in the Case of Administrative Violation of Law) of the above mentioned Code”, “by this amendment the right to appeal against the ruling of a local court in a case on administrative violation of law to the regional court, would be granted also to the body, the official of which drew up the protocol on administrative violation of law”—makes an assumption that, by amending Article 291 of the CAVL, “by granting to the body, the official of which drew up the protocol on administrative violation of law, the right to lodge a complaint against the ruling handed down in the case of administrative violation of law, one indirectly sought to grant the right and the possibility to control the legitimacy of acts handed down by judges, i.e. to participate in the administration of justice”. The petitioner does not provide any reasons, why, in his opinion, the right to lodge a complaint against the ruling handed down by the court in the case on administrative violation of law, as set forth in the Code of Administrative Violations of Law, is in conflict with the Constitution, and why this right, according to the petitioner, means participation in administration of justice. The petitioner, by referring, inter alia, to Chapter Twenty and Articles 283 and 284 of the CAVL, only indicates that “having granted the right to lodge a complaint against the ruling handed down in the administrative case to the persons who directly do not participate in the investigation of the administrative case, one alongside indirectly granted to them the function of control and supervision of administration of justice, the performance of which is not characteristic of them and anti-constitutional”.

9.2. The petitioner states that the practice of the Supreme Administrative Court of Lithuania “indicates that majority of such rulings of local courts are repealed, therefore the judges, when investigating the above-mentioned cases on administrative violations of law, doubtless to say, are bound by the knowledge that every Article 301 of the CAVL in such cases shall be appealed against and this inevitably affects the respective ruling in the case and limits independency of the judge.” The petitioner does not provide any legal arguments substantiating the statement, why the “knowledge” that the ruling handed down in a case on administrative violation of law will be appealed against, limits the independency of a judge.

9.3. The petitioner indicates that “police officers who drew up protocols on administrative violations of law in fact appeal against all rulings handed down in the cases on administrative violations of law <…>” and that the right to lodge a complaint against the ruling handed down by the court “impedes the individualisation of the prescribed administrative penalties and alongside violates the rights and interests of citizens”, however, it does not explain why and how the aforementioned right to lodge a complaint against the handed down ruling impedes individualisation of administrative penalties and violates rights and interests of citizens.

9.4. The petitioner states that “application of excessively strict administrative penalties <…> makes the situation of our state and society even worse”, that “the strict pecuniary penalties that are provided for in the CAVL constitute a sufficient precautionary measure that prevents new administrative violations of law. Although no special research has been performed regarding this, but it is so”.

These arguments of the petitioner should be considered as arguments of expedience, i.e. it is not the constitutionality issue that is raised, but the expedience of application of strict administrative penalties, moreover, by referring to the assumption that pecuniary penalties constitute a sufficient preventive measure (besides, the petitioner himself states that this assumption is based on special research that has never been performed). Thus, such a statement of the petitioner not only does not substantiate the fact why pecuniary penalties constitute a sufficient preventive measure, but this statement is self-contradictory, too.

9.5. The petitioner quotes a passage from the doctrine of the Constitutional Court that was formulated in the course of the investigation into the compliance of provisions of the Criminal Code with the Constitution, for example: “An important aspect of the independence of the judge and the court in criminal procedure is the independence of the court in deciding all questions linked with cases under investigation <…>”, however it does not explain how this statement substantiates the conflict of Article 291 of the CAVL with the Constitution in the case on administrative violation of law that is investigated by the petitioner.

9.6. It should be noted that even from the entirety of arguments listed in the petition of the Panevėžys City Local Court, the petitioner, it is evident that the conflict of the disputed provision of the CAVL with the Constitution is substantiated by the practise of the application of the norms of the CAVL, the arguments are inconsistent and self-contradictory: on the one hand, it is stated that the Supreme Administrative Court of Lithuania rescinds the majority of rulings of local courts (in certain cases on administrative violations of law, inter alia, in the cases such as the one the investigation of which was suspended by the petitioner and it was applied to the Constitutional Court), i.e. it is recognised that the right which is set forth in the CAVL (inter alia, in respect to the bodies the officials of which drew up protocols on administrative violations of law) to appeal against rulings of the courts that are handed down in the cases on administrative violations of law, creates preconditions for correcting possible mistakes by the court, to correctly apply the law and administer justice; on the other hand, it is indicated that such practise, when the body indicated in Article 291 (wording of 2 December 1997) of the CAVL, the official of which drew up the protocol on administrative violation of law, in all cases uses the right that is granted to him to lodge complaints against rulings in the cases of administrative violations of law, restricts the judges and distorts the process of implementation of justice.

9.7. Thus, it is obvious from the entirety of the arguments which form the grounds of the petition of the Panevėžys City Local Court, the petitioner, that the reasoning of applying to the Constitutional Court which is specified in the petition, irrespective of the employed legal terminology, may not be recognised as legal reasoning.

10. Having taken into account the fact that, as already mentioned, the Panevėžys City Local Court, the petitioner, does not have locus standi to apply in the examined case on administrative violation of law to the Constitutional Court with a request to investigate whether Article 291 (wording of 2 December 1997) of the CAVL is not in conflict with the Constitution, it should be held that there are grounds for refusing to consider the petition of the Panevėžys City Local Court, the petitioner, requesting an investigation into whether Article 291 (wording of 2 December 1997) of the CAVL to the extent that the body, the official of which drew up a protocol on administrative violation of law, is granted the right to lodge a complaint against the ruling adopted in the case of an administrative violation of law, is not in conflict with Paragraph 1 of Article 5, Paragraph 2 of Article 31, and Paragraph 2 of Article 109 of the Constitution.

Conforming to Paragraphs 3 and 4 of Article 22, Article 28, Item 1 of Paragraph 1 and Paragraph 2 of Article 69 of the Republic of Lithuania’s Law on the Constitutional Court, the Constitutional Court adopts the following

decision:

To refuse to consider the petition of the Panevėžys City Local Court, the petitioner, requesting an investigation into whether Article 291 (wording of 2 December 1997) of the Code of Administrative Violations of Law of the Republic of Lithuania to the extent that the body, the official of which drew up a protocol on administrative violation of law, is granted the right to lodge a complaint against the ruling adopted in the case of an administrative violation of law, is not in conflict with Paragraph 1 of Article 5, Paragraph 2 of Article 31, and Paragraph 2 of Article 109 of the Constitution of the Republic of Lithuania.

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

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

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