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On the compensation for damage inflicted by unlawful actions of interrogatory and investigatory bodies, the prosecutor’s office, and a court

Case No. 23/04

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 3 OF ARTICLE 3 (WORDING OF 13 MARCH 2001) AND PARAGRAPH 7 OF ARTICLE 7 (WORDING OF 13 MARCH 2001) OF THE REPUBLIC OF LITHUANIA’S LAW ON COMPENSATION FOR DAMAGE INFLICTED BY UNLAWFUL ACTIONS OF INTERROGATORY AND INVESTIGATORY BODIES, THE PROSECUTOR’S OFFICE AND COURTS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

19 August 2006

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, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

Gediminas Sagatys, senior advisor of the Law Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 8 August 2006, considered case No. 23/04 subsequent to the petition of the Vilnius Regional Court, the petitioner, requesting an investigation into whether Paragraph 3 of Article 3 of the Republic of Lithuania’s Law on Compensation for Damage Inflicted by Unlawful Actions of Interrogatory and Investigatory Bodies, the Prosecutor’s Office and Courts was not in conflict with Paragraphs 2 and 3 of Article 5, Paragraphs 1 and 2 of Article 23, Paragraph 2 of Article 30 and Paragraphs 1 and 2 of Article 38 of the Constitution of the Republic of Lithuania, as well as, according to the petitioner, with the provisions of justice and a state under the rule of law entrenched in the Preamble of the Constitution of the Republic of Lithuania, and whether Paragraph 7 of Article 7 of the same law was not in conflict with Paragraphs 2 and 3 of Article 5 and Paragraphs 1 and 2 of Article 38 of the Constitution of the Republic of Lithuania, as well as, according to the petitioner, with the provisions of justice and a state under the rule of law entrenched in the Preamble of the Constitution, and with the provisions of administration of justice entrenched in Article 109 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

1. The Vilnius Regional Court, the petitioner, considered a civil case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 3 of Article 3 of the Law on Compensation for Damage Inflicted by Unlawful Actions of Interrogatory and Investigatory Bodies, the Prosecutor’s Office and Courts (hereinafter also referred to as the Law) was not in conflict with Paragraphs 2 and 3 of Article 5, Paragraphs 1 and 2 of Article 23, Paragraph 2 of Article 30 and Paragraphs 1 and 2 of Article 38 of the Constitution, as well as, according to the petitioner, with the provisions of justice and a state under the rule of law entrenched in the Preamble of the Constitution, and whether Paragraph 7 of Article 7 of the same law was not in conflict with Paragraphs 2 and 3 of Article 5 and Paragraphs 1 and 2 of Article 38 of the Constitution, as well as, according to the petitioner, with the provisions of justice and a state under the rule of law entrenched in the Preamble of the Constitution, and with the provisions of administration of justice entrenched in Article 109 of the Constitution.

Even though the said ruling of the Vilnius Regional Court was passed on 5 December 2002, the petition was received at the Constitutional Court only on 22 April 2004.

2. By the Ordinance of the President of the Constitutional Court (No. 2B-73) “On the Admission of the Petition of a Petitioner” of 29 April 2004, subsequent to this petition of the Vilnius Regional Court, the petitioner, the preparation of case No. 23/04 for the Constitutional Court’s hearing was begun.

II

The petition of the petitioner is based on the following arguments.

1. The Constitution guarantees the right to inheritance, meanwhile, under Paragraph 3 of Article 3 of the Law, the right to compensation for damage inflicted by unlawful actions of interrogation, investigation, prosecutor’s office and court shall not be subject to transfer or inheritance. It does not allow a person to enjoy his constitutional right to compensation for damage entrenched in the Law. Due to this, members of the family lose the right of inheritance as the entirety of property and non-property rights, though, after the death of the person in whose respect the corresponding violation of law was committed, it is this right that is the only satisfaction of the family for the sustained damage (upon the loss of the husband or father). Moreover, the obligation to compensate for damage is entrenched in Paragraph 2 of Article 30 of the Constitution; it may be regulated by law, but it may not be denied in essence. However, in the legal regulation of Paragraph 3 of Article 3 of the Law this obligation is denied in essence.

2. Under Paragraph 7 of Article 7 of the Law, the size of the moral damage subject to compensation may not exceed ten thousand litas. Thus, the established responsibility of the state is limited, these limits may not be overstepped even by court, which, under Article 109 of the Constitution, administers justice. However, the powers of the state are very big in respect of a natural person, thus, the obligation to compensate for moral damage in a limited manner to the person who sustained it, which is established by the state itself, does not conform to the damage that the state is able to inflict upon the natural person. In this aspect, the legal situation of the state differs from the legal situation of other subjects, who have the duty to fully compensate for the inflicted damage. This is not in line with the constitutional principles of justice and 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 from G. Sagatys, a representative of the Seimas, the party concerned, were received in which it is maintained that the impugned provisions of the Law were not in conflict with the Constitution. The position of the representative of the party concerned is grounded on the following arguments.

1. The right to compensation for damage as the property right of the person should be considered the right to property provided for in Article 23 of the Constitution only from the moment when the obligation to compensate for damage arises, i.e. from a corresponding legal fact. The right of the person that his property (including property rights as well) would be inherited after his death should be regarded as a constituent part of the constitutional right of the person to property. Thus, the legal regulation established in Paragraph 3 of Article 3 of the Law in fact limits the property right of the person (inviolability of property). However, the limitation on the constitutional right of the person should be regarded as grounded inasmuch as it is proportionate to the legitimate objective sought. The validity of the prohibition on inheriting the right to compensation for damage entrenched in Paragraph 3 of Article 3 of the Law is determined, first of all, by the fact that the right to compensation for damage arises from the obligation which is inseparably related to the person of the creditor, second, by the fact that the right to compensation for damage to all other persons who indirectly suffered from actions of the judicial institutions against the person who, under Paragraph 1 of Article 3 of the Law, has the right to compensation for damage (to his near and dear, his relatives, etc.), arises on the general basis established in the Civil Code of the Republic of Lithuania (hereinafter also referred to as CC). Thus, the prohibition on inheriting the right to compensation for damage is grounded inasmuch as it prevents other persons from getting double satisfaction from the state when the person who has the right to compensation for damage under Paragraph 1 of Article 3 of the Law, dies.

2. Under the Law, state responsibility is limited only while compensating moral damage, while a different damage is compensated without application of any limitations. Additionally, the Law was not much different from the then legal environment; taking account of the social legal context (which was very different from the one of today), when the Law was adopted and in effect, inter alia, of the fact that at that time the Lithuanian legal system was undergoing reforms and the procedure for establishing and calculating the moral damage had not been “purified”, the limitation established in Paragraph 7 of Article 7 of the Law to a certain extent protected from groundless attempts to gain profit.

IV

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations from P. Koverovas, State Secretary of the Ministry of Justice of the Republic of Lithuania, were received.

V

At the hearing of the Constitutional Court, G. Sagatys, the representative of the Seimas, the party concerned, virtually repeated the arguments set forth in his written explanations.

The Constitutional Court

holds that:

I

1. The Vilnius Regional Court, the petitioner, requests an investigation into whether Paragraph 3 of Article 3 of the Law was not in conflict with Paragraphs 2 and 3 of Article 5, Paragraphs 1 and 2 of Article 23, Paragraph 2 of Article 30 and Paragraphs 1 and 2 of Article 38 of the Constitution, as well as, according to the petitioner, with the provisions of justice and a state under the rule of law entrenched in the Preamble of the Constitution, and whether Paragraph 7 of Article 7 of the Law was not in conflict with Paragraphs 2 and 3 of Article 5 and Paragraphs 1 and 2 of Article 38 of the Constitution, as well as, according to the petitioner, with the provisions of justice and a state under the rule of law entrenched in the Preamble of the Constitution, and with the provisions of administration of justice entrenched in Article 109 of the Constitution.

2. The Constitutional Court has held in its acts more than once that the constitutional principles of justice and a state under the rule of law may not be construed as those entrenched only in the Preamble of the Constitution, nor identified only with the striving for an open, just and harmonious civil society and state under the rule of law proclaimed in the Preamble of the Constitution, and that the constitutional principle of a state under the rule of law is inseparable from the imperative of justice and integrates various values, entrenched in and protected and defended by the Constitution, as well as those that are expressed by the said objective.

It needs to be held that the petition of the petitioner requesting an investigation into whether Paragraph 3 of Article 3 and Paragraph 7 of Article 7 of the Law was not in conflict, according to the petitioner, inter alia, with the provisions of justice and a state under the rule of law entrenched in the Preamble of the Constitution should be regarded as a petition requesting an investigation into whether these paragraphs were not in conflict with the constitutional principles of justice and a state under the rule of law.

3. It is established in Article 109 of the Constitution that 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) and that the court shall adopt decisions in the name of the Republic of Lithuania (Paragraph 4).

It should be held that the petition of the petitioner requesting an investigation into whether Paragraph 7 of Article 7 of the Law was not in conflict, according to the petitioner, inter alia, with the provisions of administering justice entrenched in the Constitution, should be regarded as a petition requesting an investigation into whether this paragraph was not in conflict with Article 109 of the Constitution.

4. On 4 November 1997, the Seimas adopted the Law on Compensation for Damage Inflicted by Unlawful Actions of Interrogatory and Investigatory Bodies, the Prosecutor’s Office and Courts. In Article 1 of this law, it was established, inter alia, that it regulates the compensation for damage inflicted upon the natural person due to the unlawful conviction, unlawful temporary detention, unlawful detention, unlawful arrest, administrative arrest or imposition of correctional work and that this damage shall be compensated by the state.

The Law came into force on 19 November 1997.

5. On 30 June 2000, the Constitutional Court, in the constitutional justice case subsequent to the petition of the Kaunas Regional Court, the petitioner, requesting an investigation into whether Item 1 of Paragraph 1 of Article 4 of the Law on Compensation for Damage Inflicted by Unlawful Actions of Interrogatory and Investigatory Bodies, the Prosecutor’s Office and Courts was not in conflict with Paragraph 2 of Article 20, Article 29 and Paragraph 1 of Article 31 of the Constitution, and subsequent to the petition of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into whether Paragraph 1 of Article 3 and Paragraph 1 of Article 4 of this law were not in conflict with Paragraphs 1 and 2 of Article 21, Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution, adopted the Ruling “On the Compliance of Paragraph 1 of Article 3 and Item 1 of Paragraph 1 of Article 4 of the Republic of Lithuania’s Law on Compensation for Damage Inflicted by Unlawful Actions of Interrogatory and Investigatory Bodies, the Prosecutor’s Office and Courts with the Constitution of the Republic of Lithuania” wherein it recognised that Paragraph 1 of Article 3 and Item 1 of Paragraph 1 of Article 4 of the Law to the extent that, as defined in that ruling of the Constitutional Court, “the right of compensation for damage is denied for the persons regarding whom the judgment of conviction has been reversed prior to its going into effect and the case has been dismissed or the convicted person acquitted on the ground that a new or newly discovered circumstance shows conclusively that there has been a miscarriage of justice unless it is proved that the non-disclosure of the said circumstance in time is wholly or partly attributable to the convicted person, and the criminal procedure has been completed” were in conflict with Paragraph 1 of Article 29 and Paragraphs 1 and 2 of Article 30 of the Constitution.

In the constitutional justice case, wherein the ruling of 30 June 2000 was adopted, the Constitutional Court did not investigate whether Paragraph 3 of Article 3 and Paragraph 7 of Article 7 of the Law, whose compliance with the Constitution is impugned by the Vilnius Regional Court, the petitioner, in this constitutional justice case, were not in conflict with the Constitution.

6. The Law was amended and supplemented by the Republic of Lithuania’s Law on Amending and Supplementing Articles 3, 4, 5, 6 and 7 of the Law on Compensation for Damage Inflicted by Unlawful Actions of Interrogatory and Investigatory Bodies, the Prosecutor’s Office and Courts, which was adopted by the Seimas on 13 March 2001, which came into force on 30 March 2001, however, Paragraph 3 of Article 3 (wording of 4 November 1997) and Paragraph 7 of Article 7 (wording of 4 November 1997) of the Law were not amended and/or supplemented.

7. In Article 3 (wording of 13 March 2001) of the Law it was prescribed:

1. The persons, who experienced unlawful temporary detention, unlawful detention, unlawful arrest, administrative arrest or imposition of correctional work, shall have the right to compensation for damage, provided there are grounds specified in Article 4 of this law.

2. Also the persons, who have been awarded compensation for damage by the European Court of Human Rights, and the persons with whom a friendly agreement specified in Paragraph 2 of Article 4 of this Law has been reached, shall have the right to compensation for damage.

3. This right shall not be subject to transfer or inheritance.”

8. In Article 7 (wording of 13 March 2001) of the Law it was prescribed:

1. The person, who has the right to compensation for damage under this law, the real damage shall be compensated, i.e. the expenses incurred due to unlawful actions of interrogatory and investigatory bodies, the prosecutor’s office and court (judge), as well as the pecuniary damage or loss, non-received remuneration for work, allowances, pensions or other work income and moral damage, as well as working and professional rights shall be returned.

2. A person, who worked under the labour contract, shall be compensated for every day of unlawful imprisonment, unlawful temporary detention, unlawful detention, unlawful arrest or unlawfully imposed administrative arrest. The size of damage shall be calculated according to his average monthly remuneration for work under the procedure established by the Government of the Republic of Lithuania.

3. A person, who was engaged in individual business or professional activity, shall be compensated for every day of unlawful imprisonment, unlawful temporary detention, unlawful detention, unlawful arrest or unlawfully imposed administrative arrest. The size of damage shall be calculated according to the average taxed income of the 12 last months before the suspension of business or professional activity, which shall be divided into the number of calendar days of these 12 months and multiplied by the number of calendar days, spent by the person, when he was unlawfully imprisoned, unlawfully temporally detained, unlawfully detained, unlawfully arrested or unlawfully arrested under the administrative procedure. If the person was engaged in individual business or professional activity for less than 12 months, the size of damage shall be calculated under the same procedure for the whole period of time of business or professional activity.

4. In the case that due to unlawful imprisonment, unlawful temporary detention, unlawful detention, unlawful arrest or unlawfully imposed administrative arrest to the owner of the individual (personal) enterprise the activity of his enterprise stops, the size of damage shall be calculated according to the reporting indicators of his enterprise of the previous last calendar year, by dividing the taxed income (the income which remained after deducting for taxes) of the enterprise into the number of the calendar days of last year and multiplying from the number of the calendar days spent by the person, when he was unlawfully imprisoned, unlawfully temporally detained, unlawfully detained, unlawfully arrested or unlawfully arrested under the administrative procedure. If the individual (personal) enterprise was engaged in the activity for less than one calendar year, the size of damage shall be calculated under the same procedure for the whole period of time of the activity of the enterprise.

5. A person who is engaged in studies (pupil, student, etc.) and a person who did not work under a labour contract, who was not engaged in individual business or professional activity but who had registered himself at the state labour exchange shall be compensated for every day of unlawful imprisonment, unlawful temporary detention, unlawful detention, unlawful arrest or unlawfully imposed administrative arrest. The size of damage shall be calculated according to the minimal monthly salary established by the Government of the Republic of Lithuania, which is divided into 30 and multiplying from the calendar days spent by the person, when he was unlawfully imprisoned, unlawfully temporally detained, unlawfully detained, unlawfully arrested or unlawfully arrested under the administrative procedure.

6. A person, who has been imposed correctional work, shall be compensated for damage that appeared due to the deduction of part of his remuneration to the income of the state.

7. The moral damage to be compensated shall be established taking account of the gravity of the accusation, the size of the imposed punishment or fine, the period of time of the unlawful imprisonment, unlawful temporary detention, unlawful detention, unlawful arrest or unlawfully imposed administrative arrest, of the imparting of information to the public regarding the imposition of administrative arrest, temporary detention, detention, arrest or conviction, however, it may not exceed ten thousand litas.

8. The size of the compensation for damage to the persons specified in Paragraph 2 of Article 3 of this Law shall be established by a decision of the European Court of Human Rights or by a friendly agreement specified in Paragraph 2 of Article 4 of this Law. The decision of the European Court of Human Rights or the friendly agreement specified in Paragraph 2 of Article 4 of this Law must be implemented by paying monetary compensation within 3 months of the day when the decision of the court of the friendly agreement is received by the representative of the Government of the Republic of Lithuania at the European Court of Human Rights.”

9. Even though the Vilnius Regional Court, the petitioner, requests an investigation into whether whole Paragraph 3 of Article 3 (wording of 13 March 2001) and whole Paragraph 7 of Article 7 (wording of 13 March 2001) of the Law were not in conflict with the Constitution, it is obvious from the arguments of the petition of the petitioner, as well as from the material of the civil case considered by the Vilnius Regional Court, in which the ruling was adopted on the application to the Constitutional Court and by which this constitutional justice case was initiated that the petitioner had doubts only on the fact whether the provision “this right shall not be subject <…> to inheritance” of Paragraph 3 of Article 3 (wording of 13 March 2001) and the provision “the moral damage to be compensated <…> may not exceed ten thousand litas” of Paragraph 7 of Article 7 (wording of 13 March 2001) of the Law were not in conflict with the Constitution.

10. On 21 May 2002, the Seimas adopted the Law on Compensation for Damage Which Appeared Due to Unlawful Actions of State Institutions, under Article 7 of which, after the entry into force of this law, the Law on Compensation for Damage Inflicted by Unlawful Actions of Interrogatory and Investigatory Bodies, the Prosecutor’s Office and Courts (wording of 4 November 1997 with subsequent amendments and supplements) had to become no longer effective. The Law on Compensation for Damage Which Appeared Due to Unlawful Actions of State Institutions came into force on 7 June 2002. Thus, on that day, the Law on Compensation for Damage Inflicted by Unlawful Actions of Interrogatory and Investigatory Bodies, the Prosecutor’s Office and Courts (wording of 4 November 1997 with subsequent amendments and supplements) became no longer effective.

The Law on Compensation for Damage Which Appeared Due to Unlawful Actions of State Institutions (inter alia, its title) has been amended and/or supplemented more than once.

It needs to be noted that the provisions, which were entrenched in Paragraph 3 of Article 3 (wording of 13 March 2001) and Paragraph 7 of Article 7 (wording of 13 March 2001) of the Law and whose compliance with the Constitution is impugned by the Vilnius Regional Court, the petitioner, in this constitutional justice case, were no longer present in the Law on Compensation for Damage Inflicted by the State Institutions (wording of 21 May 2002, with subsequent amendments and supplements).

II

Having adopted the Constitution, a legal act of the supreme legal force, by referendum, the Lithuanian Nation formed the standardised basis for the common life of its own, as the state community—the civil Nation, and consolidated the state as a common good of the entire society. The Constitution is based on universal, unquestionable values, inter alia, the respect for law and the rule of law, limitation on the scope of powers, the duty of state institutions to serve the people and their responsibility for society, justice, striving for an open, just and harmonious society and state under the rule of law, the recognition of human rights and freedoms and their respect (the Constitutional Court’s ruling of 25 May 2004). In this context, it should be noted that it is established in Article 18 of the Constitution that human rights and freedoms shall be innate. The recognition of the human rights as innate means, inter alia, the fact that the rights and freedoms which cannot be separated from his person and which cannot be deprived from him, belong to the person ipso facto. The innate human rights are innate opportunities of an individual which ensure his human dignity in the spheres of social life (the Constitutional Court’s rulings of 9 December 1998 and 29 December 2004). One of the most important obligations of a democratic state based on law and justice is to respect, defend and protect the values, as well as human rights and freedoms, upon which the Constitution itself adopted by the Nation is based and whose real assessment, defence and protection is the raison d’être of the state itself; otherwise, it would be impossible to deem the state to be a common good of the whole society.

The Constitution is an anti-majoritarian act; it protects the individual. As the Constitutional Court has held, the state is constitutionally obliged to ensure the protection of human rights and freedoms from any unlawful attempt or limitation by legal, material or organisational means and to establish sufficient means for the defence and protection of human rights and freedoms (the Constitutional Court’s rulings of 30 June 2000 and 29 December 2004).

2. Under the Constitution, the state must not only ensure the protection of human rights and freedoms from unlawful attempts of other persons, but also must not permit in any manner any unlawful encroachment upon, or violation of, human rights and freedoms by state institutions or officials themselves (the Constitutional Court’s rulings of 30 June 2000, 13 December 2004 and 29 December 2004). In this context, it should be emphasised that people may reasonably consider the state institutions and officials as expressers or executors of the will of the state (both, when they execute the functions entrusted to them and when they do not implement any of their powers). State institutions and officials in no circumstances may act ultra vires, nor violate human rights and freedoms by unlawful actions. Otherwise, the confidence of people in state power, laws and the law would be ruined and legal nihilism would flourish. Tolerance towards unlawful actions of state institutions and officials by which human rights and freedoms are violated and failure to prevent them would lead to a huge social disbalance, the basic balance would be violated, when the human being virtually has no means and possibilities of resisting the arbitrariness of the state—a powerful mechanism, and, when he is left with no effective institutionalised help, he is trampled by the whole power of the state mechanism.

3. In the course of protection and defence of the human rights and freedoms (and, in general, personal ones—not only those of a natural but also legal person), a particular importance falls on the institute of compensation for damage. It is established in Paragraph 2 of Article 30 of the Constitution that compensation for material and moral damage inflicted upon a person shall be established by law. Thus, the necessity to compensate material and moral damage inflicted upon a person is a constitutional principle (the Constitutional Court’s rulings of 20 January 1997 and 13 December 2004). This constitutional principle is inseparable from the principle of justice entrenched in the Constitution: all the necessary legal preconditions must be created by law in order to justly compensate for the inflicted damage. Thus, the Constitution imperatively requires to establish by law such legal regulation that a person, who was inflicted damage by unlawful actions, would be able in all cases to claim for just compensation for that damage and to receive that compensation. In the context of the constitutional justice case at issue, it should be emphasised that it does not follow from the Constitution that it is possible by law to establish some exceptions, under which the moral and/or material damage inflicted upon the person is not compensated, for example, because of the reason that it was inflicted by unlawful actions of officials or institutions of the state itself. If the law, let alone other legal act, established such legal regulation whereby the state would fully or partially avoid the duty to justly compensate for material and/or moral damage inflicted by unlawful actions of state institution or officials, it would mean not only that the constitutional concept of compensation for damage is disregarded and that this is not line with the Constitution (inter alia, Paragraph 2 of Article 30 thereof), but it would also undermine the raison d’être of the state itself as a common good of the whole society.

4. It should be noted that the legislature, while regulating by law the relations linked to the compensation for material and/or moral damage inflicted upon the person, has certain discretion, inasmuch as it is not restricted by the Constitution. Thus, the legal regulation established in laws may be differentiated according to whether the damage inflicted by unlawful actions is compensated by judicial or non-judicial procedure, however, in any case, one may not establish any such legal regulation that the right of a person to apply to court and to claim for just compensation for damage inflicted by unlawful actions would be denied. By regulating the said relations by law, it is also necessary to heed the constitutional principles of equality of persons, the inviolability and protection of property, the independence of court, due process of law, and other constitutional principles.

In the context of the constitutional justice case at issue, it should be particularly emphasised that the Constitution does not tolerate any such legal regulation, when a person, who was inflicted material and/or moral damage by unlawful actions of state institutions and officials, may not claim in court for just compensation of this damage, or when the court, which, under the Constitution (inter alia, Article 109 thereof) must administer justice, may not, while taking account of all the significant circumstances of the case, establish for the person the size of the material and/or moral damage inflicted by the said unlawful actions, and, by following law, inter alia, not violating the imperatives of justice, reasonableness and proportionality, award just compensation for that material and/or moral damage sustained by a person.

It should also be emphasised that the institute of compensation for damage inflicted by unlawful actions of state institutions and officials implies, inter alia, the fact that the right of a person for compensation for damage inflicted by unlawful actions of state institutions and officials appears only when it is held by the procedure established by law (meeting the requirements of due process of law) that the state institutions, officials performed unlawful actions and that there occurred damage to the person namely due to the unlawful actions of these state institutions, officials.

5. The discretion of the legislature, which may be used by it while regulating the relations linked to compensation for material and/or moral damage inflicted upon the person by unlawful actions of the state institutions and officials, may not be interpreted as including its free discretion to establish some comprehensive (finite) list of cases in which such damage must be compensated, or to stipulate that in certain cases the damage inflicted by the said unlawful actions may be not subject to compensation.

Under the Constitution, neither does the legislature enjoy the freedom to establish any minimum limits of damage inflicted upon the person by the state institutions or officials which would not be subject to compensation. The legislature also has no constitutional powers to establish any maximum limits of damage inflicted upon the person by the state institutions or officials to be compensated, which would restrict the court and would prevent it from awarding just compensation for that material and/or moral damage sustained by the person.

It needs also to be mentioned that, while regulating the relations of compensation for damage inflicted by the unlawful actions by the state institutions and officials, one may not establish such legal regulation that the compensation for damage would depend on the fact, whether the decision of the court by which a person was unlawfully sentenced (and which was abolished later), was appealed under appeal and cassation procedure (the Constitutional Court’s ruling of 30 June 2000).

If all the said imperatives were disregarded, preconditions would be created for the occurrence of legal situations, where the damage inflicted upon the person by unlawful actions of state institutions and officials would be compensated partially or not compensated at all and the constitutional powers of the court to administer justice would be limited. It would mean that also the constitutional concept of compensation for damage is disregarded and that one deviates from the constitutional principles of justice and a state under the rule of law.

In this context, it should be noted that, under the Constitution, the person has the right to claim for compensation for damage inflicted by unlawful actions of state institutions and officials, also when the case of the corresponding compensation for damage is not specified in any law, while the courts, deciding such cases according to their competence, have the constitutional powers, by applying the Constitution directly (the principles of justice, legal certainty and legal security, proportionality, due process of law, the equality of persons and the protection of legitimate expectations, as well as other provisions of the Constitution), and general principles of law, pursuing, inter alia, the principle of reasonableness etc., to award the corresponding compensation for damage.

6. In Paragraph 2 of Article 30 of the Constitution, two kinds of damage are mentioned expressis verbis: material and moral damage, i.e. (respectively) property losses and spiritual (non-property) offences (they may also be caused by physical pain), which may be assessed and compensated materially only on certain conditions. The legislature must pay heed to this constitutional distinction.

Alongside, it also needs to be noted that treating the requirement to describe the same phenomena in laws and other legal acts always in the same words and formulas unreservedly would mean not only the seeking to artificially restrict and stop the development of language, inter alia, legal terminology, when not only words (formulas) describing the same phenomena, which are different from the text of the Constitution, are used in the laws and other legal acts, but new terms (formulas) in general, which were not yet created at the time of drawing the text of the Constitution, but it might also provoke to correct the text of the Constitution according to the terminology (words, formulas) entrenched in the laws and other legal acts also in such cases, when the intervention into the text of the Constitution, which as the supreme law must be a permanent act, is not legally necessary. The Constitution does not prevent the usage of words or formulas in laws and other legal acts that are different from those used in the text of the Constitution (the Constitutional Court’s ruling of 16 January 2006). Thus, the kinds of damage mentioned in Paragraph 2 of Article 30 of the Constitution may also be named in the laws by different terms only if these terms do not deny (distort) the constitutional concept of these kinds of damage.

7. The grouping of damage (which is subject to compensation) inflicted upon the person into material and moral one entrenched in Paragraph 2 of Article 30 of the Constitution determines the peculiarities of the legal regulation of the relations linked to the compensation for damage of a corresponding kind. One of these peculiarities is related to the establishment (assessment) of the size of the inflicted damage and with the form of compensation for that damage. While compensating for material damage, in all cases it is possible to follow the principle of full (adequate) compensation for damage (restitutio in integrum), when the size of the inflicted damage may be expressed in a monetary equivalent and the damage may be compensated with money (it does not deny the possibility of compensating for material damage also by means of other property or otherwise); thus, material losses are compensated with material assets. Meanwhile, as mentioned before, moral damage is a spiritual offence which can only be assessed and compensated materially on certain conditions; quite often the inflicted moral damage, as the sustained moral offence by the person, cannot be in general replaced, because it is impossible to return back the emotional and other condition of the person, which had existed before the spiritual offence took place—such a condition sometimes (at best) can be newly created while using, inter alia, material (first of all, monetary) compensation for that moral damage (however, sometimes, moral satisfaction alone for the sustained moral damage is not impossible). The material (monetary) compensation for moral damage, as the material equivalent of that moral damage, must also be paid by following the principle of the full (adequate) compensation for damage, for whose application in such cases there are typical important peculiarities, since such material compensation virtually differs by its content from the content of the moral damage itself which was inflicted and for which it is compensated and, thus (its size is not important), according to its nature, it cannot (or is not always able to) replace the sustained moral offence. The purpose of such material (first of all, monetary) compensation for moral damage is to create material preconditions for newly creating what is impossible to return, and to compensate the person as justly as possible for something that often may not in general be replaced by anything—neither money nor any material property.

8. The grouping of the damage (subject to compensation) inflicted upon the person into material and moral one in itself is not identical to the grouping of the damage into the damage for which material compensation may be claimed not only by the person who sustained the corresponding damage, but also by certain other persons, and into the damage for which material compensation may be claimed only by the person who sustained the damage, as the possibility of material compensation for it is itself related only to that person and may not be related to any other person. For instance, while heeding the constitutional imperative of the protection and defence of ownership (and property rights linked to it), it needs to be held that usually the right to claim for compensation for certain material damage is to be inherited or transferred in any other way; however, also such legal situations are possible, when the right to claim for compensation for certain material damage is inseparably related only to the person who sustained that damage and it may not be related to any other person. Also the right to claim for material compensation for the moral damage inflicted upon the person in some cases may be related only to the person who sustained that damage, however, under the Constitution, legal situations, where this right may be transferred to certain other persons, are also possible.

It should be noted that by no means does it follow from the Constitution that compensation for material and/or moral damage inflicted upon a person must in all cases be paid (or compensated otherwise) namely to the person upon whom it was inflicted, and that corresponding compensation may not in general be paid to any other person (persons). In particular, legal situations should be mentioned, where a person, upon whom damage was inflicted, has died, and even more, when the fact that he was deprived of his life constitutes the content of the inflicted damage. In the constitutional justice case at issue, it is necessary to emphasise that the Constitution requires to establish by law such legal regulation so that the state could not avoid the duty to pay compensation, when such compensation is reasonably claimed for the damage inflicted by the unlawful actions of its institutions and officials, and in the cases when it is not possible to pay the compensation for that damage to the same person, in whose respect these unlawful actions were performed namely because of the fact that he is dead, moreover, if by the said unlawful actions, the content of the damage inflicted upon the person included the fact that he was deprived of his life. Thus, the state may not avoid compensating for such damage in all cases, when it is reasonably claimed by other persons and when the person, in whose respect the unlawful actions of the state institutions and officials were performed, and upon whom by these actions the corresponding material and/or moral damage was inflicted, cannot claim himself to compensate for it because of the fact that the unlawfulness of the actions of the state institutions and officials was established already after the death of the person (the cause of which sometimes may be the said unlawful actions), or because of the fact that even though the unlawfulness of the actions of the state institutions and officials was established when the person was alive, he died earlier than he could (during the reasonable term established in the law) enjoy his right to claim for the compensation for damage or when he enjoyed this right, but died before the decision of the corresponding state institution (inter alia, the court) was adopted and/or executed.

If the legal regulation were established so that it would be possible to pay the said compensation for damage inflicted by unlawful actions of the state institutions and officials only to the person who sustained that damage, and under no circumstances would it be possible to pay the compensation for that damage to other persons, even though the claims of other persons to compensate for the said damage inflicted not directly upon them would be most possibly reasoned by the imperatives of justice, reasonableness and proportionality that arise from the Constitution and by other provisions of the Constitution, it would mean that the state, using the formal clause created by itself, in certain cases tries to avoid its obligation and not to execute the constitutional duty to compensate for the damage, which was inflicted by unlawful actions of its own institutions and officials; one would have to hold that the state tries not to execute the said constitutional obligation even when the person has died namely due to unlawful actions of state institutions and officials, and that it was due to these unlawful actions that the person no longer exists, to whom, should he have survived, the damage would have been compensated. Such stance of the state, if it were entrenched in legal acts, would be incompatible not only with various provisions of the Constitution (inter alia, which consolidate the family as the basis of society and the state, which protects and defends family, motherhood, fatherhood, childhood, and other social relations which are constitutionally valued), but also with the essence of the State of Lithuania itself, as a democratic state based on law and justice, with its constitutional purpose and nature.

9. A mere fact that the person in whose respect some state institutions and officials directly performed certain unlawful actions and, therefore, inflicted damage upon that person, enjoys the right to claim for compensation for that damage (and receives it) does not mean that other persons are in general (in all cases) prevented from claiming (by applying to court) for compensation for damage (both material and moral) sustained by them due to the same unlawful actions, even though these actions were not performed directly in their respect (for example, the dependants of the person in whose respect the unlawful actions were directly performed may enjoy an independent right to claim (while applying to court) for compensation for damage inflicted upon them, regardless of whether the other person has made use of his right for the claim or not). Otherwise, one would diverge from the principles of justice and a state under the rule of law which are entrenched in the Constitution, inter alia, the powers of the court to administer justice entrenched in Article 109 of the Constitution would be limited and the constitutional concept of compensation for damage, which is entrenched, inter alia, in Paragraph 2 of Article 30 of the Constitution, would be disregarded.

10. Alongside, it should be noted that no prohibition arises from the Constitution for the legislature to establish, while heeding the norms and principles of the Constitution, reasonable and grounded criteria while regulating the relations linked to the compensation of damage inflicted by unlawful actions of state institutions and officials in the law under which it would be possible to establish (assess) the size of the damage that should be compensated. Such criteria may be very different, they may be differentiated according to the nature, peculiarities and other circumstances of the inflicted damage. The Constitutional Court held in its ruling of 30 June 2000 that compensation for damage in various areas of the discharge of functions of the state may be regulated in a different manner. Thus, also a separate special legal regulation may be established, intended to such legal situations, when the damage is inflicted upon the person not by any subjects, but only by unlawful actions of state institutions and officials, and even more special legal regulation, intended to such legal situations, when the damage is inflicted upon the person not by any, but by certain unlawful actions of state institutions and officials; such differentiation of legal regulation may also include the said criteria, under which it would be possible to establish (assess) the size of the damage which is subject to compensation. However, as it has been held in this ruling of the Constitutional Court, the overall legal regulation of the relations linked to the compensation for the material and/or moral damage inflicted upon the person by unlawful actions of state institutions and officials, may not be such that its differentiation would create preconditions for interpreting that legal regulation as imposing the establishment of a comprehensive (finite) list of the cases, as to when the damage inflicted upon the person must be compensated.

It should also be emphasised that no criteria, expressis verbis specified in the laws, referring to which it would be possible to establish (assess) the size of the damage which needs to be compensated, should impede the court to administer justice—taking account of all the significant circumstances of the case, to establish the size of the material and/or moral damage inflicted upon the person by unlawful actions of state institutions and officials, and, following the law, inter alia, without trespassing the imperatives of justice, reasonableness and proportionality, to award just compensation for that material and/or moral damage sustained by the person.

III

On the compliance of the provision “the moral damage to be compensated <…> may not exceed ten thousand litas” of Paragraph 7 of Article 7 (wording of 13 March 2001) of the Law on Compensation for Damage Inflicted by the Unlawful Actions of Interrogatory, Investigatory Bodies, the Prosecutor’s Office and Court with Paragraphs 2 and 3 of Article 5, Paragraphs 1 and 2 of Article 38 and Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

1. The petitioner has doubts on whether the provision “the moral damage to be compensated <…> may not exceed ten thousand litas” of Paragraph 7 of Article 7 (wording of 13 March 2001) of the Law was not in conflict with the Constitution.

2. While construing the impugned provision of Paragraph 7 of Article 7 (wording of 13 March 2001) of the Law in the context of the whole legal regulation established in the Law, it needs to be held that by the provision the maximum limit was entrenched which under no circumstances can be exceeded while under the judicial procedure compensating for moral damage inflicted upon a natural person by unlawful actions of state officials and institutions (interrogator, investigator, prosecutor, court (judge)) specified in same Paragraph 4 (by the decision on temporary detention, detention, arrest, sentence or imposition of correctional work upon the person) of Article 2 of the Law. It should be emphasised that this limit was absolute in the aspect that even if the natural person, according to the court, had sustained the moral damage whose monetary equivalent (having in mind the clause of the impossibility of fully replacing the sustained moral damage) was rather larger than the said ten thousand litas and the award of such allowed maximum sum of money would have been obviously disproportionate to the moral damage sustained by that natural person and, thus, unjust, the court still could not award that person a larger sum of money or other material compensation, whose monetary equivalence would be larger than the established maximum. It also needs to be noted that the said maximum sum of ten thousand litas used to be fixed and stable and that it did not depend on any changes in the financial and economic situation, or those in the level of subsistence, nor on other factors.

3. It has been held in this ruling of the Constitutional Court that the legislature has no constitutional powers to establish any maximum sizes of damage inflicted upon the person by the state institutions or officials, which is subject to compensation, which would restrict the court and would prevent it from awarding just compensation for that material and/or moral damage sustained by the person. If such legal regulation were established, the powers of the court to administer justice entrenched, inter alia, in Article 109 of the Constitution were limited and the constitutional concept of compensation for damage, which is entrenched, inter alia, in Paragraph 2 of Article 30 of the Constitution, as well as the constitutional principles of justice and a state under the rule of law would be disregarded.

4. Taking account of the arguments set forth, the conclusion should be drawn that the provision “the moral damage to be compensated <…> may not exceed ten thousand litas” of Paragraph 7 of Article 7 (wording of 13 March 2001) of the Law was in conflict with Paragraph 2 of Article 30 and Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

5. It has been mentioned that, under the Law, the moral damage inflicted upon a natural person by unlawful actions of interrogatory, investigatory bodies, the prosecutor’s office and court had to be compensated. These actions were defined in Paragraph 4 of Article 2 of the Law, wherein it was prescribed: “The unlawful actions are violations of the Code of Criminal Procedure of the Republic of Lithuania or the Code of Administrative Violations of Law, established by an effective court decision or by other competent official under the procedure established by law, which were committed by the interrogator, investigator, prosecutor, court (judge) while adopting the decision on temporary detention, detention, arrest, sentence a person and to impose him an administrative arrest or correctional work.” It should be held that such definition of unlawful actions, when a comprehensive (finite) list of unlawful actions of interrogatory, investigatory bodies, the prosecutor’s office and court by which damage can be inflicted upon a natural person is introduced is legally incorrect as it does not include all the persons, upon whom damage can be inflicted by unlawful actions of state institutions and officials, nor does it include all possible unlawful actions that can be committed and by which damage (also the moral one) can be inflicted upon the person. However, the entirety of the state officials and institutions as the subjects by whose unlawful actions damage can be inflicted upon a natural person, as well as the entirety of the unlawful actions that may be committed by them, are not a matter of investigation in this constitutional justice case. The fact, what persons—natural or legal, or both natural and legal, as well as whether only the persons who sustained damage directly or also other persons as well had to be compensated for damage under the Law and the then overall legislative regulation, is not a matter of investigation in this constitutional justice case, either.

6. Having held that the provision “the moral damage to be compensated <…> may not exceed ten thousand litas” of Paragraph 7 of Article 7 (wording of 13 March 2001) of the Law was in conflict with Paragraph 2 of Article 30 and Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law, the Constitutional Court will not further investigate in this constitutional justice case whether this provision was not in conflict with Paragraphs 2 and 3 of Article 5 and Paragraphs 1 and 2 of Article 38 of the Constitution.

IV

On the compliance of the provision “this right shall not be subject <…> to inheritance” of Paragraph 3 of Article 3 (wording of 13 March 2001) of the Law on Compensation for Damage Inflicted by the Unlawful Actions of Interrogatory, Investigatory Bodies, the Prosecutor’s Office and Court with Paragraphs 2 and 3 of Article 5, Paragraphs 1 and 2 of Article 23, Paragraph 2 of Article 30 and Paragraphs 1 and 2 of Article 38 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

1. The petitioner doubts whether the provision “this right shall not be subject <…> to inheritance” of Paragraph 3 of Article 3 (wording of 13 March 2001) of the Law was not in conflict with the Constitution.

2. While construing the impugned provision of Paragraph 3 of Article 3 (wording of 13 March 2001) of the Law in the context of the whole legal regulation established in the Law (inter alia, in Article 3 thereof), it needs to be held that this provision entrenched an absolute prohibition on inheriting the right of the natural person to compensation for damage (both material and moral), which was inflicted upon the person by unlawful actions of state officials and institutions (interrogator, investigator, prosecutor, court (judge)) defined in same Paragraph 4 of Article 2 of the Law.

3. It has been held in this ruling of the Constitutional Court that it does not follow from the Constitution that compensation for material and/or moral damage inflicted upon a person must in all cases be paid (or compensated otherwise) namely to the person upon whom it was inflicted, and that the corresponding compensation may not in general be paid to any other person (persons), also that if the legal regulation were established so that it would be possible to pay the said compensation for damage inflicted by unlawful actions of the state institutions and officials only to the person who sustained that damage, and under no circumstances would it be possible to pay the compensation for that damage to other persons, even though the claims of other persons to compensate for the said damage inflicted not directly upon them would be most possibly reasoned by the imperatives of justice, reasonableness and proportionality that arise from the Constitution and by other provisions of the Constitution, it would mean that the state, using the formal clause created by itself, in certain cases tries to avoid its obligation and not to execute the constitutional duty to compensate for the damage, which was inflicted by unlawful actions of its own institutions and officials. It was also mentioned that in such cases one would have to hold that the state tries not to carry out the said constitutional obligation even when the person has died namely due to the unlawful actions of state institutions and officials, and that it was due to these unlawful actions that the person no longer exists, to whom, should he have survived, the damage would have been compensated, also that such stance of the state, if it were entrenched in legal acts, would be incompatible not only with various provisions of the Constitution.

4. It should be held that the absolute prohibition on inheriting the right of the natural person to compensation for damage, which was inflicted by certain unlawful actions of the interrogator, investigator, prosecutor, and court limits, inter alia, the powers of the court to administer justice, which are entrenched in Article 109 of the Constitution, deviates from the constitutional concept of compensation for damage, which is entrenched, inter alia, in Paragraph 2 of Article 30 of the Constitution, and violates the constitutional principles of justice and a state under the rule of law.

5. Taking account of the arguments set forth, the conclusion should be made that the provision “this right shall not be subject <…> to inheritance” of Paragraph 3 of Article 3 (wording of 13 March 2001) of the Law was in conflict with Paragraph 2 of Article 30 and Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

6. Having held that the provision “this right shall not be subject <…> to inheritance” of Paragraph 3 of Article 3 (wording of 13 March 2001) of the Law was in conflict with Paragraph 2 of Article 30 and Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law, the Constitutional Court will not further investigate in this constitutional justice case, whether this provision was not in conflict with Paragraphs 2 and 3 of Article 5, Paragraphs 1 and 2 of Article 23 and Paragraphs 1 and 2 of Article 38 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 “this right shall not be subject <…> to inheritance” of Paragraph 3 of Article 3 (wording of 13 March 2001, Official Gazette Valstybės žinios, 2001, No. 28-895) of the Republic of Lithuania’s Law on Compensation for Damage Inflicted by the Unlawful Actions of Interrogatory, Investigatory Bodies, the Prosecutor’s Office and Court was in conflict with Paragraph 2 of Article 30 and Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

2. To recognise that the provision “the moral damage to be compensated <…> may not exceed ten thousand litas” of Paragraph 7 of Article 7 (wording of 13 March 2001, Official Gazette Valstybės žinios, 2001, No. 28-895) of the Republic of Lithuania’s Law on Compensation for Damage Inflicted by the Unlawful Actions of Interrogatory, Investigatory Bodies, the Prosecutor’s Office and Court was in conflict with Paragraph 2 of Article 30 and Article 109 of the Constitution, with the constitutional principles of justice and 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

                                                                                Vytautas Sinkevičius

                                                                                Stasys Stačiokas

                                                                                Romualdas Kęstutis Urbaitis