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On refusing to consider a petition

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 

DECISION

ON THE PETITION (NO. 1B-31) OF THE KAUNAS CITY LOCAL COURT, THE PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER PARAGRAPH 1 OF ARTICLE 192 OF THE CRIMINAL CODE OF THE REPUBLIC OF LITHUANIA IS NOT IN CONFLICT WITH PARAGRAPH 3 OF ARTICLE 42 OF THE CONSTITUTION

 

12 September 2007

Vilnius

 

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

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, at its procedural sitting, considered the petition (No. 1B-31) of the Kaunas City Local Court, the petitioner, requesting an investigation into “whether the objective feature of the retail price higher than 100 MSL provided for in par. 1 of art. 192 of the RL CC is not in conflict with par. 3 of art. 42 of the Constitution of Lithuania, which is provided for defence of the rights of authors, and whether the criterion of the retail price is in compliance with the concept of the authors royalties in the course of defence of the rights of authors on the basis of the valid criminal law” and “whether the disposition of par. 1 of art. 192 of the RL CC whereby due to the fact that upon establishing in a criminal case that the works have been reproduced illegally, the copies of the illegally reproduced works are destroyed, are in compliance with the provisions of par. 3 of art. 42 of the Constitution of Lithuania”.

The Constitutional Court

has established:

I

1. The Kaunas City Local Court, the petitioner, considered a criminal case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into “whether the objective feature of the retail price higher than 100 MSL provided for in par. 1 of art. 192 of the RL CC is not in conflict with par. 3 of art. 42 of the Constitution of Lithuania, which is provided for defence of the rights of authors, and whether the criterion of the retail price is in compliance with the concept of the authors royalties in the course of defence of the rights of authors on the basis of the valid criminal law” and “whether the disposition of par. 1 of art. 192 of the RL CC whereby due to the fact that upon establishing in a criminal case that the works have been reproduced illegally, the copies of the illegally reproduced works are destroyed, are in compliance with the provisions of par. 3 of art. 42 of the Constitution of Lithuania”.

Note. The text of the Kaunas City Local Court, the petitioner, is herein cited as it was submitted by the petitioner—with the abbreviations, titles of the legal acts and formulations of the provisions, which were made by the petitioner itself. In this decision of the Constitutional Court, the arguments of the petitioner are cited also without correcting the language of the petition.

2. The ruling adopted by the Kaunas City Local Court, the petitioner, whereby it was applied to the Constitutional Court (petition No. 1B-31), was adopted as far back as 10 November 2006, however, it was sent to the Constitutional Court only on 12 July 2007, i.e. after more than 8 months have passed from its adoption. This ruling of the Kaunas City Local Court, the petitioner, was received at the Constitutional Court on 17 July 2007.

The Constitutional Court

holds that:

I

1. Paragraph 1 of Article 192 of the Criminal Code of the Republic of Lithuania (hereinafter also referred to as the CC) provides:

1. Those who illegally reproduced a work of literature, science or art or part thereof, or imported, exported, distributed, transported or stored illegal copies thereof for commercial purposes, provided the total value of these copies, if compared to the retail prices of legal copies thereof, exceeded the sum of 100 MSL

shall be punished by public works, or a fine, or limitation of freedom, or arrest, or deprivation of freedom for up to two years.”

2. The Kaunas City Local Court, the petitioner, requests an investigation into “whether the objective feature of the retail price higher than 100 MSL provided for in par. 1 of art. 192 of the RL CC is not in conflict with par. 3 of art. 42 of the Constitution of Lithuania, which is provided for defence of the rights of authors, and whether the criterion of the retail price is in compliance with the concept of the authors emoluments in the course of defence of the rights of authors on the basis of the valid criminal law” and “whether the disposition of par. 1 of art. 192 of the RL CC whereby due to the fact that upon establishing in a criminal case that the works have been reproduced illegally, the copies of the illegally reproduced works are destroyed, are in compliance with the provisions of par. 3 of art. 42 of the Constitution of Lithuania”.

3. The petition of the Kaunas City Local Court, the petitioner, formulated in such a way should be treated, by taking account of what is established in Paragraph 1 of Article 192 of the CC, as a petition requesting an investigation into whether:

the provision “provided the total value of these copies, if compared to the retail prices of legal copies thereof, exceeded the sum of 100 MSL” of Paragraph 1 of Article 192 of the CC due to the fact that, according to the petitioner, “the criterion of the retail price” established in this paragraph, is not in compliance with the concept of the authors emoluments, is not in conflict with Paragraph 3 of Article 42 of the Constitution;

the fact that, according to the petitioner, under Paragraph 1 of Article 192 of the CC, the copies of the illegally reproduced works are destroyed in all cases, is not in conflict with Paragraph 3 of Article 42 of the Constitution.

4. In this Constitutional Court’s decision, the said petition of the Kaunas City Local Court, the petitioner, will be also referred to as the petition requesting an investigation into whether Paragraph 1 of Article 192 of the CC is not in conflict with Paragraph 3 of Article 42 of the Constitution.

II

Under Item 2 of Paragraph 3 of Article 67 of the Law on the Constitutional Court, the duplicate of the whole text of the disputed legal act shall be attached to the court ruling whereby one applies to the Constitutional Court, while, under Paragraph 4 of the same article, 30 copies of the court ruling and 30 duplicate copies of the disputed legal act shall be submitted to the Constitutional Court.

It was not a copy of disputed Paragraph 1 of Article 192 of the CC that was attached to the ruling of the Kaunas City Local Court, the petitioner, whereby one applied to the Constitutional Court, but a copy of the Republic of Lithuania’s Law on Amending the Law on the Rights of Authors and Related Rights, i.e. that of a legal act, which is not disputed by the petitioner.

2. Under Item 1 of Paragraph 3 of Article 67 of the Law on the Constitutional Court, the suspended case shall be attached to the court ruling whereby one has applied to the Constitutional Court.

The suspended court case was not attached to the ruling of the Kaunas City Local Court, the petitioner, whereby one has applied to the Constitutional Court.

3. It needs to be held that the petition of the Kaunas City Local Court, the petitioner, requesting an investigation into whether Paragraph 1 of Article 192 of the CC is not in conflict with Paragraph 3 of Article 42 of the Constitution does not meet the requirements of Items 1 and 2 of Paragraph 3 and Paragraph 4 of Article 67 of the Law on the Constitutional Court.

4. Under Paragraph 1 of Article 70 of the Law on the Constitutional Court, in the case that a petition fails to comply with the requirements set forth in Article 67 of the Law on the Constitutional Court, it should be returned to the petitioner.

III

1. As mentioned before, Paragraph 1 of Article 192 of the CC provides that those who illegally reproduced a work of literature, science or art or part thereof, or imported, exported, distributed, transported or stored illegal copies thereof for commercial purposes, provided the total value of these copies, if compared to the retail prices of legal copies thereof, exceeded the sum of 100 minimum subsistence levels (hereinafter referred to as MSL), shall be punished by public works, or a fine, or limitation of freedom, or arrest, or deprivation of freedom for up to two years.

2. Paragraph 3 of Article 42 of the Constitution provides: “The law shall protect and defend the spiritual and material interests of an author which are related to scientific, technical, cultural, and artistic work.”.

3. Under Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, a petition for the investigation of the compliance of a legal act with the Constitution must contain the position of the petitioner concerning the compliance of an appropriate act with the Constitution and legal support of such position containing references to laws, while under Item 5 of Paragraph 2 of Article 67 of the same law, the ruling whereby one applies to the Constitutional Court must specify legal arguments presenting the opinion of the court on the conflict of a law or other legal act with the Constitution.

The said requirement arising from Item 5 of Paragraph 2 of Article 67 of the Law on the Constitutional Court, means that the courts, 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 disputed 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 disputed provision of the legal act (part thereof) with the Constitution with clearly formulated legal arguments (the Constitutional Court’s rulings of 12 December 2005, 16 January 2006, 17 January 2006 and its decisions of 17 January 2006 and 5 July 2007).

4. Some arguments, upon which the Kaunas City Local Court, the petitioner, grounds its petition, question not the compliance of the legal regulation established in Paragraph 1 of Article 192 of the CC, but its real or alleged incompatibility with the provisions of the legal acts (inter alia the CC itself) which are of lower legal force than the Constitution, for instance: “the valid norm of art. 192 of LR CC is not harmonised with special legal acts and international agreements, and it does not ensure the protection of a work of literature, science, art, or another work of an author, when the rights of the author are violated, which are provided for in LPRARR, the Bern Convention, the Rome Convention, Part III of the World Trade Agreement, directives of the European Council and other legal acts”; “it is doubtful whether the Criminal Code reasonably provides for liability for the deeds such as distribution, transportation, storing etc. of illegally reproduced works”, since “such liability is provided for in the Criminal Code, however, only as regards the health or life of the human being or danger to society”, while “is it possible to compare storing, transporting or distribution of a work, reproduced in a compact disc, or in other data retention item, or in the form of a book, with weapons, radioactive substances, narcotics, fake money etc.”; “works reproduced legally in any form freely circulate without any limitations, therefore the recognition of their storing, transporting and distribution as criminal deeds is doubtful and inadequate with regard of other crimes”; “the author’s emoluments for the use of the works created by the author is not related with the retail price of the works put into circulation, since the authors emoluments constitute only small part in this”, while “the price of one copy of a work is composed of the author’s emoluments, the costs of issuance, preparation and manufacture of the work, its transportation, storage, duties, value-added and other taxies and the profit of the manufacturers, sellers and resellers”, therefore “a question arises, whether the criterion of the retail price is in compliance with the concept of the authors emoluments in the course of defence of the rights of authors on the basis of the valid criminal law”.

In this context, it needs to be noted that, under the Constitution, the Constitutional Court, as it has held in its acts more than once, does not decide the issues of compatibility and rivalry of legal acts of the same legal force; if the Constitutional Court is requested to decide the issue of compatibility and rivalry of legal acts of the same legal force, such petition is not within the jurisdiction of the Constitutional Court and, under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitution, it constitutes the grounds for refusal to consider the petition.

The Constitutional Court has also held that the fact that, under the Constitution, it does not decide the issues of compatibility and rivalry of legal acts of the same legal force, does not at all mean that in certain cases incompatibility of legal acts (parts thereof) cannot imply the conflict of such legal acts (or some of them) with the Constitution, nor does it mean that the Constitutional Court cannot state such conflict with the Constitution under certain circumstances (the Constitutional Court’s decision of 27 June 2007). In such cases one must assess the entirety of the arguments of the petition of the petitioner.

5. Some other arguments of the Kaunas City Local Court, the petitioner, question not the legal regulation established in Paragraph 1 of Article 192 of the CC, but the fact how the provisions of this paragraph are or can be applied, as, for example: “the subjects may be held liable on the basis of the valid law also for using the works not covered by copyright, since the law does not contain any specifications that it is applied only to protected works”; “in practice, in almost all situations, the criminal cases which are instituted, investigated and considered on the basis of art. 192 of LR CC for the distribution, storing and transporting of compact discs for commercial purposes, without having established nor having named the titles of the works recorded in the compact discs, nor their authors”; “the disposition of art. 192 of LR CC and the practice of the consideration of cases of this category do not ensure the protection of the rights of an author, therefore, there is a doubt whether this is not in conflict with Paragraph 3 of Article 42 of the Constitution of the Republic of Lithuania”; “the practice of the consideration of cases of this category does not ensure the protection of the rights of an author”; “legally reproduced and imported to Lithuania copies of a work, which are meant for selling, may be distributed without any limitations without the consent of the author or the manufacturer, but it is impossible to understand it from the valid norm of art. 192 of the CC”.

In addition, some of such arguments related with application of law have been formulated as questions, by which one tries to elucidate the content of the legal regulation established in Paragraph 1 of Article 192 of the CC and how this paragraph should be applied, as, for instance: “whether in the course of protecting the rights of the author to the work that he has created, in case the author himself is not established, the provision that the spiritual and material interests of the author is protected by law will not be violated, or whether it is necessary to establish the author and the work that he has created”.

Such arguments do not provide any legal substantiation why, in the opinion of the Kaunas City Local Court, the petitioner, Paragraph 1 of Article 192 of the CC, which is disputed by him, is in conflict (to the corresponding extent) with Paragraph 3 of Article 42 of the Constitution.

In this context it needs to be noted that the Constitutional Court, as it has held itself, under the Constitution and the Law on the Constitutional Court, does not decide issues of compatibility and rivalry of legal acts of the same legal force; if the laws contain obscurities, ambiguities, and gaps, it is the duty of the legislature to eliminate them (the Constitutional Court’s decisions of 23 September 2002, 13 November 2006, 20 November 2006 and 27 June 2007). The Constitutional Court has also held that the questions of application of law which have not been decided by the legislature are the matter of judicial practice (the Constitutional Court’s ruling of 9 July 1998 and its decision of 20 November 2006); thus, the questions of application of law which have not been decided by the legislature may be decided by courts, when they consider disputes regarding the application of corresponding legal acts (parts thereof) (the Constitutional Court’s decision of 20 November 2006). The petitions requesting the construction of how the provisions of a law (other legal acts) are to be applied are not within the jurisdiction of the Constitutional Court (the Constitutional Court’s decisions of 23 September 2002 and 20 November 2006).

6. Still other arguments of the Kaunas City Local Court, the petitioner, are clearly artificial and fictitious. For instance, it is maintained that “there are doubts whether the legal regulation in par. 1 of art. 192 of the Republic of Lithuania CC and par. 1 of art. 21410 of the Republic of Lithuania CAVL as well as the disposition of par. 1 of art. 192 of LR CC that due to the fact that after it was established in a criminal case that the works had been reproduced illegally, in all situations the illegally reproduced copies of the works are destroyed are not in conflict with the principle of a state under the rule of law which is entrenched in the Constitution of the Republic of Lithuania and par. 4 of art. 31 of the Constitution of the Republic of Lithuania”.

However, Paragraph 1 of Article 192 of the CC the compliance of which (to the corresponding extent) with Paragraph 3 of Article 42 of the Constitution (but not with Paragraph 4 of Article 31 thereof, nor with the constitutional principle of a state under the rule of law) is disputed by the Kaunas City Local Court, the petitioner, does not regulate the relations linked with destruction of copies of illegally reproduced works at all.

7. It needs to be held that although legal terminology is employed in the petition, however, neither individual (separate) arguments, nor their totality provides any legal grounds why, in the opinion of the petitioner, Paragraph 1 of Article 192 of the CC, which is disputed by him, is in conflict (to the corresponding extent) with Paragraph 3 of Article 42 of the Constitution, thus, the petition of the petitioner requesting an investigation into whether Paragraph 1 of Article 192 of the CC is not in conflict with Paragraph 3 of Article 42 of the Constitution is not grounded not on legal reasoning, but reasoning of another kind.

Under Item 5 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by a decision, the Constitutional Court shall refuse to consider petitions to investigate the compliance of a legal act with the Constitution, if the petition is grounded on non-legal reasoning.

9. Taking account of the arguments set forth, one should refuse to consider the petition of the Kaunas City Local Court, the petitioner, requesting an investigation into whether Paragraph 1 of Article 192 of the CC is not in conflict (to the extent pointed out by the petitioner) with Paragraph 3 of Article 42 of the Constitution.

Conforming to Articles 1 and 28, Item 5 of Paragraph 1 and Paragraph 2 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To refuse to consider the petition (No. 1B-31) of the Kaunas City Local Court, the petitioner, requesting an investigation into “whether the objective feature of the retail price higher than 100 MSL provided for in par. 1 of art. 192 of the RL CC is not in conflict with par. 3 of art. 42 of the Constitution of Lithuania, which is provided for defence of the rights of authors, and whether the criterion of the retail price is in compliance with the concept of the authors royalties in the course of defence of the rights of authors on the basis of the valid criminal law” and “whether the disposition of par. 1 of art. 192 of the RL CC whereby due to the fact that upon establishing in a criminal case that the works have been reproduced illegally, the copies of the illegally reproduced works are destroyed, are in compliance with the provisions of par. 3 of art. 42 of the Constitution of Lithuania”.

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

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

Justices of the Constitutional Court:            Armanas Abramavičius

                                                                                 Toma Birmontienė

                                                                                 Egidijus Kūris

                                                                                 Kęstutis Lapinskas

                                                                                 Zenonas Namavičius

                                                                                 Ramutė Ruškytė

                                                                                 Vytautas Sinkevičius

                                                                                 Stasys Stačiokas

                                                                                 Romualdas Kęstutis Urbaitis