Lt

On private accusations and on the right of the person, against whom the institution of a criminal case is refused, to lodge a complaint against the decision of the prosecutor

Case No. 7/03-41/03-40/04-46/04-5/05-7/05-17/05

 

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 

RULING

ON THE COMPLIANCE OF PARAGRAPH 4 (WORDING OF 11 SEPTEMBER 2001) OF ARTICLE 131 OF THE CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, ON THE COMPLIANCE OF PARAGRAPH 5 (WORDINGS OF 10 APRIL 2003 AND 16 SEPTEMBER 2003) OF ARTICLE 234, PARAGRAPH 2 (WORDINGS OF 10 APRIL 2003 AND 16 SEPTEMBER 2003) OF ARTICLE 244, ARTICLE 407 (WORDING OF 19 JUNE 2003), PARAGRAPH 1 (WORDING OF 14 MARCH 2002) OF ARTICLE 408, PARAGRAPHS 2 AND 3 (WORDING OF 14 MARCH 2002) OF ARTICLE 412, PARAGRAPH 5 (WORDING OF 14 MARCH 2002) OF ARTICLE 413 AND PARAGRAPH 2 (WORDING OF 14 MARCH 2002) OF ARTICLE 414 OF THE CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND ON THE PETITIONS OF THE ŠIAULIAI DISTRICT LOCAL COURT, A PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER ARTICLE 410 (WORDING OF 14 MARCH 2002) OF THE CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA IS NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

16 January 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, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

Judge Olegas Šibkovas, acting as the representative of the Third Vilnius City Local Court, a petitioner

Seimas member Raimondas Šukys, Mindaugas Girdauskas, senior advisor of the Law Department of the Office of the Seimas, and Girius Ivoška, advisor of the said department, the representatives of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 15 December 2005, considered case No. 7/03-41/03-40/04-46/04-5/05-7/05-17/05 subsequent to the following petitions:

1) the 23 December 2002 petition of the Second Vilnius City Local Court, a petitioner, requesting an investigation into whether Paragraph 4 (wording of 11 September 2001) of Article 131 of the Code of Criminal Procedure of the Republic of Lithuania to the extent that, according to the petitioner, it limits the right of the person in whose respect it was decided not to institute a criminal case after the term of the statutory limitation of bringing one to criminal liability has passed, to appeal against the prosecutor’s ruling in court is not in conflict with Paragraph 1 of Article 30 of the Constitution of the Republic of Lithuania;

2) the 27 October 2003 petition of the Third Vilnius City Local Court, a petitioner, requesting an investigation into whether Item 3 (wording of 10 April 2003) of Paragraph 5 of Article 234 and Paragraph 2 (wording of 10 April 2003) of Article 244 of the Code of Criminal Procedure of the Republic of Lithuania are not in conflict with Paragraph 2 of Article 110 of the Constitution of the Republic of Lithuania, whether Article 407 (wording of 19 June 2003), Paragraph 1 (wording of 14 March 2002) of Article 408, Paragraph 2 (wording of 14 March 2002) of Article 412 of the Code of Criminal Procedure of the Republic of Lithuania are not in conflict with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania, whether Paragraph 3 (wording of 14 March 2002) of Article 412 of the Code of Criminal Procedure of the Republic of Lithuania is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution of the Republic of Lithuania, whether Paragraph 5 (wording of 14 March 2002) of Article 413 of the Code of Criminal Procedure of the Republic of Lithuania is not in conflict with Paragraph 2 of Article 109 of the Constitution of the Republic of Lithuania, and whether Paragraph 2 (wording of 14 March 2002) of Article 414 of the Code of Criminal Procedure of the Republic of Lithuania is not in conflict with Paragraph 2 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution of the Republic of Lithuania;

3) the 6 October 2004 petition of the Second Vilnius City Local Court, a petitioner, requesting an investigation into whether Article 407 (wording of 19 June 2003), Paragraph 1 (wording of 14 March 2002) of Article 408, Paragraph 2 (wording of 14 March 2002) of Article 412 of the Code of Criminal Procedure of the Republic of Lithuania are not in conflict with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania, whether Paragraph 3 (wording of 14 March 2002) of Article 412 of the Code of Criminal Procedure of the Republic of Lithuania is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution of the Republic of Lithuania, whether Paragraph 5 (wording of 14 March 2002) of Article 413 of the Code of Criminal Procedure of the Republic of Lithuania is not in conflict with Paragraph 2 of Article 109 of the Constitution of the Republic of Lithuania, and whether Paragraph 2 (wording of 14 March 2002) of Article 414 of the Code of Criminal Procedure of the Republic of Lithuania is not in conflict with Paragraph 2 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution of the Republic of Lithuania;

4) the 29 October 2004 petition of the Panevėžys City Local Court, a petitioner, requesting an investigation into whether Item 3 (wording of 10 April 2003) of Paragraph 5 of Article 234 and Paragraph 2 (wording of 10 April 2003) of Article 244 of the Code of Criminal Procedure of the Republic of Lithuania are not in conflict with Paragraph 2 of Article 110 of the Constitution of the Republic of Lithuania, and whether Article 407 (wording of 19 June 2003), Paragraph 2 (wording of 14 March 2002) of Article 412 and Paragraph 5 (wording of 14 March 2002) of Article 413 of the Code of Criminal Procedure of the Republic of Lithuania are not in conflict with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania;

5) the 14 February 2005 petition of the Šiauliai District Local Court, a petitioner, requesting an investigation into whether Item 3 of Paragraph 5 of Article 234 and Paragraph 2 of Article 244 of the Code of Criminal Procedure of the Republic of Lithuania are not in conflict with Paragraph 2 of Article 110 of the Constitution of the Republic of Lithuania, and whether Article 407, Article 410, Paragraph 2 of Article 412 and Paragraph 5 of Article 413 of the Code of Criminal Procedure of the Republic of Lithuania are not in conflict with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania;

6) the 25 February 2005 petition of the Šiauliai District Local Court, a petitioner, requesting an investigation into whether Item 3 of Paragraph 5 of Article 234 and Paragraph 2 of Article 244 of the Code of Criminal Procedure of the Republic of Lithuania are not in conflict with Paragraph 2 of Article 110 of the Constitution of the Republic of Lithuania, and whether Article 407, Article 410, Paragraph 2 of Article 412 and Paragraph 5 of Article 413 of the Code of Criminal Procedure of the Republic of Lithuania are not in conflict with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania;

7) the 29 August 2005 petition of the Šiauliai District Local Court, a petitioner, requesting an investigation into whether Item 3 of Paragraph 5 of Article 234 and Paragraph 2 of Article 244 of the Code of Criminal Procedure of the Republic of Lithuania are not in conflict with Paragraph 2 of Article 110 of the Constitution of the Republic of Lithuania, and whether Article 407, Article 410, Paragraph 2 of Article 412 and Paragraph 5 of Article 413 of the Code of Criminal Procedure of the Republic of Lithuania are not in conflict with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania.

By the Constitutional Court’s decision of 6 January 2004, the 23 December 2002 petition of the Second Vilnius City Local Court and the Third Vilnius City Local Court were joined into one case it was given reference No. 7/03-41/03.

By the Constitutional Court’s decision of 10 October 2005, the petitions of the Second Vilnius City Local Court and the Third Vilnius City Local Court, which had been joined into case No. 7/03-41/03, and the 6 October 2004 petition of the Second Vilnius City Local Court, the 29 October 2004 petition of the Panevėžys City Local Court, the 14 February 2005, 25 February 2005 and 29 August 2005 petitions of the Šiauliai District Local Court were joined into one case and it was given reference No. 7/03-41/03-40/04-46/04-5/05-7/05-17/05.

The Constitutional Court

has established:

I

1. The Second Vilnius City Local Court, a petitioner, considered a complaint requesting rescinding a part of the ruling of a prosecutor whereby it refused to institute a criminal case after the term of the statutory limitation of bringing one to criminal liability had passed. By its ruling of 23 December 2002, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 4 (wording of 11 September 2001) of Article 131 of the then valid Code of Criminal Procedure (hereinafter also referred to as the formerly valid CCP) to the extent that, according to the petitioner, it limited the right of the person in whose respect it was decided not to institute a criminal case after the term of the statutory limitation of bringing one to criminal liability has passed, to appeal against the prosecutor’s ruling in court was not in conflict with Paragraph 1 of Article 30 of the Constitution. The petition was received at the Constitutional Court on 8 January 2003.

2. The Third Vilnius City Local Court, a petitioner, considered a criminal case. By its ruling of 27 October 2003, the said court postponed the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Item 3 (wording of 10 April 2003) of Paragraph 5 of Article 234 and Paragraph 2 (wording of 10 April 2003) of Article 244 of the Code of Criminal Procedure (hereinafter also referred to the CCP or the new CCP) are not in conflict with Paragraph 2 of Article 110 of the Constitution, whether Article 407 (wording of 19 June 2003), Paragraph 1 (wording of 14 March 2002) of Article 408, Paragraph 2 (wording of 14 March 2002) of Article 412 of the Code of Criminal Procedure are not in conflict with Paragraph 1 of Article 29 of the Constitution, whether Paragraph 3 (wording of 14 March 2002) of Article 412 of the Code of Criminal Procedure is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution, whether Paragraph 5 (wording of 14 March 2002) of Article 413 of the Code of Criminal Procedure is not in conflict with Paragraph 2 of Article 109 of the Constitution, and whether Paragraph 2 (wording of 14 March 2002) of Article 414 of the Code of Criminal Procedure is not in conflict with Paragraph 2 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution. The petition was received at the Constitutional Court on 18 November 2003.

3. The Second Vilnius City Local Court, a petitioner, considered a criminal case. By its ruling of 6 October 2004, the said court postponed the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Article 407 (wording of 19 June 2003), Paragraph 1 (wording of 14 March 2002) of Article 408, Paragraph 2 (wording of 14 March 2002) of Article 412 of the Code of Criminal Procedure are not in conflict with Paragraph 1 of Article 29 of the Constitution, whether Paragraph 3 (wording of 14 March 2002) of Article 412 of the Code of Criminal Procedure is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution, whether Paragraph 5 (wording of 14 March 2002) of Article 413 of the Code of Criminal Procedure is not in conflict with Paragraph 2 of Article 109 of the Constitution, and whether Paragraph 2 (wording of 14 March 2002) of Article 414 of the Code of Criminal Procedure is not in conflict with Paragraph 2 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution. The petition was received at the Constitutional Court on 11 October 2004.

4. The Panevėžys City Local Court, a petitioner, considered a criminal case. By its ruling of 29 October 2004, the said court postponed the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Item 3 (wording of 10 April 2003) of Paragraph 5 of Article 234 and Paragraph 2 (wording of 10 April 2003) of Article 244 of the Code of Criminal Procedure are not in conflict with Paragraph 2 of Article 110 of the Constitution and whether Article 407 (wording of 19 June 2003), Paragraph 2 (wording of 14 March 2002) of Article 412 and Paragraph 5 (wording of 14 March 2002) of Article 413 of the Code of Criminal Procedure are not in conflict with Paragraph 1 of Article 29 of the Constitution. The petition was received at the Constitutional Court on 30 November 2005.

5. The Šiauliai District Local Court, a petitioner, considered a criminal case. By its ruling of 14 February 2005, the said court postponed the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Item 3 of Paragraph 5 of Article 234 and Paragraph 2 of Article 244 of the Code of Criminal Procedure are not in conflict with Paragraph 2 of Article 110 of the Constitution and whether Article 407, Article 410, Paragraph 2 of Article 412 and Paragraph 5 of Article 413 of the Code of Criminal Procedure are not in conflict with Paragraph 1 of Article 29 of the Constitution. The petition was received at the Constitutional Court on 14 March 2005.

6. The Šiauliai District Local Court, a petitioner, considered a criminal case. By its ruling of 25 February 2005, the said court postponed the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Item 3 of Paragraph 5 of Article 234 and Paragraph 2 of Article 244 of the Code of Criminal Procedure are not in conflict with Paragraph 2 of Article 110 of the Constitution and whether Article 407, Article 410, Paragraph 2 of Article 412 and Paragraph 5 of Article 413 of the Code of Criminal Procedure are not in conflict with Paragraph 1 of Article 29 of the Constitution. The petition was received at the Constitutional Court on 23 March 2005.

7. The Šiauliai District Local Court, a petitioner, considered a criminal case. By its ruling of 29 August 2005, the said court postponed the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Item 3 of Paragraph 5 of Article 234 and Paragraph 2 of Article 244 of the Code of Criminal Procedure are not in conflict with Paragraph 2 of Article 110 of the Constitution, and whether Article 407, Article 410, Paragraph 2 of Article 412 and Paragraph 5 of Article 413 of the Code of Criminal Procedure are not in conflict with Paragraph 1 of Article 29 of the Constitution. The petition was received at the Constitutional Court on 21 September 2005.

II

1. The petition of the Second Vilnius City Local Court, a petitioner, requesting an investigation into whether Paragraph 4 (wording of 11 September 2001) of Article 131 of the formerly valid CCP to the extent that, according to the petitioner, it limited the right of the person in whose respect it was decided not to institute a criminal case after the term of the statutory limitation of bringing one to criminal liability has passed, to appeal against the prosecutor’s ruling in court was not in conflict with Paragraph 1 of Article 30 of the Constitution, is grounded on the following arguments.

Under Paragraph 4 (wording of 11 September 2001) of Article 131 of the formerly valid CCP, it was only the petitioner who could lodge a complaint against the prosecutor’s ruling to refuse to institute a criminal case, while the person against whom it would be refused to institute a criminal case did not have this right. Meanwhile, Paragraph 1 of Article 30 of the Constitution provides that the person whose constitutional rights or freedoms are violated shall have the right to apply to court, therefore, the petitioner had doubts whether Paragraph 4 (wording of 11 September 2001) of Article 131 of the formerly valid CCP to the extent that, according to the petitioner, it limited the right of the person in whose respect it was decided not to institute a criminal case after the term of the statutory limitation of bringing one to criminal liability had passed, to appeal against the prosecutor’s ruling in court was not in conflict with Paragraph 1 of Article 30 of the Constitution.

2. The 27 October 2003 petition of the Third Vilnius City Local Court, a petitioner, to the extent that it requests an investigation into whether Article 407 (wording of 19 June 2003), Paragraph 1 (wording of 14 March 2002) of Article 408, Paragraphs 2 and 3 (wording of 14 March 2002) of Article 412, Paragraph 5 (wording of 14 March 2002) of Article 413 and Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP are not in conflict with the Constitution and the 6 October 2004 petition of the Second Vilnius City Local Court, a petitioner, to the extent that it requests an investigation into whether Article 407 (wording of 19 June 2003), Paragraph 1 (wording of 14 March 2002) of Article 408, Paragraphs 2 and 3 (wording of 14 March 2002) of Article 412, Paragraph 5 (wording of 14 March 2002) of Article 413 and Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP are not in conflict with the Constitution are based on the following arguments.

2.1. Article 407 (wording of 19 June 2003) of the CCP provides that the procedure shall be instituted regarding the criminal cases on the criminal deeds provided for in Paragraph 1 of 139 Article, Paragraph 1 of Article 140, Articles 148, 152, 154, 155, 165, 168, Paragraphs 1 and 3 of Article 187, and Articles 188, 313 of the Criminal Code of the Republic of Lithuania (hereinafter also referred to as the CC) only if there is a complaint of the victim or an application of his legitimate representative, and that pre-trial investigation is not carried out in such cases save the cases provided for in Article 409 of the CCP. Paragraph 1 (wording of 14 March 2002) of Article 408 of the CCP provides that in cases of private accusation it is the victim who files the complaint and upholds the accusation in court, who in court acquires the status of a private accuser. Paragraph 2 (wording of 14 March 2002) of Article 412 of the CCP provides what data must be specified in the complaint filed by the victim or in the application of his legitimate representative.

According to the petitioners, stricter requirements are raised in regard of the persons who suffered from the deeds specified in Article 407 (wording of 19 June 2003) of the CCP and who intend to file a complaint about it, than in regard of those who suffered from other deeds. For instance, Paragraph 1 of Article 166 of the CCP raises no requirements with respect to a complaint, application or report subsequent to which pre-trial investigation is begun, thus, in order to begin pre-trial investigation it is sufficient to inform in a certain way the establishment of pre-trial investigation about the criminal deed. After the pre-trial investigation is begun, officials of pre-trial investigation must establish the guilty person and prove his guilt. Meanwhile, in the proceedings of cases of private accusation the victim or his legitimate representative must themselves establish the person who committed the criminal deed, the circumstances of the commission of this deed, the witnesses etc., since under Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP, the complaint or application filed under procedure of private accusation must, along with other data, specify the place, time and consequences of the committed deed, other essential circumstances, as well as the names, surnames and place of residence of the suspect and witnesses.

Under Paragraph 1 of Article 29 of the Constitution, all persons shall be equal before the law, the court, and other state institutions and officials. Articles 21, 22, 23 and 24 of the Constitution ensure the rights of a human being to inviolability of the person, private life, property and home regardless of the amount of the damage inflicted upon the person. In the opinion of the petitioners, the requirement that the persons who suffered from certain deeds specified (and singled out from other criminal deeds (by which one encroaches upon the person, his private life, property, home)) in Article 407 (wording of 19 June 2003) of the CCP should themselves collect the data about the criminal deed, establish the guilty person and possible witnesses, determines the fact that these persons find themselves in an unequal situation if compared to that of persons who suffered from other criminal deeds, since, as the petitioners note, the rights and possibilities of persons who suffered from the criminal deeds to establish the circumstances of the criminal deed, especially the guilty person, if compared to those of officials of pre-trial investigation, are limited ones. Therefore, the petitioners had doubts whether the aforesaid provisions of Article 407 (wording of 19 June 2003), Paragraph 1 (wording of 14 March 2002) of 408, and of Paragraph 2 (wording of 14 March 2002) of Article 412 of the CCP are not in conflict with the principle of equality of persons entrenched in Paragraph 1 of Article 29 of the Constitution.

2.2. It is noted in the petitions of the petitioners that Paragraph 2 (wording of 14 March 2002) of Article 412 of the CCP which establishes the requirements for the content of the complaint filed under procedure of private accusation is linked with Paragraph 3 (wording of 14 March 2002) of the same article, under which a complaint, which does not meet the requirements of this article, is not admitted and returned to the person who has filed it. In the opinion of the petitioners, due to the legal regulation established in Paragraph 3 (wording of 14 March 2002) of Article 412 of the CCP the persons who suffered from the criminal deeds specified in Article 407 (wording of 19 June 2003) of the CCP find themselves in an unequal situation if compared with the persons suffered from other criminal deeds, upon reception of whose complaint the prosecutor or the official of pre-trial investigation can refuse to begin the pre-trial investigation by a reasoned ruling only in case when the facts which are specified in the complaint about the committed criminal deed are clearly false (Paragraphs 1 and 2 of Article 168 of the CCP). The legal regulation established in Articles 166 and 168 of the CCP ensures that a procedural decision will be adopted in regard of the filed complaint, application or report, which, by the way, can be appealed against, and that, in case there are grounds, pre-trial investigation will be begun. Meanwhile, the persons who suffered from the criminal deeds specified in Article 407 (wording of 19 June 2003) of the CCP cannot even file a complaint about the criminal deed if they do not know who committed that deed, since under Paragraph 3 (wording of 14 March 2002) of Article 412 of the CCP, the complaint or application which do not specify, for example, the name and surname of the suspect, is not accepted and returned to the person who filed it. Therefore, the petitioners think that Paragraph 3 (wording of 14 March 2002) of Article 412 of the CCP is in conflict with the principle of equality of persons before the laws entrenched in Paragraph 1 of Article 29 of the Constitution.

In addition, the petitioners doubt whether Paragraph 3 (wording of 14 March 2002) of Article 412 of the CCP is not in conflict with Paragraph 1 of Article 30 of the Constitution which provides that the person whose constitutional rights or freedoms are violated shall have the right to apply to court. According to the petitioners, a person, whose rights or freedoms have been violated by committing the criminal deeds against him, listed in Article 407 (wording of 19 June 2003) of the CCP, but who cannot specify the identification of the suspect or the circumstances of commission of the criminal deed, virtually loses an opportunity to apply to court to protect his violated right, since the court must return the complaint that does not meet the requirements and no opportunity is provided for appeal against such court decision. Such a person cannot apply to the establishment of pre-trial investigation, either, so that his application could be investigated and referred to court under general procedure, since under Paragraph 1 of Article 417 of the CCP, if during pre-trial investigation it transpires that that the deed of the suspect has the signs of the criminal deeds specified in Article 407 of the same code, the official who conducts the investigation explains the right to the victim to apply to court under procedure of private accusation and dismisses the pre-trial investigation. According to the petitioners, the provision of Paragraph 2 of Article 409 of the CCP that the prosecutor has the right at any time of the case of private accusation until the beginning of investigation of the evidence to submit a written application to the court that he will uphold the charge of the state and that in such situation the case is referred to the prosecutor does not change the essence of the matter, since the prosecutor can join the case only after its investigation has been started in court, i.e. after the court has accepted the complaint of private accusation, and, in addition, this is a right of the prosecutor, but not his duty.

2.3. The petitioners also faced doubts whether Paragraph 5 (wording of 14 March 2002) of Article 413 of the CCP is not in conflict with the principle of independence of courts entrenched in Paragraph 2 of Article 109 of the Constitution. Paragraph 5 (wording of 14 March 2002) of Article 413 of the CCP provides that if victim and/or his legitimate representative and the person accused of commission of the criminal deed do not reach conciliation, the judge passes a ruling to refer the complaint of the victim for consideration in a trial hearing. Thus, if the victim and the accused do not reach conciliation, the court has no other choice but to refer the case of private accusation for consideration in a trial hearing. Meanwhile, under Article 232 of the CCP which establishes what rulings can be passed when ordinary criminal cases are prepared for investigation in court, the judge has more opportunities: (1) he can refer the case for consideration in a trial hearing; (2) he can refer the case to subsequent consideration according to its cognisance; (3) he can refer the case to the prosecutor; (4) he can separate the case into several cases, or join several cases into one case; (5) he can postpone the consideration of the case; (6) he can dismiss the case. Thus, in the opinion of the petitioners, Paragraph 5 (wording of 14 March 2002) of Article 413 of the CCP under which the judge must refer any complaint of private accusation, even if the accusation is clearly groundless, for consideration in a trial hearing and cannot adopt any other decision, violates the independence of the court.

In addition, according to the petitioners, the court cannot adopt the other decisions which are provided for in Article 232 of the CCP, either, after the case of private accusation is referred for consideration in a trial hearing, since under Article 254 of the CCP, at the time of consideration of the case in court the case may be dismissed only if the circumstances provided for in Items 2-9 of Paragraph 1 of Article 3 of the CCP, or the bases provided for in Articles 36-40, 93, Paragraph 3 of Article 114, Paragraph 3 of Article 259 and Paragraphs 2 and 3 of Article 291 of the CC are established. According to Article 254 of the CCP, the consideration of the case cannot be dismissed according to the basis provided for in Item 1 of Paragraph 1 of Article 3 of the CCP, either, i.e. if the deed with signs of crime or criminal offence, has not been committed. Thus, in the opinion of the petitioners, even if the private accusation complaint or application is clearly groundless or simply absurd, the court cannot dismiss the consideration of such a case during the entire process of the consideration of this case of private accusation and can only end it by adopting a judgment.

2.4. Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP provides that the judge, while adopting a ruling to refer the complaint of the victim or the application of his legitimate representative for consideration in a trial hearing, has the right to request the establishment of pre-trial investigation to investigate the circumstances of the case within the established period, which the court is unable to establish, and to postpone the case for the said period. The doubts of the petitioners as regards the compliance of this provision with Paragraph 2 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution on the fact that, in their opinion, this provision creates preconditions for the court to discharge functions, which are not characteristic of it.

According to the petitioners, the possibilities of the victim to submit the needed evidence to the court are limited ones, therefore, the right of the court to apply to the establishment of pre-trial investigation, which is provided for in Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP, virtually becomes a duty to the court itself to collect all the necessary evidence in order to adopt a decision. In the opinion of the petitioners, the instruction by the court to the establishment of pre-trial establishment to investigate the circumstances of the case should be regarded as discharging a function not characteristic of the court, which is the collection of evidence, i.e., it is not administration of justice, but criminal persecution. The petitioners assert that depending on what evidence will be presented, preconditions could be created to assume that the court is in favour of one or another party to the case; this could be grounds for the other party to doubt the impartiality and independence of the court.

According to the petitioners, the prosecutor enjoys procedural measures to control pre-trial investigation. Under Paragraph 1 (wording of 20 March 2003) of Article 118 of the Constitution, pre-trial investigation shall be organised and directed, and charges on behalf of the state shall be upheld by the prosecutor. In the opinion of the petitioners, as the prosecutor does not participate in the proceedings of private accusation, a court, when it issues instruction to the establishment of pre-trial investigation, it discharges a function which is characteristic of the prosecutor; this permits one to assume that, in the actions of a court, elements of criminal persecution occur, which are not characteristic of administration of justice, which creates preconditions for doubting the impartiality of the court.

3. The 29 October 2004 petition of the Panevėžys City Local Court, the petitioner, to the extent that it requests an investigation into whether Article 407 (wording of 19 June 2003), Paragraph 2 (wording of 14 March 2002) of Article 412 and Paragraph 5 (wording of 14 March 2002) of Article 413 of the CCP are not in conflict with the Constitution and the 14 February 2005, 25 February 2005 and 29 August 2005 petitions of the Šiauliai District Local Court, a petitioner, to the extent that they request an investigation into whether Articles 407, 410, Paragraph 2 of Article 412 and Paragraph 5 of Article 413 of the CCP are not in conflict with the Constitution are grounded on the following arguments.

3.1. According to the petitioners, by the legal regulation established in Article 407 (wording of 19 June 2003) and Paragraph 2 (wording of 14 March 2002) of Article 412 of the CCP, while in the opinion of the Šiauliai District Local Court, also in Article 410 of the CCP, the persons who suffered from the criminal deeds specified in Article 407 of the CCP are distinguished from the persons who suffered from all the rest of criminal deeds, bigger requirements are raised to them when they apply to corresponding state institutions on investigation into the criminal deeds and on bringing the guilty persons to criminal liability. The law demands that the victim, when applying to court under procedure of private accusation, collect himself and point out in his complaint the data about the circumstances of the commission of the criminal deed and about the accused person, however, it does not grant him any procedural possibilities of getting such data. Thus, in the opinion of the petitioners, the persons who have suffered from the criminal deeds provided for in Article 407 of the CCP find themselves in an unequal situation, if compared with the persons who suffered from other criminal deeds, since the legislature has deprived them of the opportunity to make use of certain procedural rights.

3.2 According to the petitioners, Paragraph 5 (wording of 14 March 2002) of Article 413 of the CCP, which provides for only one possible procedural decision to be adopted in case the victim who filed a complaint of private accusation and the person who is accused of committing the criminal deed do not reach conciliation, implies that the situation of the victims and the accused in cases of private accusation and of those in cases where charges are upheld by the state is different with respect to possible procedural decisions which can be adopted in their cases. Therefore, the petitioners doubt whether Paragraph 5 (wording of 14 March 2002) of Article 413 of the CCP is not in conflict with Paragraph 1 of Article 29 of the Constitution.

4. The 27 October 2003 petition of the Third Vilnius City Local Court, a petitioner, and the 29 October 2004 petition of the Panevėžys City Local Court, a petitioner, to the extent that they request an investigation into whether Item 3 (wording of 10 April 2003) of Paragraph 5 of Article 234 and Paragraph 2 (wording of 10 April 2003) of Article 244 of the CCP with the Constitution, the 14 February 2005, 25 February 2005 and 29 August 2005 petitions of the Šiauliai District Local Court, a petitioner, to the extent that they request an investigation into whether Item 3 of Paragraph 5 of Article 234 and Paragraph 2 of Article 244 of the CCP are not in conflict with the Constitution, are grounded on the following arguments.

Item 3 (wording of 10 April 2003) of Paragraph 5 of Article 234 of the CCP provides that the consideration of the case shall be postponed when one applies to the Constitutional Court in cases provided for in laws until the ruling of the Constitutional Court is received; Paragraph 2 (wording of 10 April 2003) of Article 244 of the CCP provides that the investigation of the case provided for in Item 3 of Paragraph 5 of Article 234 of this code shall be postponed. Meanwhile, Paragraph 2 of Article 110 of the Constitution provides that in cases when there are grounds to believe that the law or other legal act which should be applied in a concrete case is in conflict with the Constitution, the judge shall suspend the consideration of the case and shall apply to the Constitutional Court requesting it to decide whether the law or other legal act in question is in compliance with the Constitution. In the opinion of the petitioners, the notions “postponement of the consideration of a case” and “suspension of the consideration of a case” are not identical. Upon postponement of the consideration of a case, procedural terms are counted, court sittings can be arranged and other procedural actions can be done. The new CCP does not contain the notion “suspension of the consideration of a case”, however, in the opinion of the petitioners, if the consideration of the case is suspended, the procedural terms would not be counted and no procedural actions would be done. Since the CCP does not provide for a possibility of suspending the consideration of the case, courts, when they apply to the Constitutional Court, cannot suspend cases of private accusation; this, in their opinion, is in conflict with Paragraph 2 of Article 110 of the Constitution.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from the representatives of the Seimas, the party concerned, who were G. Ivoška, the Chief Advisor of the Legal Department of the Office of the Seimas, and M. Girdauskas, a senior advisor of the same department, as well as a letter of Seimas member R. Šukys, which assents to the explanations presented by M. Girdauskas. The explanations maintain that the impugned articles (parts thereof) are not in conflict with the Constitution.

1. The position of G. Ivoška regarding the compliance of Paragraph 4 (wording of 11 September 2001) of Article 131 of the formerly valid CCP with Paragraph 1 of Article 30 of the Constitution is based on these arguments.

1.1. Under the formerly valid CCP the case could not be instituted, while an instituted case had to be dismissed if the terms of statutory limitation had passed (Item 3 of Paragraph 1 of Article 5). The legal meaning of the statutory limitation of bringing one to legal liability (adoption of the judgment of conviction) is that after the term of statutory limitation has passed the application of legal liability for the criminal deed to a person becomes meaningless, since the person, who conforms to the conditions specified in the criminal law, is considered not to be dangerous to society. The statutory limitation of the adoption of the judgment of conviction is the time period during which the pre-trial investigation of the deed must be over and the judgment of conviction must be adopted.

Paragraph 1 of Article 131 of the formerly valid CCP used to provide that if there are no grounds for institution of a criminal case, also if there are circumstances which make the case impossible, the prosecutor, the investigator, the investigatory body, the judge or the court shall refuse to institute a criminal case. According to G. Ivoška, when the term of the statutory limitation of a judgment of conviction is applied, the principle of justice is implemented and the legitimate expectations of the person who meets all the conditions that he cannot be brought to criminal liability are implemented as well. According to the representative of the party concerned, if the term of statutory limitation has passed during pre-trial investigation, the law and order institutions have a duty to dismiss this investigation (to refuse to institute a criminal case or to dismiss it) even in the case where the suspect (the accused) does not agree with this and is willing that the final decision in his case be adopted by the court; in such cases continuance of the pre-trial investigation would be meaningless, as the procedural actions for which work and financial input are necessary, would be done knowing in advance that the person would not be punished by criminal punishment. According to G. Ivoška, the seeking of the person in whose regard a decision is adopted to refuse to institute a criminal case to achieve that a judgment of acquittal be adopted is unreasonable from the standpoint of economy of the criminal procedure; besides, upon reaching the terms of statutory limitation the legitimate expectations are implemented by not instituting a criminal case (by dismissing the pre-trial investigation), but not by further investigating the deed in whose regard the judgment of conviction would not be adopted anyway. Therefore, in the opinion of the representative of the party concerned, Paragraphs 3 and 4 of Article 131 of the formerly valid CCP reasonably did not provide for the right of the person in whose regard one refused to institute a criminal case to appeal against such ruling.

1.2. According to the representative of the representative of the party concerned, the fact that Article 131 of the formerly valid CCP did not indicate a person from among the listed subjects who had the right to appeal against the ruling to refuse to institute a criminal case, in whose regard one refused to institute the criminal case, should be regarded as a coincidental gap in the law, which could be removed by the court investigating the case, inter alia, by applying analogy. For example, Paragraph 3 of Article 5 of the formerly valid CCP used to establish the right of the accused to contradict to the case being dismissed after the terms of statutory limitation have passed; thus, the accused could seek to achieve that a judgment of acquittal be adopted and be held indisputably that he was not guilty, and not that he evaded the punishment only because the term of statutory limitation had passed. In this context, the representative of the party concerned noted that although criminal law does not permit analogy of the law, in other branches of public law (criminal procedure law is also categorised as belonging to public law), a court is not permitted to apply analogy and thus fill legal gaps only when this is related with the restriction on the basic human rights and freedoms, therefore, in the case at issue this prohibition should not be applied.

1.3. Under Article 6 of the Constitution, everyone may defend his rights by invoking the Constitution. Thus, according to the representative of the party concerned, although Paragraph 4 of Article 131 of the formerly valid CCP did not provide for the right of the person in whose regard one refused to institute a criminal case to appeal against such a ruling, he was able to defend his right indirectly by invoking Paragraph 1 of Article 30 of the Constitution which provides that the person whose constitutional rights or freedoms are violated shall have the right to apply to court.

2. The position of M. Girdauskas regarding the compliance of Item 3 (wording of 10 April 2003) of Paragraph 5 of Article 234, Paragraph 2 (wording of 10 April 2003) of Article 244, Article 407 (wording of 19 June 2003), Paragraph 1 (wording of 14 March 2002) of Article 408, Article 410 (wording of 14 March 2002), Paragraphs 2 and 3 (wording of 14 March 2002) of Article 412, Paragraph 5 (wording of 14 March 2002) of Article 413, and Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP with the Constitution is based upon the following arguments.

2.1. The private accusation is an institute of criminal procedure, which has century-old traditions and is known in a great many of European states. The peculiarities of regulation of cases of private accusation are determined by the fact that in this procedure first of all one seeks to reconcile persons, who are in conflict with each other. Another purpose of criminal procedure is to establish whether the suspect or the accused person is guilty of committing the criminal deed and, providing there are grounds, to justly punish him, is implemented only if one fails to reconcile them.

In the opinion of the representative of the party concerned, a possibility of non-state, i.e. private, accusation also stems from Article 118 of the Constitution, which, inter alia, provides that pre-trial investigation shall be organised and directed, and charges on behalf of the state in criminal cases shall be upheld by prosecutors. However, the procedure of private accusation must be applied only in cases when there are no grounds to believe that pre-trial investigation should be performed and the state charges upheld the necessity of which is determined by the protection of the public interest. According to M. Girdauskas, the CCP provides for a possibility of private accusation only in cases of not grave criminal deeds and in case of one deed of medium gravity (Paragraph 2 of Article 152 of the CC).

According to the representative of the party concerned, the right entrenched in Paragraph 1 of Article 30 of the Constitution, as well as in criminal procedure, to apply to court cannot be implemented in any way; the law can and must entrench grounded requirements which the person must perform so that he could implement his right to apply to court. In itself, different legal regulation in respect of certain persons who are in different situations does not violate the constitutional principle of equality of persons.

Under Paragraph 3 (wording of 8 July 2004) of Article 409 of the CCP, pre-trial investigation concerning the criminal deeds specified in Article 407 of this code shall be carried out under general procedure, if the person suspected of commission of the criminal deed is not known. Thus, the impugned provisions of the CCP provide for a duty for the persons who have suffered from the criminal deeds specified in Article 407 of the CCP and who seek to institute criminal proceedings under procedure of private accusation, to specify the suspected person only when he is known to them. In the opinion of M. Girdauskas, such requirement is a grounded one. In addition, under Paragraph 2 of Article 412 of the CCP, it is required to specify in the complaint the essential circumstances of the commission of the criminal deed and the witnesses, thus, one does not require absolutely comprehensive and accurate data. In assessing whether the complaint of the victim is line with the requirements of the law, one must follow also the principle of reasonableness. Thus, according to the representative of the party concerned, the legal regulation established in impugned Article 407 (wording of 19 June 2003), Paragraph 1 (wording of 14 March 2002) of Article 408, and Paragraph 2 (wording of 14 March 2002) of Article 412, of the CCP does not prevent the persons who suffered from the criminal deeds specified in Article 407 of the CCP to institute criminal proceedings.

The representative of the party concerned drew one’s attention to the fact that the person who thinks that he has suffered from the deed specified in Article 407 of the CCP and who wishes to institute criminal proceedings due to this, has the right to an advocate’s assistance. The advocate, by making use of, inter alia, the rights established in Article 44 of the Republic of Lithuania’s Law on the Bar, may collect the data which, under Article 412 of the CCP, must be specified in the complaint; besides, his rights are ensured by Article 231 of the CC which establishes liability for any hindrance to the advocate to perform the duties related to the investigation of the criminal case.

On the other hand, Article 409 of the CCP also provides that if the criminal deeds specified in Article 407 of the CCP are of public importance, or if they inflicted harm upon the person who, due to important reasons, cannot defend his legitimate interests, the prosecutor also has the right to institute criminal proceedings in regard of these deeds; in such a case the pre-trial investigation and consideration of the case in court take place according to general procedure. The Republic of Lithuania’s Law on the Prosecutor’s Office entrenches the powers of the prosecutor’s office to defend the public interest. In the opinion of M. Girdauskas, pre-trial investigation must be started concerning the private interest where a person, who has suffered from the criminal deeds specified in Article 407 of the CCP, cannot submit any essential data necessary for institution of proceedings of private accusation, since he, as he does not enjoy the right to use procedural coercive measures, does not know such data, nor can he collect them; such reasons should be considered as important, which are provided for in Paragraph 1 of Article 409 of the CCP, and constitute grounds to institute criminal proceedings in defence of the public interest. The person who thinks that he has suffered from the deeds specified in Paragraph 1 of Article 409 of the CCP, but who is unable to submit the said data, has the right to apply to the prosecutor so that pre-trial investigation would be started; refusal of the prosecutor to start pre-trial investigation can be appealed before the judge of pre-trial investigation (Paragraph 4 of Article 168 of the CCP).

According to the assessment of the representative of the party concerned, the provisions of Articles 407, 408, and 412 of the CCP provide for objectively justifiable requirements for the persons who seek to implement the right to apply to court under procedure of private accusation and these provisions do not violate the constitutional principle of equality of persons, nor the constitutional right to apply to court.

2.2. The representative of the party concerned does not agree with the opinion, either, that Paragraph 5 of Article 413 of the CCP, which provides that if the victim and the person accused of commission the criminal deed do not reach conciliation, the judge must refer the case of private accusation for consideration in a trial hearing, is in conflict with the principles of independence of judges and of equality of persons, since it does not provide for the right of the judge to adopt a different decision (for example, to dismiss the proceedings of private accusation when the complaint is clearly not valid). The establishment of validity of a complaint filed under procedure of private accusation is an assessment, which the court must perform while following the due process of law, inter alia, the principles of the equality before the court, publicity, and adversarial argument, and by paying heed to the right to be heard in court; therefore, the question of the validity of the complaint must be decided when the case is being considered in a trial hearing; in case the court assessed the validity of the accusation before the trial hearing, it would have to form a preconceived attitude on the guilt of the person in regard of commission of the criminal deed, and this might be not in line with impartiality of the court.

Besides, if the complaint is clearly invalid from the standpoint of law—if the deed specified in the complaint of private accusation is not criminal, or if it is such which is not provided for in Article 407 of the CCP—the court enjoys powers not to institute the proceedings of private accusation, i.e. to adopt a decision, which is analogous to that of dismissing (not instituting) of the proceedings in the cases where state charges are upheld, in case a deed with signs of a crime or criminal offence has not been committed (Item 1 of Paragraph 1 of Article 3 of the CCP). If this transpires later, the court can dismiss the case after it adopts a ruling to refer the case for consideration in a trial hearing (Paragraph 1 of Article 411, Item 7 of Article 232, Item 1 of Paragraph 1 of Article 3 of the CCP). In addition, the court enjoys the powers not to institute the proceedings of private accusation also in certain cases when the complaint is clearly not valid in regard of the fact, since under Article 412 of the CCP the complaint must be returned to the petitioner if it does not specify the data confirming the circumstances of the criminal deed.

In the opinion of M. Girdauskas, although the provisions of the CCP regulating the proceedings of cases of private accusation obligate the court to refer the case for consideration in a trial hearing when the persons fail to reach conciliation, they do not prohibit the adoption of other decisions, which are analogous to those which can be adopted in cases, in which state charges are upheld (for instance, to separate the case into several cases, to join several cases into one case, to postpone the consideration of the case, to commission that the judge of pre-trial investigation perform the procedural action provided for in Sections 2, 3, 4 and 5 of Chapter XIV of the CCP or to organise the performance of the action of these proceedings, or to dismiss the case if the circumstances provided for in Paragraph 1 of Article 3 of the CCP are established).

2.3. In the opinion of the representative of the party concerned, the powers of the court entrenched in Paragraph 2 of Article 414 of eth CCP to collect, in case of need and upon its own initiative, the significant evidence in order to justly solve the criminal case, in themselves cannot be regarded as being in conflict with the right to an impartial court. The powers of the court to collect data are not limited only by collecting the evidence, or the data aggravating liability, or the data acquitting or mitigating liability. The court must make use of all opportunities in order to establish the truth in a criminal case, to comprehensively and impartially investigate all circumstances of the criminal case, to establish the actual circumstances of the case correctly, and to justly apply criminal laws. If the court limited itself only on the data submitted by the parties of the proceedings, certain significant circumstances for just solution of the case might remain not established or could be established not precisely, in other words, the actual circumstances of the case would not be established. Due to this one would fail to achieve the main constitutional objective of criminal proceedings—by means of legal measures, speedily and thoroughly to detect crimes and the persons who committed them, to imprison the culprits and, by properly applying the criminal law, to punish them justly by ensuring, alongside, that an innocent person is not held criminally liable nor convicted.

Due to the same reasons, it is impossible to regard the said powers of the court as incompatible with the provisions of Paragraph 1 of Article 118 of the Constitution as well, which cannot be opposed to the provisions of Articles 109 and 31 of the Constitution. The prosecutor’s being in charge of pre-trial investigation and its organising do not deny the powers of the court to collect, in case of need and upon its own initiative, the evidence which are significant in order to solve the case justly. Pre-trial investigation is designated for forming the certitude of the prosecutor that is it necessary to apply to court by upholding charges on behalf of the state. Meanwhile, the purpose of collection of evidence performed by the court is different—it is to ensure that a really just decision is adopted, i.e. to implement justice.

Besides, pre-trial investigation is not carried out in cases of private accusation. Therefore, the commissioning by the judge that the establishment of pre-trial investigation investigate during the established period into the circumstances of the case that the court is unable to establish itself, which is provided for in Paragraph 2 of Article 414 of the CCP, cannot be regarded as organising pre-trial investigation and being in charge of it, i.e. as taking over of the functions of the prosecutor provided for in Paragraph 1 of Article 118 of the Constitution.

Therefore, according to the assessment of the representative of the party concerned, Paragraph 2 of Article 414 of the CCP is not in conflict with Paragraph 2 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution.

2.4. In the opinion of the representative of the party concerned, the arguments of the petitioners regarding the conflict of Article 410 of the CCP with Paragraph 1 of Article 29 of the Constitution are not related with the matter of regulation of this article of the CCP.

2.5. When assessing the compliance of Item 3 of Paragraph 5 of Article 234 and Paragraph 2 of Article 244 of the CCP with Paragraph 2 of Article 110 of the Constitution, the representative of the party concerned noted that a law can be regarded as conflicting with the Constitution only when it is impossible to remove the doubts concerning its compliance with the Constitution by construing the law and disclosing such its content which could be in line with the Constitution. Meanwhile, neither the impugned nor other norms of the CCP obligate the court to arrange court hearings after the case is postponed, nor to perform other procedural actions in the case, while in respect with the norms establishing calculation of terms of the consideration of the case the impugned norms should be deemed special norms. Therefore, according to M. Girdauskas, under the impugned norms by postponing the consideration of the case procedural actions cannot be performed in it nor the terms of consideration of the case may be calculated. Such construction is in line with the provision of Paragraph 2 of Article 110 of the Constitution that the court, when it applies to the Constitutional Court, suspends the consideration of the case.

IV

In the course of the preparation of the case for the judicial consideration, written explanations were received from G. Švedas, Vice-minister of Justice of the Republic of Lithuania, G. Jasaitis, Deputy Prosecutor General of the Republic of Lithuania, Dr. R. Merkevičius, assistant of the Department of Criminalistics and Criminal Procedure of the Faculty of Law of Vilnius University, Dr. R. Ažubalytė, Head of the Department of Criminal Procedure of the Faculty of Law of Mykolas Romeris University and S. Jazukonis and R. Jurka, lecturers of the same department.

V

1. At the Constitutional Court’s hearing, Judge O. Šibkovas, the representative of the Third Vilnius City Local Court, virtually reiterated the arguments set forth in the 27 October 2003 ruling of the same court.

2. At the Constitutional Court’s hearing, R. Šukys, M. Girdauskas and G. Ivoška, representatives of the party concerned, the Seimas, virtually reiterated the arguments set forth in the written explanations of M. Girdauskas and G. Ivoška.

The Constitutional Court

holds that:

I

1. On 14 March 2002, the Seimas adopted the Republic of Lithuania’s Law on the Approval, Entry into Force and Implementation of the Code of Criminal Procedure by Article 1 whereof it approved the Code of Criminal Procedure of the Republic of Lithuania. Under Paragraph 2 of the Law on the Approval, Entry into Force and Implementation of the Code of Criminal Procedure, the date of entry into force of the Code of Criminal Procedure had to be established by separate law.

On 29 October 2002, the Seimas adopted the Republic of Lithuania’s Law on the Procedure for Entry into Force and Implementation of the Criminal Code Approved by Law No. VIII-1968 of 26 September 2000, the Code of Criminal Procedure Approved by Law No. IX-785 of 14 March 2002 and the Code of Execution of Punishments Approved by Law No. IX-994 of 27 June 2002, in which it established, inter alia, that the Code of Criminal Procedure shall come into force as from 1 May 2003 (Article 1), and that after the new Code of Criminal Procedure comes into force, the old Code of Criminal Procedure shall become no longer valid (Paragraph 2 of Article 47).

The new Code of Criminal Procedure was amended and/or supplemented by the Republic of Lithuania’s Law on Amending and Supplementing the Law on Courts, the Law on the Legal Proceedings of Administrative Cases, the Code of Civil Procedure and the Code of Criminal Procedure, which was adopted by the Seimas on 8 April 2003, the Republic of Lithuania’s Law on Amending and Supplementing Articles 21, 48, 50, 52, 127, 142, 143, 151, 158, 161, 163, 165, 212, 217, 232, 233, 234, 237, 244, 254, 255, 256, 266, 276, 287, 303, 318, 319, 322, 323, 326, 327, 329, 332, 342, 351, 353, 362, 375, 380, 397, 421, 440, 458, 459 of the Code of Criminal Procedure Approved by Law No. IX-785 of 14 March 2002 and Supplementing the Code with Article 3621, which was adopted by the Seimas on 10 April 2003, by the Republic of Lithuania’s Law on Amending and Supplementing Articles 151, 168, 186, 276, 407 and 409 of the Code of Criminal Procedure, which was adopted by the Seimas on 19 June 2003, the Republic of Lithuania’s Law on Amending Articles 1 and 2 of the Fourth Chapter of the Law on Amending and Supplementing the Law on Courts, the Law on the Legal Proceedings of Administrative Cases, the Code of Civil Procedure and the Code of Criminal Procedure, which was adopted by the Seimas on 16 September 2003, the Republic of Lithuania’s Law on Supplementing and Amending Article 154 of the Code of Criminal Procedure, which was adopted by the Seimas on 29 January 2004, the Republic of Lithuania’s Law on Amending and Supplementing Articles 1, 51, 70, 72, 73, 74, 75, 76, 122, 437 of the Code of Criminal Procedure and Supplementing the Code with Articles 171, 691, 711, 771 and an Annex, which was adopted by the Seimas on 27 April 2004, the Republic of Lithuania’s Law on the Amendment and Supplementing Articles 65, 94, 103, 109, 139, 151, 154, 158, 168, 181, 218, 220, 225, 232, 237, 239, 240, 306, 313, 346, 360, 364, 370, 377, 403, 409, 418, 421, 422, 425, 426, 429, 446, 456, 457, 458 and Amending the Title of Chapter XXXV of the Code of Criminal Procedure, which was adopted by the Seimas on 8 July 2004, the Republic of Lithuania’s Law on amending Articles 120, 121, and 126 of the Code of Criminal Procedure and Supplementing It with Article 1321, which was adopted by the Seimas on 9 November 2004, the Republic of Lithuania’s Law on Amending Articles 50, 51, 103, 104, 106, 118, 361 and 431 of the Code of Criminal Procedure, which was adopted by the Seimas on 20 January 2005, and by the Republic of Lithuania’s Law on Amending Articles 210, 263, 269, and 277 of the Code of Criminal Procedure, which was adopted by the Seimas on 22 November 2005.

2. The petitioners request an investigation into whether one of the paragraphs of an article of the formerly valid CCP, which used to regulate the relations linked with refusal to institute a criminal case, was not in conflict with the provision of the Constitution which establishes the right of persons to apply to court, also whether certain articles (parts thereof) of the new CCP which regulate the relations of the procedure of cases of private accusation and also the relations linked with postponement of consideration of a case, are not in conflict with the provisions of the Constitution consolidating the equality of rights of persons, the right to apply to court, the right to a fair and impartial court, the independence of the judge and courts when they administer justice, the duty of the judge to suspend the consideration of the case when he applies to the Constitutional Court, as well as the constitutional status of prosecutors.

3. The Constitution shall be an integral and directly applicable act (Paragraph 1 of Article 6 of the Constitution). The Constitutional Court has held many a time that all provisions of the Constitution are interrelated and constitute a single and harmonious system, that there is a balance among the values consolidated in the Constitution, that it is not permitted to construe any provision of the Constitution so that the content of another provision of the Constitution is distorted or denied, since the essence of the entire constitutional legal regulation would thus be distorted and the balance of constitutional values would thus be disturbed.

The provisions of the Constitution entrenching the equality of rights of persons, the right to apply to court, the right to a fair and impartial court, the independence of the judge and courts when they administer justice, the duty of the judge to suspend the consideration of the case when he applies to the Constitutional Court, as well as the constitutional status of prosecutors, are related with one another and with other norms and principles of the Constitution.

4. The said constitutional provisions should also be construed in the context of the constitutional principle of a state under the rule of law, which is a universal principle and upon which the entire legal system of Lithuania and the Constitution of the Republic of Lithuania itself are based.

The essence of the constitutional principle of a state under the rule of law is the rule of law. The constitutional imperative of the rule of law means that freedom of power is limited by law which must be obeyed by all subjects of legal relations. The Constitutional Court has held that the constitutional principle of a state under the rule of law must be followed both in law-making and in implementation of law (the Constitutional Court’s ruling of 6 December 2000). In its rulings the Constitutional Court has held more than once that the principle of a state under the rule of law entrenched in the Constitution implies, along with the other requirements, also that human rights and freedoms must be ensured, that all institutions exercising state power as well as other state and municipal institutions, all officials must act by following law, by obeying the Constitution and law, that the Constitution has the supreme legal force and that all legal acts must be in compliance with the Constitution.

The constitutional principle of a state under the rule of law implies various requirements for the legislature and other law-making subjects: the law-making subjects may pass legal acts only without exceeding their powers; the requirements established in legal acts must be based on the provisions of general type (legal norms and principles) which can be applied in regard to all the specified subjects of respective legal relations; the differentiated legal regulation must be based only on objective differences of the situation of subjects of public relations regulated by respective legal acts; in order to ensure that the subjects of legal relations are aware of requirements put forward to them by legal norms, the legal norms must be established in advance, the legal acts must be published officially, they must be public and accessible; the legal regulation established in laws and other legal acts must be clear, easy to understand, consistent, formulas in the legal acts must be explicit, consistency and internal harmony of the legal system must be ensured, the legal acts may not contain any provisions, which at the same time regulate the same public relations in a different manner; in order that subjects of legal relations could orient their behaviour according to the requirements of law, the legal regulation must be relatively stable; the legal acts may not require the impossible (lex non cogit ad impossibilia); the legal force of legal acts is prospective, while the retrospective validity of laws and other legal acts is not permitted (lex retro non agit) unless the legal act mitigates the situation of the subject of legal relations and does not injure other subjects of legal relations by the same (lex benignior retro agit); violations of law, for which liability is established in legal acts, must be clearly defined; when setting legal restrictions and liability for violations of law, one must pay heed to the requirement of reasonableness and the principle of proportionality, according to which the established legal measures should be necessary in a democratic society and suitable for achieving legitimate and universally important objectives (there must be a balance between the objectives and measures), they may not restrict the rights of the person more than it is necessary in order to achieve the said objectives, and if these legal measures are related to the sanctions for the violation of law, in such case the aforementioned sanctions must be proportionate to the committed violation of law; when legally regulating public relations it is compulsory to pay heed to the requirements of natural justice comprising, inter alia, the necessity to ensure the equality of persons before the law, the court and state institutions and officials; when issuing legal acts, one must pay heed to procedural law-making requirements, including those established by the law-making subject itself; etc. (the Constitutional Court’s rulings of 13 December 2004, 29 December 2004, and 29 September 2005).

The constitutional principle of a state under the rule of law must be followed when applying law as well. The constitutional principle of a state under the rule of law implies the right of a person to due process of law. When applying law, one must pay heed, inter alia, to the following requirements originating from the constitutional principle of a state under the rule of law, for example: the law-applying institutions must follow the requirement of the equality of rights of persons; it is not permitted to punish for the same violation of law twice (non bis in idem); liability (sanction, punishment) for violations of law must be established in advance (nullum poena sine lege); an act is not considered to be criminal, if it is not provided for in the law (nullum crimen sine lege), etc. In this context it is worth mentioning also that the constitutional principle of a state under the rule of law requires that the jurisdictional and other institutions which apply law be impartial, independent, that they seek to establish the objective truth and that they adopt their decisions only on the grounds of law (the Constitutional Court’s rulings of 11 May 1999, 19 September 2000, 24 January 2003, 13 December 2004, and 29 December 2004).

The constitutional principle of a state under the rule of law obliges that the institutions that apply law not deviate from general legal principles consolidated in the jurisprudence of democratic states under the rule of law.

5. In the context of the constitutional justice case at issue, it needs to be noted that the strife for an open, just, and harmonious civil society and a state under the rule of law established in the Preamble to the Constitution pre-supposes that every individual and the whole society must be safe from unlawful attempts against them (the Constitutional Court’s ruling of 8 May 2000).

Crimes are violations of law by which human rights and freedoms as well as other values protected and defended by the Constitution are especially grossly violated, negative impact is made on the living conditions, the subsistence level of people, and by which the fundamentals of life of the state and society are encroached upon (the Constitutional Court’s rulings of 8 May 2000 and 29 December 2004). The purpose of the state as a political organisation of the entire society is to ensure human rights and freedoms and to guarantee the public interest, therefore, while exercising its functions and acting in the interests of the entire society, the state has the obligation to efficiently ensure effective protection of human rights and freedoms, other values protected and defended by the Constitution, of every individual and the whole society from, inter alia, criminal attempts (the Constitutional Court’s ruling of 29 December 2004). If the state did not resort to proper actions attempting to prevent crimes, the trust in state power and laws would be ruined, disrespect for the legal order and various social institutes would increase. Therefore, under the Constitution, the state, as the organisation of the entire society, which must guarantee the public interest, not only has the right but also an obligation to resort to various lawful measures, which prevent crimes and limit and decrease criminality (the Constitutional Court’s ruling of 8 May 2000).

The measures established and applied by the state, which prevent crimes and limit and decrease criminality must be efficient (the Constitutional Court’s ruling of 8 May 2000). It should also be noted that, as held by the Constitutional Court, in the Constitution one has consolidated the concept of a democratic state, where the state not only seeks to protect and defend the person and society from crimes and other dangerous violations of law, but also is able to do this efficiently (the Constitutional Court’s ruling of 29 December 2004).

The resources (material, human, etc.) allocated for protection of the person and society against criminal attempts must be distributed and used rationally.

6. In a democratic state under the rule of law, the legislature has the right as well as the duty to legislatively prohibit deeds, by which essential harm is inflicted upon interests of persons, society or of the state or which pose threat that such harm will appear. Under the Constitution, only by means of a law is it permitted to define what deeds are criminal ones, and to establish legal liability for such deeds is permitted by means of a law as well. Only such deeds may legislatively be recognised criminal ones, which are really dangerous and by which harm is really inflicted upon the interests of the person, society and of the state, or due to such deeds there is a threat that such harm will be inflicted (the Constitutional Court’s ruling of 8 May 2000).

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

8. An obligation of the state, which arises from the Constitution, to ensure the security of each person and all society from criminal attempts implies not only the right and duty of the legislature to define criminal deeds and establish criminal liability for them by means of laws, but also its right and duty to regulate relations linked with the detection of, and an investigation into criminal deeds and the consideration of criminal cases, i.e. the relations of criminal procedure. The relations of criminal procedure must be regulated by means of a law in a way that legal pre-conditions might be created to speedily detect and thoroughly investigate criminal deeds, to punish the persons who committed the criminal deeds justly (or to decide the issue of their criminal liability by law otherwise), as well as legal pre-conditions for ensuring that no one who is innocent is punished. It is necessary to seek to achieve that the protection of rights of the persons who suffered from criminal deeds, also that the rights of the persons who committed criminal deeds are not unreasonably restricted. The legal regulation of criminal procedure should not create any pre-conditions for procrastinating the investigation of criminal deeds or the consideration of criminal cases, and should not create any pre-conditions for participants of the criminal procedure to abuse their procedural and other rights. Otherwise, the constitutional obligations of the state to ensure by legal measures the security of each person and the entire society and the implementation of the legal order based on the constitutional values would become more difficult.

The aforementioned imperatives that arise from the Constitution have been mentioned in the jurisprudence of the Constitutional Court more than once, in which the official constitutional doctrine is formulated. For instance, the Constitutional Court has held that the legislature must establish such procedure of proceedings of criminal cases, which could create the pre-conditions for detecting crimes and persons who committed them promptly by legal measures, for incarcerating the culprits and punishing them justly by proper application of the criminal law (the Constitutional Court’s ruling of 19 September 2000). The Constitutional Court has also noted many a time that to ensure protection of the rights of the person who is suspected of committing a crime, and to avoid unreasonable criminal persecution of the person, as well as unjust punishment, since an innocent person may not be brought to criminal liability and convicted, is of no less importance (the Constitutional Court’s rulings of 5 February 1999, 8 May 2000, and 19 September 2000).

9. When it regulates relations of criminal procedure, the legislature enjoys rather broad discretion. For instance, the legislature may establish, by means of a law, different kinds of criminal procedure, as well as peculiarities of criminal procedure in the investigation of certain criminal deeds and/or in the consideration of criminal cases of individual categories, inter alia, different rules of investigation of certain criminal deeds, the peculiarities of the legal status of participants of the criminal procedure etc.

However, when implementing the said discretion, the legislature must pay heed to the norms and principles of the Constitution, inter alia, the provisions of the Constitutions, which are pointed out by the petitioner, and which consolidate the equality of rights of persons, the right to apply to court, the right to a fair and impartial court, the independence of the judge and courts when they administer justice, the duty of the judge to suspend the consideration of the case when he applies to the Constitutional Court, as well as the constitutional status of prosecutors.

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

10. When relations of criminal procedure are regulated, one must also pay heed to the fact that the Constitution entrenches the institutes of pre-trial investigation, of the consideration of criminal cases in court, and of upholding charges on behalf of the state in criminal cases. These constitutional institutes imply the following general constitutional model of criminal procedure: pre-trial investigation and consideration of the criminal case in court are different stages in criminal procedure; during the pre-trial investigation one collects and assess the information necessary so that it would be possible to decide whether the pre-trial investigation must be continued and whether, after it is completed, the criminal case must be referred to court, also whether it is possible to consider the case in court to solve it justly; charges on behalf of the state are upheld in the course of consideration of the case in court.

In itself, the constitutional entrenchment of the said general model of criminal procedure does not eliminate an opportunity to regulate the relations of criminal procedure so that in certain cases (especially when one takes account of the nature, danger (gravity), scale, other signs of criminal deeds as well as other circumstances of importance) pre-trial investigation is not conducted and/or charges on behalf the state are not upheld in court. Thus, the Constitution does not prevent the legislative consolidation of also such kinds of criminal procedure which are more or less different from the general constitutional model of criminal procedure. However, such kinds of criminal procedure should be treated as exceptions to the general constitutional model of criminal procedure; their establishment must be constitutionally grounded.

11. When relations of criminal procedure are regulated, one must pay heed to the constitutional principle of the equality of rights of persons. In its acts the Constitutional Court has held more than once that the constitutional principle of the equality of rights of persons must be followed in passing laws and in their implementation as well as in administration of justice, that this constitutional principle obliges one to legally assess homogeneous facts in the same manner and prohibits any arbitrary assessment of essentially the same facts in a varied manner, that the constitutional principle of the equality of rights of persons means the innate human right to be treated equally with others, it consolidates the formal equality of all persons, also that person may not be discriminated and that they may not be granted privileges.

The constitutional principle of the equality of rights of persons would be violated if a certain group of persons to whom the legal norm is designed would, if compared with the other addressees of the same norm, be treated differently, even though there are not any differences between these groups so that such unequal treatment would be objectively justified (the Constitutional Court’s rulings of 20 November 1996, 30 December 2003, and 13 December 2004).

As the Constitutional Court held many a time in its acts, the constitutional principle of the equality of rights of persons does not deny the possibility of establishing different (differentiated) legal regulation in respect to certain categories of persons who are in different situations. It has been held in this ruling of the Constitutional Court that, in itself, the constitutional entrenchment of the said general model of criminal procedure does not eliminate an opportunity to regulate the relations of criminal procedure so that in certain cases pre-trial investigation is not conducted and/or charges on behalf the state is not upheld in court and that the Constitution does not prevent the legislative consolidation of also such kinds of criminal procedure which are more or less different from the general constitutional model of criminal procedure, but such kinds of criminal procedure should be treated as exceptions to the general constitutional criminal procedure; their establishment must be constitutionally grounded.

In the context of the constitutional justice case at issue, it should also be noted that under the Constitution, the legal regulation must be such so that participants of criminal procedure who enjoy the same procedural status (the victims, the persons suspected of commission of the criminal deed, the accused, witnesses, counsel for the defence etc.) would be treated equally. Thus, the participants of criminal procedure who enjoy the same procedural status must also have the same rights and duties, unless there are differences of such a character and scale that unequal treatment would be objectively justified. Otherwise, one would deviate from the constitutional principles of a state under the rule of law and equality of persons.

Alongside, it needs to be noted that by such differentiated regulation of legal relations of criminal procedure the rights of participants of criminal procedure which stem from the Constitution, or their implementation cannot be burdened so that it becomes impossible.

12. When regulating the relations of criminal procedure, the right of the person to apply to court consolidated in the Constitution may not be violated in any respect.

12.1. The provision of Paragraph 1 of Article 30 of the Constitution that the person whose constitutional rights or freedoms are violated shall have the right to apply to court means that in Lithuania, as a state under the rule of law, everyone must be ensured an opportunity to defend his rights in court against unlawful actions of other persons as well as against those of state institutions or officials (the Constitutional Court’s rulings of 1 October 1997, 4 March 2003, and 17 August 2004). A person must be guaranteed the right to an independent and impartial arbiter of the dispute, which, under the Constitution and laws, would in essence solve the dispute at law; every person who believes that his rights and freedoms have been violated enjoys the right to defend his rights and freedoms in court—the implementation of the right to apply to court is determined by realisation of the person himself that his rights or freedoms are violated; the defence of the violated rights is guaranteed to the person regardless of his legal status; the violated rights, inter alia, acquired rights, and legitimate interests of the person must be defended in court regardless of whether they are directly entrenched in the Constitution; the rights of the person must be defended against unlawful actions of other persons as well as against those of state institutions or officials not formally, but efficiently and in reality (the Constitutional Court’s rulings of 1 October 1997, 8 May 2000, 12 July 2001, 17 August 2004, and 7 February 2005). The constitutional right of the person to apply to court, when construed in the context of other provisions of the Constitution, also implies that the law must establish such legal regulation so that it would be possible to appeal against a final act adopted by a court of general jurisdiction or a specialised court established under Paragraph 2 of Article 111 of the Constitution at least in one court of higher instance.

The guarantee of the judicial protection of rights and freedoms of the person is a guarantee of a procedural character, an essential element of the constitutional institute of the rights and freedoms of the person and an inseparable element of the content of the constitutional principle of a state under the rule of law (the Constitutional Court’s rulings of 30 June 2000, 17 August 2004, and 13 December 2004). The right of the person to apply to court also implies his right to due process of law (the Constitutional Court’s rulings of 13 December 2004 and 29 December 2004).

The right to apply to court is absolute; the right of a person to apply to court cannot be artificially restricted, nor its implementation may be unreasonably burdened (the Constitutional Court’s rulings of 30 June 2000, 17 August 2004, 13 December 2004, and 7 February 2005). Otherwise, one would have to state a declarative character of this constitutional right (the Constitutional Court’s rulings of 14 February 1994 and 22 February 2001).

Thus, under the Constitution, the legislature has a duty to establish such legal regulation by means of law so that it would be possible to solve all disputes concerning violation of the rights and freedoms of the person, including acquired rights, in court (the Constitutional Court’s rulings of 2 July 2002, 4 March 2003, 17 August 2004, 29 December 2004, and 7 February 2005). Alongside, it needs to be noted that the constitutional right of the person to apply to court cannot be construed as meaning that, purportedly, the legislature may establish only such legal regulation whereby a person, who seeks to defend the rights and freedoms which, in his opinion, were violated, would be able to apply to court only directly. In its acts the Constitutional Court has held many a time that legal acts can also establish a procedure of out-of-court settlement of disputes, however, it is not permitted to establish any such legal regulation which would deny the right of a person, who thinks that his rights or freedoms have been violated, to defend his rights or freedoms in court (the Constitutional Court’s rulings of 2 July 2002, 4 March 2003, 17 August 2004, 29 December 2004, and 7 February 2005).

12.2. In the context of the constitutional justice case at issue, it needs to be noted that the obligation of the state, which arises from the Constitution, to protect each person and the entire society form criminal attempts and the right of the person to due process of law imply the right of each person, who thinks that his rights have been violated because of a criminal deed, to defend his rights in court and a duty of the state to ensure an efficient mechanism of implementation of this right of the person. In this area the legislature enjoys rather broad discretion: it can provide for the grounds according to which investigation into the criminal deed is commenced, for subjects (institutions), which commence the investigation into the criminal deed, etc. In the context of the constitutional justice case at issue, it needs to be noted that the legislature, while regulating the relations of criminal procedure, while taking account of the nature, danger (gravity), scale, other signs of criminal deeds as well as other circumstances of importance, may consolidate such legal regulation so that a mere application (petition, statement, complaint, etc.) from a victim (of his representative) concerning a criminal deed may serve as the grounds for commencement of investigation into a certain criminal deed. However, by establishing such legal regulation, the legislature may not create any legal pre-conditions for denying the obligation of the state, which arises from the Constitution and, inter alia, the principle of a state under the rule of law, to protect each person and the entire society form criminal attempts, or artificially or unreasonably burdening the implementation of the right of the person to defend his rights in court.

In the context of the constitutional justice case at issue, it needs to be noted that the constitutional right of the person to apply to court does not mean that in the procedural laws, inter alia, the laws regulating the relations of criminal procedure, the legislature cannot establish a procedure of application to court and certain formal requirements, which the application filed to the court must conform. It also needs to be noted that the constitutional right of the person to apply to court does not prevent the legislature from establishing also the formal requirements applied to the application of the person, subsequent to which an investigation into a criminal deed or the consideration of a criminal case in court can be commenced. In itself, the establishment of such formal requirements does not mean that the constitutional right of the person to apply to court has been artificially restricted or that the implementation of this right has been burdened unreasonably. However, the legislature, when regulating the procedure for application to court and while establishing certain requirements which an application filed to court must conform, inter alia, with the requirements applied to the application to court subsequent to which to which investigation into a criminal deed or consideration of a criminal case in court is commenced, may not establish any such legal regulation whereby the implementation of a certain constitutional right or legitimate interest of the person, inter alia, the right of the person to judicial defence as well, would be burdened unreasonably or its implementation would altogether become impossible. Otherwise, the Constitution would be violated, inter alia, the right of the person to judicial defence consolidated in Paragraph 1 of Article 30 of the Constitution, the right of the person and society to safety from criminal attempts and the right of the person to due process of law, which arise from the principle of a state under the rule of law.

In the context of the constitutional justice case at issue, it also needs to be noted that, under the Constitution, one must legislatively regulate the relations of criminal procedure in a way that the subjects of the relations of criminal procedure, who think that their rights have been violated, would enjoy the right to defend their rights in court regardless of their legal status in criminal proceedings. Otherwise, pre-conditions would be created to violate the constitutional right of the person to judicial defence, thus, also Paragraph 1 of Article 30 of the Constitution.

In this context, it should also be noted that the legislature, when regulating the relations of criminal procedure, may also establish such legal regulation, so that no person is allowed to abuse the constitutional right to apply to court, in case there are not any grounds for such application.

13. When regulating the relations of criminal procedure, one must also pay heed to the imperative of the presumption of innocence entrenched in the Constitution. One must follow this constitutional imperative not only in the course of consideration of a criminal case in court, but also during pre-trial investigation. As the Constitutional Court has noted more than once, the presumption of innocence is one of the most important guarantees of administration of justice in a democratic state under the rule of law and, alongside, an important guarantee for human rights and freedoms (the Constitutional Court’s rulings of 12 April 2001 and 29 December 2004). Paragraph 1 of Article 31 of the Constitution provides that a person shall be presumed innocent until proved guilty according to the procedure established by law and declared guilty by an effective court judgment. In its ruling of 29 December 2004, the Constitutional Court emphasised that it is especially important that state institutions and officials follow the presumption of innocence, that public persons should in general restrain from referring to a person as a criminal until the guilt of the person in committing the crime is proven upon the procedure established by law and recognised guilty by an effective court judgment, otherwise, human honour and dignity could become violated and human rights and freedoms could be undermined.

14. It has been mentioned that the institutes of pre-trial investigation and of upholding charges on behalf of the state in criminal cases entrenched in the Constitution imply the general constitutional model of criminal procedure, according to which pre-trial investigation and consideration of the criminal case in court are different stages in criminal procedure.

As mentioned before, during the pre-trial investigation one collects and assess the information necessary so that it would be possible to decide whether the pre-trial investigation must be continued and whether, after it is completed, the criminal case must be referred to court, also whether it is possible to consider the case in court to solve it justly.

14.1. While legislatively regulating pre-trial investigation and executing it, one must follow the norms and principles of the Constitution, which, inter alia, consolidate the equality of rights of persons, the inviolability of freedom of a human being, the prohibition on degrading human dignity, the inviolability of the person, private life and home of a human being, the presumption of innocence, the right of a person to judicial defence and the right to have an advocate.

Pre-trial investigation must be carried out objectively, in a qualified manner, impartially, comprehensively, and the amount of information must be collected during this investigation so that it would be sufficient in order to solve the criminal case in court.

Pre-trial investigation cannot be such that its deficiencies could hinder the court to justly solve the issue of a person’s guilt of commission of a criminal deed. The legislature, while paying heed to the Constitution, must establish such legal regulation so that if pre-trial investigation is performed in an non-qualified manner, not comprehensively or has other faults, it might be possible to carry out the pre-trial investigation (or its separate actions) repeatedly.

One must especially underline that the decisions adopted during pre-trial investigation must be clear and based on legal arguments. The clarity of these decisions and their grounding on legal arguments is an important guarantee of the constitutional rights and freedoms of the person, inter alia, the right to just legal process, as well as the right to judicial defence.

Under the Constitution, it is not permitted to establish any such legal regulation whereby appealing against decisions adopted during pre-trial investigation at court is not allowed.

14.2. As mentioned before, in itself, the constitutional entrenchment of the said general model of criminal procedure does not eliminate an opportunity to regulate the relations of criminal procedure so that in certain cases (especially when one takes account of the nature, danger (gravity), scale, other signs of criminal deeds as well as other circumstances of importance) pre-trial investigation is not conducted. However, the legislature, when consolidating such legal regulation whereby pre-trial investigation is not conducted when criminal cases of individual categories are investigated, may not create any legal pre-conditions burdening administration of justice or violating the interests of the person and society in the aspect that the right of the person and of the entire society, which arises from the Constitution, to security from criminal attempts is denied. In this case, a duty arises for the legislature to provide for other legal measures ensuring a possibility of collecting all the information necessary in order to adopt a just court decision. In the context of the constitutional justice case at issue it needs to be noted that the legislature, while regulating the relations of criminal procedure, under the Constitution, is not permitted to consolidate any such legal regulation which prevents performance of pre-trial investigation or separate procedural actions in order to establish the person who is suspected of committing the criminal deed, or the circumstances of commission of such deed if it is impossible to achieve this without conducting pre-trial investigation or performance of certain procedural actions. Otherwise, one would disregard the imperatives of protection of the person and the entire society from criminal attempts and the right of the person to due process of law, which arise from the constitutional principle of a state under the rule of law.

15. Under the Constitution, pre-trial investigation shall be organised and directed by the prosecutor. The constitutional status of prosecutors is defined in Article 118 of the Constitution (wording of 20 March 2003).

15.1. On 20 March 2003, the Seimas adopted the Republic of Lithuania’s Law on the Alteration of Article 118 of the Constitution. This law came into force on 21 April 2003.

In its ruling of 13 May 2004, the Constitutional Court held that upon the entry of Law on the Alteration of Article 118 of the Constitution, the Constitutional Court formulates the official constitutional doctrine on the basis of the new wording set forth in Article 118 of the Constitution; that only the Constitutional Court has the powers, in each case, after an amendment to the Constitution has gone into effect, to hold that it is impossible, while construing the Constitution, to invoke (and to which extent) the doctrine formulated by the Constitutional Court on the grounds of the former provisions of the Constitution. This can also be said about the constitutional doctrinal statements defining the legal status of prosecutors, their relations with officials of pre-trial investigation and their powers in court.

15.2. It was held in the Constitutional Court ruling of 13 May 2004 that, under the Constitution, the Prosecutor’s Office of the Republic of Lithuania is a centralised state institution with specific authoritative powers, it is not categorised as belonging to the institutions exercising state power, which are indicated in Paragraph 1 of Article 5 of the Constitution, that it is not a constituent part of the judicial power, also that the prosecutor is a state official enjoying specific authoritative powers and that his functions are different from administration of justice. The functions of prosecutors are entrenched in Article 118 (wording of 20 March 2003) of the Constitution: the prosecutor organises and directs pre-trial investigation and upholds charges on behalf of the state in criminal cases (Paragraph 1); in cases established by law, the prosecutor defends the rights and legitimate interests of the person, society and the state (Paragraph 2). It is established in Paragraph 3 of Article 118 of the Constitution that when performing his functions, the prosecutor shall be independent and shall obey only the law.

15.3. Under the Constitution, no one else but the prosecutor can organise and direct pre-trial investigation (the Constitutional Court’s ruling of 13 May 2004). The provision of Paragraph 1 of Article 118 of the Constitution that pre-trial investigation shall be organised and directed by the prosecutor, obliges the legislature to establish the powers of prosecutors in organising and direction of pre-trial investigation. While regulating this, the legislature enjoys rather broad discretion: when taking account of the nature, danger (gravity), scale, other signs of criminal deeds as well as other circumstances of importance, it can establish various forms of organisation and direction of pre-trial investigation as well as certain powers of prosecutors in this procedure, etc. However, in this case the legislature is bound by the norms and principles of the Constitution, inter alia, by the obligation stemming from the Constitution to ensure the security of each person and the entire society from criminal attempts. From the said provision of Paragraph 1 of Article 118 of the Constitution arises a duty to the prosecutors to organise and direct pre-trial investigation so that objective and comprehensive information would be collected about the criminal deed and the person who is suspected of commission of this deed, which, inter alia, would create the legal pre-conditions for the court to establish the objective truth in the criminal case and adopt a just decision concerning the guilt of the person who is accused of commission of the criminal deed.

Under the Constitution, no one else but the prosecutor may uphold charges on behalf of the state in criminal cases (the Constitutional Court’s ruling of 13 May 2004). In the context of the constitutional justice case at issue, it needs to be noted that the provision of Paragraph 1 of Article 118 of the Constitution that the prosecutor upholds charges on behalf of the state in criminal cases means, inter alia, that in the course of criminal procedure in court charges on behalf of the state are upheld and that upholding criminal charges on behalf of the state is a function of the state which can be implemented only through certain officials—the prosecutors. However, the said provision of the Constitution does not prevent the legislature, when it takes account of whose interests have been violated, of the nature, danger (gravity), scale, other signs of the criminal deeds, the will of the victim as well as other circumstances of importance etc., to establish such legal regulation whereby in certain case provided for in the law charges on behalf of the state are not upheld during the consideration of the case in court. However, every case when it is stipulated that charges on behalf of the state are not upheld must constitutionally be grounded, inter alia, no pre-conditions may be created to burden the implementation of the constitutional rights and freedoms of the person unreasonably or deny them altogether. Thus, under the Constitution, the legislature can establish also such legal regulation whereby private persons (their representatives) but not prosecutors uphold the charges in certain criminal cases; in itself, such legal regulation does not create pre-conditions for violating the rights of the person to judicial defence. However, there may not be any such legal situations where the prosecutor does not have a duty to upholds charges on behalf of the state also in cases where a private person (his representative), when he uphold charges in a criminal case, is not able to efficiently defend his rights and legitimate interests (or those of the person that he represents).

The Constitutional Court has noted that the independence of the prosecutor in organising pre-trial investigation and being in charge of it, in upholding charges on behalf of the state is a constitutional value; under the Constitution, it is not permitted to establish any such legal regulation whereby this constitutional value would be denied or the independence of the prosecutor would otherwise be restricted when he organises pre-trial investigation and directs it and when he upholds charges on behalf of the state (the Constitutional Court’s ruling of 13 May 2004). However, the independence of the prosecutor consolidated in the Constitution cannot be interpreted as meaning that, purportedly, in the criminal procedure prosecutors do not have to follow laws and/or instructions of the court (the judge).

15.4. It needs to be emphasised that from the provision of Paragraph 2 of Article 118 of the Constitution that in cases established by law, the prosecutor shall defend the rights and legitimate interests of the person, society and the state a duty stems for the legislature to legislatively establish the cases when the prosecutor must defend the rights and legitimate interests of the person, society and the state. Also such legal situations are possible, where the rights and legitimate interests of the person, society and the state are defended without participation of the prosecutor. However, under the Constitution, there cannot be any such legal situations where the person, whose rights and legitimate interests have been, or are violated, or if they are attempted to be violated, would not be able to defend their rights either in courts, or with the assistance of prosecutors, or by means of any other legal instruments. Thus, the Constitution, inter alia, Paragraph 2 of Article 118 thereof, implies a duty of the legislature to establish such legal regulation whereby in all cases when the rights or legitimate interests of the person, society or the state have been violated, or when it is attempted to violate them, the efficient defence and protection of such rights and legitimate interests, inter alia, against criminal attempts, would be ensured.

In the context of the constitutional justice case at issue, it needs to be noted that the provisions of Paragraphs 1 and 2 of Article 118 of the Constitution imply that the prosecutor, when it defends the rights and legitimate interests of the person, society and the state must organise pre-trial investigation and direct it, and to uphold charges on behalf of the state in criminal cases. Under the Constitution, the legislature has a duty to legislatively establish the legal regulation whereby prosecutors and the Prosecutor’s Office of the Republic of Lithuania would be able to efficiently implement this constitutional obligation.

16. Under the Constitution, the prosecutor does not administer justice; nor is justice administered at the stage of pre-trial investigation, either. Administration of justice is a function of courts, determining the place of this branch of power in the system of institutions of state power and the status of judges. No other state institution or official may discharge this function (the Constitutional Court’s rulings of 21 December 1999 and 13 May 2004).

16.1. Under the Constitution, inter alia, Article 109 of the Constitution, and under the principles of a state under the rule of law and justice, in the course of criminal procedure the court has a duty to make use of all possibilities in order to establish the objective truth in the criminal case and adopt a just decision in respect of the person who is accused of committing the criminal deed. A court of first instance also has such a duty. The Constitutional Court has held that in criminal procedure law the provision of Paragraph 1 of Article 109 of the Constitution that justice is administered only by the court means, inter alia, that during the trial, a court of first instance, implementing this function, must thoroughly, fully and objectively investigate all the circumstances of the criminal case and decide the case in essence (the Constitutional Court’s ruling of 5 February 1999).

Under Paragraph 1 of Article 111 of the Constitution, the courts of the Republic of Lithuania shall be the Supreme Court of Lithuania, the Court of Appeal of Lithuania, regional courts and local courts. Paragraph 2 of Article 111 of the Constitution provides that for the consideration of administrative, labour, family and cases of other categories, specialised courts may be established according to law. Thus, the instance court system is established in the Constitution, inter alia, in the said provisions of Paragraphs 1 and 2 of Article 111 of the Constitution. The purpose of this instance court system is to remove mistakes of courts of lower instances, not to permit the execution of injustice, and, thus, to protect the rights and legitimate interests of the person, society and the state.

The legislature must legislatively establish such powers of all courts of general jurisdiction of all instances and of all specialised courts established under Paragraph 2 of Article 111 of the Constitution, which would be constitutionally grounded. In this context it needs to be noted that the constitutional concept of administration of justice also implies that courts must solve cases only by strictly following procedural and other requirements, which are established in laws, and by not overstepping the limits of their jurisdiction, nor exceeding their other powers.

16.2. In the context of the constitutional justice case at issue it needs to be noted that the necessity to protect the rights and legitimate interests of the person, also the fact that the court is a state institution, which, administering justice, helps the state ensure security of the person and all society from criminal attempts, determine certain powers of the court in the criminal procedure. In the criminal procedure the court must also be an impartial arbiter, who objectively assesses the data (evidence) of the circumstances of commission of a criminal deed, which are in the criminal case, and who adopts a just decision concerning the guilt of the person who is accused of committing the criminal deed, and, alongside, the court, in an attempt to establish the objective truth, has to participate in the criminal procedure actively—to define the limits of consideration of the criminal case, to perform certain procedural actions, not to permit the abuse of the rights or powers by the persons who participate in the court process, to solve other issues related with consideration of the criminal case in court. While considering the criminal case, the court must act so that the objective truth is established in the criminal case and the issue of guilt of the person accused of committing the criminal deed is justly decided. The court must also be equally just to all persons who participate in the criminal procedure.

Thus, the norms and principles entrenched in the Constitution, inter alia, the right of the person to a public and fair hearing of his case by an independent and impartial court, the principles of a state under the rule of law and justice, imply the model of the court as an institution administering justice, where the court cannot be understood as a “passive” observer of the process of cases, and that administration of justice cannot depend only upon the material submitted to the court. The court, seeking to investigate all circumstances of the case objectively and comprehensively and to establish the truth in the case, enjoys the powers to perform procedural actions either by itself or to commission certain institutions (officials), inter alia, prosecutors, that they perform corresponding actions.

In this context it needs to be noted that the principle of the separation of powers entrenched in the Constitution determines the relations of the court with other state institutions or officials and the character of its actions in the criminal procedure. Courts are the only state institution that administers justice. It is administered by the court following a certain procedural order, which is regulated by law. It also needs to be mentioned that the constitutional function of the court—administration of justice—is essentially different from being in charge of pre-trial investigation of the case, the control over this investigation, upholding charges on behalf of the state etc. When administering justice, the court considers the case that is already prepared, solves the issue of guilt of the defendant and either imposes punishment upon him or acquits him (the Constitutional Court’s rulings of 5 February 1999 and 8 May 2000).

16.3. Various aspects of independence of the judge and courts, which stems from the Constitution, have been disclosed in the jurisprudence of the Constitutional Court (the Constitutional Court’s rulings of 6 December 1995, 21 December 1999, 12 February 2001, 12 July 2001, 13 May 2004 etc.).

In the context of the constitutional justice case at issue, it needs to be noted that the function of administration of justice determines the independence of the judge and courts (the Constitutional Court’s rulings of 12 July 2001 and 13 May 2004). The independence of judges and courts is a necessary condition of protection of human right and freedoms. Alongside, this is not a privilege, but one of the most important duties of judges and courts, ensuing from the human right to an impartial arbiter in a dispute guaranteed by the Constitution and a necessary condition for impartial and just consideration of the case, thus, also that of trust in the court (the Constitutional Court’s rulings of 6 December 1999, 21 December 1999, and 12 February 2001). The independence of judges and courts is one of essential principles of a democratic state under the rule of law (the Constitutional Court’s rulings of 21 December 1999, 12 February 2001, and 13 May 2004). The judge can administer justice only in case he is independent from the parties to the case, institutions of state power, officials, political and public associations, natural and legal persons (the Constitutional Court’s rulings of 12 July 2001 and 13 May 2004).

In the context of the constitutional justice case at issue, it also needs to be noted that an important aspect of the independence of the judge and the court in the criminal procedure is the independence of the court in decision of all issues related with the case that it is considering. Only the court itself decides how the criminal case should be considered. The court is independent during the whole criminal procedure when it considers the criminal case. From the standpoint of the independence of the court, in itself the fact that the court is following corresponding norms of the CCP does not mean any denial of its independence. As noted by the Constitutional Court, the constitutional right to an impartial court also means, inter alia, that during the court process one must follow the principles and norms of criminal procedure law (the Constitutional Court’s ruling of 10 June 2003).

16.4. An important condition for solving a case justly is due court process (the Constitutional Court’s ruling of 5 February 1999).

It has been mentioned that the constitutional principle of a state under the rule of law implies the right of the person to due process of law. Due process of law includes a court process. Thus, the right of the person to due court process also arises from the constitutional principle of a state under the rule of law.

Certain requirements for a court process arise out of Paragraph 2 of Article 31 of the Constitution, too, in which it is prescribed that a person charged with the commission of a crime shall have the right to a public and fair hearing of his case by an independent and impartial court.

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

In the context of the constitutional justice case at issue, it needs to be noted that the right of a person to due court process, which is an important condition for just solution of the case and which arises from Paragraph 2 of Article 31 of the Constitution and the principle of a state under the rule of law, means that in criminal procedure in court one must pay heed to clarity of the process, the equality of rights of participants of the process, their participation in the procedure of proving, their right to a translator, the adversarial argument and other principles, so that the circumstances of committing the criminal deed would be investigated comprehensively, objectively and impartially and a just decision would be adopted in the criminal case. The Constitution obliges the legislature to establish, while regulating the relations of criminal procedure, such legal regulation so that the rights of participants of criminal procedure could be ensured as well: the procedure must be such so that the efficient protection of the rights of the person who has suffered from the criminal deed and that such a person would be able to make use of all the rights arising from the Constitution. The criminal procedure must be such so that the constitutional rights of the person suspected of committing a criminal deed are not violated: his rights to defence, his right to have an advocate, his right to know what he is accused of, etc., must be ensured. As the Constitutional Court has held, when guaranteeing the rights of the person in the judicial process, one must ensure that the process takes place in an honest and qualified manner, that the rights of the parties to the procedure are respected and that a neutral judge considers the case (the Constitutional Court’s ruling of 5 February 1999).

When regulating the relations of criminal procedure, the legislature, when taking account of the character of criminal deeds, their danger (gravity), scale, other signs and other circumstances of importance, enjoys discretion to establish also such legal regulation so that the victim (his representative) and the person who is accused of committing the criminal deed, would have an opportunity to reach conciliation and this conciliation would be the basis for dismissing the criminal procedure. The conciliation is also possible in the cases in which the charges in court are upheld by the victim (his representative) himself and in those in which the charges are upheld by the prosecutor. However, when regulating the conditions and bases of the said institute of conciliation, the legislature cannot establish any such legal regulation, where the said conciliation could be possible in cases on all criminal deeds. While regulating the institute of conciliation of the victim (his representative) and the person who is accused of committing a criminal deed, the legislature must establish also clear procedures of application of this institute.

The constitutional right to a fair court and to due court process, when interpreted in the context of other provisions of the Constitution means, inter alia, that during the court process, when a criminal case is investigated, the principles and norms of the criminal procedure must be followed (the Constitutional Court’s ruling of 10 June 2003).

The necessity that arises from the Constitution to follow, during consideration of a criminal case, the principles and norms of the criminal procedure, does not mean that other legal norms and principles, which do not belong to the criminal procedure, but which can be significant during the consideration of a corresponding criminal case. It should especially be emphasised that a duty to pay heed to the principles and norms of criminal procedure law during consideration of a criminal case cannot be interpreted as permitting one to raise the principles and norms of criminal procedure law or of criminal procedure above the principles and norms of the Constitution, to construe the principles and norms of criminal procedure law or of criminal procedure so that the meaning of the provisions of the Constitution is denied, distorted or ignored, to oppose the principles and norms of criminal procedure law or of criminal law against general principles of law. In the course of consideration of criminal case, one must follow the principles of justice, honesty, reasonableness, proportionality, lawfulness and other general principles of law, as for example res iudicata, nemo iudex in propria causa, audiatur et altera pars, ubi ius ibi remedium, onus probandi, impossibilium nulla obligatio est, etc. One must also pay heed to the canons of construction of law.

While administering justice, the court must follow only the laws and legal acts that are not in conflict with the Constitution, it may not apply a law, which is in conflict with the Constitution. When account is taken of the hierarchy of legal acts which originates from the Constitution, this provision of the Constitution means that the judge may not apply a substatutory legal act, which is in conflict with the Constitution, too. Moreover, he may not apply such a substatutory legal act, which is in conflict with the law. On the other hand, the aforementioned provision of the Constitution reflects the constitutional principle, one of the basic elements of the enshrined in the Constitution principle of a state under the rule of law, that a legal act, which is in conflict with a legal act of higher legal force, may not be applied (the Constitutional Court’s ruling of 13 December 2004). Under Paragraph 2 of Article 110 of the Constitution, if there are doubts as regards the compliance of the law applicable in the case with the Constitution, the judge must suspend the consideration of the case and apply to the Constitutional Court.

If the court, after it has faced doubts as regards the compliance of the law applicable in the case with the Constitution, did not suspend the consideration of the case and did not apply to the Constitutional Court so that these doubts could be removed, and if the legal act the compliance of which with the Constitution is doubtful was applied in the case, the court would take a risk to adopt such a decision, which would not be a just one.

16.5. The constitutional imperatives that only the courts administer justice, that law cannot be not public, as well as the requirement arising from the Constitution to consider the case justly, also imply that every court judgment (or another final act of the court) must be based on legal arguments (reasoning). The argumentation must be rational: the court judgment (or another final act of the court) must contain as many arguments so that it is sufficient to ground the court judgment (or another final act of the court). In this context, it needs to be noted that the requirement of legal clarity which arises from the constitutional principle of a state under the rule of law means, inter alia, that a court judgment (or another final act of the court) cannot contain any concealed arguments, nor any non-specified circumstances, which are important for the adoption of a just court judgment (or another final act of the court). Court judgments (other final acts of the court) must be clear to the persons participating in the case as well as other persons. If this requirement is disregarded, then this is not the administration of justice which is entrenched in the Constitution.

While construing Article 109 of the Constitution in the context of the requirements of legal clarity, legal certainty, and legal publicity, as well as the requirement to ensure human rights and freedoms, which arise from the constitutional principle of a state under the rule of law, it needs to be noted that administration of justice implies also that a court judgment (or another final act of the court) is an integral legal act in which the operative part is grounded on the arguments set forth in the part of reasoning. This means, inter alia, that when the court judgment (or another final act of the court) is officially published, it must contain all the arguments upon which it is grounded, that the arguments (or part thereof) of a court judgment (or another final act of the court) cannot be submitted by the court after the official publication of the court judgment (or another final act of the court), and that after the official publication of the court judgment (or another final act of the court), the court may not change or otherwise correct its arguments.

In this context it needs to be noted that if a court judgment (or another final act of the court) was published officially, which is not grounded on legal arguments or which is grounded only on certain part of the arguments, and the remaining part of the arguments is made public after the official publication of the court judgment (or another final act of the court), justice would not be administered—there would always be a reasonable doubt that such arguments only seek to justify the court judgment (or another final act of the court) that was adopted a priori.

Under the Constitution, the legislature enjoys the powers to establish reasonable terms within which a reasoned court judgment (or another final act of the court) must be published, and, if necessary, to establish exceptions to the establishment of general rules.

It needs to be noted that the said requirements concerning the reasoning of the judgment (or another final act of the court), its publishing and terms are applicable mutatis mutandis not only to the criminal procedure, but also to other types of legal proceedings.

16.6. It has been mentioned that pre-trial investigation and consideration of the criminal case in court are different stages in criminal procedure, that in itself, the constitutional entrenchment of the said general model of criminal procedure does not eliminate an opportunity to regulate the relations of criminal procedure so that in certain cases (especially when one takes account of the nature, danger (gravity), scale, other signs of criminal deeds as well as other circumstances of importance) pre-trial investigation is not conducted, that the Constitution does not prevent the legislative consolidation of also such kinds of criminal procedure which are more or less different from the general constitutional model of criminal procedure, however, the establishment of any exceptions to this model must be constitutionally grounded.

However, it is not permitted to oppose the constitutional general model of criminal procedure, under which pre-trial investigation and consideration of the criminal case in court are different stages of criminal procedure, against the types of criminal procedure, where pre-trial investigation is not conducted. In the context of the constitutional justice case at issue, it needs to be noted that legal situations are possible, where during consideration of a criminal case in court an issue of necessity of performance of pre-trial investigation or certain procedural actions occurs.

The obligation of the court to establish the objective truth and to solve the case justly, which arises from the Constitution, implies that in case the court thinks that without pre-trial investigation or certain procedural actions, which are impossible to perform in court, it will not be able to consider the criminal court justly, nor to adopt a just decision (for example, because the information held by the court is insufficient, contradictory, etc.), the court must have the powers to decide that pre-trial investigation or separate procedural actions should be conducted in the said case and corresponding subjects must be given certain instructions; such court instructions must be compulsory to all persons (officials, institutions) to whom they are addressed.

A court decision commissioning performance of pre-trial investigation and a court decision commissioning separate procedural actions give rise to different legal effects.

In the case where the court decides to commission performance of pre-trial investigation, under the Constitution the criminal case must be referred to the prosecutor—the official specified in Article 118 of the Constitution—with the exception of whom, under the Constitution, no one else can organise pre-trial investigation and direct it. While organising and/or controlling pre-trial investigation under a court’s instruction, the prosecutor must ensure that the court’s instruction is carried out properly and in time and he acts as an amicus curiae. When the court adopts a decision to commission performance of pre-trial investigation, the consideration of the criminal case in court is stopped until the pre-trial investigation is over and, if one decides so, until the indictment with the case material is referred to the court.

In the course of construction of how instructions must be given in cases where the court decides to commission one to perform separate procedural actions (the performance of which in court is impossible), it needs to be noted that, in such a case, the legislature, under the Constitution, enjoys broad discretion: it may establish, inter alia, a procedure according to which one gives instructions for performance of separate procedural actions, as well as corresponding institutions (officials) to which such court instructions are given. It needs to be noted that the court may also commission that establishments (officials) of pre-trial investigation perform separate procedural actions; this cannot be interpreted as court’s direction of pre-trial investigation. The law may also establish the legal regulation under which the court enjoys the powers to obligate the prosecutors to conduct control over how such court instructions are performed. In case the court decides to commission certain officials or institutions to perform separate procedural actions, but not whole pre-trial investigation, the criminal case remains in court.

While regulating the relations of criminal procedure linked with the court powers to give the said instructions, the legislature must pay heed to the Constitution, inter alia, the principles of a state under the rule of law, justice and the separation of powers.

The Constitution, inter alia, the principles of a state under the rule of law, justice and the separation of powers, which are entrenched therein, imply that the court, when giving the said instructions, must act so that no pre-conditions are created for consideration that the court is partial. In this context, it should be underlined that the court, when giving instructions to perform pre-trial investigation or separate procedural actions (the performance of which in court is impossible), may not point out as to how such instruction must be conducted, what result is intended etc.

II

On the compliance of Paragraph 4 (wording of 11 September 2001) of Article 131 of the formerly valid CCP with Paragraph 1 of Article 30 of the Constitution.

1. The Second Vilnius City Local Court, a petitioner, had doubts whether Paragraph 4 (wording of 11 September 2001) of Article 131 of the formerly valid CCP to the extent that, according to the petitioner, it limited the right of the person in whose respect it was decided not to institute a criminal case after the term of the statutory limitation of bringing one to criminal liability has passed to appeal against the prosecutor’s ruling in court, was not in conflict with Paragraph 1 of Article 30 of the Constitution.

2. In Paragraph 4 (wording of 11 September 2001) of Article 131 of the formerly valid CCP it was established:

The petitioner can lodge a complaint against the ruling of the prosecutor, the investigator or the investigatory body whereby it refuses to institute a criminal case accordingly to the corresponding prosecutor or in court, while against the ruling of a judge or court—in higher court. If the prosecutor, after he has investigated the complaint, does not rescind the ruling which refuses to institute a criminal case, a complaint may be lodged against such a ruling of the prosecutor in the local court. The ruling of the local court on the ruling of the prosecutor and the ruling of the higher court shall be final and not subject to appeal”.

3. The petitioner’s doubts on the compliance of Paragraph 4 (wording of 11 September 2001) of Article 131 of the formerly valid CCP with Paragraph 1 of Article 30 of the Constitution, which provides that the person, whose constitutional rights or freedoms are violated, shall have the right to apply to court is grounded on the fact that, in his opinion, a certain legal regulation was not established in Paragraph 4 (wording of 11 September 2001) of Article 131 of CCP which, as stated by the petitioner, had to be established—the right of the person in whose respect it was decided not to institute a criminal case to appeal against such prosecutor’s ruling in court was not expressis verbis provided for. Thus, the petitioner virtually impugns not the legal regulation expressis verbis established in Paragraph 4 (wording of 11 September 2001) of Article 131 of the formerly valid CCP, but, in his opinion, the legislative omission of this paragraph, i.e. something that was not established in the specified paragraph, although, in the opinion of the petitioner, had to be established by the legislature according to the Constitution, i.e. in the petition such gap of the legal regulation is impugned that, in the opinion of the petitioner, is forbidden by the Constitution.

4. In the context of the constitutional justice case at issue, it should be noted that the impugned provision of Paragraph 4 (wording of 11 September 2001) of Article 131 of the formerly valid CCP was directly related to Paragraph 1 (wording of 26 June 1961) of this article which provided that if there are no grounds for institution of a criminal case, also if there are circumstances which make the case impossible, the prosecutor, the investigator, the investigatory body, the judge or the court shall refuse to institute a criminal case, and was directly related to Paragraph 3 (wording of 11 September 2001), under which the citizen, enterprise, establishment or public organisation, from which the statement or report had been received, had to be informed on the refusal to institute a criminal case and explained about the right to appeal against this ruling.

The impugned provision of Paragraph 4 (wording of 11 September 2001) of Article 131 of the formerly valid CCP was directly related to the provisions, entrenched in other articles of this code, inter alia, to the provisions of Paragraph 1 (wording of 10 June 1993) of Article 125, according to which, a criminal case could be instituted after verbal or written statements from citizens have been received (Item 1), reports from state and public enterprises, establishments, organisations and officials have been received (Item 2), after the perpetrator has arrived and confessed to having committed the crime (Item 3) or after the investigatory body, investigator, prosecutor, judge or court has directly revealed the signs of the crime (Item 4), with the provision of Paragraph 2 (wording of 26 June 1961) of Article 125, under which a criminal case could be instituted only in the cases, when there were enough data, showing that there existed signs of a crime, and with the provisions of Paragraph 1 (wording of 30 November 1983) of Article 5 in which the circumstances were provided, making the criminal case impossible, when a criminal case could not be instituted, and the instituted case had to be dismissed: if there is no crime event (Item 1), if there is no body of a crime (Item 2), after the terms of statutory limitation have passed (Item 3), because of the act on amnesty if it annuls the imposition of punishment for the deed, as well as because of the forgiveness of the punishment to separate persons according to the procedure of clemency (Item 4); to the person, who before the moment of committing a dangerous to society deed was not of the age, for which criminal liability is possible under the law (Item 5); if the victim conciliated with the accused in the cases provided for in Article 126 of this code (“Institution of a criminal case according to the mere complaint of the victim”) (Item 6); if there is no complaint of the victim when the case may be instituted according to his complaint alone (Item 7); regarding a deceased, save the cases when the case is needed for the rehabilitation of the deceased or for renewal of the case in regard of other persons because of newly emerged circumstances (Item 8); regarding a person, in whose respect a decision of the court on the same accusation or ruling to dismiss the case on the same grounds is effective (Item 9); regarding a person, in whose respect the ruling of the investigatory body, investigator or prosecutor to dismiss the case on the same accusation is not reversed, save the cases, when the necessity to institute a case was recognised by the court at whose disposal is the criminal case (Item 10).

5. It should be noted that the ruling to refuse to investigate a criminal case, provided for in the formerly valid CCP, is a certain legal fact on the grounds of which various legal relationships could appear, change and/or end. Paragraph 4 (wording of 11 September 2001) of Article 131 of the formerly valid CCP was meant to regulate the relationships related to an opportunity for a person, who had provided information about the crime, to lodge a complaint against the ruling of the state institution (official) refusing to institute a criminal case and was not meant to regulate other relationships, which could appear, change and/or end on the grounds of the said legal fact. Thus, it was not obligatory that the right of other persons to lodge a complaint against the ruling to refuse to institute a criminal case had to be provided for in Paragraph 4 (wording of 11 September 2001) of Article 131 of the formerly valid CCP.

6. In the constitutional justice case at issue, it should be emphasised that in the formerly valid CCP, inter alia, in its Article 131 (wording of 11 September 2001), the provided institute of refusal to institute a criminal case in itself did not create any pre-conditions for violating the rights or legitimate interests of other persons who were not subjects of the relationships related to an opportunity of a person, who had provided information about the crime, to lodge a complaint against the ruling of the state institution (official) refusing to institute a criminal case.

7. Thus, in Paragraph 4 (wording of 11 September 2001) of Article 131 of the formerly valid CCP there was no legislative omission—such gap of legal regulation, which is forbidden by the Constitution—which is specified by the petitioner. Thus, there are no grounds to state that Paragraph 4 (wording of 11 September 2001) of Article 131 of the formerly valid CCP was in conflict with Paragraph 1 of Article 30 of the Constitution.

8. In this Constitutional Court ruling it was held that state institutions, officials and public persons must in general restrain from referring to a person as a criminal until the guilt of the person in committing the crime is proven under the procedure established by law and the person is recognised guilty by an effective court judgment.

In the constitutional justice case at issue, it should be noted that if the formulas used in the procedural documents were such that they would create the pre-conditions for violating the constitutional rights or freedoms of a person, inter alia, the presumption of his innocence, such a person must have the right to protect his violated rights and legitimate interests in court.

9. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 4 (wording of 11 September 2001) of Article 131 of the formerly valid CCP was not in conflict with Paragraph 1 of Article 30 of the Constitution.

III

On the compliance of Article 407 (wording of 19 June 2003), Paragraph 1 (wording of 14 March 2002) of Article 408, Paragraphs 2 and 3 (wording of 14 March 2002) of Article 412 of the CCP with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution, on the compliance of Paragraph 5 (wording of 14 March 2002) of Article 413 of the CCP with Paragraph 1 of Article 29 and Paragraph 2 of Article 109 of the Constitution and on the compliance of Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP with Paragraph 2 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution.

1. The petitioners—the Second Vilnius City Local Court and the Third Vilnius City Local Court—request an investigation into whether, inter alia, Article 407 (wording of 19 June 2003), Paragraph 1 (wording of 14 March 2002) of Article 408 and Paragraph 2 (wording of 14 March 2002) of Article 412 of the CCP are not in conflict with Paragraph 1 of Article 29 of the Constitution, whether Paragraph 3 (wording of 14 March 2002) of Article 412 of the CCP is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution, whether Paragraph 5 (wording of 14 March 2002) of Article 413 of the CCP is not in conflict with Paragraph 2 of Article 109 of the Constitution, and whether Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP is not in conflict with Paragraph 2 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution.

The Panevėžys City Local Court, a petitioner, requests an investigation into whether, inter alia, Article 407 (wording of 19 June 2003), Paragraph 2 (wording of 14 March 2002) of Article 412 and Paragraph 5 (wording of 14 March 2002) of Article 413 of the CCP are not in conflict with Paragraph 1 of Article 29 of the Constitution.

The Šiauliai District Local Court, a petitioner, requests an investigation into whether, inter alia, Article 407, Paragraph 2 of Article 412 and Paragraph 5 of Article 413 of the CCP are not in conflict with Paragraph 1 of Article 29 of the Constitution.

2. Although the Šiauliai District Local Court, a petitioner, did not specify the wording of Article 407 of the CCP that the investigation into whose compliance with the Constitution it requests, however, from the arguments of the petitions and other material of this constitutional justice case it is obvious that this petitioner, as well as other petitioners—the Second Vilnius City Local Court, the Third Vilnius City Local Court and the Panevėžys City Local Court—had doubts whether Article 407 (wording of 19 June 2003) of the CCP was not in conflict with the Constitution.

3. Although the petitioners—the Second Vilnius City Local Court, the Third Vilnius City Local Court, the Panevėžys City Local Court and the Šiauliai District Local Court—request an investigation into the compliance of entire Article 407 (wording of 19 June 2003) of CCP with the Constitution, it is obvious from the arguments of the petitions that the petitioners doubted on the compliance of this article with the Constitution only to the extent that it provides that the criminal cases’ proceedings shall be instituted only if there is a complaint of the victim or an application of his legitimate representative, and that pre-trial investigation is not carried out in such cases save the cases provided for in Article 409 of the CCP.

It should be noted that the petitioners do not ask to investigate whether Article 407 (wording of 19 June 2003) of the CCP is not in conflict with the Constitution to the extent that it specifies the criminal deeds in this article, for which criminal cases are investigated under the proceedings of cases of private accusation—these criminal deeds are provided for in the corresponding articles (parts thereof) of the CC, referred to in Article 407 (wording of 19 June 2003) of the CCP.

4. Although the petitioners—the Second Vilnius City Local Court, the Third Vilnius City Local Court, the Panevėžys City Local Court and the Šiauliai District Local Court—impugn the compliance of Article 407 (wording of 19 June 2003) (to the extent that it provides that the criminal cases’ proceedings shall be instituted only if there is a complaint of the victim or an application of his legitimate representative, and that pre-trial investigation is not carried out in such cases save the cases provided for in Article 409 of the CCP) and Paragraph 2 (wording of 14 March 2002) of Article 412 of the CCP with Paragraph 1 of Article 29 of the Constitution, and although the petitioners—the Second Vilnius City Local Court and the Third Vilnius City Local Court—impugn the compliance of Paragraph 1 (wording of 14 March 2002) of Article 408 with Paragraph 1 of Article 29 of the Constitution, which provides that all persons shall be equal before the law, the court, and other state institutions and officials, it is obvious from the arguments of the petitions that the petitioners had doubts on the compliance of the said articles (parts thereof) of the CCP with Paragraph 1 of Article 29 of the Constitution because, in their opinion, these articles (parts thereof) are in conflict with Paragraph 1 of Article 30 of the Constitution, which provides that a person, whose constitutional rights or freedoms are violated, shall have the right to apply to the court.

5. In this case, subsequent to the petitions of the petitioners—the Second Vilnius City Local Court, the Third Vilnius City Local Court, the Panevėžys City Local Court and the Šiauliai District Local Court—the Constitutional Court will investigate:

whether Article 407 (wording of 19 June 2003) of CCP to the extent that it provides that the criminal cases’ proceedings shall be instituted only if there is a complaint of the victim or an application of his legitimate representative, and that pre-trial investigation is not carried out in such cases save the cases provided for in Article 409 of the CCP, is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution;

whether Paragraph 1 (wording of 14 March 2002) of Article 408 of the CCP is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution;

whether Paragraphs 2 and 3 (wording of 14 March 2002) of Article 412 of the CCP are not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution;

whether Paragraph 5 (wording of 14 March 2002) of Article 413 of the CCP is not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 109 of the Constitution;

whether Paragraph 2 (wording of 14 March 2002) of Article 414 is not in conflict with Paragraph 2 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution.

6. The articles (parts thereof) of the CCP which are impugned by the petitioners, are set forth in Chapter XXX (Articles 407–417) of this code which regulates the proceedings of cases of private accusation and after some provisions of the CCP were amended and supplemented by the Law on Amending and Supplementing Articles 151, 168, 186, 276, 407 and 409 of the Code of Criminal Procedure, adopted by the Seimas on 19 June 2003 (came into force on 9 July 2003), was set forth as follows:

CHAPTER XXX. THE PROCEEDING OF CASES OF PRIVATE ACCUSATION

Article 407. Cases of private accusation

The criminal cases’ proceedings shall be instituted regarding the criminal deeds provided for in Paragraph 1 of Article 139, Paragraph 1 of Article 140, Articles 148, 152, 154, 155, 165, 168, Paragraphs 1 and 3 of Article 187, and Articles 188, 313 of the Criminal Code of the Republic of Lithuania only in the case when there is a complaint of the victim or an application of his legitimate representative. The pre-trial investigation is not carried out in such cases save the cases provided for in Article 409 of this Code.

Article 408. Persons who have the right to file a complaint or application and to uphold an accusation in court

1. In cases of private accusation it is the victim who shall file the complaint and uphold the accusation. He shall acquire the status of a private accuser in court.

2. If due to infancy, physical or mental disabilities the victim may not use all of his rights of the victim, a complaint may be filed and an accusation upheld in court by his legitimate representative.

3. If the proceedings have been started subsequent to the application of the legitimate representative of the victim, such a representative shall acquire the status of a private accuser in court and uphold the accusation in court alone or together with the victim.

Article 409. Switching from private accusation into State charges

1. If the criminal deeds specified in Article 407 of this Code are of public importance, or if they inflicted harm upon the person who, due to important reasons, cannot defend his legitimate interests, also the prosecutor shall have the right to institute criminal proceedings regarding these deeds, regardless of whether or not there is a complaint of the victim or an application of the legitimate representative.

2. At any time of the case of private accusation until the beginning of investigation of the evidence, the prosecutor shall also have the right to submit a written application to the court that he will uphold State charges. In such situation the case shall be referred to the prosecutor. The pre-trial investigation and consideration of the case in court shall take place under the general procedure.

3. If, in the course of the investigation of the case of private accusation in court, it transpires that the accused has committed the criminal deed for which State charges should be upheld, the procedure of private accusation shall be dismissed and the material of the case shall be referred to the prosecutor.

Article 410. Consideration of counter complaint

1. In the case of private accusation, the accused shall have the right to submit a complaint against the victim until the beginning of investigation of the evidence, accusing him of committing the criminal deed that is being investigated under the proceedings of private accusation, if this deed is related to the charge filed on him. If such persons do not conciliate, the accusations shall be investigated in the same case.

2. While investigating the counter accusations in the case, the accused who was the first to file the complaint, shall be the first to ask questions, give explanations and give the final speech. He shall also be granted the final word first.

Article 411. Joining to a private accusation

In the cases investigated under the proceedings of private accusation, the persons who suffered from the criminal deeds related to the already filed private accusation shall have the right to join, until the beginning of investigation, to the accusation which is already being investigated. If such persons do not conciliate, the accusations/charges shall be investigated in the same case.

Article 412. The contents of a complaint of the victim or application of the legitimate representative

1. A complaint or application shall be submitted in writing under the procedure of private accusation.

2. In the complaint or application the following must be specified: the name of the court under the jurisdiction of which the case comes; the place, time, effects and other essential circumstances of the criminal deed, of which the person is accused; the data that confirm the circumstances set forth in the complaint or application, the names, surnames and places of births of the victim, the person who is suspected of commission of a criminal deed and the witnesses. The complaint must be signed by the victim, and, as established in Paragraph 2 of Article 408, the application—by the legal representative of the victim.

3. The complaint that does not meet the requirements of this Article shall not be accepted but returned to the person who filed it.

4. The requirements set forth in Paragraph 2 of this Article shall also be applied to the application of the legal representative of the victim.

Article 413. Conciliation hearing

1. When the complaint of the victim or an application of his legitimate representative has been received in the court under the procedure of private accusation, the victim and/or his legitimate representative, as well as the person who is accused of the criminal deed shall be summoned by the prosecutor for conciliation. Together with the summons, the accused person shall also be sent a copy of the complaint.

2. The conciliation hearing shall start by a report of the judge on the contents of the complaint of the victim or application of his legitimate representative and an invitation to conciliate. Then the victim and/or his legitimate representative shall speak, and afterwards the person accused of the criminal deed. If the persons conciliate, the proceedings on the complaint shall be dismissed.

3. While conciliating, the victim and/or his legitimate representative, and the person accused of the criminal deed may conclude an agreement on the compensation for damages. Under the agreement, later an executive document may be issued on the compensation of damages.

4. The opinions on the conciliation, as well as the agreement on the compensation of damages, shall be signed in the minutes of the conciliation hearing by the victim and/or his legitimate representative, and the person accused of the criminal deed.

5. If the victim and/or his legitimate representative, and the person accused of the criminal deed do not conciliate, the judge shall adopt a ruling to refer the complaint of the victim to the trial hearing for investigation.

6. If the victim and/or his legitimate representative have not appeared in the conciliation hearing without a serious reason, it shall be presumed that the private accuser refused the accusation. In such case, the proceedings on the complaint shall be dismissed.

7. If the person accused of the criminal deed has not appeared in the conciliation hearing without a serious reason, the judge shall refer the complaint of the victim, or the application of his legitimate representative to the trial hearing for investigation.

Article 414. Court actions before the trial hearing

1. The court actions after the complaint of the victim has been referred to the trial hearing for investigation shall be established by the rules of Chapter XVIII of this Code, together with the exceptions provided for in this Article.

2. The judge, while adopting a ruling on referring the complaint of the victim, or the application of his legitimate representative to the trial hearing for investigation, shall have the right to request the establishment of pre-trial investigation to investigate the circumstances of the case that the court cannot establish within the established time period and to postpone the case for that period of time.

3. In the cases of private accusation, the accused must be provided with a copy of the complaint of the victim, or the application of his legitimate representative not later than three days before the trial hearing.

4. It is decided on the reference of the complaint of the victim, or the application of his legitimate representative for investigation in the trial procedure within twenty days from the day when the complaint or application was received, and the consideration of the case shall begin in the trial hearing not later than within fourteen days from the adoption of the ruling of the judge on referring the complaint or application to the trial hearing for investigation.

Article 415. Investigation of cases of private accusation in court

1. The consideration of cases of private accusation in court shall be carried out under the rules, established in Part V of this Code, save the exceptions provided for in Articles 415-417 of this Code.

2. The private accuser shall have the rights provided for in Article 34 of this Code.

3. In the cases of private accusation the investigation of evidences shall be started by announcement of the complaint of the victim or the application of his legitimate representative. It is read aloud by the private accuser or his representative.

Article 416. Refusing of the accusation

1. The private accuser shall have the right to refuse the accusation or to conciliate with the accused before the end of the final speeches.

2. If the private accuser does not appear in the trial hearing without a serious reason, this shall be deemed to be his refusal of the accusation.

3. If the private accuser refused the accusation or conciliated with the defendant, the proceedings of the case shall be dismissed by a ruling of the court.

Article 417. Switching from private accusation into State charges

1. If during the pre-trial investigation it transpires that the deed of the suspect has signs of the criminal deeds specified in Article 407 of this Code, the official who carries out the investigation shall explain the victim about his right to apply to court under the proceedings of private accusation. The pre-trial investigation started on this criminal deed under the general procedure shall be dismissed.

2. When the case is considered in court, and when there are grounds to think that the deed of the defendant may be requalified from a criminal deed considered under proceedings of state charges into a criminal deed considered under proceedings of private accusation, the chairperson of the trial hearing shall ask the victim before the end of the investigation of the evidence whether he would not conciliate with the accused in case the deed were requalified under the articles of the Criminal Code of the Republic of Lithuania specified in Article 407 of this Code.

3. When there is a possibility of requalifying the criminal deed and the victim requests the court to sentence the accused for the criminal deed considered under the proceedings of private accusation, the court shall pass a judgment on this deed in its deliberation room in case there are other conditions provided by law.”

7. The proceedings of cases of private accusation entrenched in the new CCP are neither legal novels of the Lithuanian criminal procedure, nor novels of the Lithuanian legal system in general. The proceedings of cases of private accusation were also provided for in the formerly valid CCP (Articles 126 and 261) and in the laws of criminal procedure of the pre-war Lithuania.

The proceedings of cases of private accusation, as a specific criminal procedure, are also typical of law of most of European states.

The proceedings of cases of private accusation is a specific legal way of resolving conflicts when the giving juridical basis to (criminalisation of) a certain conflict and a person’s prosecution are determined not by the will of state institutions (officials), but by the will of the victim to apply to competent state institutions in order to start the criminal proceedings, and when the parties of the conflict have a possibility of conciliating and thus establishing the legal pre-conditions for dismissing the instituted criminal proceedings till the very moment when the person, who is accused of the commission of the criminal deed, is recognised guilty or not guilty. The proceedings of cases of private accusation are such proceedings, where a person is accused of certain criminal deeds not by the state institution (official), but by the victim (or his representative). This, however, does not mean that if the victim (or his representative) does not accuse a person of the criminal deeds, for which one is normally prosecuted under the proceedings of private accusation, this person in general may not be prosecuted, though this procedure is not proceedings of cases of private accusation.

8. It has been mentioned that a general model of criminal procedure is entrenched in the Constitution that pre-trial investigation and consideration of the criminal case in court are different stages of criminal procedure.

It should be emphasised that the model of criminal procedure entrenched in the CCP (and other laws) is virtually in line with the general constitutional model of criminal procedure to the extent that the model of criminal procedure entrenched in the laws includes two different stages—pre-trial investigation and consideration of the criminal case in court.

8.1. While performing various procedural actions during the pre-trial investigation, a person is established who is suspected of commission of a criminal deed and the circumstances of commission of such deed are investigated. The pre-trial investigation is instituted on the decision of the prosecutor, the head of the establishment of pre-trial investigation or his authorised person, after the complaint, application or announcement on the criminal deed is received or if the prosecutor or the official of pre-trial investigation himself establishes signs of a criminal deed and draws up an official report. The pre-trial investigation is performed by officials of investigation establishments (the police, the State Border Guard Service, the military police, the State Security Department, etc.), and pre-trial investigation is organised and directed by prosecutors. Moreover, under the CCP, the prosecutor may decide to perform all the pre-trial investigation or part thereof himself. Sometimes certain actions of pre-trial investigation are performed by a judge of pre-trial investigation (such official was not provided for in the formerly valid CCP). After a decision to institute pre-trial investigation has been adopted, the judge of pre-trial investigation, the prosecutor or the official of the establishment of pre-trial investigation may question the suspect, witness, victim, to verify their testimonies on the spot, carry out a search, seizure or perform other procedural actions. A person, who is arrested after he has been suspected of commission of a criminal deed, or a person, who is questioned about the deed, of the commission of which he is suspected, or a person, who is summoned for questioning, to whom a report on the suspicion is drawn up, is recognised a suspect. The pre-trial investigation is either finished by dismissing the pre-trial investigation or by drawing up an indictment and referring the material of the case to court. A person, in whose regard the prosecutor has adopted the indictment is considered to be the accused.

8.2. When the court receives the indictment (together with the material of the case), another stage of the criminal proceedings begins, which is consideration of the criminal case in court. In this stage of the criminal proceedings the court, after it has assessed the material collected during the pre-trial investigation and consideration of the case in court, decides on the question of guilt of the person who is accused of commission of a criminal deed and adopts a decision. During the consideration of the case in court state charges are upheld by the prosecutor. The CCP provides for the proceedings of cases in courts of first instance, those of appeal and of cassation. It should be noted that the jurisdiction and other powers of the courts of first instance, appeal and cassation are different. This determines the peculiarities of the criminal procedure in the course of consideration of cases in the first instance and instances of appeal and cassation as well as the legal meaning of decisions of corresponding courts.

9. It has been mentioned that the Constitution does not prevent legislative consolidation of also such kinds of criminal procedure which are more or less different from the general constitutional model of criminal procedure. It was also mentioned that establishment of any exceptions to the general constitutional model of criminal procedure must be constitutionally grounded.

For instance, the CCP, together with the general model of criminal procedure, establishes peculiarities of the criminal procedure (some of which are equal to specific types of criminal procedure), when pre-trial investigation is instituted only subsequent to the complaint of the victim or application of his legitimate representative or upon a request of the prosecutor when the cases on the criminal deeds committed by legal persons are considered, when coercive medical measures are applied, when the proceedings of cases take place under summary procedure (summary proceedings of cases), when the proceedings of cases take place without participation of the accused, etc. One kind of the specific criminal procedure provided for in the new CCP is proceedings of cases of private accusation, the compliance of certain provisions regulating it with the Constitution is the subject of investigation in the constitutional justice case at issue.

It should be emphasised that in this constitutional justice case at issue the compliance of certain articles (paragraphs thereof) of the new CCP, which regulate the proceedings of cases of private accusation, with the Constitution is investigated in the aspects specified by the petitioners and one does not investigate whether other articles (paragraphs thereof) of the CCP, inter alia, regulating the general criminal procedure, save such articles (paragraphs thereof) of the CCP, regulating the general criminal procedure the compliance of which with the Constitution is expressis verbis impugned by the petitioners, are not in conflict with the Constitution. Neither does this constitutional justice case at issue investigate into the compliance of such peculiarities of the criminal procedure established in the CCP (specific kinds of the criminal procedure) with the Constitution, whose compliance with the Constitution is not impugned by the petitioners.

10. The main peculiarities of the institute of the proceedings of cases of private accusation entrenched in the CCP, if compared with other proceedings of cases established in the CCP, i.e. with the general model of criminal procedure when pre-trial investigation is performed and state charges during the court process are upheld by the prosecutor as well as with various specific kinds of criminal procedure, are as follows: (1) the criminal procedure on the criminal deeds provided for in corresponding articles of the CC, which are enumerated in the CCP is instituted only in the case when there is a complaint of the victim or an application of his legitimate representative; (2) the complaint of the victim or the application of his legitimate representative, regarding which the proceedings of cases of private accusation are instituted, is referred to the court; (3) concrete requirements are established for the contents of the complaint (application) regarding which the proceedings of cases of private accusation are instituted; (4) in these proceedings of cases pre-trial investigation is not carried out; (5) in the proceedings of cases of private accusation in court the victim (his legitimate representative) himself upholds the accusation as a private accuser; (6) there is a particular stage in these proceedings of cases—the conciliation hearing: the victim (his legitimate representative) and the person accused of commission of a criminal deed, may conciliate in the conciliation court hearing that takes place before the trial hearing, and if they reach conciliation, the proceedings regarding the complaint are dismissed.

11. Attention should be paid to the fact that Chapter XXX titled “Proceedings of cases of private accusation” of the CCP provides for cases where one switches from private accusation to state charges and, vice versa, from state charges to private accusation.

11.1. If corresponding criminal deeds, regarding which the proceedings of criminal cases must take place under the rules of proceedings of cases of private accusation, are of public importance or by which harm has been inflicted upon the person who cannot defend his legitimate interests due to important reasons, also the prosecutor has the right to institute the criminal proceedings regarding these deeds (Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP). The prosecutor also has the right to submit, at any time of the case of private accusation until the beginning of the investigation into the evidence, a written application to the court that he will uphold state charges (Paragraph 2 (wording of 14 March 2002) of Article 409 of the CCP).

11.2. If during pre-trial investigation it transpires that the deed of the suspect has signs of the criminal deeds specified in Article 407 of this Code, the official who carries out the investigation explains the victim about his right to apply to court under proceedings of private accusation. The pre-trial investigation instituted regarding this criminal deed under the general procedure is dismissed (Paragraph 1 (wording of 14 March 2002) of Article 417 of the CCP). If this transpires at the time of the consideration of the case in court, the chairperson of the trial hearing asks the victim, before the end of the investigation of the evidence, whether he would not conciliate with the accused in case the deed were requalified under the articles of the CC, which are specified in Article 407 (Paragraph 2 (wording of 14 March 2002) of Article 417 of the CCP).

12. While deciding whether Article 407 (wording of 19 June 2003) of the CCP is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution to the extent that it provides that the proceedings of criminal cases are instituted only in the case when there is a complaint of the victim or an application of his legitimate representative, and that pre-trial investigation is not carried out in such cases save the cases provided for in Article 409, it should be noted that, as is held in this Constitutional Court ruling, the legislature, while taking account of the nature, danger (gravity), scale, other signs, as well as other circumstances of importance of the criminal deeds, may, while paying heed to the Constitution, consolidate such legal regulation under which a mere application (petition, statement, complaint, etc.) from a victim (of his representative) concerning a criminal deed may serve as the grounds for commencement of investigation into the criminal deed, and that the constitutional entrenchment of the said general model of criminal procedure does not eliminate an opportunity to regulate the relations of criminal procedure so that in certain cases the pre-trial investigation is not conducted, however, also in such cases one must pay heed to the Constitution, one must, inter alia, provide for other legal measures, ensuring the possibility of collecting all the information necessary in order for the court to adopt a just decision.

13. While deciding, whether Article 407 (wording of 19 June 2003) of the CCP in not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution to the extent that it provides that the proceedings of criminal cases are instituted only in the case when there is a complaint of the victim or an application of his legitimate representative, and that pre-trial investigation is not carried out in such cases, save the cases provided for in Article 409, it should also be noted that the legal regulation consolidated in Article 407 (wording of 19 June 2003) of the CCP is inseparable from the legal regulation established in Article 409 of the CCP.

As mentioned before, it was established in Article 409 (wording of 19 June 2003) of the CCP that if the criminal deeds specified in Article 407 of this Code are of public importance, or if they inflicted harm upon the person who, due to important reasons, cannot defend his legitimate interests, also the prosecutor has the right to institute the criminal proceedings regarding these deeds, regardless of whether or not there is a complaint of the victim or an application of his legitimate representative (Paragraph 1), that the prosecutor has also the right to submit, at any time of the case of private accusation until the beginning of investigation of the evidence, a written application to the court that he will uphold state charges and in such situation the case is referred to the prosecutor and the pre-trial investigation and consideration of the case in court take place according to the general procedure (Paragraph 2) and that if while investigating the case of private accusation in court it transpires that the accused has committed the criminal deed for which state charge must be upheld, the procedure of private accusation is dismissed and the material of the case is referred to the prosecutor (Paragraph 3).

14. It should be held that, under Article 407 (wording of 19 June 2003) of the CCP and Article 409 (wording of 19 June 2003) of the CCP:

the criminal proceedings regarding the criminal deeds specified in Article 407 (wording of 19 June 2003) of the CCP are instituted: (1) when there is a complaint from the victim (an application of his legitimate representative); (2) when, under Article 409 of the CCP, the prosecutor institutes the criminal proceedings regarding the criminal deeds, specified in Article 407 (wording of 19 June 2003) of the CCP, which are of public importance, or if they inflicted harm upon the person who, due to important reasons, cannot defend his legitimate interests;

when the criminal proceedings regarding the criminal deeds specified in Article 407 (wording of 19 June 2003) of the CCP are instituted subsequent to a complaint of the victim (an application of his legal representative) and during the proceedings of cases of private accusation (until the beginning of investigation of the evidence) the prosecutor does not submit an application to the court that he will uphold state charges, pre-trial investigation is not carried out.

when the criminal proceedings regarding the criminal deeds specified in Article 407 (wording of 19 June 2003) of the CCP are instituted by the prosecutor, pre-trial investigation is carried out.

pre-trial investigation is carried out also in the cases when, under Article 409 of the CCP, during the proceedings of cases of private accusation in court (until the beginning of investigation of the evidence) the prosecutor submits a written application to the court that he will uphold state charges in the criminal cases regarding the criminal deeds specified in Article 407 (wording of 19 June 2003) of the CCP, which are of public importance, or if they inflicted harm upon the person who, due to important reasons, cannot defend his legitimate interests;

pre-trial investigation is also carried out in such cases, when it transpires during the consideration of a case of private accusation in court that the defendant has committed a criminal deed for which state charges must be upheld and the court, after it has dismissed the proceedings of private accusation, refers the material of the case to the prosecutor.

15. Under Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP, even if there is no complaint of the victim or application of his legitimate representative, the prosecutor has the power to institute the criminal proceedings regarding the criminal deeds specified in Article 407 of the CCP, which are of public importance, or if they inflicted harm upon the person who, due to important reasons, cannot defend his legitimate interests.

These provisions, their formulas are not to be construed literally but by taking account of the purpose and meaning of the institute of private accusation, as an institute of specific criminal proceedings, of the overall legal regulation of the proceedings of cases of private accusation in the new CCP, of the principles and purposes of the criminal procedure as well as of the constitutional status of the prosecutor.

15.1. The formula “due to important reasons, cannot defend his legitimate interests” used in Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP is very capacious. It describes very different situations, namely those when the person cannot in general (himself or through his legitimate representative) express his will to defend his legitimate interests and/or cannot (himself or through his legitimate representative) perform certain actions (take other measures), by which he would defend these legitimate interests (for example, due to physical or psychological disability, absence of legal subject, etc.) and such, when even if the person can (himself or through his legitimate representative) express his will to defend his legitimate interests and can (himself or through his legitimate representative) perform certain actions by which he would defend these legitimate interests, though these actions (other measures) may not objectively be enough for these interests to be defended (for example, due to the impossibility of receiving the necessary information, the absence of the right to perform certain actions of the proceedings, etc.).

15.2. The formula “criminal deeds which are of public importance” used in Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP is also very capacious. It is not to be related to one or several signs of a criminal deed (for example, to the position or social status of the victim, to the response of the society regarding the criminal deed, etc.) but with various signs of the criminal deed and circumstances under which it was committed. While deciding, whether the criminal deed is of public importance, in every case it is necessary to assess what consequences for the society, state and legal system could appear, if the criminal proceedings regarding this deed and other analogous deeds were not instituted.

15.3. The provision “also the prosecutor shall have the right to institute the criminal proceedings regarding these deeds” of Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP cannot be construed as allowing the prosecutor to decide at his discretion whether or not to institute the criminal procedure regarding the criminal deed specified in Article 407 (wording of 19 June 2003) of the CCP when there are not any conditions specified in Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP (i.e. when this deed is of public importance or if it inflicted harm upon the person who, due to important reasons, cannot defend his legitimate interests). While construing this provision in the context of the overall legal regulation of the proceedings of cases of private accusation in the new CCP, the principles and purposes of the criminal procedure as well as the provisions, consolidating the constitutional status of the prosecutor, it should be held that it consolidates the unquestionable duty of the prosecutor, who has the constitutional obligation to defend, inter alia, the rights and legitimate interests of the person (Paragraph 2 of Article 118 of the Constitution), to institute criminal proceedings in all cases when: (1) the criminal deed specified in Article 407 (wording of 19 June 2003) of the CCP is of public importance, regardless of whether or not there is a complaint of the victim or an application of his legitimate representative; (2) by the criminal deed specified in Article 407 (wording of 19 June 2003) of the CCP harm was inflicted upon the person who in general cannot (himself or through his legitimate representative) express his will to defend his legitimate interests and/or cannot (himself or through his legitimate representative) perform certain actions (take other measures), by which he would defend these legitimate interests, regardless of whether or not there is a complaint of the victim or an application of his legitimate representative; (3) by the criminal deed specified in Article 407 (wording of 19 June 2003) of the CCP harm was inflicted upon the person who can (himself or through his legitimate representative) express his will to defend his legitimate interests and has (himself or through his legitimate representative) expressed it (he has himself or through his legal representative applied to the competent institution or official under the procedure established by law), though the actions that he (himself or through his legitimate representative) can perform (other measures that he can take) in order to defend his legitimate interests objectively may not be enough for these interests to be defended.

It should also be noted that under Paragraph 4 (wordings of 14 March 2002 and 8 July 2004) of Article 168 of the CCP, the ruling of the official the pre-trial investigation to refuse to institute pre-trial investigation may be appealed against with the prosecutor, and the ruling of the prosecutor—with the judge of pre-trial investigation; if the prosecutor does not rescind the ruling refusing to initiate pre-trial investigation, his decision may be appealed against with the judge of the pre-trial investigation.

15.4. It should be emphasised that, under Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP, the prosecutor does not have powers to institute criminal proceedings regarding the criminal deed specified in Article 407 (wording of 19 June 2003) of the CCP when there is not a single condition (this deed is not of public importance and it has not inflicted harm upon the person who, due to important reasons, cannot defend his legitimate interests), specified in Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP.

15.5. Under Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP, neither does the prosecutor have the powers to institute criminal proceedings regarding the criminal deed specified in Article 407 (wording of 19 June 2003) of the CCP when by the criminal deed that is not of public importance harm was inflicted upon the person who can (himself or through his legitimate representative) express his will to defend his legitimate interests, but he neither himself nor through his legitimate representative expresses such a will, i.e. there is no complaint of the victim or application of his legitimate representative.

16. Analogically, not literally, but taking into account the purpose and meaning of the institute of private accusation, as an institute of specific criminal proceedings, the overall legal regulation of the proceedings of cases of private accusation in the new CCP, the principles and purposes of the criminal procedure as well as the constitutional status of the prosecutor, one should also construe Paragraph 2 (wording of 14 March 2002, which remained unchanged also after Paragraph 1 of this article was set forth as new and wording of 19 June 2003) of Article 409 of the CCP, under which the prosecutor has the right to submit, at any time of the case of private accusation until the beginning of investigation of the evidence, a written application to the court that he will uphold state charges and the case is referred to the prosecutor while the pre-trial investigation and consideration of the case in court take place according to the general procedure.

16.1. The provisions of Paragraph 2 (wording of 14 March 2002) of Article 409 of the CCP may not be construed as allowing the prosecutor to decide at his discretion whether or not to submit to the court a written application that in a certain case he will uphold state charges if there is at least one of the conditions provided for in the CCP, to which such a possibility of submission of the written application to the court is related. These provisions should be construed as consolidating the unquestionable duty of the prosecutor to submit the said written application to the court.

16.2. It should particularly be emphasised that while construing Paragraph 2 (wording of 14 March 2002) of Article 409 of the CCP it is necessary to take account of the provisions of Paragraph 1 (wording of 19 June 2003) of this article.

Paragraph 2 (wording of 14 March 2002) of Article 409 of the CCP established the legal regulation that the prosecutor, after he has found out (i.e. from the court that investigates the case) that the proceedings of the case of private investigation take place in court on such criminal deed, which specified in Article 407 (wording of 19 June 2003) of the CCP and which is of public importance, or by which harm was inflicted upon the person who, due to important reasons, cannot defend (himself or through his legitimate representative) his legitimate interests; i.e. on such deed that meets at least one of the conditions, specified in Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP, must submit a written application to the court, stating that he will uphold state charges in this case, save the exceptions arising from the laws.

In this context, it should be noted that under Paragraph 2 (wording of 14 March 2002) of Article 409 of the CCP, neither does the prosecutor have the powers to submit a written application to the court, stating that he will uphold state charges regarding such a criminal deed, specified in Article 407 (wording of 19 June 2003) of the CCP when by the criminal deed that is not of public importance harm has been inflicted upon the person who (his legitimate representative) can express his will and has expressed his will to defend his legitimate interests under the proceedings of cases of private accusation (either himself or through his legitimate representative), even though, whatever actions that person (his legitimate representative) would perform (whatever measures he would take), these actions (other measures) objectively will not be sufficient to defend those interests.

16.3. It needs to be held that if Paragraph 2 (wording of 14 March 2002) of Article 409 of the CCP is construed in such a way, the legal regulation established therein can be assessed as that whereby one seeks to ensure that prosecutors fulfil their constitutional obligation to protect the rights and legitimate interests of the person, society and the state (Paragraph 2 of Article 118 of the Constitution).

16.4. It needs to be emphasised that under Paragraph 2 (wording of 14 March 2002) of Article 409 of the CCP the prosecutor does not enjoy the powers to submit a written statement to the court that he is going to uphold charges on behalf of the state in connection of the criminal deed specified in Article 407 (wording of 19 June 2003), when one of the conditions (the said deed is of no public importance and it did not inflict harm upon the person who cannot, due to important reasons, defend his legitimate interests) specified in Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP is absent.

17. It needs to be noted that in all cases when the prosecutor implements his powers established in Paragraph 1 (wording of 19 June 2003) or Paragraph 2 (wording of 14 March 2002) of Article 409 of the CCP, also in all cases when the prosecutor refuses to implement these powers (i.e. when he refuses to institute the criminal proceedings regarding such criminal deed due to which the criminal proceedings are, as a rule, conducted according to the proceedings of cases of private accusation, or when he, during the proceedings of a case of private accusation, refuses to submit to the court a written statement that in the said case he is going to uphold charges on behalf of the state, although he has learned (from, for example, the court which is investigating the case) that the case is conducted regarding such a criminal deed, which is specified in Article 407 (wording of 19 June 2003) of the CCP, which is of public importance or by which damage was inflicted upon the person who, due to important reasons, cannot defend his legitimate interests), his decision must be grounded on legal arguments.

18. In this context, attention should be paid to the fact that the formula “also the prosecutor shall have the right to institute the criminal proceedings” of Paragraph 1 (wording of 19 June 2003) and the formula “the prosecutor shall also have the right” of Paragraph 2 (wording of 14 March 2002) of Article 409 of the CCP are not without faults from the legal point of view, and should be corrected, since the powers of prosecutors as state officials may not be defined in legal acts as their subjective right, which they can implement at their own discretion, i.e. such right which they either can use or can decide not to use. Such powers are also the duties which the prosecutors (other state officials) not only can but also must implement if corresponding conditions are established in laws.

However, the mere legal incorrectness of the formula “also the prosecutor shall have the right to institute the criminal proceedings” of Paragraph 1 (wording of 19 June 2003) and the formula “the prosecutor shall also have the right” of Paragraph 2 (wording of 14 March 2002) of Article 409 of the CCP are not sufficient grounds to recognise that these paragraphs (to a certain extent) are in conflict with the Constitution.

It should also be noted that the rule that the powers of state officials cannot be defined in legal acts as their subjective right should be applied mutatis mutandis not only to prosecutors but also to other state officials, inter alia, judges, as well as municipal officials and institutions of public power.

19. By Article 26 of the Law on the Amendment and Supplementing Articles 65, 94, 103, 109, 139, 151, 154, 158, 168, 181, 218, 220, 225, 232, 237, 239, 240, 306, 313, 346, 360, 364, 370, 377, 403, 409, 418, 421, 422, 425, 426, 429, 446, 456, 457, 458 and Amending the Title of Chapter XXXV of the Code of Criminal Procedure, which was adopted by the Seimas on 8 July 2004 and which went into effect on 24 July 2004) Article 409 (wording of 19 June 2003) of the CCP was supplemented by new Paragraph 3; former Paragraph 3 became Paragraph 4.

19.1. Paragraph 3 (wording of 8 July 2004) of Article 409 of the CCP provides that pre-trial investigation regarding the criminal deeds provided for in Article 407 of this code is conducted according to the general procedure, if the person suspected of committing the criminal deed is not known.

19.2. Under Article 409 (wording of 19 June 2003) of the CCP, the victim (his representative) who is unable to point out the person who is suspected of commission of the criminal deed specified in Article 407 (wording of 19 June 2003) of the CCP had to be treated as a person, who, due to important reasons, cannot defend his legitimate interests and after such a person (his representative) had filed a complaint (application) to the prosecutor, the latter had a duty to institute the criminal proceedings.

If the legal regulation entrenched in Article 409 (wording of 8 July 2004) of the CCP is compared with the legal regulation entrenched in Article 409 (wording of 19 June 2003) of the CCP, it becomes clear that after Article 409 (wording of 19 June 2003) of the CCP had been supplemented with new Paragraph 3, one did not consolidate any virtually new provision in Article 409 (wording of 8 July 2004) of the CCP, which could not be derived from the previous formulas of this article, but the legal regulation was particularised in the aspect that it specified expressis verbis one of important reasons due to which the person cannot defend his legitimate interests and, due to this, the prosecutor, upon receiving the complaint of the victim or a statement from his legitimate representative, must institute the criminal proceedings on the criminal deed specified in Article 407 (wording of 19 June 2003) of the CCP.

20. Thus, it should be held that the legal regulation was established in Article 407 (wording of 19 June 2003) of the CCP and Article 409 (wordings of 19 June 2003 and 8 July 2004) of the CCP which permits (used to permit) the victim (his representative) to defend his rights or legitimate interests violated by the criminal deed specified in Article 407 (wording of 19 June 2003) of the CCP either according to the procedure for the proceedings of cases of private accusation (i.e. when the victim or his legitimate representative applies to court), or according to the general procedure (i.e. when the victim or his legitimate representative applies to the prosecutor).

Therefore, the legal regulation established in Article 407 (wording of 19 June 2003) of the CCP does not violate the constitutional right of the persons who suffered from the aforesaid criminal deeds to apply to court—this constitutional right is not artificially restricted, nor is its implementation unreasonably burdened.

Alongside, it needs to be held that although certain peculiarities are characteristic of the legal regulation of the judicial defence of the rights and legitimate interests of the persons who suffered from the deeds specified in Article 407 (wording of 19 June 2003) of the CCP, it does not mean that the constitutional principle of the equality of rights of persons is deviated from.

21. Taking account of the arguments set forth, the conclusion should be drawn that Article 407 (wording of 19 June 2003) of the CCP to the extent that it provides that the proceedings of criminal cases is instituted only in case there is a complaint or an application from his legitimate representative and that in these cases pre-trial investigation is not conducted save the cases provided for in Article 409 of the CCP is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution.

22. When deciding whether Paragraph 1 (wording of 14 March 2002) of Article 408 of the CCP, which provides that in cases of private accusation the complaint is filed and the accusation in court is upheld by the victim and that in court he acquires the status of private accuser, is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution, it should be held that:

as mentioned before, under the Constitution the legislature can also establish such legal regulation whereby in certain criminal cases charges are upheld not by prosecutors, but by private persons (their representatives), and in itself such legal regulation does not create the pre-conditions for violating the right of the person to judicial defence;

the fact that in certain criminal cases victims (their representatives) uphold the charges, is a specific form of implementation of the constitutional right of the person to defend his rights and freedoms as well as legitimate interests in court and, in itself, it does not mean that the constitutional right of the person to apply to court is artificially restricted nor that its implementation is unreasonably burdened;

the legal regulation established in Paragraph 1 (wording of 14 March 2002) of Article 408 of the CCP is applicable to all persons who suffered from the deeds specified in Article 407 (wording of 19 June 2003) of the CCP, thus, although certain peculiarities, which are consolidated, inter alia, in Paragraph 1 (wording of 14 March 2002) of Article 408 of the CCP, are characteristic of the legal regulation of the judicial defence of the rights and legitimate interests of the persons who suffered from the deeds specified in Article 407 (wording of 19 June 2003) of the CCP, it does not mean that the constitutional principle of the equality of rights of persons is deviated from.

23. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 1 (wording of 14 March 2002) of Article 408 of the CCP is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution.

24. When deciding whether Paragraph 2 (wording of 14 March 2002) of Article 412 of the CCP, under which a written complaint or application filed to court according to the procedure of private accusation, must contain the title of the court whose jurisdiction covers the case, the place, time and consequences of the criminal deeds of which the person is accused, other essential circumstances, the data that confirm the circumstances set forth in the complaint or application, the names, surnames and place of residence of the victim, the person who is suspected of commission of the criminal deed and of witnesses, and the complaint must be signed by the victim, while in the case provided for in Paragraph 2 of Article 408—by the legitimate representative of the victim, is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution, it should be held that:

as mentioned before, the constitutional right of the person to apply to court does not prevent the legislature from establishing certain formal requirements applied to the application filed by a person to court, under which one may start investigation into the criminal deed and/or consideration of the criminal case in court and, in itself, the establishment of such formal requirements yet do not mean that the constitutional right of the person to apply to court is restricted or that implementation of this right is unreasonably burdened, however, when establishing such requirements, the legislature may not burden the implementation of the right of the person to judicial defence unreasonably, nor may he make such implementation impossible at all;

the requirement established in Paragraph 2 (wording of 14 March 2002) of Article 412 of the CCP that a written complaint or application filed to court according to the procedure of private accusation must contain the title of the court whose jurisdiction covers the case, the place, time and consequences of the criminal deeds of which the person is accused, other essential circumstances, the data that confirm the circumstances set forth in the complaint or application, the names, surnames and place of residence of the victim, the person who is suspected of commission of the criminal deed and of witnesses, is necessary so that one might be able to institute the proceedings of cases of private accusation, and due to this such requirement should be assessed grounded and rational;

the said requirements for the complaint (application) filed to court according to the procedure of private accusation are bigger than the requirements for the application according to which pre-trial investigation is commenced (Articles 166, 167 and 168 of the CCP);

the differences of the requirements established for the complaint (application) subsequent to which the proceedings of cases of private accusation is begun from the requirements of the applications under which pre-trial investigation is begun are grounded, since, unlike than the application subsequent to which pre-trial investigation is begun, the purpose and function of a written complaint or application filed to court according to the procedure of private accusation are not only the report (information to the competent institution or official) about the criminal deed, but also accusation of the person: by means of such a complaint (application) an accusation is brought against the person in order to be considered in court (in a similar manner as by an indictment in the cases in which pre-trial investigation is conducted), therefore, bigger formal requirements should be raised for such complaints (applications) than to the requirements subsequent to which pre-trial investigation will be conducted;

Paragraph 2 (wording of 14 March 2002) of Article 412 of the CCP does not establish anything as to what should be done with the complaint (application) that does not meet the requirements established in this paragraph.

25. Thus, in itself, the fact that bigger requirements are established to a complaint (application) subsequent to which pre-trial investigation is begun does not mean that the constitutional right of the person to apply to court has been artificially restricted or that the implementation of this right has been burdened unreasonably, nor that the constitutional principle of the equality of rights of persons is deviated from.

26. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 2 (wording of 14 March 2002) of Article 412 of the CCP is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution.

27. While deciding whether Paragraph 3 (wording of 14 March 2002) of Article 412 of the CCP under which the complaint which does not meet the requirements of Paragraph 2 (wording of 14 March 2002) of Article 412 of the CCP is not accepted and is returned to the person that has filed it is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution, it should be held that:

the provision of Paragraph 3 (wording of 14 March 2002) of Article 412 of the CCP that the complaint which does not meet the requirements of Paragraph 2 (wording of 14 March 2002) of Article 412 of the CCP is not accepted and is returned to the person that has filed it implies that the deficiencies in the complaint must be pointed out to the person whose complaint is not accepted, which must be removed;

the legal regulation consolidated in Paragraph 3 (wording of 14 March 2002) of Article 412 of the CCP encompasses various legal situations, in the presence of which the complaint that does not meet the requirements of Paragraph 2 (wording of 14 March 2002) of Article 412 of the CCP is not accepted and is returned to the person that has filed it: (1) the complaint may be not accepted and returned to the person that has filed it due to such deficiencies of this complaint, which must be removed by the person that has filed it himself; (2) the complaint may be not accepted and returned to the person that has filed it due to such deficiencies of the complaint, which cannot be removed by the person that has filed it—they can be removed only by conducting pre-trial investigation or individual procedural actions;

the fact that the complaint is not accepted and returned to the person who has filed it, the deficiencies of which can be removed by the person who filed it himself, is completely grounded and justified, since, as held in the ruling of the Constitutional Court, a written complaint filed according to the procedure of private accusation also performs the function of an indictment, therefore, bigger formal requirements should be raised for it than for an application subsequent to which pre-trial investigation will be conducted;

the fact that the complaint is not accepted and returned to the person who has filed it, the deficiencies of which cannot be removed by the person who filed it, since they can be removed only by conducting pre-trial investigation or individual procedural actions, implies that there exists one of the conditions—damage was inflicted upon a person, who, due to important reasons, cannot defend his legitimate interests—specified in Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP in the presence of which the criminal proceedings regarding the criminal deeds established in of Article 409 (wording of 19 June 2003) of the CCP must be instituted by the prosecutor in case there is a complaint of the victim or an application of his legitimate representative;

thus, neither a situation, where, under Paragraph 3 (wording of 14 March 2002) of Article 412 of the CCP, the complaint is not accepted and is returned to the person because of such deficiencies of the complaint, which can be removed by the person who has filed it himself, nor a situation, where, under the same paragraph, the complaint is not accepted and is returned to the person who has filed it because of such deficiencies of this complaint, which cannot be removed by the person who filed it, since they can be removed only by conducting pre-trial investigation or separate procedural actions, the person who suffered from the criminal deed specified in Article 407 (wording of 19 June 2003) (or his representative) is not prevented from defending his violated rights or legitimate interests in court—in the first case the person who suffered from the criminal deed (or his representative), after he has removed the specified deficiencies, may once again apply to court according to the procedure for the proceedings of cases of private accusation, while in the second case, the person who suffered from the criminal deed (or his representative) may defend his violated rights or legitimate interests by applying to the prosecutor;

Paragraph 3 (wording of 14 March 2002) of Article 412 of the CCP, if construed not only literally, but also by taking account of the purpose and the meaning of the institute of private accusation as a specific institute of criminal procedure, as well as of the principles and objectives of the criminal procedure, does not mean that provided the complaint filed according to the procedure of private accusation contains only small, not essential, formal deviances from the established requirements, the court does not enjoy the powers to accept such a complaint altogether.

28. Thus, the provision of Paragraph 3 (wording of 14 March 2002) of Article 412 of the CCP that the complaint which does not meet the requirements of Paragraph 2 (wording of 14 March 2002) of Article 412 of the CCP is not accepted and is returned to the person that has filed it does not mean that the constitutional right of the person to apply to court has been artificially restricted or that the implementation of this right has been burdened unreasonably, nor that the constitutional principle of the equality of rights of persons is deviated from.

29. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 3 (wording of 14 March 2002) of Article 412 of the CCP is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution.

30. When deciding whether Paragraph 5 (wording of 14 March 2002) of Article 412 of the CCP, which provides that if the victim and/or his legitimate representative, and the person who is accused of commission of the criminal deed, fail to reach conciliation, the judge adopts a ruling to refer the case for consideration in a trial hearing, is not in conflict with Paragraph 1 of Article 29 and Paragraph 1 of Article 30 of the Constitution, it should be held that:

as mentioned before, the proceedings of cases of private accusation are proceedings in which until the very moment when the person accused of commission of the criminal deed is recognised either guilty or not guilty, the parties of the conflict have an opportunity to reach conciliation and thus to create legal pre-conditions for dismissing the instituted legal proceedings;

Paragraph 5 (wording of 14 March 2002) of Article 412 of the CCP is designated to regulate a special stage of the proceedings of cases of private accusation—the conciliatory hearing—the purpose of which is to grant an opportunity to the victim (his legitimate representative) and the person who is accused of commission of the criminal deed, to reach conciliation so that the criminal proceedings might be dismissed;

if the victim (his legitimate representative) and the person who is accused of commission of the criminal deed fail to reach conciliation, the complaint is referred to consideration in a trial hearing, in which it must be decided in essence;

the fact that the court follows the articles (parts thereof) of the CCP cannot in general mean that the independence of the judge or the court is denied.

31. Thus, the legal regulation established in Paragraph 5 (wording of 14 March 2002) of Article 413 of the CCP violates neither the right of the person to an independent court nor the constitutional principle of the equality of rights of persons.

32. Taking account of the fact set forth, the conclusion should be drawn that Paragraph 5 (wording of 14 March 2002) of Article 413 of the CCP is not in conflict with Paragraph 1 of Article 29 and Paragraph 2 of Article 109 of the Constitution.

33. While deciding whether Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP which provides that the judge, while adopting a ruling to refer the complaint of the victim or application of his legitimate representative for consideration in a trial hearing, has the right to request the establishment of pre-trial investigation to investigate, within the established time period, the circumstances of the case, which cannot be established by the court, and to postpone the case for some period, is not in conflict with Paragraph 2 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution, it needs to be noted that, as held in this ruling of the Constitutional Court: such legal situations are possible, where in the course of consideration of a criminal case in court, in which pre-trial investigation had not been conducted, there occurs an issue of the necessity of pre-trial investigation or the performance of certain procedural actions; the obligation of the court to establish the objective truth and to justly solve the case, which arises from the Constitution, implies that if the court thinks that without conducting pre-trial investigation, or without performance of certain procedural actions, which are impossible to be performed in court, it will not be able to consider the case correctly nor adopt a just decision, the court should enjoy the powers to decide also that pre-trial investigation be conducted in the case or separate procedural actions and instructions to certain subjects be given; such court instructions are compulsory to all persons (officials, institutions) to which they are addressed; the fact that the court can instruct that separate procedural actions be performed by establishments (officials) of pre-trial investigation cannot be interpreted as the court’s direction of pre-trial investigation; the law may also establish such legal regulation whereby the court would enjoy the powers to oblige the prosecutors to control as to how such instructions of the court are carried out; in the case where the court decides to instruct that certain officials or institutions perform separate procedural actions, but not entire pre-trial investigation, the criminal case remains in court. In this ruling of the Constitutional Court it has also been held that by giving the said instructions the court must act so that no pre-conditions are created for the court to become partial (for instance, by giving an instruction to perform separate procedural actions, the court may not point out in what manner such instruction should be performed, what result is expected, etc.).

It was also held that a court decision commissioning performance of pre-trial investigation and a court decision commissioning separate procedural actions give rise to different legal effects; in the case where the court decides to commission performance of pre-trial investigation, under the Constitution the criminal case must be referred to the prosecutor, with the exception of whom, under the Constitution, no one else cannot organise pre-trial investigation and direct it; when the court adopts a decision to commission performance of pre-trial investigation, the consideration of the criminal case in court is stopped until the pre-trial investigation is over and, if one decides so, the indictment with the case material are referred to the court.

34. When deciding whether Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP is not in conflict with Paragraph 2 of Article 31, Paragraph 1 of Article 109, and Paragraph 1 of Article 118 of the Constitution, it should be held that:

Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP establishes the legal regulation whereby the court applies to the establishment of pre-trial investigation with a request to investigate the circumstances of the case within the established time period only in cases when the court cannot establish these circumstances by itself;

the request of the judge for the establishment of pre-trial investigation, provided for Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP, asking to investigate the circumstances of the case within the established time period, which cannot be established by the court itself, is not organisation of pre-trial investigation which, according the Constitution, is within the competence of prosecutors;

under Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP, the establishment (official) of pre-trial investigation, after it has received a court’s request to investigate, within the established time, the circumstances of the case, which the court is unable to establish by itself, must accomplish this instruction properly and within the term established by the court.

35. Under the Constitution, a court, which is investigating a case, is the judicial power—one of the branches of state power.

In this context, attention should be paid to the fact that the formula “the judge <…> shall have the right to request the establishment of pre-trial investigation” of Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP is not without faults from the legal point of view and should be corrected, since, as mentioned before, under the Constitution, instructions of the court, thus, also those of the judge considering the case, are compulsory to all persons (officials, institutions), thus, also to establishments of pre-trial investigation, to whom they are addressed; such instructions cannot be treated as requests, which might either be carried out or not, or carried out not within the established term, at the discretion of the persons to whom corresponding instructions were sent or who can otherwise diverge from the tasks formulated in the instructions.

However, the mere legal incorrectness of the formula “the judge <…> shall have the right to request the establishment of pre-trial investigation” of Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP does not provide with sufficient grounds for recognising that this paragraph (to any extent) is in conflict with the Constitution.

It needs also to be noted that the rule that the powers of the court, thus, also those of the judge who is considering the case to give instructions to establishments of pre-trial investigation, cannot be defined as requests which might either be carried out or not, or carried out not within the established term, at the discretion of the persons to whom corresponding instructions were sent or who can otherwise diverge from the tasks formulated in the instructions, should be applied mutatis mutandis also for the regulation of relations linked with giving instructions by the court (judge) (by paying heed to the Constitution, inter alia, the constitutional principle of the separation of powers) to other institutions or officials.

Under the Constitution, the legislature must establish such legal regulation, under which it might be possible to ensure that the said instructions of the court (judge) are executed in time and properly.

36. Thus, the powers of the court which are established in Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP to request the establishment of pre-trial institution to investigate the circumstances of the case, which the court is unable to establish, do not mean that the court is given the function that is within the competence of the prosecutor according to the Constitution and which is not characteristic of the court, i.e. the function of organising pre-trial investigation.

Alongside, it needs to be held that the legal regulation established in Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP does not mean that certain preconditions are created for the court not to be independent or impartial, or that the court, when implementing the powers established in this part, will not administer justice.

37. Taking account of the arguments set forth, the conclusion should be drawn that Paragraph 2 (wording of 14 March 2002) of Article 414 of the CCP is not in conflict with Paragraph 2 of Article 31, Paragraph 1 of Article 109 and Paragraph 1 of Article 118 of the Constitution.

IV

On the compliance of Item 3 (wordings of 10 April 2003 and 16 September 2003) of Paragraph 5 of Article 234 and Paragraph 2 (wordings of 10 April 2003 and 16 September 2003) of the CCP with Paragraph 2 of Article 110 of the Constitution.

1. The petitioners—the Third Vilnius Local Court and the Panevėžys City Local Court—request an investigation into whether Item 3 (wording of 10 April 2003) of Paragraph 5 of Article 234 and Paragraph 2 (wording of 10 April 2003) of the CCP are not in conflict with Paragraph 2 of Article 110 of the Constitution.

The Šiauliai District Local Court, a petitioner, requests an investigation into whether, inter alia, Item 3 of Paragraph 5 of Article 234 and Paragraph 2 of Article 244 of the CCP are not in conflict with Article 110 of the Constitution.

2. It is clear from the petitions of the petitioners that one doubts wither the provision “the consideration of the case shall be postponed when: <…> (3) one applies to the Constitutional Court in cases provided for in laws until the ruling of the Constitutional Court is received” of Item 3 (wordings of 10 April 2003 and 16 September 2003) of Paragraph 5 of Article 234, the provision “the consideration of the case <…> shall be postponed in the cases provided for in Item 3 of Paragraph 5 of Article 234 of this Code” of Paragraph 2 (wording of 10 April 2003) of Article 244 of the CCP and an analogous provision “the consideration of the case <…> shall be postponed in the cases provided for in Items 3 <…> of Paragraph 5 of Article 234 of this Code” of Paragraph 2 (wording of 16 September 2003) of Article 244 of the CCP are not (were not) in conflict with Article 110 of the Constitution.

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

Paragraph 2 of Article 110 of the Constitution should be construed while taking account of Paragraph 1 of the same article that provides that the judge may not apply a law, which is in conflict with the Constitution. When construing these provisions in a systemic manner, it needs to be noted that in cases where a court, which is considering a case, faces doubts whether a law (other legal act) applicable in the case is not in conflict with the Constitution, it must apply to the Constitutional Court and request it to decide whether this law (other legal act) is in compliance with the Constitution, and until the Constitutional Court decides this issue, the consideration of the case in court may not be continued, i.e. it must be suspended. It needs to be noted that neither Paragraph 2 of Article 110 of the Constitution, nor any other part of the Constitution establishes expressis verbis by what procedural decision the consideration of the case must be suspended. The establishment of this must be specified by the legislature.

It needs to be noted that the legal regulation established by the legislature must be such so that the suspended case from which the circumstances are seen due to which the impugned legal act should be applied in the said case, must be accessible to the Constitutional Court. Only in this way the necessary conditions can be created in order that the Constitutional Court might administer constitutional justice and decide whether the law or other legal act which must be applied in the case considered by the court is not in conflict with the Constitution (while a substatutory legal act of the Seimas, an act of the President of the Republic or an act of the Government—with the Constitution and/or laws).

It has been held in this Constitutional Court ruling that if the court, after it has faced doubts as regards the compliance of the law applicable in the case with the Constitution, did not suspend the consideration of the case and did not apply to the Constitutional Court so that these doubts could be removed, and if the legal act the compliance of which with the Constitution is doubtful was applied in the case, the court would take a risk to adopt such a decision, which would not be a just one.

4. The doubts of the petitioners as regards the compliance of the provision “the consideration of the case shall be postponed when: <…> (3) one applies to the Constitutional Court in cases provided for in laws until the ruling of the Constitutional Court is received” of Item 3 (wordings of 10 April 2003 and 16 September 2003) of Paragraph 5 of Article 234, the provision “the consideration of the case <…> shall be postponed in the cases provided for in Item 3 of Paragraph 5 of Article 234 of this Code” of Paragraph 2 (wording of 10 April 2003) of Article 244 of the CCP and an analogous provision “the consideration of the case <…> shall be postponed in the cases provided for in Items 3 <…> of Paragraph 5 of Article 234 of this Code” of Paragraph 2 (wording of 16 September 2003) of Article 244 of the CCP with the Constitution are based on the fact that, according to the petitioners, these provisions, unlike Paragraph 2 of Article 110 of the Constitution, provide for postponement of the case, but not for its suspension. In the opinion of the petitioners, the notions “postponement of the consideration of the case” and “suspension of the consideration of the case” are not identical. The petitioners explain their differences by invoking the notions “postponement of the consideration of the case” and “suspension of the consideration of the case” which are employed in procedural laws.

5. While deciding whether the provision “the consideration of the case shall be postponed when: <…> (3) one applies to the Constitutional Court in cases provided for in laws until the ruling of the Constitutional Court is received” of Item 3 (wordings of 10 April 2003 and 16 September 2003) of Paragraph 5 of Article 234, the provision “the consideration of the case <…> shall be postponed in the cases provided for in Item 3 of Paragraph 5 of Article 234 of this Code” of Paragraph 2 (wording of 10 April 2003) of Article 244 of the CCP and an analogous provision “the consideration of the case <…> shall be postponed in the cases provided for in Items 3 <…> of Paragraph 5 of Article 234 of this Code” of Paragraph 2 (wording of 16 September 2003) of Article 244 of the CCP are not (were not) in conflict with Paragraph 2 of Article 110 of the Constitution, it needs to be noted that 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.

6. The Constitution as a legal act is expressed in a certain textual form, it has certain linguistic expression, however, as it is not permitted to treat law as a mere text, thus, it is not permitted to treat the Constitution only as its textual form (the Constitutional Court’s ruling of 25 May 2004). In this context, it should be mentioned that language, inter alia, legal terminology, is constantly changing. Thus, the requirement that the same phenomena be always defined only by the same words and formulas as they are defined in the Constitution, if such requirement was made absolute, it would mean that, on the one hand, one seeks to artificially restrict and even stop such development of language, inter alia, legal terminology, where not only other words (formulas) are employed in laws and other legal acts than those used in the Constitution, which define the same phenomena, but also new terms (formulas) in general, which did not exist at the time when the text of the Constitution was being drafted. On the other hand, such a requirement, if it was made absolute, might provoke correction of the text of the Constitution according to the terminology (words, formulas) established in laws and other legal acts even in cases when the intervention into the text of the Constitution which, as supreme law, must be a stable act, is not legally necessary.

In its acts the Constitutional Court has held more than once that it is not permitted to construe the Constitution only literally, by applying only the linguistic (verbal) method. The same can be said about construction of all legal acts of lower legal force.

7. Under Paragraph 5 (wordings of 10 April 2003 and 16 September 2003) of Article 234 and Paragraph 2 (wordings of 10 April 2003 and 16 September 2003) of Article 244 of the CCP, the consideration of the case had (has) to be postponed until reception of a ruling of the Constitutional Court on the constitutionality of the legal act applicable in the said case. The formula “the consideration of the case shall be postponed” of Item 3 (wordings of 10 April 2003 and 16 September 2003) of Paragraph 5 of Article 234 and the provision “the consideration of the case <…> shall be postponed” of Paragraph 2 (wording of 10 April 2003) of Article 244 of the CCP should be construed while taking account of the fact that under these paragraphs the consideration of the case is postponed precisely because of the fact that a ruling of the Constitutional Court would be received whereby it is decided whether the law or other legal act which must be applied in the case considered by the court is in compliance with the Constitution.

Thus, these formulas virtually mean the same as the formula “shall suspend the consideration of the case” of Paragraph 2 of Article 110 of the Constitution, since under Paragraph 2 of Article 110 of the Constitution the consideration of the case is suspended precisely because of the fact that a decision of the Constitutional Court would be received whether the law or other legal act which must be applied in the case considered by the court and the compliance of which with the Constitution was doubted by the court is not in conflict with the Constitution.

8. Taking account of the arguments set forth, the following conclusions should be drawn:

the provision “the consideration of the case shall be postponed when: <…> (3) one applies to the Constitutional Court in cases provided for in laws until the ruling of the Constitutional Court is received” of Item 3 (wording of 10 April 2003) of Paragraph 5 of Article 234 of the CCP and the provision “the consideration of the case <…> shall be postponed in the cases provided for in Item 3 of Paragraph 5 of Article 234 of this Code” of Paragraph 2 (wording of 10 April 2003) of Article 244 of the CCP were not in conflict with Paragraph 2 of Article 110 of the Constitution;

the provision “the consideration of the case shall be postponed when: <…> (3) one applies to the Constitutional Court in cases provided for in laws until the ruling of the Constitutional Court is received” of Item 3 (wording of 16 September 2003) of Paragraph 5 of Article 234 and the provision “the consideration of the case <…> shall be postponed in the cases provided for in Items 3 <…> of Paragraph 5 of Article 234 of this Code” of Paragraph 2 (wording of 16 September 2003) of Article 244 of the CCP are not in conflict with Paragraph 2 of Article 110 of the Constitution.

V

On the petitions of the Šiauliai District Local Court, a petitioner, requesting an investigation into whether Article 410 (wording of 14 March 2002) of the CCP is not in conflict with Paragraph 1 of Article 29 of the Constitution.

1. The Šiauliai Local District Court, a petitioner, by its 14 February 2005 petition (received at the Constitutional Court on 14 March 2005), the 25 February 2005 petition (received at the Constitutional Court on 23 March 2005) and the 29 August 2005 petition (received at the Constitutional Court on 21 September 2005) requests an investigation into whether, inter alia, Article 410 of the new CCP is not in conflict with Paragraph 1 of Article 29 of the Constitution.

2. It must be held that none of these petitions contain clearly formulated legal arguments upon which the doubt of the petitioner as regards the constitutionality of this article of the CCP is grounded.

3. Under Item 5 of Paragraph 2 of Article 67 of the Law on the Constitutional Court, the ruling by means of which a court applies to the Constitutional Court must contain legal arguments presenting the opinion of the court on the conflict of a law or other legal act with the Constitution.

The requirement to indicate the legal arguments presenting the opinion of the court on the conflict of a law or other legal act with the Constitution arising from Item 5 of Paragraph 2 of Article 67 of the Law on the Constitutional Court, means that the courts that apply to the Constitutional Court with the request an investigation into whether the law or other legal act (part thereof) is not in conflict with the Constitution, while arguing their opinion presented in the petition that the law or other legal act (part thereof) is in conflict with the Constitution, may not confine themselves to general reasoning or statements that the law or other legal act (part thereof), in their opinion, is in conflict with the Constitution, but must clearly indicate which impugned articles (paragraphs, items thereof) and to what extent, in their opinion, are in conflict with the Constitution, and to reason their position on the compliance of every impugned provision of the legal act (part thereof) with the Constitution with clearly formulated legal arguments; otherwise, the petition of the court requesting an investigation into the compliance of the law or other legal act (part thereof) with the Constitution should be regarded as not meeting the requirements of Article 67 of the Law on the Constitutional Court (the Constitutional Court’s ruling of 12 December 2005).

4. Under Article 70 of the Law on the Constitutional Court, in the case that a petition or attachments thereto fail to comply with the requirements set forth, inter alia, in Article 67 of the Law on the Constitutional Court, the petition must be returned to the petitioner. The return of a petition shall not take away the right to apply to the Constitutional Court according to the common procedure after removal of the deficiencies thereof.

5. Taking account of the arguments set forth, the part of the case concerning the compliance of Article 410 (wording of 14 March 2002) of the CCP with the Constitution must be dismissed and to this extent the 14 February 2005, 25 February 2005 and 29 August 2005 petitions (respectively received at the Constitutional Court on 14 March 2005, 23 March 2005 and 21 September 2005) of the Šiauliai Local District Court, a petitioner, must be returned to the petitioner.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania, and Articles 1, 53, 54, 55, 56, 67 and 70 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 Paragraph 4 (wording of 11 September 2001; Official Gazette Valstybės žinios, 2001, No. 82-2830) of Article 131 of the Code of Criminal Procedure of the Republic of Lithuania was not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that the provision “the consideration of the case shall be postponed when: <…> (3) one applies to the Constitutional Court in cases provided for in laws until the ruling of the Constitutional Court is received” of Item 3 (wording of 10 April 2003; Official Gazette Valstybės žinios, 2003, No. 38-1734) of Paragraph 5 of Article 234 of the Code of Criminal Procedure of the Republic of Lithuania and the provision “the consideration of the case <…> shall be postponed in the cases provided for in Item 3 of Paragraph 5 of Article 234 of this Code” of Paragraph 2 (wording of 10 April 2003; Official Gazette Valstybės žinios, 2003, No. 38-1734) of Article 244 of the Code of Criminal Procedure of the Republic of Lithuania were not in conflict with of the Constitution of the Republic of Lithuania.

3. To recognise that the provision “the consideration of the case shall be postponed when: <…> (3) one applies to the Constitutional Court in cases provided for in laws until the ruling of the Constitutional Court is received” of Item 3 (wording of 16 September 2003; Official Gazette Valstybės žinios, 2003, No. 38-1734, No. 92-4138) of Paragraph 5 of Article 234 of the of Criminal Procedure of the Republic of Lithuania and the provision “the consideration of the case <…> shall be postponed in the cases provided for in Items 3 <…> of Paragraph 5 of Article 234 of this Code” of Paragraph 2 (wording of 16 September 2003; Official Gazette Valstybės žinios, 2003, No. 92-4138) of Article 244 of the of Criminal Procedure of the Republic of Lithuania, Article 407 (wording of 19 June 2003; Official Gazette Valstybės žinios, 2003, No. 68-3070) to the extent that it provides that the proceedings of criminal cases is instituted only in case there is a complaint or an application from his legitimate representative and that in these cases pre-trial investigation is not conducted save the cases provided for in the same code, Paragraph 1 (wording of 14 March 2002; Official Gazette Valstybės žinios, 2002, No. 37-1341) of Article 408, Paragraphs 2 and 3 (wording of 14 March 2002; Official Gazette Valstybės žinios, 2002, No. 37-1341), Paragraph 5 (wording of 14 March 2002; Official Gazette Valstybės žinios, 2002, No. 37-1341) of Article 413, and Paragraph 2 (wording of 14 March 2002; Official Gazette Valstybės žinios, 2002, No. 37-1341) of Article 414 of the Code of Criminal Procedure are not in conflict with the Constitution of the Republic of Lithuania.

4. To dismiss the part of the case as regards the compliance of Article 410 (wording of 14 March 2002; Official Gazette Valstybės žinios, 2002, No. 37-1341) of the Code of Criminal Procedure of the Republic of Lithuania with the Constitution of the Republic of Lithuania and to this extent to return the 14 February 2005, 25 February 2005 and 29 August 2005 petitions to the petitioner.

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

                                                                                   Stasys Stačiokas

                                                                                   Romualdas Kęstutis Urbaitis