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On the Law on Tobacco Control

Case No. 02/03-03/03-04/03-05/03-39/03-05/04-16/04-02/05-04/05

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 2 (WORDING OF 16 MARCH 2000), PARAGRAPH 3 (WORDING OF 11 JUNE 2002), PARAGRAPH 4 (WORDING OF 11 MAY 1999), AND PARAGRAPH 7 (WORDING OF 11 JUNE 2002) OF ARTICLE 21 OF THE REPUBLIC OF LITHUANIA’S LAW ON TOBACCO CONTROL AS WELL AS ON THE COMPLIANCE OF PARAGRAPHS 5, 7, AND 14 OF ARTICLE 25 OF THE SAME LAW (WORDING OF 20 NOVEMBER 2003) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

3 November 2005

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas Sinkevičius, and Stasys Stačiokas

The court reporter—Daiva Pitrėnaitė

Vaclovas Karbauskis, a member of the Seimas of the Republic of Lithuania, Gediminas Sagatys and Saulius Švedas, senior advisors of the Legal Department of the Office of the Seimas, as well as Girius Ivoška, an advisor of the same department, 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, on 13 October 2005, in its public hearing, considered case No. 02/03-03/03-04/03-05/03-39/03-05/04-16/04-02/05-04/05 subsequent to the following petitions:

the 28 November 2002 petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether the provision “the violation shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity” of Paragraph 4 of Article 21 of the Republic of Lithuania’s Law on Tobacco Control is not in conflict with the principles of justice and of a state under the rule of law consolidated in the Constitution of the Republic of Lithuania;

the 5 December 2002 petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether the provision of Paragraph 4 of Article 21 of the Republic of Lithuania’s Law on Tobacco Control that violation of requirements in the sales of tobacco products which are established in Paragraph 2 of Article 10 of this law shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity is not in conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of Article 46 of the Constitution of the Republic of Lithuania and the principles of justice and a state under the rule of law consolidated in the Constitution of the Republic of Lithuania;

the 9 December 2002 petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether the provision of Paragraph 4 of Article 21 of the Republic of Lithuania’s Law on Tobacco Control that the violation of the requirements regarding sales of tobacco products which are established in Paragraph 2 of Article 10 of this law shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity is not in conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of Article 46 of the Constitution of the Republic of Lithuania and the principles of justice and a state under the rule of law consolidated in the Constitution of the Republic of Lithuania;

the 13 December 2002 petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether the provision of Paragraph 4 of Article 21 of the Republic of Lithuania’s Law on Tobacco Control that violation of requirements in the sales of tobacco products which are established in Paragraph 2 of Article 10 of this law shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity is not in conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of Article 46 of the Constitution of the Republic of Lithuania and the principles of justice and a state under the rule of law consolidated in the Constitution of the Republic of Lithuania;

the 30 September 2003 petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether the provision of Paragraph 3 of Article 21 of the Republic of Lithuania’s Law on Tobacco Control that failure to have documents bearing juridical force, confirming acquisition of tobacco products, shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity is not in conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of Article 46 of the Constitution of the Republic of Lithuania and the principles of justice and a state under the rule of law consolidated in the Constitution of the Republic of Lithuania;

the 21 October 2003 petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether the provision of Paragraph 7 of Article 21 of the Republic of Lithuania’s Law on Tobacco Control that the failure to adhere to the requirements for prohibiting the advertisement of tobacco products, set forth in Paragraph 3 of Article 11 of this law, shall incur a fine of five thousand litas upon subjects of commercial-economic activity is not in conflict with Paragraphs 1 and 2 of Article 46 of the Constitution of the Republic of Lithuania and the principles of justice and a state under the rule of law consolidated in the Constitution of the Republic of Lithuania;

the 27 February 2004 petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether the provision “trade in tobacco products without a respective permit or licence for such activity, shall incur a fine of fifty thousand litas upon subjects of commercial-economic activity” of Paragraph 2 of Article 21 of the Republic of Lithuania’s Law on Tobacco Control is not in conflict with Paragraphs 1 and 2 of Article 46 of the Constitution of the Republic of Lithuania and the principles of justice and a state under the rule of law consolidated in the Constitution of the Republic of Lithuania;

the 21 January 2005 petition of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether Paragraph 14 of Article 26 (wording of 20 November 2003) of the Republic of Lithuania’s Law on Tobacco Control to the extent that, according to the petitioner, it restricts the right of the court which, after it takes account of all the circumstances mitigating the liability, including those provided for in the law, to impose a milder fine than that established in Paragraph 7 of Article 26 of the Republic of Lithuania’s Law on Tobacco Control (wording of 20 November 2003) for violation of the prohibitions regarding the sale and storing of tobacco products established in Item 6 of Paragraph 3 of Article 14 of this law, is not in conflict with Paragraphs 1, 2 and 3 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

the 21 February 2005 petition of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether Paragraphs 5 and 14 of Article 26 of the Republic of Lithuania’s Law on Tobacco Control (wording of 20 November 2003) to the extent that, according to the petitioner, it does not provide for the right of the court which considers a respective case, after it takes account of the factual circumstances which mitigate the liability, to impose milder “punishment” than the lowest level of the sanction provided for in Paragraph 5 of Article 26 of the Republic of Lithuania’s Law on Tobacco Control (wording of 20 November 2003), is not in conflict with the principle of a state under the rule of law entrenched in the Constitution of the Republic of Lithuania.

By the Constitutional Court’s decision of 27 January 2003, the 28 November 2002 petition of the Vilnius Regional Administrative Court, the 5 December 2002 petition of the Vilnius Regional Administrative Court, the 9 December 2002 petition of the Vilnius Regional Administrative Court, and the 23 December 2002 petition of the Vilnius Regional Administrative Court were joined into one case and it was given reference No. 02/03-03/03-04/03-05/03.

By the Constitutional Court’s decision of 29 September 2005, the petitions joined into Case No. 02/03-03/03-04/03-05/03 were also joined with the 30 September 2003 petition of the Vilnius Regional Administrative Court, the 21 October 2003 petition of the Vilnius Regional Administrative Court, the 27 February 2004 petition of the Vilnius Regional Administrative Court, the 21 January 2005 petition of the Supreme Administrative Court of Lithuania, and the 21 February 2005 petition of the Supreme Administrative Court of Lithuania and the case was given reference No. 02/03-03/03-04/03-05/03-39/03-05/04-16/04-02/05-04/05.

The Constitutional Court

has established:

I

1. The Vilnius Regional Administrative Court, the petitioner, considered an administrative case. By its ruling of 28 November 2002, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether the provision “the violation shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity” of Paragraph 4 of Article 21 of the Law on Tobacco Control is not in conflict with the principles of justice and of a state under the rule of law consolidated in the Constitution.

2. The Vilnius Regional Administrative Court, the petitioner, considered an administrative case. By its ruling of 5 December 2002, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether the provision of Paragraph 4 of Article 21 of the Law on Tobacco Control that violation of requirements in the sales of tobacco products which are established in Paragraph 2 of Article 10 of this law shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity is not in conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of Article 46 of the Constitution and the principles of justice and a state under the rule of law consolidated in the Constitution.

3. The Vilnius Regional Administrative Court, the petitioner, considered an administrative case. By its ruling of 9 December 2002, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether the provision of Paragraph 4 of Article 21 of the Law on Tobacco Control that violation of requirements in the sales of tobacco products which are established in Paragraph 2 of Article 10 of this law shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity is not in conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of Article 46 of the Constitution and the principles of justice and a state under the rule of law consolidated in the Constitution.

4. The Vilnius Regional Administrative Court, the petitioner, considered an administrative case. By its ruling of 13 December 2002, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether the provision of Paragraph 4 of Article 21 of the Law on Tobacco Control that violation of requirements in the sales of tobacco products which are established in Paragraph 2 of Article 10 of this law shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity is not in conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of Article 46 of the Constitution and the principles of justice and a state under the rule of law consolidated in the Constitution.

5. The Vilnius Regional Administrative Court, the petitioner, considered an administrative case. By its ruling of 30 September 2003, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether the provision of Paragraph 3 of Article 21 of the Law on Tobacco Control that failure to have documents bearing juridical force, confirming acquisition of tobacco products, shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity is not in conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of Article 46 of the Constitution and the principles of justice and a state under the rule of law consolidated in the Constitution.

6. The Vilnius Regional Administrative Court, the petitioner, considered an administrative case. By its ruling of 21 October 2003, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether the provision of Paragraph 7 of Article 21 of the Law on Tobacco Control that the failure to adhere to the requirements for prohibiting the advertisement of tobacco products, set forth in Paragraph 3 of Article 11 of this law, shall incur a fine of five thousand litas upon subjects of commercial-economic activity is not in conflict with Paragraphs 1 and 2 of Article 46 of the Constitution and the principles of justice and a state under the rule of law consolidated in the Constitution.

7. The Vilnius Regional Administrative Court, the petitioner, considered an administrative case. By its ruling of 27 February 2004, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether the provision “trade in tobacco products without a respective permit or licence for such activity, shall incur a fine of fifty thousand litas upon subjects of commercial-economic activity” of Paragraph 2 of Article 21 of the Law on Tobacco Control is not in conflict with Paragraphs 1 and 2 of Article 46 of the Constitution and the principles of justice and a state under the rule of law consolidated in the Constitution.

8. The Supreme Administrative Court of Lithuania, the petitioner, considered an administrative case. By its ruling of 21 January 2005, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 14 of Article 26 (wording of 20 November 2003) of the Law on Tobacco Control to the extent that, according to the petitioner, it restricts the right of a court, which takes account of all the circumstances, including those provided for in the law, which mitigate the liability, to impose a milder (i.e. smaller) fine than that established in Paragraph 7 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) for violation of the prohibitions regarding the sale and storing of tobacco products established in Item 6 of Paragraph 3 of Article 14 of this law, is not in conflict with Paragraphs 1, 2 and 3 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

9. The Supreme Administrative Court of Lithuania, the petitioner, considered an administrative case. By its ruling of 21 February 2005, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraphs 5 and 14 of Article 26 (wording of 20 November 2003) of the Law on Tobacco Control to the extent that, according to the petitioner, it does not provide for the right of the court considering a respective case, which takes account of the factual circumstances which mitigate the liability, to impose milder (i.e. smaller) “punishment” than the level of the sanction provided for in Paragraph 5 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003), is not in conflict with the principle of a state under the rule of law which is consolidated in the Constitution.

II

1. The doubts concerning the compliance of Paragraphs 2, 3, 4 and 7 (provisions thereof) of Article 21 of the Law on Tobacco Control with the Constitution are based on the following arguments which are set forth mutatis mutandis in all petitions (of 28 November 2002, 5 December 2002, 9 December 2002, 13 December 2002, 30 September 2003, 21 October 2003, and 27 February 2004) of the Vilnius Regional Administrative Court.

1.1. Economic sanctions for violations of the Law on Tobacco Control upon subjects of commercial-economic activity must be in line with the principles of justice and a state under the rule of law, which are consolidated in the Constitution, they must be adequate to the violations of law and be in conformity to the legitimate and generally important objectives sought.

Meanwhile, under Paragraphs 2, 3, 4, and 7 of Article 21 of the Law on Tobacco Control, differentiation of the economic sanctions-fines established therein are not permitted, if one takes account of the number of respective violations of law committed at the same time, injury made, extent, peculiarities of commercial-economic activity and other circumstances, since the same economic sanctions are established to commercial-economic subjects for the violations of law, whose injury made to people’s health and the economy is different. Doubts are raised whether such legal regulation is not in conflict with the constitutional principles of justice and a state under the rule of law.

1.2. The freedom and initiative of a subject of commercial economic activity may not violate human rights and freedoms, nor the interests of society and the state. On the other hand, fair measures must be established and applied to economic subjects for violations of law, which should not ruin their activity.

Meanwhile, Paragraphs 2, 3, 4, and 7 of Article 21 of the Law on Tobacco Control establish the legal regulation where strictly defined economic sanctions—fines—are established upon subjects of economic-commercial activity for violations of this law, but not the lowest and top limits of the sanction, nor the relative amount of a monetary fine, which is related with the annual revenues (or those fixed otherwise) of the subject of commercial-economic activity. The petitioners have doubts as regards the compliance of such legal regulation with Paragraphs 1 and 2 of Article 46 of the Constitution.

1.3. Property shall be inviolable (Paragraph 1 of Article 23 of the Constitution). Under the Law on Enterprises, assets of individual (personal) enterprises are inseparable from the assets of the owner and the owner is liable for the obligations of the enterprise by way of all his assets, also after the enterprise is liquidated. If an individual enterprise is financially incapable of paying the fixed fines imposed under Paragraphs 3 and 4 of Article 21 of the Law on Tobacco Control, the exaction can be directed not only against the assets registered by the name of the enterprise, but also at the assets of the owner of the enterprise. Therefore, doubts are raised whether the legal regulation established in Paragraphs 3 and 4 of Article 21 of the Law on Tobacco Control is not in conflict with Paragraph 1 of Article 23 of the Constitution.

2. The Supreme Administrative Court of Lithuania bases its doubts (ruling of 21 January 2005) concerning the compliance of Paragraph 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) with the Constitution upon the following arguments.

2.1. The constitutional principle of a state under the rule of law means, inter alia, that state sanctions for violations of law must be proportionate to these violations and adequate to the objective sought and the rights of the person to a fair investigation of the case must be ensured. In the opinion of the petitioner, if the legislature establishes such lowest limit of the sanction for the violation of law, i.e. the minimum monetary fine, which is a strict one, he must also establish such legal regulation, under which a court, after it evaluates all circumstances mitigating the liability, could impose a smaller fine than the lowest limit of the sanction.

Meanwhile, under Paragraph 7 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003), for violation of the prohibitions regarding the sale, storing and transporting of tobacco products, which are established in Items 6 and 7 of Paragraph 3 of Article 14 of the said law, as well as violations established in Items 1, 2 and 3 of Paragraph 5 of Article 14 of the same law, legal persons and branches of foreign legal persons are punished by a fine from three thousand till five thousand litas. The established minimum fine should be regarded as a strict one. Under Paragraph 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003), if there are circumstances mitigating the liability, the size of the imposed fine may not exceed the average of the economic sanction for the committed violation, while if there are circumstances aggravating the liability, its size may not be smaller than the average of the economic sanction for the committed violation. Thus, there is an opportunity to differentiate legal liability, to individualise the size of the monetary fine, however, neither under Paragraph 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003), nor under other articles (parts thereof), even after assessment of the character and circumstances of the committed violation of law, it is impossible to impose a smaller fine that established in this law, thus, also a fine smaller than the minimum fine of three thousand litas established in Paragraph 7 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003).

2.2. In the Republic of Lithuania, justice shall be administered solely by courts; while administering justice, the judge and courts shall be independent; while considering cases, judges shall obey only the law (Paragraphs 1, 2, and 3 of Article 109 of the Constitution). Thus, the court must objectively investigate and assess all circumstances of the case and apply such a sanction which is consistent with the character and degree of the committed deed which was contrary to law. In case the court, after it assesses all the circumstances mitigating the liability, cannot impose a smaller monetary fine than the lowest limit of the sanction—the minimum monetary fine—then its opportunities to individualise the monetary fine and justly to solve the case are limited; alongside, the opportunities of the court to administer justice are limited.

3. The Supreme Administrative Court of Lithuania bases its doubts (ruling of 21 February 2005) concerning the compliance of Paragraphs 5 and 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) with the Constitution upon the following arguments.

Paragraph 5 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) provides that for violation of the prohibitions established in Items 1, 2, 3 or 4 of Paragraph 3 of Article 14 of this law regarding the sale, storing or transporting of tobacco products, if this does not incur criminal liability, legal persons and branches of foreign legal persons are punished with a fine from ten thousand till thirty thousand litas. The established minimum fine, if one takes account of the level of development of the state and the level of subsistence, should be regarded as a strict one. However, under Paragraph 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003), if there are circumstances mitigating the liability, the size of the imposed fine may not exceed the average of the economic sanction for the committed violation, while if there are circumstances aggravating the liability, its size may not be smaller than the average of the economic sanction for the committed violation; when there are circumstances both mitigating and aggravating the liability, the fine is imposed by taking account of their amount and significance. Thus, this law does not permit the court to impose a smaller monetary fine than the established minimum monetary fine even in the cases where the factual circumstances describing the violation of law and the violator testify that the fine of ten thousand litas due to its severity (size) is inconsistent with the degree of danger of the violation of law, the assets of the violator etc. and is thus evidently unjust. The fact that even in such circumstances the court is not permitted to impose “just” punishment for the committed violation of law, violates the constitutional principle of a state under the rule of law.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from representatives of the Seimas, the party concerned, who were G. Sagatys, G. Ivoška and S. Švedas.

1. In the opinion of G. Ivoška, Paragraph 4 of Article 21 of the Law on Tobacco Control (to the extent pointed out by the petitioners) is not in conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of Article 46 of the Constitution as well as the constitutional principles of justice and a state under the rule of law. The position of the representative of the party concerned is based upon the following arguments.

1.1. According to G. Ivoška, the legislature established a different procedure for holding natural and legal persons legally liable for violations of the Law on Tobacco Control: to natural persons administrative penalties are applied according to the Code of Administrative Violations of Law of the Republic of Lithuania (hereinafter also referred to as the CAVL), while to legal persons they are applied according to Article 21 of the Law on Tobacco Control.

1.2. Paragraph 4 of Article 24 of the Law on Tobacco Control employs the notion “subjects of commercial-economic activity”, while Paragraph 1 of the same articles employs the notion “enterprise”. Under Paragraph 2 of Article 2 of the Law on Enterprises, the enterprise, as a subject of law, may have the rights of a legal person or may act as a natural person (enterpriser); thus, both an enterprise which has the rights of a legal person and an enterprise which acts as a natural person can be regarded as subjects of commercial-economic activity, therefore, both the enterprises and the natural persons who are engaged in trade in tobacco products may be imposed the fine established in Paragraph 4 of Article 26 of the Law on Tobacco Control. Under Paragraph 4 of Article 2.50 of the Civil Code of the Republic of Lithuania, individual (personal) enterprises are legal persons of unlimited civil liability; if, in order to fulfil property obligations of such legal person the assets of the legal person are insufficient, then the participant of the legal person is liable for the obligations of such person. The right of ownership is not absolute, it may be limited by law due to, inter alia, committed deeds that are contrary to law.

1.3. Paragraph 4 of Article 21 of the Law on Tobacco Control establishes a strictly defined sanction for violations of this law, which is a fine of twenty thousand litas. Other paragraphs of this article also establish monetary sanctions of strictly defined amounts. In the opinion of G. Ivoška, such legal regulation should not be regarded as unlawful: for the said violations of law these sanctions have been consolidated due to the necessity to implement the objective established in Article 2 of the Law on Tobacco Control—to diminish the use of tobacco products and the effects brought about by such products to the health of residents, as well as the principles consolidated in Article 3 of the same law which must be observed by both natural and legal persons which sell tobacco products.

Besides, under Article 25 of the Law on Tobacco Control, an economic subject, which disagrees with a decision of any institution specified in Paragraph 1 of Article 21 of this law to apply the economic sanctions, may, within one year of the day of submission of the decision, apply to court requesting the repeal of the said decision, or its amendment and the repayment of the damages. In the opinion of G. Ivoška, the right to demand that the decision on the application of the economic sanction—monetary fine—be amended also includes the right to demand that the size of the imposed fine be changed.

1.4. In Article 46 of the Constitution the principles constituting the economic basis of the state are established, while Paragraph 4 of Article 21 of the Law on Tobacco Control regulates relations of liability for violations of this law. According to the representative of the party concerned, the relations of liability for violations of laws are of a different character than those regulated in Article 46 of the Constitution, therefore, Paragraph 4 of Article 21 of the Law on Tobacco Control is not in conflict with Paragraphs 1 and 2 of Article 46 of the Constitution.

2. In the opinion of S. Švedas, Paragraphs 2, 3 and 7 of Article 21 of the Law on Tobacco Control (to the extent specified by the petitioners) are not in conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of Article 46 of the Constitution and the constitutional principles of justice and a state under the rule of law. S. Švedas grounds his position upon the following arguments.

2.1. According to S. Švedas, tobacco products should be categorised as products of a special purpose, to which a special regime of legal regulation must be applied. The legislature established not only sanctions (fines) for violations of requirements of the Law on Tobacco Control, but also for the fact that the economic subject, if it disagrees with the decision adopted in its respect to apply an economic sanction, has the right to apply to court requesting the repeal of the said decision or its amendment and the repayment of the damages (Article 25). The Law on Tobacco Control contains sufficient protection measures so that economic subjects would not be unreasonably and unlawfully punished, as well as measures permitting the punished economic subjects to pay the fines imposed upon them not at once but during a certain period of time. Therefore, in the opinion of the representative of the party concerned, it is groundless to believe that the fine provided for by law can ruin the enterprise, its activities and to have grave effects to business.

2.2. One of the essential elements of the principle of a state under the rule of law established in the Constitution is legal certainty and legal clarity. According to the representative of the party concerned, the provisions of Paragraphs 2, 3, and 7 of Article 21 of the Law on Tobacco Control are sufficiently clear, they do not contain contradictions nor ambiguities, therefore, there are no grounds to assert that they are in conflict with the constitutional principle of a state under the rule of law.

2.3. Under Article 46 of the Constitution, Lithuania’s economy shall be based on the right of private ownership and individual freedom of economic activity and initiative. The legal persons who can participate in commercial-economic activity are grouped into persons of limited and unlimited liability. Under Paragraph 4 of Article 2.50 of the Civil Code, the individual (personal) enterprise is a legal person of unlimited civil liability; if in order to fulfil property obligations of a legal person of unlimited civil liability the assets of the legal person are insufficient, then the participant of the legal person is liable for the obligations of such person. According to the representative of the party concerned, persons, when they found enterprises which are engaged in commercial-economic activity, decide by themselves whether the enterprise founded will be of limited or unlimited liability; they must understand their possible property liability under the obligations of the legal person of unlimited liability, if, in order to fulfil them, the assets of the legal person are insufficient.

2.4. In Paragraphs 1 and 2 of Article 46 of the Constitution the principles constituting the economic basis of the state are established, but liability relations are not regulated. Therefore, the impugned provisions of Paragraphs 2, 3 and 7 of Article 21 of the Law on Tobacco Control (to the extent specified by the petitioners) are not in conflict with Paragraphs 1 and 2 of Article 46 of the Constitution.

3. According to G. Sagatys, Paragraphs 5 and 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) (to the extent specified by the petitioners) are not in conflict with Paragraphs 1, 2 and 3 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law. G. Sagatys grounds his position upon the following arguments.

3.1. Article 33 of the Law on Tobacco Control (wording of 20 November 2003) provides for an opportunity to appeal in court against applied economic sanctions. Thereby the provision of Paragraph 1 of Article 109 of the Constitution is implemented that in the Republic of Lithuania, justice shall be administered solely by courts. The provisions of Paragraphs 2 and 3 of Article 109 of the Constitution are particularised by means of the laws which regulate the procedure for consideration of complaints concerning the economic sanctions established in the Law on Tobacco Control (the Republic of Lithuania’s Law on Courts, the Republic of Lithuania’s Law on the Proceedings of Administrative Cases etc.); according to G. Sagatys, these laws grant all interested persons sufficient legal guarantees and protection against any violations of the provisions of the Law on Tobacco Control which regulate the bases and procedure for imposition of the economic sanctions.

3.2. According to G. Sagatys, the size of the sanctions applied for violations of law is generally a matter of public accord and of political resolve. The economic sanctions established in the Law on Tobacco Control (wording of 20 November 2003) are totally in line with the principles of the state tobacco control policy and generally important objectives which are sought to achieve by means of this law. The economic sanctions established in Paragraphs 5, 7 etc. of Article 26 of the same law should be regarded not as strict but adequate ones to the gravity of committed violations of law and proportionate to the objectives sought.

3.3. Paragraph 15 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) establishes, inter alia, what circumstances are circumstances mitigating the liability and also that the institution which imposes the fine can recognise also other circumstances as mitigating ones, which are not specified in this paragraph. Thus, the institution, while applying the economic sanctions to a legal person or the branch of a foreign legal person, is guided not by a final, but exemplary list of circumstances mitigating the liability. According to the representative of the party concerned, by applying the systemic, logic and teleological methods of construction of law, it is possible to maintain that the law does not prevent the court which is considering a case on application of the economic sanctions, to take account of all circumstances mitigating the liability, including those which are not expressis verbis specified in the law. Thus, according to G. Sagatys, the court is bound only by the lowest limit of the economic sanctions consolidated in the law, i.e. the minimum monetary fine, but not by the entirety of the mitigating circumstances to be established in a corresponding case.

IV

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from A. Mačiulytė, the Secretary of the Ministry of the Agriculture of the Republic of Lithuania and Č. Balsys, Director of the State Service for Tobacco and Alcohol Control (hereinafter also referred to as the SSTAC) under the Government of the Republic of Lithuania.

V

1. At the hearing of the Constitutional Court, G. Ivoška, a representative of the party concerned, the Seimas, asserted, differently from what he had maintained in his written explanations, that although the Law on Tobacco Control (wording of 20 December 1995, with subsequent amendments and supplements) did not grant an opportunity to directly apply the CAVL in the cases in which the issue of liability of a legal person was decided for violations of the Law on Tobacco Control, still, pursuant to the principle of the equality of persons entrenched in the Constitution, also because the administrative violations, which are defined in the Law on Tobacco Control, and which are committed by legal persons, should be held analogous to violations of administrative law, which are defined in the CAVL, and which are committed by natural persons, in such cases the CAVL should also have been applied to economic subjects. Thus, the Law on Tobacco Control (wording of 20 December 1995, with subsequent amendments and supplements) did not deprive the court, which considers a case deciding an issue of liability of a legal person for violation of the Law on Tobacco Control, of an opportunity to apply the CAVL and, if there are mitigating circumstances, to impose such monetary fine upon the legal person, which is smaller than the strictly defined fine established in the Law on Tobacco Control.

As regards other issues, G. Ivoška virtually reiterated the arguments set forth in his written explanations.

2. At the Constitutional Court’s hearing, S. Švedas, a representative of the Seimas, the party concerned, virtually reiterated the arguments set forth in his written explanations.

3. At the Constitutional Court’s hearing, G. Sagatys, a representative of the Seimas, the party concerned, virtually reiterated the arguments set forth in his written explanations.

G. Sagatys also noted that the economic sanctions established in the Law on Tobacco Control (wording of 20 November 2003) have all the typical distinctions of the administrative penalty—a monetary fine. He asserted that in cases in which the issue of liability of a legal person is decided for violations of the Law on Tobacco Control, one must also apply both the law in question and the provisions of the general part of the CAVL, inter alia, its Article 301 under which a body (official), who considers cases of administrative violations of law, “shall have the right to impose a smaller penalty that the minimum one established in the sanction or to impose a milder penalty than that provided for in the sanction, or not to impose an administrative penalty at all.”

4. At the Constitutional Court’s hearing, V. Karbauskis, a representative of the Seimas, the party concerned, a member of the Seimas, assented to the explanations of G. Sagatys, a representative of the Seimas, the party concerned.

5. At the Constitutional Court’s hearing, explanations were presented by the specialist Ona Vitartienė, Head of the Law and Control Division of the State Service for Tobacco and Alcohol Control.

The Constitutional Court

holds that:

I

1. By its ruling of 28 November 2002, the Vilnius Regional Administrative Court, the petitioner, applied to the Constitutional Court with a petition requesting an investigation into whether the provision “the violation shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity” of Paragraph 4 of Article 21 of the Law on Tobacco Control is not in conflict with the principles of justice and of a state under the rule of law consolidated in the Constitution.

By its ruling of 5 December 2002, the Vilnius Regional Administrative Court, the petitioner, applied to the Constitutional Court with a petition requesting an investigation into whether the provision of Paragraph 4 of Article 21 of the Law on Tobacco Control that violation of requirements in the sales of tobacco products which are established in Paragraph 2 of Article 10 of this law shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity is not in conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of Article 46 of the Constitution and the principles of justice and a state under the rule of law consolidated in the Constitution.

By its ruling of 9 December 2002, the Vilnius Regional Administrative Court, the petitioner, applied to the Constitutional Court with a petition requesting an investigation into whether the provision of Paragraph 4 of Article 21 of the Law on Tobacco Control that violation of requirements in the sales of tobacco products which are established in Paragraph 2 of Article 10 of this law shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity is not in conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of Article 46 of the Constitution and the principles of justice and a state under the rule of law consolidated in the Constitution.

By its ruling of 13 December 2002, the Vilnius Regional Administrative Court, the petitioner, applied to the Constitutional Court with a petition requesting an investigation into whether the provision of Paragraph 4 of Article 21 of the Law on Tobacco Control that violation of requirements in the sales of tobacco products which are established in Paragraph 2 of Article 10 of this law shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity is not in conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of Article 46 of the Constitution and the principles of justice and a state under the rule of law consolidated in the Constitution.

By its ruling of 30 September 2003, the Vilnius Regional Administrative Court, the petitioner, applied to the Constitutional Court with a petition requesting an investigation into whether the provision of Paragraph 3 of Article 21 of the Law on Tobacco Control that failure to have documents bearing juridical force, confirming acquisition of tobacco products, shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity is not in conflict with Paragraph 1 of Article 23, Paragraphs 1 and 2 of Article 46 of the Constitution and the principles of justice and a state under the rule of law consolidated in the Constitution.

By its ruling of 21 October 2003, the Vilnius Regional Administrative Court, the petitioner, applied to the Constitutional Court with a petition requesting an investigation into whether the provision of Paragraph 7 of Article 21 of the Law on Tobacco Control that the failure to adhere to the requirements for prohibiting the advertisement of tobacco products, set forth in Paragraph 3 of Article 11 of this law, shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity is not in conflict with Paragraphs 1 and 2 of Article 46 of the Constitution and the principles of justice and a state under the rule of law consolidated in the Constitution.

By its ruling of 27 February 2004, the Vilnius Regional Administrative Court, the petitioner, applied to the Constitutional Court with a petition requesting an investigation into whether the provision “trade in tobacco products without an appropriate permit or licence for such activity, shall incur a fine of fifty thousand litas upon subjects of commercial-economic activity” of Paragraph 2 of Article 21 of the Law on Tobacco Control is not in conflict with Paragraphs 1 and 2 of Article 46 of the Constitution and the principles of justice and a state under the rule of law consolidated in the Constitution.

By its ruling of 21 January 2005, the Supreme Administrative Court of Lithuania, the petitioner, applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 14 of Article 26 (wording of 20 November 2003) of the Law on Tobacco Control to the extent that, according to the petitioner, it restricts the right of the court, after it takes account of all the circumstances, including those provided for in the law, which mitigate the liability, to impose a milder fine than that established in Paragraph 7 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) for violation of the prohibitions regarding the sale and storing of tobacco products established in Item 6 of Paragraph 3 of Article 14 of this law, is not in conflict with Paragraphs 1, 2 and 3 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

By its ruling of 21 February 2005, the Supreme Administrative Court of Lithuania, the petitioner, applied to the Constitutional Court with a petition requesting an investigation into whether Paragraphs 5 and 14 of Article 26 (wording of 20 November 2003) of the Law on Tobacco Control to the extent that, according to the petitioner, it does not provide for the right of the court considering a case, which, while taking account of the factual circumstances mitigating the liability, as well as those provided for by law, to impose milder (i.e. smaller) “punishment” than the level of the sanction provided for in Paragraph 5 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003), is not in conflict with the constitutional principle of a state under the rule of law consolidated in the Constitution.

2. On 20 December 1995, the Seimas adopted the Republic of Lithuania’s Law on Tobacco Control. This law (save certain exceptions) went into effect on 7 February 1996.

The Law on Tobacco Control (wording of 20 December 1995), inter alia, its Article 21, was amended and/or supplemented more than once.

3. On 20 November 2003, the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on Tobacco Control and on Recognising the Law on Implementing the Law on Tobacco Control as No Longer Valid, by Article 1 whereof the Law on Tobacco Control (wording of 20 December 1995 with the amendments and supplements made till 20 November 2003) was amended and set forth in a new wording. The Law on Tobacco Control in its new wording (save certain exceptions) went into effect on 1 May 2004.

4. The Law on Tobacco Control regulates relations linked to tobacco growing, manufacture of tobacco products, trade in tobacco products, their keeping, import, tobacco advertising, consumption etc., and establishes the foundations of tobacco control in the Republic of Lithuania (Paragraph 2 (wordings of 20 December 1995 and 11 May 1999) of Article 2 and Paragraph 1 (wording of 20 November 2003) of Article 1); the purpose of the Law on Tobacco Control is to reduce the consumption of tobacco products in the Republic of Lithuania, accessibility thereof (inter alia, to minors) and the negative consequences for the population and economy owing to it (Paragraph 1 (wording of 20 December 1995) of Article 2 and Paragraph 2 (wording of 20 November 2003) of Article 1).

5. The legal liability, inter alia, sanctions for violations the this law, for failure to follow certain requirements and prohibitions established in the Law on Tobacco Control are established for the Law on Tobacco Control itself:

in Article 21 titled “Application of Economic Sanctions For Violations of the Law on Tobacco Control” of the Law on Tobacco Control (wordings of 20 December 1995, 11 May 1999, 16 March 2000, 11 July 2000, and 11 June 2002);

in Article 26 titled “Economic Sanctions” of the Law on Tobacco Control (wording of 20 November 2003).

6. It is clear from the petitions of the Vilnius Regional Administrative Court that it doubts whether the following was not in conflict with the Constitution:

the provision “trade in tobacco products without an appropriate permit or licence for such activity, shall incur a fine of fifty thousand litas upon subjects of commercial-economic activity” of Paragraph 2 (wording of 16 March 2000; Official Gazette Valstybės žinios, 2000, No. 28-758) of Article 21 of the Law on Tobacco Control;

the provision “failure to have documents bearing juridical force, confirming acquisition of tobacco products, shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity” of Paragraph 3 (wording of 11 June 2002; Official Gazette Valstybės žinios, 2002, No. 68-2757) of Article 21 of the Law on Tobacco Control;

the provision “violation of <…> requirements regarding sales in tobacco products which are established in Paragraphs <…> 2 <…> of Article 10 of this Law shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity” of Paragraph 4 (wording of 11 May 1999; Official Gazette Valstybės žinios, 1999, No. 50-1597) of Article 21 of the Law on Tobacco Control;

the provision “the failure to adhere to the requirements <…> for prohibiting the advertisement of tobacco products, set forth in Paragraphs <…> 3 <…> of Article 11 of this Law, shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity” of Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control.

It is clear from the petitions of the Supreme Administrative Court of Lithuania that it doubts whether the following is not in conflict with the Constitution:

Paragraph 5 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003; Official Gazette Valstybės žinios, 2003, No. 117-5317) to the extent that according to the petitioner, it does not provide for the right of a court considering a respective case to impose, while taking account of all circumstances mitigating the liability, as well as those provided for by law, a smaller monetary fine than the level of a respective sanction, i.e. the minimum monetary fine, established in this paragraph;

Paragraph 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) to the extent that according to the petitioner, it does not provide for the right of a court considering a respective case to impose, while taking account of all circumstances mitigating the liability, as well as those provided for by law, a smaller monetary fine than the levels of respective sanctions established, i.e. the minimum monetary fines, established in Paragraphs 5 and 7 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003).

7. It also needs to be held that an investigation (subsequent to the petition of the Supreme Administrative Court of Lithuania, the petitioner (ruling of 21 January 2005)) into whether Paragraph 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) is not in conflict with the Constitution to the extent that, according to the Supreme Administrative Court of Lithuania, the petitioner, it does not provide for the right of a court considering a respective case to impose, while taking account of all circumstances mitigating the liability, as well as those provided for by law, a smaller monetary fine than the minimum monetary fine established in Paragraph 7 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) also implies an investigation into whether Paragraph 7 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) (to the extent that, according to the petitioner, it does not provide for the right of a court considering a case to impose, while taking account of all circumstances mitigating the liability, as well as those provided for by law, a smaller monetary fine than the minimum monetary fines established in this paragraph) is not in conflict with the Constitution.

8. It needs to be noted that the compliance of the aforesaid provisions of Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control, as well as the compliance of Paragraphs 5, 7, and 14 (to the aforesaid extent) with Article 26 of the same law (wording of 20 November 2003) with the Constitution was doubted by the courts that were considering administrative cases, in which the issue of the application of respective articles (parts thereof) occurred: doubts have arisen as to whether the sanctions—monetary fines for violations of the Law on Tobacco Control—consolidated in these provisions were not in conflict (had not been in conflict) with the Constitution precisely in the aspect and to the extent that the courts, even if there were (had been) circumstances mitigating the liability or other circumstances due to which a corresponding monetary fine would clearly be too big to the violator of law, since it was disproportionate (inadequate) to the committed violation of law, and, thus, unjust, were not (had not been) permitted to impose upon him a smaller monetary fine than the lowest limit of a respective sanction—the minimum monetary fine or a corresponding monetary fine of strictly defined amount. In the constitutional justice case at issue, the compliance of the impugned provisions of the Law on Tobacco Control with the Constitution will be investigated in the aspect precisely pointed out by the petitioners themselves and only to this extent.

II

On the compliance of the provisions of Paragraph 2 (wording of 16 March 2000) of Article 21 and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control with Paragraphs 1 and 2 of Article 46 of the Constitution and the constitutional principles of justice and a state under the rule of law, as well on the compliance of the provisions of Paragraph 3 (wording of 11 June 2002) of Article 21 and Paragraph 4 (wording of 11 May 1999) of Article 21 of the Law on Tobacco Control with Paragraph 1 of Article 23, Paragraphs 1 and 2 of Article 46 of the Constitution and the constitutional principles of justice and a state under the rule of law.

1. The legal regulation established in Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control, which is impugned by the petitioners, should be construed and assessed within the context of the entire legal regulation established in this article, in other articles (parts thereof), as well as in other laws.

2. Paragraph 2 (wording of 16 March 2000) of Article 21 of the Law on Tobacco Control used to provide: “Tobacco growing and the manufacture and import thereof and trade in the products thereof, without an appropriate permit or licence for such activity, shall incur a fifty thousand litas fine upon subjects of commercial-economic activity. The SSTAC and self-government executive institutions shall impose the fines.”

3. Paragraph 3 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control used to provide: “The manufacture, supply to market and sale, storage and transporting of tobacco products in the Republic of Lithuania, without observing the requirements of Paragraphs 1 and 3 of Article 7, failure to have documents bearing juridical force, confirming acquisition of tobacco products, shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity, while a violation stipulated in this paragraph committed within one year from the previous violation, shall incur a fine of fifty thousand litas. The National Board for Consumers Rights Protection, the State Tax Inspectorate, the SSTAC and the courts shall, according to the scope of their competence, set fines for violations of the requirements of this Article. The National Board for Consumers Rights Protection, having examined the documents submitted by the State Inspectorate for Non-Food Products under the Ministry of the Economy, shall assign the fines stipulated in this Paragraph if the tobacco product, which does not meet the established quality requirements and in which the amount present of substances harmful to health exceeds the prescribed norms, has been supplied to market. In this case, the State Inspectorate of Non-Food Products under the Ministry of Economy shall draw up a record of a form stipulated by the National Board for Consumers Rights Protection, attesting that an unsafe product was supplied to the market, and along with the required proofs shall transfer it to the National Board for Consumers Rights Protection, no later than within three business days.”

Paragraph 3 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control used to give reference to Paragraphs 1 and 3 of Article 7 of the same law.

At the time when Paragraph 3 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control was in force

Paragraph 1 of Article 7 of the Law on Tobacco Control was set forth in the wording of 11 May 1999. It was established therein that quality and hygiene indicators of tobacco products, which are manufactured and/or sold within the Republic of Lithuania, must conform to requirements of legal acts of the Republic of Lithuania, which are prepared and approved according to the procedure of the Government;

Paragraph 3 of Article 7 of the Law on Tobacco Control was set forth in the wording of 20 December 1995. It was established therein that enterprises which have manufactured and/or sold tobacco products, which do not meet established quality requirements, with regard to amount of substances harmful to health, which exceed the established norms, shall be liable in accordance with the laws or other legal acts.

4. Paragraph 4 (wording of 11 May 1999) of Article 21 of the Law on Tobacco Control used to provide: “Violation of tobacco product import requirements, established in Items 2, 3 and 4 of Paragraph 2, and Paragraphs 3 and 5 of Article 8 of this Law and also the requirements in the sales of tobacco products, established in Paragraphs 1, 2, 5 and 6 of Article 10 of this Law, shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity.”

Paragraph 4 (wording of 11 May 1999) of Article 21 of the Law on Tobacco Control used to give reference to Items 2, 3, 4 and 5 of Paragraph 2, Paragraphs 3 and 5 of Article 8, and Paragraphs 1, 2, 5 and 6 of Article 10 of this law.

At the time when Paragraph 4 (wording of 11 May 1999) of Article 21 of the Law on Tobacco Control was in force

Item 2 of Paragraph 2 of Article 8 of the Law on Tobacco Control was set forth in the wordings of 11 May 1999 and 11 June 2002. It was established therein that enterprises shall be prohibited from importing tobacco and tobacco products into the Republic of Lithuania without: certification (certificate), attesting to the quality of each shipment of tobacco products (wording of 11 May 1999); a conformity declaration and/or certification (certificate), issued by the manufacturing enterprise, attesting to the quality of each shipment of tobacco products, and in importing tobacco intended for the manufacture of tobacco products without a conformity declaration issued by the manufacturer, attesting to the fact that the tobacco is suitable for the manufacture of tobacco products (wording of 11 June 2002);

Items 3, 4, and 5 of Paragraph 2 of Article 8 of the Law on Tobacco Control were set forth in their wording of 11 May 1999. It was established therein that enterprises shall be prohibited from importing tobacco and tobacco products into the Republic of Lithuania without: inscriptions in Lithuanian on the sides of the tobacco product packages, indicating the amounts of the maximum allowed levels of tar and nicotine they contain (Item 3 of Paragraph 2); tax stamps (Item 4 of Paragraph 2); warning in Lithuanian appearing on tobacco product packaging regarding the harmful effect of tobacco upon health (Item 5 of Paragraph 2);

Paragraph 3 of Article 8 of the Law on Tobacco Control was set forth in its wording of 11 May 1999. It was established therein that enterprises shall be allowed to import into the Republic of Lithuania only such tobacco products, whose harmful to health substance levels do not exceed the limits established by legal acts of the Republic of Lithuania;

Paragraph 5 of Article 8 of the Law on Tobacco Control was set forth in its wording of 20 December 1999 and 16 March 2000. It was established therein that enterprises holding permits to import into the Republic of Lithuania tobacco or tobacco products, shall be prohibited from transferring according to contract, the right to import such, to other economic subjects, using the names of these enterprises on their transport documents (20 December 1995); enterprises holding licences to import into the Republic of Lithuania tobacco or tobacco products, shall be prohibited from transferring according to contract, the right to import such, to other economic subjects, using the names of these enterprises on their transport documents (wording of 16 March 2000);

Paragraph 1 of Article 10 of the Law on Tobacco Control was set forth in its wording of 11 May 1999. It was established therein that trade in snuff and chewing tobacco shall be prohibited in the Republic of Lithuania;

Paragraph 2 of Article 10 of the Law on Tobacco Control was set forth in the wordings of 11 May 1999 and 11 June 2002. It was established therein that the sale, storing and transporting of tobacco products shall be prohibited in the Republic of Lithuania, with the exception of those transported and exported through transit: without a document (certificate), issued by the manufacturing enterprise, attesting as to the quality of these products (Item 1 (wording of 11 May 1999)); without a declaration of conformity and/or certification document (certificate), issued by the manufacturing enterprise, attesting as to the quality of these products, or without a mark in documents bearing juridical force, which accompany the products confirming the quality of the tobacco products as conforming to the requirements of the normative documents (an institution authorised by the Government of the Republic of Lithuania shall establish the requirements for official registration of documents, which attest to the quality of tobacco products) (Item 1 (wording of 11 June 2002)); if the levels of harmful to health substances contained therein exceed the limits established in the normative documents of the Republic of Lithuania (Item 2 (wording of 11 May 1999)); when selling (cigarettes, cigarillos, Russian cigarettes) by the piece (Item 3 (wording of 11 May 1999)); when selling without tax stamps (Item 4 (wording of 11 May 1999)); without inscriptions in Lithuanian on tobacco product package sides, concerning the tar and nicotine levels contained therein (Item 5 (wording of 11 May 1999)); without warning inscriptions in Lithuanian on tobacco product packages about the harmful effect of smoking to health (Item 6 (wording of 11 May 1999)); if the trade marking on tobacco products does not comply with requirements of this law and legal acts of the Republic of Lithuania (Item 7 (wording of 11 May 1999)); to individuals of up to 18 years of age (Item 8 (wording of 11 May 1999)); without documents attesting to legal validity of product acquisition (Item 9 (wording of 11 May 1999)); in the absence of any documents having legal significance which confirm product acquisition (the documents having legal significance, which confirm product acquisition must be on hand in all the places where tobacco products are being sold, kept and stored in warehouses) (Item 9 (wording of 11 June 2002)); in the event they are falsified (Item 10 (wording of 11 May 1999)); in the event they are contraband (Item 11 (wording of 11 May 1999)); to keep and store tobacco products, namely for enterprises not having a licence to engage in the manufacture or import of tobacco products and wholesale or retail trade thereof (Item 12 (wording of 11 June 2002));

Paragraph 5 of Article 10 of the Law on Tobacco Control was set forth in the wording of 11 May 1999. It was established therein that trade in tobacco products shall be prohibited in the Republic of Lithuania: in pharmacies, health care and educational establishments (Item 1); in retail market enterprises, where the goods intended for children make up 50 per cent or more of the retail trade turnover (Item 2); in vending machine sales (Item 3); to persons of up to 18 years of age (Item 4);

Paragraph 6 of Article 10 of the Law on Tobacco Control was set forth in the wordings of 11 May 1999 and 11 June 2002. It was established therein that locations where tobacco products are sold must display signs, warning of the effect of smoking as being harmful to health, informing about prohibiting the sale of tobacco products to individuals under 18 years of age and limitations of tobacco product sales as established by this law (the Government or its authorised institution had to establish the texts of warnings and the procedure of their inscription and design requirements) (wording of 11 May 1999); that in places where tobacco products are sold, with the exception of the premises where wholesale trade in tobacco products is being conducted, there must be display signs with warnings of the detrimental to health effect of smoking, and with information about the sale of tobacco products being prohibited for individuals under 18 years of age (the Government or an institution authorised by it had to establish the texts of warnings and the procedure of the inscription and design requirements thereof) (wording of 11 June 2002).

5. Paragraph 7 of Article 21 of the Law on Tobacco Control (wording of 11 June 2002) provided: “The failure to adhere to the requirements for restrictions on the promotion and for prohibiting the advertisement of tobacco products, set forth in Paragraphs 1, 3, 4 and 5 of Article 11, shall incur a fine of five thousand litas upon subjects of commercial-economic activity, and a ten thousand litas fine for a repeated violation of these requirements, if it is committed within one year from the previous violation. The State Service for Tobacco and Alcohol Control under the Government of Republic of Lithuania shall impose fines for these violations (except for the violations in mass media). Fines for violations of the requirements set forth in Paragraphs 1, 3, 4 and 5 of Article 11 of this Law for the violations of the stipulated requirements in the mass media shall be imposed by the National Board for Consumer Rights Protection.”

Paragraph 7 of Article 21 of the Law on Tobacco Control (wording of 11 June 2002) made reference to Paragraphs 1, 3, 4 and 5 of Article 11 of the same law.

At the time when Paragraph 7 of Article 21 of the Law on Tobacco Control (wording of 11 June 2002) was in force:

Paragraph 1 of Article 11 of the Law on Tobacco Control was set forth in the wordings of 11 June 2002 and 28 January 2003. It was established therein that the following promotional practices of tobacco products shall be prohibited in Lithuania: to issue part of its production gratis or as a bonus (Item 1 (wording of 11 June 2002)); to apply fixed discounts to owners by way of coupons published by the mass media (Item 2 (wording of 11 June 2002)); to circulate tobacco products or new samples thereof, gratis (Item 3 (wording of 11 June 2002)); to supply tobacco products to lotteries, contests, sports competitions, and games as prizes or in conjunction with such (Item 4 (wording of 11 June 2002)); to organise retail trade subject competitions which would promote tobacco product sales (Item 5 (wording of 11 June 2002)); to promote events intended for persons under 18 years of age and also invite persons under 18 years of age to engage in activity promoting tobacco products (Item 6 (wording of 11 June 2002)); to engage in the sale of goods, which imitate tobacco products or packages thereof (toys, food products, etc.) (Item 7 (wording of 28 January 2003));

Paragraphs 3, 4, and 5 of Article 11 of the Law on Tobacco Control were set forth in the wording of 11 June 2002. It was established therein that tobacco product advertising as well as surreptitious advertising tobacco products shall be prohibited in the Republic of Lithuania (Paragraph 3) and that the prohibition on tobacco product advertising stipulated in paragraph 3 of this Article shall not apply to information about tobacco products in places of the manufacture of such products, through informational announcements, which are intended for tobacco trade specialists, and the registered names of the enterprises producing tobacco products or selling them (if the name of the manufacturer of tobacco product or tobacco products is a component part of the registered name of name of these enterprises) and also the trademarks of the goods, when these names are trademarks presented on the signs hanging on the headquarters or division building of those enterprises and the specialised transport of these enterprises (Paragraph 4). It was also prescribed that according to the procedure established by the Government or an institution authorised by it, it shall be permitted to provide only the following information about tobacco products at tobacco product sales locations: name and address of manufacturer and sales enterprise, and type of trade (wholesale or retail) (Item 1 of Paragraph 5); the name and brand of tobacco products (Item 2 of Paragraph 5); words “We trade in” or “We sell” (Item 3 of Paragraph 5); concentration in the smoking products of tobacco tars, nicotine or other harmful materials (Item 4 of Paragraph 5); prices of tobacco products (Item 5 of Paragraph 5); information regarding the damage to health resulting from the use of tobacco products (Item 6 of Paragraph 5).

6. If one construes the provisions, which are impugned by the petitioner, of Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control in the context of the entire legal regulation established in this article and in other articles (parts thereof) of this law, as well as that established in other laws, it should be held that:

all provisions, which are impugned by the petitioner, of Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control, as well as some other provisions of this article, established legal liability for failure to follow certain requirements and prohibitions and established sanctions—monetary fines—for respective violations of this law;

the subjects that could be held liable subsequent to the provisions, which are impugned by the petitioner, of Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control were enterprises, establishments and organisations (Paragraph 1 (wordings of 11 May 1999, 11 July 2000 and 11 June 2002) of Article 21), subjects of commercial-economic activity (Paragraph 2 (wordings of 11 May 1999 and 16 March 2000), Paragraph 3 (wordings of 11 May 1999, 11 July 2000, and 11 June 2002), Paragraph 4 (wording of 11 May 1999), Paragraph 5 (wording of 11 May 1999) and Paragraph 7 (wordings of 11 May 1999 and 11 June 2002) of Article 21); in various articles of the law in question the general notion “economic subjects” is employed as well;

by means of all the sanctions—monetary fines—consolidated in Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control as well as in other provisions of the same article (wording of 20 December 1995 with the amendments and supplements made till 20 November 2003) pre-conditions were created for, inter alia, exerting a negative influence on the economic situation of the economic subjects that were held legally liable and, thus (in addition to other ways), for ensuring that the economic subjects follow the requirements established in the Law on Tobacco Control; the monetary fines established in Article 21 of the Law on Tobacco Control (wording of 20 December 1995 with the amendments and supplements made till 20 November 2003) for violations of this law are called “economic sanctions” in this law;

all the sanctions—monetary fines—established in the provisions, which are impugned by the petitioner, of Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control, as well as in other provisions of the same article (wording of 20 December 1995 with the amendments and supplements made till 20 November 2003), which, as it has been mentioned, are called “economic sanctions” in this law, by their legal content and other features are close to administrative sanctions—administrative penalties for corresponding violations of law—established in some other laws (inter alia, in the CAVL) and virtually they are not different from the former; although the so-called economic sanctions (established in Article 21 (wording of 20 December 1995 with the amendments and supplements made till 20 November 2003) of the Law on Tobacco Control) which, if compared with administrative sanctions—administrative penalties for corresponding violations of law—established in other laws, are characteristic of certain peculiarities (for instance, the fact that these sanctions are applicable to economic subjects, also the fact that these penalties create, inter alia, pre-conditions for exerting a negative influence on the economic situation of the economic subjects which are brought to legal liability), especially when one has in mind the fact that neither such individual type of legal liability nor an individual legal institute as “economic liability” does not exist at all, the aforesaid so-called economic sanctions—monetary penalties—as well as administrative penalties for corresponding violations of law, should be categorised as belonging to the same legal institute, i.e. to the institute of administrative legal liability;

the violations of the Law on Tobacco Control for which the sanctions established in Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the same law had to be applied, were distributed, by means of the legal regulation established in these paragraphs, into certain groups; equal sanctions—monetary penalties of the same amount—were established not only for similar but also very different violations of law, which, by means of the legal regulation established in Article 21 of the Law on Tobacco Control (wording of 20 December 1995 with the amendments and supplements made till 20 November 2003, when the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on Tobacco Control and on Recognising the Law on Implementing the Law on Tobacco Control as No Longer Valid) were categorised as belonging to the same group of violations of law;

in Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control, inter alia, in all provisions of these paragraphs which are impugned by the petitioner, really big monetary fines of fixed amount for corresponding violations of this law were established: a five thousand litas fine (Paragraph 7 (wording of 11 June 2002)), a ten thousand litas fine (Paragraph 7 (wording of 11 June 2002)), a twenty thousand litas fine (Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999)), a fifty thousand litas fine (Paragraph 2 (wording of 16 March 2000) and Paragraph 3 (wording of 11 June 2002));

at the time when Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control were in force, the compliance of the provisions of which with the Constitution is impugned by the petitioners, under Article 21 of the Law on Tobacco Control various institutions enjoyed the powers to apply, within their competence, the sanctions established in this paragraph, i.e. to impose monetary sanctions for violations of the Law on Tobacco Control: the SSTAC, the State Hygiene Inspectorate under the State Service of Public Healthcare (until the entry into effect of the amendments to the Law on Tobacco Control made by the Republic of Lithuania’s Law on Amending Article 21 of the Law on Tobacco Control which was adopted by the Seimas on 11 July 2000), the Lithuanian State Quality Inspectorate under the State Service for Competition and Protection of Consumer Rights (until the entry into effect of the amendments to the Law on Tobacco Control made by the Republic of Lithuania’s Law on Amending Article 21 of the Law on Tobacco Control which was adopted by the Seimas on 11 July 2000), the State Inspectorate for Non-Food Products under the Ministry of the Economy (after the entry into effect of the amendments to the Law on Tobacco Control made by the Republic of Lithuania’s Law on Amending Article 21 of the Law on Tobacco Control which was adopted by the Seimas on 11 July 2000), the State Tax Inspectorate under the Ministry of Finance of the Republic of Lithuania (after the entry into effect of the amendments and supplements to the Law on Tobacco Control made by the Republic of Lithuania’s Law on Amending and Supplementing Articles 1, 6, 8, 9, 10, 11, 18, 21, and 29 of the Law on Tobacco Control which was adopted by the Seimas on 11 June 2002, this establishment is referred to as the State Tax Inspectorate in the Law on Tobacco Control), the National Board for Consumers Rights Protection (after the entry into effect of the amendments and supplements to the Law on Tobacco Control made by the Republic of Lithuania’s Law on Amending and Supplementing Articles 1, 6, 8, 9, 10, 11, 18, 21, and 29 of the Law on Tobacco Control which was adopted by the Seimas on 11 June 2002), self-government executive institutions, courts;

the Law on Tobacco Control (wording of 20 December 1995 with the amendments and supplements made till 20 November 2003, when the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on Tobacco Control and on Recognising the Law on Implementing the Law on Tobacco Control as No Longer Valid) did not establish under what procedure cases concerning violations of this law had to be considered, for which the sanctions—monetary fines—established in Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control had to be applied, nor under what procedure these monetary fines had to be imposed;

the economic subjects which could be held legally liable on the grounds of the provisions of Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control which are impugned by the petitioners, if the former used to disagree with the decision of a respective institution to apply the so-called economic sanctions, they were able to apply to court on the issue of repeal of the said decision, or on its amendment and compensation of damages (Paragraph 1 (wording of 20 December 1995) of Article 25), however, such application would not suspend the execution of decisions of institutions to apply economic sanctions, if the court had not established otherwise (Paragraph 2 (wording of 20 December 1995) of Article 25);

at the time when Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control were in force, the compliance of which with the Constitution is impugned by the petitioners, neither the Law on Tobacco control nor other laws contained any provisions under which the courts, when they considered complaints on monetary fines imposed by respective institutions under the aforesaid provisions of Article 21 of the Law on Tobacco Control might impose a smaller fine upon the violators than that established in these provisions;

since, as it has been mentioned, in Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control really big monetary fines of strictly defined amount for corresponding violations of this law were established, while neither the Law on Tobacco Control nor other laws contained any provisions under which the courts, when they considered complaints on monetary fines imposed by respective institutions under the aforesaid provisions of Article 21 of the Law on Tobacco Control might impose a smaller fine upon the violators than that established in these provisions, under the laws valid at that time (i.e. in the period when Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control were in force, the compliance of which with the Constitution is impugned by the petitioners) there was not any opportunity to impose a smaller monetary fine than that established in the said provisions of the Law on Tobacco Control even in cases where there were such circumstances mitigating the liability or other circumstances due to which a corresponding monetary fine would have been too big for the violator of law, since it was disproportionate (inadequate) for the committed violation of law and, thus, unjust;

the sanctions—monetary fines for respective violations of this law—established in Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control, inter alia, in all provisions of these paragraphs which are impugned by the petitioners, especially when one bears in mind the fact that these really big monetary fines had to be imposed upon all economic subjects which had committed corresponding violations of law, regardless of any, including mitigating, circumstances (due to which a corresponding monetary fine would clearly have been too big for the violator of law, since disproportionate (inadequate) to the committed violation of law, and, thus, unjust), should be regarded as strict to violators of law.

7. The compliance of the provisions of Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control, which are impugned by the petitioners, with the Constitution (also in the aspect and to the extent pointed out by the petitioners that courts, even if there had been certain circumstances mitigating liability or other circumstances due to which a respective monetary fine would clearly have been too big to the violator of law, since it was disproportionate (inadequate) for the committed violation of law and, thus, unjust, could not impose, under these provisions, a smaller monetary fine than the respective monetary amount which was strictly defined), should be investigated only by taking account of the specificity of the relations regulated by the Law on Tobacco Control, as well as the purpose of this law.

In this context, it should be noted that, as is generally known, tobacco use is harmful to health and can give rise to negative social effects. Due to this, tobacco products should be categorised as special products whose production, circulation and consumption may and must be controlled by the state, which, under the Constitution, is under obligation to look after the health of the people (Paragraph 1 of Article 53 of the Constitution) and is empowered to regulate economic activity so that it serves the general welfare of the Nation (Paragraph 3 of Article 46 of the Constitution). The legislature, who has the right, under the Constitution, to establish a means and a procedure for control over tobacco as a special product, may establish special legal regulation, inter alia, certain prohibitions, limitations, etc., which are not characteristic of the legal regulation of relations of production, circulation and consumption of other products. Certain empowerments to legally regulate the relations linked with tobacco growing, production, circulation and consumption of tobacco products (inter alia, with keeping, trade, import and advertising) may be established by means of laws also to other law-making subjects; when such empowerments are being established, one must pay heed to the Constitution, inter alia, it is not permitted that substatutory legal acts regulate the relations which, under the Constitution, may be regulated only by law.

In the context of the constitutional justice case at issue, it should also be noted that the disregard of the means and procedure—prohibitions, limitations, etc.—of tobacco control, which are established by law, and other violations of requirements of production, circulation and consumption of tobacco and its products, which are established by other legal acts, are harmful to the economic system of the state, inter alia, its financial order. Under the Constitution, the legislature enjoys the powers to establish legal liability for violations of the said legal regulation, inter alia, to establish respective sanctions as well as monetary fines to violators of law. It needs to be emphasised that these sanctions can also be strict (the monetary fines may indeed be really big) to violators of law. Alongside, it needs to be emphasised that in itself (without the assessment of the character, danger (gravity), the scale and other features of a certain violation of law) the consolidation of strict (to violators of law) sanctions (inter alia, big monetary fines) for violations of the requirements of production, circulation and consumption of tobacco and its products cannot be construed as unjust or inadequate to the respective violation of law.

While stipulating that monetary fines may be imposed upon violators of law for the said violations of law, inter alia, establishing what subjects (institutions, officials) can impose these monetary fines, as well as amounts of these monetary fines, the procedure for consideration of cases on violations of this law, the legislature is bound by norms and principles of the Constitution.

8. In the context of the constitutional justice case at issue it needs to be noted especially that the legislature, when it regulates the relations linked with tobacco growth, production, circulation and consumption of tobacco products, is bound by the principle of a state under the rule of law which, as the Constitutional Court has held in its rulings more than once, is a universal principle upon which the entire Lithuanian legal system and the Constitution itself are based. The Constitutional Court has also held that the content of the constitutional principle of a state under the rule of law should be disclosed while taking account of the content of various other constitutional principles, including the principle of justice (which encompasses, inter alia, natural justice) (the Constitutional Court’s ruling of 13 December 2004).

Thus, disregard of the principle of justice which is entrenched in the Constitution would also mean disregard of the constitutional principle of a state under the rule of law.

9. While construing the constitutional principle of a state under the rule of law, the Constitutional Court has held that this principle implies various requirements for the legislature and other subjects of law-making inter alia: the violations of law for which liability is established in legal acts must be clearly defined; while establishing legal limitations and liability for violations of law one must pay heed to the requirement of reasonableness, as well as the principle of proportionality, under which the established legal measures must be necessary in a democratic society and which are appropriate to the legitimate and universally important objectives (there must be a balance between the objectives and measures), they cannot restrict the rights of the person more than necessary in order to achieve these objectives, while if these legal measures are linked with the sanctions for a violation of law, then the said sanctions must be proportionate to the committed violation of law; in the course of legal regulation of social relations one must pay heed to requirements of natural justice, which, inter alia, include a necessity to ensure the equality of persons before the law, the court and state institutions and officials (the Constitutional Court’s ruling of 13 December 2004).

Thus, the constitutional principles of justice and of a state under the rule of law also mean that there must be a just balance (proportionality) between the objective sought to punish violators of law and to ensure prevention of violations of law and the chosen means to achieve this objective, and the sanctions (penalties, punishments) established for violations of law must be proportionate to these violations. The constitutional principles of justice and of a state under the rule of law do not permit establishing such penalties for violations of law, as well as such sizes of the fines, which would evidently be disproportionate (inadequate) to the violation of law and the objective sought (the Constitutional Court’s rulings of 6 December 2000, 2 October 2001, and 26 January 2004). The penalties established for violations of the laws must be of such size which is necessary for the sought legitimate and generally important objective––to ensure the observance of the laws, the fulfilment of the established duties (the Constitutional Court’s ruling of 26 January 2004).

10. The constitutional principle of justice demands to differentiate the established penalties for violations of law (thus, also the imposed administrative penalties and monetary fines) so that the nature of the violation of law, circumstances mitigating and aggravating the responsibility could be taken into account, that, while taking account of that, a milder punishment could be imposed than the minimum one provided for in the sanction (the Constitutional Court’s ruling of 26 January 2004).

10.1. If the law does not establish differentiated amounts of monetary fines, but if it consolidates really big monetary fines of strictly defined amount, and if no opportunity arises to differentiate the legal liability for a respective violation of law either from a corresponding law or other laws, then when one imposes the monetary fine one has no opportunity to individualise its size, while one takes account of the character, danger (gravity), the scale and other features of the violation of law, as well as of the circumstances mitigating the liability and of other circumstances (due to which a corresponding monetary fine would be too big for the violator of law, since it is disproportionate (inadequate) for the committed violation of law and, thus, unjust); such legal regulation would not be in line with the principles of justice and a state under the rule of law, which are entrenched in the Constitution.

10.2. In the context of the constitutional justice case at issue, it should also be emphasised that one would deviate from the constitutional principle of justice, thus, from the constitutional principle of a state under the rule of law, too, also in the case if the law consolidated not a monetary fine of strictly defined amount for violations of law, but such minimum and maximum monetary fines which would permit individualising the amount of the imposed fine to a certain extent, however, notwithstanding this, these monetary fines would be too strict to the violators of law just the same, i.e. they would really be big, and if in the course of the application of these sanctions—imposition of monetary sanctions—one would not be permitted to take account of the character, danger (gravity), the scale and other features of the violation of law (due to which a corresponding monetary fine would be too big for the violator of law, since it is disproportionate (inadequate) for the committed violation of law and, thus, unjust) and to impose a smaller monetary fine to the violator of law than the minimum level of the sanction consolidated in the law.

10.3. In this context it needs to be noted that, under 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). In the context of the constitutional justice case at issue it needs to be noted that the penalties in their system which are established in laws must be such so that a court, when it imposes the penalties, would be able to administer justice.

A fact is of essential importance that the legislature, by choosing such a way of formulating the sanction—a monetary fine—for the commission of a deed contrary to law, when the article itself, which establishes legal liability for the said deed contrary to law, establishes such monetary fine that is really big, i.e. a sanction that is too strict to the violators, must, alongside, establish by means of a law also such legal regulation whereby a court, when it applies the sanction for this deed contrary to law, could, while imposing the monetary fine, take account of all the circumstances mitigating the liability, including those which are not expressis verbis specified in the law, and provided there are such circumstances mitigating the liability or other circumstances, due to which a corresponding monetary fine would clearly be too big to the violator of law, since it is disproportionate (inadequate) to the committed violation of law and, thus, unjust, to impose a smaller monetary fine upon him than that established in the law.

Under the Constitution, the legislature cannot establish any such legal regulation so that a court, which, pursuant to the law adopts a decision on imposition of a monetary fine for violation of law, would not be able, in general, by taking account of the character, danger (gravity), the scale and other features of the violation of law (due to which a corresponding monetary fine would be too big for the violator of law, since it is disproportionate (inadequate) for the committed violation of law and, thus, unjust) and guided by the criteria of justice and reasonableness, to individualise the size of the really big monetary fine, i.e. the strict (to violators of law) penalty, and to impose a smaller monetary fine than the minimum monetary fine (the lowest level of the sanction) or the monetary fine of strictly defined amount which are established in the law. Thus, the powers of the court would be restricted, i.e. the exceptional empowerments of the court to administer justice, which are consolidated in Paragraph 1 of Article 109 of the Constitution would be limited, and, thus, preconditions would be created for violating the constitutional rights of subjects, inter alia, the constitutional right of the person to a fair trial.

10.4. In the context of the constitutional justice case at issue, it needs to be noted that provided certain sanctions established in laws by their size (strictness) amount to criminal punishments, no matter whether these sanctions may be categorised as belonging to a certain type of legal liability (criminal, administrative, disciplinary or other legal liability), and no matter how respective sanctions are named in laws, the laws must necessarily establish procedural guarantees (which stem from the Constitution, inter alia, from its Article 31) for persons who are held legally liable under corresponding laws. In this context, it needs to be emphasised that the provisions of Article 31 of the Constitution cannot be construed as being designed only to the persons who are held criminally liable.

Neither is it permitted to disregard this imperative also in the cases where laws establish certain sanctions which, although are referred to as “economic sanctions” in the laws, by their content and other features should be categorised as belonging to the institute of administrative legal liability, however, by their size (strictness) amount to criminal punishments. In such cases the said procedural guarantees (which stem from the Constitution) to persons who are held administratively liable can be established in the laws that consolidate these sanctions and/or other laws regulating administrative liability of subjects (as well as of economic subjects), the administrative process (inter alia, the legal proceedings of administrative cases), as well as in laws that regulate the activity of courts and in other laws.

11. While deciding whether the provisions of Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control, which are impugned by the petitioners, were not in conflict with the constitutional principles of justice and a state under the rule of law in the aspect and to the extent pointed out by the petitioners, i.e. that courts, even if there are certain circumstances mitigating liability or other circumstances due to which a respective monetary fine would clearly have been too big to the violator of law, since it was disproportionate (inadequate) for the committed violation of law and, thus, unjust, could not impose, under these provisions, a smaller monetary fine than the respective monetary fine of strictly defined amount, it should be held that the character, danger (gravity), the scale and other features of the violation of law, other circumstances (without ignoring those mitigating the liability) of a corresponding violation of the Law on Tobacco Control, for which a certain sanction consolidated in these provisions had to be applied, i.e. a five thousand litas fine (Paragraph 7 (wording of 11 June 2002)), a twenty thousand litas fine (Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999)), a fifty thousand litas fine (Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002)) had to be imposed, could determine the fact that, by being guided by the criteria of justice and reasonableness and taking account of all the important circumstances, one had to impose precisely the fine of the amount in question upon the violator of law.

Therefore, although the sanctions—monetary fines—consolidated in the provisions of the Law on Tobacco Control should be regarded as really big (strict to violators of law), also that even if the amounts of these sanctions—monetary fines—are strictly defined, in themselves these sanctions are not to be considered as deviating from the requirement of justice stemming from the Constitution or as otherwise violating the constitutional principle of a state under the rule of law.

12. The fact that, as it has been held in this ruling of the Constitutional Court, the strict monetary fines of strictly defined amount and strict (really big) to the violators, which were established in all the provisions of Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control, which are impugned by the petitioners, had to be imposed upon all economic subjects for respective violations of this law, regardless of any, including mitigating, circumstances due to which a corresponding monetary fine would have been clearly too big for the violator of law, since disproportionate (inadequate) to the committed violation of law, and, thus, unjust, and the fact that at the time when Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control were in force, the compliance of which with the Constitution is impugned by the petitioners, neither the Law on Tobacco control nor other laws contained any provisions under which the courts, when they considered complaints on monetary fines imposed by respective institutions under the aforesaid provisions of Article 21 of the Law on Tobacco Control might impose a smaller fine upon the violators than that established in these provisions, should be assessed differently.

The aforementioned strictly defined amounts of monetary fines were consolidated in the provisions of Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control, which are impugned by the petitioners, and courts, whenever they considered complaints from economic subjects regarding monetary fines imposed upon them by respective institutions subsequent to the provisions of Article 21 of the Law on Tobacco Control, had to apply precisely these provisions. Therefore, it should be held that it was the legal regulation consolidated in the provisions of Paragraph 2 (wording of 16 March 2000), Paragraph 3 (wording of 11 June 2002), Paragraph 4 (wording of 11 May 1999), and Paragraph 7 (wording of 11 June 2002) of Article 21 of the Law on Tobacco Control, which are impugned by the petitioners, that did not permit the court to individualise the size of a penalty—monetary fine—consolidated in a respective provision nor to impose of smaller monetary fine upon the violator of law than the one provided for.

Such legal regulation was not in compliance with the principles of justice and a state under the rule of law which are entrenched in the Constitution and restricted the powers of the court—it limited the exceptional powers of the court to administer justice, which are entrenched in Paragraph 1 of Article 109 of the Constitution.

13. Taking account of the arguments set forth, it should be concluded that the provision “trade in tobacco products without an appropriate permit or licence for such activity, shall incur a fine of fifty thousand litas upon subjects of commercial-economic activity” of Paragraph 2 (wording of 16 March 2000) of Article 21, the provision “failure to have documents bearing juridical force, confirming acquisition of tobacco products, shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity” of Paragraph 3 (wording of 11 June 2002) of Article 21 of the same law, the provision “violation of <…> requirements in the sale of tobacco products which are established in Paragraphs <…> 2 <…> of Article 10 of this Law shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity” of Paragraph 4 (wording of 11 May 1999) of Article 21 of the same law, the provision “the failure to adhere to the requirements <…> of prohibiting tobacco product advertising, set forth in Paragraphs <…> 3 <…> of Article 11 of this Law shall incur a fine of five thousand litas upon subjects of commercial-economic activity” of Paragraph 7 (wording of 11 June 2002) of Article 21 of the same law to the extent that they restrict the powers of a court to impose, while taking account of circumstances mitigating the liability and other circumstances (due to which a corresponding monetary fine would be too big for the violator of law, since it is disproportionate for the committed violation of law and, thus, unjust) and conforming to the criteria of justice and reasonableness, a smaller monetary fine than the monetary fines of strictly defined amount established in these provisions, were in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law.

14. Having drawn such a conclusion, in this constitutional justice case the Constitutional Court will not investigate whether the provision “trade in tobacco products without an appropriate permit or licence for such activity, shall incur a fine of fifty thousand litas upon subjects of commercial-economic activity” of Paragraph 2 (wording of 16 March 2000) of Article 21, the provision “failure to have documents bearing juridical force, confirming acquisition of tobacco products, shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity” of Paragraph 3 (wording of 11 June 2002) of Article 21 of the same law, the provision “violation of <…> requirements in the sale of tobacco products which are established in Paragraphs <…> 2 <…> of Article 10 of this Law shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity” of Paragraph 4 (wording of 11 May 1999) of Article 21 of the same law, the provision “the failure to adhere to the requirements <…> of prohibiting tobacco product advertising, set forth in Paragraphs <…> 3 <…> of Article 11 of this Law shall incur a fine of five thousand litas upon subjects of commercial-economic activity” of Paragraph 7 (wording of 11 June 2002) of Article 21 of the same law were not in conflict (in the aspect and to the extent specified by the petitioners) were not in conflict with Paragraphs 1 and 2 of Article 46 of the Constitution, as well as whether the aforesaid provisions of Paragraph 3 (wording of 11 June 2002) and Paragraph 4 (wording of 11 May 1999) of Article 21 of the Law on Tobacco Control (in the aspect and to the extent specified by the petitioners) were not in conflict with Paragraph 1 of Article 23 of the Constitution.

III

On the compliance of Paragraphs 5, 7, and 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) with Paragraphs 1, 2, and 3 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

1. Paragraph 5 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) provides: “For violation of the prohibitions set forth in Items 1, 2, 3 or 4, of Paragraph 3 of Article 14 of this Law, regarding the marketing of tobacco products, storing or transporting thereof if that does not impose criminal liability, legal persons and branches of foreign legal persons shall be subject to a fine from ten thousand litas to thirty thousand litas and their licence shall be revoked.”

Paragraph 5 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) gives reference to Items 1, 2, 3 and 4 of Paragraph 3 of Article 14 of this law.

Under Paragraph 3 of Article 14 of the Law on Tobacco Control (wording of 20 November 2003), it shall be prohibited in the Republic of Lithuania, for legal persons and branches of foreign legal persons to sell, store, transport tobacco products and also, to import tobacco products into the Republic of Lithuania, inter alia: without documents bearing juridical force confirming acquisition of tobacco products or transportation thereof (documents bearing juridical force certifying the acquisition or transportation of tobacco products must be kept in all tobacco product sales outlet (or) places; it is mandatory to hold transportation documents or documents bearing juridical force certifying the acquisition of tobacco products, while transporting tobacco products) (Item 1); if the products are fake (Item 2); if the products are contraband (Item 3); in addition to the special marks—tax stamps—according to the special sample, established by the institution authorised by the Government of the Republic of Lithuania, except in cases when based upon the Republic of Lithuania’s Law on Excise Tax and other legal acts, the special marks—tax stamps—of tobacco products are not mandatory (Item 4).

2. Paragraph 7 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) provides: “For violation of the prohibitions set forth in Items 6 or 7 of Paragraph 3 of Article 14 of this Law, with respect to the marketing, storing or transporting of tobacco products, for violation of the prohibitions set forth in Items 1, 2 or 3 of Paragraph 5 of Article 14 of this Law, legal persons and branches of foreign legal persons shall be subject to a fine from three thousand litas to five thousand litas. For violation of the prohibitions set forth in Items 6 or 7 of Paragraph 3 of Article 14, Items 1 or 2 of Paragraph 5 of Article 14, repeated over a one-year-term from the imposition of a fine, legal persons and branches of foreign legal persons shall be subject to a fine from five thousand litas to ten thousand litas. For violation of the prohibition set forth in Item 3 of Paragraph 5 of Article 14 of this Law, repeated in the same sales outlet over a one-year term from the imposition of the fine, legal persons and branches of foreign legal persons shall be subject to a fine from five thousand litas to ten thousand litas and the licence shall be revoked in the sales outlet, where the violation has been determined. A new licence shall not be issued for a year from the day the licence was revoked.”

Paragraph 7 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) gives reference to Items 6 or 7 of Paragraph 3 of Article 14 and Items 1, 2 and 3 of Paragraph 5 of the same article of this law.

Under Paragraph 3 of Article 14 of the Law on Tobacco Control (wording of 20 November 2003), it shall be prohibited in the Republic of Lithuania for legal persons and branches of foreign legal persons to sell, store, transport tobacco products and also, to import tobacco products into the Republic of Lithuania, inter alia: if the marking of the tobacco products fails to meet the marking requirements of tobacco products, set forth in this Law and other legal acts (Item 6); in the absence of the documents which certify, in accordance with the procedure set forth by an institution authorised by the Government of the Republic of Lithuania, the conformity of the tobacco products (Item 7).

Under Paragraph 3 of Article 14 of the Law on Tobacco Control (wording of 20 November 2003), it shall be prohibited in the Republic of Lithuania to market: single cigarettes, cigarillos, and Russian cigarettes (Item 1); cigarettes, if less than 20 are contained in a pack (Item 2); tobacco products to persons under 18 years of age (the sellers of tobacco products shall have the right, and in the event of suspecting that a person is under the age of 18, must require from the buyer of tobacco products a document certifying his age; should such a person fail to submit a document certifying his age, the seller of tobacco products must refuse to sell him tobacco products) (Item 3).

3. Paragraph 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) provides: “The institutions indicated in Paragraph 13 of this Article shall in imposing the fines for violations of this Law, within the scope of their competence, determine the specific amount of the fine taking into consideration the nature of the violation and circumstances mitigating or aggravating the liability. Should there be liability-mitigating circumstances present, the amount of the imposed fine must not exceed the average of the economic sanction for the committed violation, and should there be liability-aggravating circumstances present, the monetary fine imposed must be at least equal to the average of the economic sanction for the violation committed. Should there be both mitigating and aggravating circumstances of liability present, the fine shall be imposed taking into account the amounts and significance thereof. The reduction or increase of the fine shall be reasoned by the decision of the institution imposing the fine for violations of the requirements set forth in this Law.”

Paragraph 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) gives reference to Paragraph 13 of this article, under which for violations of this law, fines shall be imposed, inter alia, by: the SSTAC for violations of Items 1, 2, 3, 4 and 6 of Paragraph 3 of Article 14, Paragraph 5 of Article 14 (Item 2); the State Inspectorate for Non-Food Products under the Republic Ministry of Economy—for violations of Items 6 and 7 of Paragraph 3 of Article 14 (Item 4); the State Tax Inspectorate—for violations of the provisions in Items 1 and 4 of Paragraph 3 of Article 14 (Item 5); heads of police establishments or the persons authorised by them—for violations of Items 1, 2 and 3 of Paragraph 3 of Article 14 (Item 7); officials of the Department of Customs under the Ministry of Finance of the Republic of Lithuania—for violations of the provisions of Items 1 and 3 of Paragraph 3 of Article 14 (Item 8).

4. It should be held that a rule has been established in Paragraph 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003), under which monetary fines must be imposed for any violation of the Law on Tobacco Control specified in Paragraph 13 of the said article (not only for the violations by which one disregards the requirements and prohibitions established in Items 1, 2, 3, and 4 of Paragraph 3 of Article 14 of the Law on Tobacco Control (wording of 20 November 2003) which are referred to in Paragraph 5 of Article 26 of the same law and those established in Items 6 and 7 of Paragraph 3 and Paragraph 5 of Article 14 of the Law on Tobacco Control which are referred to in Paragraph 7 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003)), by taking account of the character of the violation of law and the circumstances mitigating or aggravating the liability, however, without overstepping the lowest and top limits of the respective sanctions—minimum and maximum monetary fines—established in corresponding paragraphs of Article 26 of the Law on Tobacco Control (wording of 20 November 2003):

should there be liability-mitigating circumstances present, the amount of the imposed fine must not exceed the average of the economic sanction for the committed violation, which is established in a corresponding paragraph of Article 26 of the Law on Tobacco Control (20 November 2003), however, it cannot be smaller than a respective minimum monetary fine established in Article 26 of the Law on Tobacco Control (wording of 20 November 2003);

should there be liability-aggravating circumstances present, the amount of the monetary fine imposed must be at least equal to the average of the economic sanction for the violation committed, which is established in a corresponding paragraph of Article 26 of the Law on Tobacco Control (20 November 2003), however, it cannot be bigger than a respective maximum monetary fine established in Article 26 of the Law on Tobacco Control (wording of 20 November 2003);

should there be both mitigating and aggravating circumstances of liability present, the fine shall be imposed taking into account the amount and significance thereof, however, it cannot be bigger than a respective maximum monetary fine established in Article 26 of the Law on Tobacco Control (wording of 20 November 2003), nor can it be smaller than a respective minimum monetary fine established in the same paragraph.

5. In the context of the constitutional justice case at issue, it needs to be emphasised that, under Paragraph 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003), the legal liability not only can but also must be differentiated, while the penalty—monetary sanction for a respective violation of the Law on Tobacco Control—not only can but also must be individualised, however, the institutions which adopt respective decisions are not permitted to impose a smaller monetary fine upon the violator of law than a respective minimum monetary fine established in a corresponding paragraph of this article.

6. It needs to be noted that neither the Law on Tobacco Control (wording of 20 November 2003) nor other laws contain any provisions under which courts, while considering complaints of economic subjects regarding monetary fines imposed upon them by respective institutions under Article 26 of the Law on Tobacco Control (wording of 20 November 2003), might be able to impose upon the violator of law a smaller fine than the minimum monetary fine consolidated in these provisions.

7. While deciding whether Paragraphs 5 and 7 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) to the extent that, as the petitioner—the Supreme Administrative Court of Lithuania—believes, they do not provide for the right of a court considering a respective case to impose, while taking account of all the circumstances, including those provided for in the law, mitigating the liability as well as other circumstances (due to which a corresponding monetary fine would clearly be too big for the violator of law, since disproportionate (inadequate) to the committed violation of law, and, thus, unjust) a smaller monetary fine than the respective minimum monetary fines than established in these paragraphs, are not in conflict with the constitutional principle of a state under the rule of law, it should be held that the character, danger (gravity), the scale and other features of certain violations of the Law on Tobacco Control for which sanctions—monetary fines from ten thousand litas to thirty thousand litas (Paragraph 5), from three thousand litas to five thousand litas (Paragraph 7), or from five thousand litas to ten thousand litas (Paragraph 7)—consolidated in these provisions may be imposed, as well as other circumstances can determine that fact that, when one is following the criteria of justice and reasonableness and while taking account of all the circumstances of importance (without ignoring those mitigating the liability), a monetary fine of the amount which is not less than the minimum level of a corresponding sanction must be imposed upon the violator of law.

The circumstance is of an essential importance that, as mentioned before, under Paragraph 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003), the sanctions must be imposed while one takes account of the character of the violation of law and the circumstances mitigating or aggravating the liability, and that the legal liability not only can but also must be differentiated, while the penalty—monetary sanction for a respective violation of the Law on Tobacco Control—not only can but also must be individualised.

Therefore, although the sanctions—monetary penalties—consolidated in the said provisions of the Law on Tobacco Control can be regarded as really big (strict to violators of law), in themselves these sanctions are not to be regarded as deviating from the requirement of justice which stems from the Constitution, nor as violating the constitutional principle of a state under the rule of law otherwise, nor do they violate the provisions of Paragraphs 1, 2 and 3 of Article 109 of the Constitution.

8. The compliance of Paragraph 14 (in the aspect pointed out by the petitioner) of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) should be assessed differently.

It has been held in this Ruling of the Constitutional Court that neither the Law on Tobacco Control (wording of 20 November 2003) nor other laws contain any provisions under which courts, while considering complaints of economic subjects regarding monetary fines imposed upon them by respective institutions under Article 26 of the Law on Tobacco Control (wording of 20 November 2003), might be able to impose upon violators of law a smaller fine than the minimum monetary fine consolidated in these provisions. Under Paragraph 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003), the court not only may but also must differentiate the legal liability and individualise the penalty—monetary fine—for a respective violation of the Law on Tobacco Control, however, the court is not permitted, while taking account of the character of the violation of law, the circumstances mitigating the liability as well as other circumstances (due to which a corresponding monetary fine would clearly be too big for the violator of law, since disproportionate (inadequate) to the committed violation of law, and, thus, unjust) and while following the criteria of reasonableness and justice, to impose upon the violator of law a smaller monetary fine than the lowest level—minimum monetary fine—of a corresponding sanction established in a respective paragraph of Article 26 of the Law on Tobacco Control (wording of 20 November 2003).

The rule under which monetary fines must be imposed for any violation specified in Paragraph 13 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) is consolidated in precisely Paragraph 14 of this article. Therefore, it should be held that it is the legal regulation established in Paragraph 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) that does not permit a court to individualise the penalty—the size of a monetary fine—consolidated in a respective Paragraph 26 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) nor to impose upon the violator of law, while taking account of the character of the violation of law, the circumstances mitigating the liability as well as other circumstances (due to which a corresponding monetary fine would clearly be too big for the violator of law, since disproportionate (inadequate) to the committed violation of law, and, thus, unjust) and while following the criteria of reasonableness and justice, a smaller monetary fine than the lowest level of a corresponding sanction consolidated in a respective paragraph of this article.

Such legal regulation is not in line with the principles of justice and a state under the rule of law entrenched in the Constitution and it restricts the powers of the court—it limits the exceptional powers of the court, which are consolidated in Paragraph 1 of Article 109 of the Constitution, to administer justice.

9. Taking account of the arguments set forth, the conclusion should be drawn that:

Paragraph 5 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) in the aspect and to the extent that precisely this paragraph does not provide for the right of a court to impose, while taking account of all the circumstances, including those established in the law, those mitigating the liability and other circumstances, a smaller monetary fine than the minimum monetary fine established in this paragraph, is not in conflict with the constitutional principle of a state under the rule of law;

Paragraph 7 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) in the aspect and to the extent that precisely this paragraph does not provide for the right of a court to impose, while taking account of all the circumstances, including those established in the law, those mitigating the liability and other circumstances, a smaller monetary fines than the minimum monetary fine established in this paragraph, is not in conflict with Paragraphs 1, 2, or 3 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law;

Paragraph 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) to the extent that it restricts the powers of a court to impose, while taking account of the circumstances mitigating the liability and other circumstances (due to which a corresponding monetary fine would clearly be too big for the violator of law, since disproportionate to the committed violation of law, and, thus, unjust) and following the criteria of justice and reasonableness, a smaller monetary fine than the minimum monetary fines established in a respective paragraph of this article, is in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

10. Having, inter alia, drawn the conclusion that Paragraph 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) to the extent that it restricts the powers of a court to impose, while taking account of the circumstances mitigating the liability and other circumstances (due to which a corresponding monetary fine would clearly be too big for the violator of law, since disproportionate (inadequate) to the committed violation of law, and, thus, unjust) and following the criteria of justice and reasonableness, to impose a smaller monetary fine than the minimum monetary fines established in a respective paragraph of this article, is in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law, in the constitutional justice case at issue the Constitutional Court will not investigate whether Paragraph 14 of Article 26 of the Law on Tobacco Control (wording of 20 November 2003) (to the extent and in the aspect pointed out by the petitioners) is not in conflict with Paragraphs 2 and 3 of Article 109 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 the provision “trade in tobacco products without an appropriate permit or licence for such activity, shall incur a fine of fifty thousand litas upon subjects of commercial-economic activity” of Paragraph 2 (wording of 16 March 2000) of Article 21 of the Republic of Lithuania’s Law on Tobacco Control to the extent that it restricted the powers of a court to impose, while taking account of the circumstances mitigating the liability and other circumstances (due to which a corresponding monetary fine would clearly be too big for the violator of law, since disproportionate to the committed violation of law, and, thus, unjust) and following the criteria of justice and reasonableness, a smaller monetary fine than the monetary fines of strictly defined amount consolidated in these provisions, was in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principles of justice and a state under the rule of law.

2. To recognise that the provision “failure to have documents bearing juridical force, confirming acquisition of tobacco products, shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity” of Paragraph 3 (wording of 11 June 2002) of Article 21 of the Republic of Lithuania’s Law on Tobacco Control to the extent that it restricted the powers of a court to impose, while taking account of the circumstances mitigating the liability and other circumstances (due to which a corresponding monetary fine would clearly be too big for the violator of law, since disproportionate to the committed violation of law, and, thus, unjust) and following the criteria of justice and reasonableness, a smaller monetary fine than the monetary fines of strictly defined amount consolidated in these provisions, was in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principles of justice and a state under the rule of law.

3. To recognise that the provision “violation of <…> requirements regarding sales in tobacco products which are established in Paragraphs <…> 2 <…> of Article 10 of this Law shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity” of Paragraph 4 (wording of 11 May 1999) of Article 21 of the Republic of Lithuania’s Law on Tobacco Control to the extent that it restricted the powers of a court to impose, while taking account of the circumstances mitigating the liability and other circumstances (due to which a corresponding monetary fine would clearly be too big for the violator of law, since disproportionate to the committed violation of law, and, thus, unjust) and following the criteria of justice and reasonableness, a smaller monetary fine than the monetary fines of strictly defined amount consolidated in these provisions, was in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principles of justice and a state under the rule of law.

4. To recognise that the provision “the failure to adhere to the requirements <…> for prohibiting tobacco product advertising, set forth in Paragraphs <…> 3 <…> of Article 11 of this Law, shall incur a fine of twenty thousand litas upon subjects of commercial-economic activity” of Paragraph 7 (wording of 11 June 2002) of Article 21 of the Republic of Lithuania’s Law on Tobacco Control to the extent that it restricted the powers of a court to impose, while taking account of the circumstances mitigating the liability and other circumstances (due to which a corresponding monetary fine would clearly be too big for the violator of law, since disproportionate to the committed violation of law, and, thus, unjust) and following the criteria of justice and reasonableness, a smaller monetary fine than the monetary fines of strictly defined amount consolidated in these provisions, was in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principles of justice and a state under the rule of law.

5. To recognise that Paragraph 5 of Article 26 of the Republic of Lithuania’s Law on Tobacco Control (wording of 20 November 2003) in the aspect and to the extent that precisely this paragraph does not provide for the right of a court to impose, while taking account of all the circumstances, including those established in the law, those mitigating the liability and other circumstances, a smaller monetary fine than the minimum monetary fine established in this paragraph, is not in conflict with the Constitution of the Republic of Lithuania.

6. To recognise that Paragraph 7 of Article 26 of the Republic of Lithuania’s Law on Tobacco Control (wording of 20 November 2003) in the aspect and to the extent that precisely this paragraph does not provide for the right of a court to impose, while taking account of all the circumstances, including those established in the law, those mitigating the liability and other circumstances, a smaller monetary fine than the minimum monetary fine established in this paragraph, is not in conflict with the Constitution of the Republic of Lithuania.

7. To recognise that Paragraph 14 of Article 26 of the Republic of Lithuania’s Law on Tobacco Control (wording of 20 November 2003) to the extent that it restricts the powers of a court to impose, while taking account of the circumstances mitigating the liability and other circumstances (due to which a corresponding monetary fine would clearly be too big for the violator of law, since disproportionate to the committed violation of law, and, thus, unjust) and following the criteria of justice and reasonableness, a smaller monetary fine than the minimum monetary fines established in a respective paragraph of this article, is in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

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

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

Justices of the Constitutional Court:              Armanas Abramavičius

                                                                                   Toma Birmontienė

                                                                                   Egidijus Kūris

                                                                                   Kęstutis Lapinskas

                                                                                   Zenonas Namavičius

                                                                                   Ramutė Ruškytė

                                                                                   Vytautas Sinkevičius

                                                                                   Stasys Stačiokas