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On returning part of a petition and refusing to consider part of the petition

 

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 

DECISION

ON THE PETITION OF THE ŠIAULIAI DISTRICT LOCAL COURT, THE PETITIONER, REQUESTING AN INVESTIGATION INTO THE COMPLIANCE OF PARAGRAPH 4 OF ARTICLE 225 (WORDING OF 26 SEPTEMBER 2000) AND PARAGRAPH 2 (WORDING OF 26 SEPTEMBER 2000) OF ARTICLE 227 (WORDING OF 10 APRIL 2003) OF THE CRIMINAL CODE OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

27 June 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, has considered the petition (No. 1B-27/2007) of the Šiauliai District Local Court, the petitioner, requesting an investigation into whether Paragraph 4 of Article 225 (wording of 26 September 2000) and Paragraph 2 (wording of 26 September 2000) of Article 227 (wording of 10 April 2003) of the Criminal Code of the Republic of Lithuania are not in conflict with Article 29 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The Šiauliai District 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 Paragraph 4 of Article 225 (wording of 26 September 2000) and Paragraph 2 (wording of 26 September 2000) of Article 227 (wording of 10 April 2003) of the Criminal Code (hereinafter also referred to as the CC) are not in conflict with Article 29 of the Constitution.

This petition of the petitioner was received at the Constitutional Court on 11 June 2007.

II

The petition of the petitioner is based on the provisions of the official constitutional doctrine which construe the constitutional principles of a state under the rule of law and of equal rights of all persons, inter alia, the provisions that differentiated legal regulation must be based only upon objective differences of subjects of social relations which are regulated by corresponding legal acts and that when a certain group of people to which the legal norm is ascribed, if compared to other addressees of the same legal norm, were treated differently, even though there are not any differences in their character and extent between these groups that such an uneven treatment would be objectively justified, the constitutional principle of equal rights of all persons would be violated. According to the petitioner, the fact that under Paragraph 2 (wording of 26 September 2000) of Article 227 (wording of 10 April 2003) of the CC, a deed of the person who gives a bribe to a state servant and who seeks for an unlawful deed of the bribed state servant is a crime and the punishment of confinement for up to four years is provided for it, while Paragraph 4 of Article 225 (wording of 26 September 2000) of the CC provides for the responsibility for a state servant who made an “analogous” unlawful deed while implementing his authorities only as for a criminal offence, is not objectively justified.

The Constitutional Court

holds that:

I

1. The Šiauliai District Local Court, the petitioner, requests an investigation into whether Paragraph 4 of Article 225 (wording of 26 September 2000) and Paragraph 2 (wording of 26 September 2000) of Article 227 (wording of 10 April 2003) of the CC are not in conflict with Article 29 of the Constitution.

2. Paragraph 4 of Article 225 titled “Bribery” (wording of 26 September 2000) of the CC provides:

A state servant or a person likened to him, who, either in his favour or in the favour of someone else, directly or indirectly accepted, promised or agreed to accept a bribe, the value of which is less than 1 MSL, who demanded or provoked to give it for either a lawful or an unlawful action or failure to act while implementing his authorities, has made a criminal offence and

shall be punished by deprivation of his right to perform certain work or to be engaged in a certain activity.”

3. Paragraph 2 (wording of 26 September 2000) of Article 227 titled “Bribing” (wording of 10 April 2003) of the CC provides:

Anyone who performed the actions specified in Paragraph 1 of this Article while offering or promising to give or while giving a bribe, the value of which is more than 250 MSL, or who performed such actions while seeking for an unlawful deed by the bribed state servant or a person likened to him when the latter implements his authorities,

shall be punished by confinement for up to four years.”

II

1. Under Item 2 of Paragraph 3 of Article 67 of the Law on the Constitutional Court, a duplicate of the whole text of the impugned legal act shall be attached to the court ruling. Under Paragraph 1 (wording of 7 July 2005) of Article 2 of the Republic of Lithuania’s Law on the Procedure of Publication and Coming into Force of Laws and Other Legal Acts, the official announcement of the laws shall be their announcement in the official publication “Valstybės žinios”. Under Item 15 of Section 1 of Chapter 6 of the Rules of the Constitutional Court, the text of the legal act which is announced in the official gazette “Valstybės žinios” is to be considered such a duplicate (if the said legal act is announced in the official gazette “Valstybės žinios”).

2. It is not the copies of the text of the impugned articles (paragraphs thereof) of the CC which were officially announced in the official gazette “Valstybės žinios”, but other copies of the text of these articles (paragraphs thereof) that have been attached to the petition of the Šiauliai District Local Court, the petitioner.

3. Article 70 of the Law on the Constitutional Court provides that in the case that a petition or attachments thereto fail to comply with the requirements set forth in Articles 66 and 67, the President of the Constitutional Court shall return the petition to the petitioner on his own initiative or on the initiative of the justice (Paragraph 1) and that 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 (Paragraph 2).

III

1. It is clear from the petition of the petitioner and the annexed criminal case that it is requested an investigation into whether the provisions of Paragraph 4 of Article 225 (wording of 26 September 2000) of the CC, i.e. the provisions which should not be applied in the criminal case which is considered by the Šiauliai District Local Court, the petitioner, are not in conflict with the Constitution.

2. Under Paragraph 2 of Article 110 of the Constitution, 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.

Under Paragraph 1 of Article 67 of the Law on the Constitutional Court, provided that there are grounds to consider that a law or other legal act applicable in a concrete case is in conflict with the Constitution, the court shall suspend the consideration of said case and, with regard to the competence of the Constitutional Court, shall apply to it with a petition to decide whether the said law or other legal act is in compliance with the Constitution.

Thus, under the Constitution and the Law on the Constitutional Court, the court may apply to the Constitutional Court with a petition to investigate whether not any law (part thereof) or other legal act (part thereof), but only the law (part thereof) or other legal act (part thereof) which should be applied in the case considered by that court is not in conflict with the Constitution.

It was held in the Constitutional Court’s decision 22 May 2007 (while construing Paragraph 2 of Article 110 of the Constitution and Paragraph 1 of Article 67 of the Law on the Constitutional Court) that, under the Constitution and the Law on the Constitutional Court, a court does not have locus standi to apply to the Constitutional Court with a petition requesting an investigation into whether the law (part thereof) or the other legal act (part thereof) which should not be applied in the case considered by the said court, is not in conflict with the Constitution.

3. Under Item 1 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 was filed by an institution or person who does not have the right to apply to the Constitutional Court.

The petition of the Šiauliai District Local Court, the petitioner, to the extent that it requests an investigation into whether Paragraph 4 of Article 225 (wording of 26 September 2000) of the CC is not in conflict with the Constitution, is to be refused to be considered.

IV

1. It is clear from the arguments of the petition of the petitioner that the petitioner has does not doubt whether Paragraph 2 (wording of 26 September 2000) of Article 227 (wording of 10 April 2003) of the CC, if taken separately, and Paragraph 4 of Article 225 (wording of 26 September 2000) of the CC, if taken separately, are not in conflict with the Constitution, but whether the paragraphs of the said articles of the CC, taken together, are not in conflict with the Constitution, because, as it was said, according to the petitioner, under Paragraph 2 (wording of 26 September 2000) of Article 227 (wording of 10 April 2003) of the CC, a deed of the person who gives a bribe to a state servant and seeks for an unlawful deed of the state servant is a crime and the punishment of confinement for up to four years is provided for it, while Paragraph 4 of Article 225 of the CC provides for responsibility for the state servant who has made an “analogous” unlawful deed while implementing his authorities only as for a criminal offence. Thus, the petitioner’s doubts whether Paragraph 2 (wording of 26 September 2000) of Article 227 (wording of 10 April 2003) and Paragraph 4 of Article 225 (wording of 26 September 2000) of the CC are not in conflict with the Constitution are based not on the arguments which reveal why Paragraph 2 (wording of 26 September 2000) of Article 227 (wording of 10 April 2003) of the CC, if taken separately, and Paragraph 4 of Article 225 (wording of 26 September 2000) of the CC, if taken separately, according to the petitioner, are in conflict with the Constitution, but on the arguments which reveal that the specified paragraphs of the articles of the CC, according to the petitioner, are in conflict with the Constitution because of the fact that there is no harmony between the norms of the CC which establish the criminal liability for the crime specified in Paragraph 2 (wording of 26 September 2000) of Article 227 (wording of 10 April 2003) of the CC and for the criminal offence specified in Paragraph 4 of Article 225 (wording of 26 September 2000) of the CC. In this context, it needs to be emphasized that the petition of the petitioner does not provide with the arguments from which it would be clear whether he doubts the compliance of Paragraph 4 of Article 225 (wording of 26 September 2000) of the CC with the Constitution (because of the fact that the legal liability established in this paragraph of the article of the CC is too mild in comparison with the legal liability which is established in Paragraph 2 (wording of 26 September 2000) of Article 227 (wording of 10 April 2003) of the CC) or the compliance of Paragraph 2 (wording of 26 September 2000) of Article 227 (wording of 10 April 2003) of the CC with the Constitution (because of the fact that the legal liability established in this paragraph of the article of the CC is too strict in comparison with the legal liability established in Paragraph 4 of Article 225 (wording of 26 October 2000) of the CC).

Thus, the petitioner virtually doubts as to the intercompatibility of the corresponding paragraphs of the articles of the CC.

2. Under the Constitution, the Constitutional Court does not decide issues of compatibility and rivalry of legal acts of the same legal force (the Constitutional Court’s decision of 13 November 2006). 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 and 13 November 2006).

If the Constitutional Court is requested to solve an issue of compatibility and rivalry of legal acts of the same legal force, such a request is not within the jurisdiction of the Constitutional Court. Under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, this shall be the grounds to refuse to consider the petition (the Constitutional Court’s decisions of 23 September 2002 and 13 November 2006).

3. On the other hand, this 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.

4. Having held in this decision of the Constitutional Court that the petition of the Šiauliai District Local Court, the petitioner, to the extent that it requests an investigation into whether Paragraph 4 of Article 225 (wording of 26 September 2000) of the CC is not in conflict with the Constitution, is to be refused to be considered, it needs to held that one cannot take account of the arguments of the Šiauliai District Local Court, the petitioner, whereby the doubt regarding the compliance of Paragraph 2 (wording of 26 September 2000) of Article 227 (wording of 10 April 2003) of the CC with the Constitution is based, since the said arguments are related with the interrelation of the legal regulation established in Paragraph 4 of Article 225 (wording of 26 September 2000) of the CC and in Paragraph 2 (wording of 26 September 2000) of Article 227 (wording of 10 April 2003) of the CC.

5. Alongside, it needs to be held that the petition of the Šiauliai District Local Court, the petitioner, requesting an investigation, inter alia, into the compliance of Paragraph 2 (wording of 26 September 2000) of Article 227 (wording of 10 April 2003) of the CC with the Constitution does not comply with Item 5 of Paragraph 2 of Article 67 of the Law on the Constitutional Court, under which, legal arguments presenting the opinion of the court on the conflict of a law or other legal act with the Constitution must be specified in the court ruling whereby it is applied to the Constitutional Court.

6. As mentioned, 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, the petition shall be returned to the petitioner (Paragraph 1); 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 (Paragraph 2).

7. Thus, the petition of the Šiauliai District Local Court, the petitioner, requesting an investigation into the compliance of Paragraph 2 (wording of 26 September 2000) of Article 227 (wording of 10 April 2003) of the CC with the Constitution is to be returned to the petitioner. It does not mean that the constitutionality of the legal regulation established in this paragraph may not be impugned before the Constitutional Court in general, without relating it, inter alia, with the legal regulation established in Paragraph 4 of Article 225 (wording of 26 September 2000) of the CC and to the interrelation of these paragraphs.

Conforming to Articles 28, 69 and 70 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

1. To refuse to consider the petition of the Šiauliai District Local Court, the petitioner, requesting an investigation into whether Paragraph 4 of Article 225 (wording of 26 September 2000) of the Criminal Code of the Republic of Lithuania (Official Gazette Valstybės žinios, 2000, No. 89-2741) is not in conflict with Article 29 of the Constitution of the Republic of Lithuania.

2. To return the petition of the Šiauliai District Local Court, the petitioner, requesting an investigation into whether Paragraph 2 (wording of 26 September 2000) of Article 227 (wording of 10 April 2003 (Official Gazette Valstybės žinios, 2000, No. 89-2741)) of the Criminal Code of the Republic of Lithuania is not in conflict with Article 29 of the Constitution of the Republic of Lithuania, to the petitioner.

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