Lt

On refusing to interpret the provisions of the Constitutional Court’s ruling of 8 June 2009

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE PETITION OF A GROUP OF MEMBERS OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA, THE PETITIONER, REQUESTING TO CONSTRUE CERTAIN PROVISIONS OF THE RULING OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA OF 8 JUNE 2009

3 May 2010
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Armanas Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis Lapinskas, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,

with the secretary of the hearing—Daiva Pitrėnaitė,

in the procedural sitting of the Constitutional Court considered a petition of a group of Members of the Seimas of the Republic of Lithuania, the petitioner, requesting to construe whether:

the provision “<...> the guilt of the legal person is to be linked to the guilt of the natural person who acts for the benefit or in the interests of the legal person” of the Constitutional Court ruling of 8 June 2009 means that in order to establish the guilt of the legal person of the commission of a criminal deed it is necessary and sufficient only to state the guilt of the natural person who meets the features entrenched in Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania or it is also necessary to additionally establish the feature that the legal person received benefit from the criminal deed committed by the natural person and recognised that benefit, or the legal person was interested in the criminal deed of the natural person and the consequences created by it;

the provisions set forth in the Constitutional Court ruling of 8 June 2009 are also applied to legal persons of unlimited liability.

The Constitutional Court

has established:

1. In constitutional justice case No. 34/2008-36/2008-40/2008-1/2009-4/2009-5/2009-6/2009-7/2009-9/2009-12/2009-13/2009-14/2009-17/2009-18/2009-19/2009-20/2009-22/2009 of 8 June 2009, the Constitutional Court adopted the Ruling “On the compliance of Paragraphs 1, 2 and 3 (wording of 26 September 2000) of Article 20, Paragraph 5 (wording of 5 July 2004) of Article 20, and Paragraph 4 (wording of 26 September 2000) of Article 43 of the Criminal Code of the Republic of Lithuania with the Constitution of the Republic of Lithuania” (Official Gazette Valstybės žinios, 2009, No. 69-2798; hereinafter also referred to as the Constitutional Court ruling of 8 June 2009).

2. By the Constitutional Court ruling of 8 June 2009 it was recognised that Paragraphs 1, 2 and 3 (wording of 26 September 2000) of Article 20, Paragraph 5 (wording of 5 July 2004) of Article 20, and Paragraph 4 of Article 43 (wording of 26 September 2000) of the Criminal Code were not in conflict with the Constitution of the Republic of Lithuania.

3. The group of Members of the Seimas, the petitioner, requests the Constitutional Court to construe whether:

the provision “<...> the guilt of the legal person is to be linked to the guilt of the natural person who acts for the benefit or in the interests of the legal person” of the Constitutional Court ruling of 8 June 2009 means that in order to establish the guilt of the legal person of the commission of a criminal deed it is necessary and sufficient only to state the guilt of the natural person who meets the features entrenched in Paragraph 2 of Article 20 of the Criminal Code or it is also necessary to additionally establish the feature that the legal person received benefit from the criminal deed committed by the natural person and recognised that benefit, or the legal person was interested in the criminal deed of the natural person and the consequences created by it;

the provisions set forth in the Constitutional Court ruling of 8 June 2009 are also applied to legal persons of unlimited liability.

The Constitutional Court

holds that:

I

1. The Constitutional Court has held more than once that, under the Constitution, only the Constitutional Court enjoys the powers to officially construe the Constitution; it is the Constitutional Court that formulates the official constitutional doctrine: the provisions of the Constitution—its norms and principles—are construed in the acts of the Constitutional Court; the official constitutional doctrine inter alia reveals the content of various constitutional provisions, their interrelations, the balance between the constitutional values, and the essence of the constitutional legal regulation as a single whole.

While deciding constitutional justice cases under corresponding petitions of petitioners, the Constitutional Court has the constitutional powers to annul the legal power of the corresponding legal acts (parts thereof) if they are in conflict with legal acts of higher power, inter alia (and, first of all) with the Constitution. In order to be able to establish and adopt a decision whether the investigated legal acts (parts thereof) are not in conflict with legal acts of higher power, the Constitutional Court has the constitutional powers to officially construe the investigated legal acts and the said legal acts of higher power; a different construction of the powers of the Constitutional Court would deny the constitutional purpose of the Constitutional Court itself (ruling of 6 June 2006).

2. The powers of the Constitutional Court to officially construe its own rulings are entrenched in the Law on the Constitutional Court (Article 61). The Constitutional Court has held in its acts more than once that it enjoys powers to construe its other final acts as well.

3. Paragraph 1 of Article 61 of the Law on the Constitutional Court provides that a ruling of the Constitutional Court may be officially construed by the Constitutional Court at the request of the parties to the case, of other institutions or persons to whom it was sent, or on its own initiative.

4. Under Article 31 of the Law on the Constitutional Court, the following persons shall be considered parties to the case:

the petitioner—the State institution, the group of Members of the Seimas who are granted by law the right to apply to the Constitutional Court with a petition to investigate the compliance of a legal act with the Constitution or laws or to present a conclusion, and their representatives;

the party concerned—the State institution which has adopted the legal act whose compliance with the Constitution and laws is under investigation and its representative; the Member of the Seimas or other state official, the compliance of whose actions with the Constitution must be investigated due to impeachment proceedings which have been instituted against them in the Seimas, and his representative; the President of the Republic, when a conclusion is presented concerning his state of health, and his representative.

5. The petition to construe certain provisions of the Constitutional Court ruling of 8 June 2009 was submitted by the group of Members of the Seimas. It needs to be noted that the composition of this group of the Members of the Seimas differs from the composition of the group of Members of the Seimas that was the petitioner of the constitutional justice case wherein the Constitutional Court ruling of 8 June 2009 was adopted. In both groups only 6 Members of the Seimas (Valentinas Bukauskas, Kęstutis Daukšys, Loreta Graužinienė, Vydas Gedvilas, Saulius Bucevičius, and Valentinas Mazuronis) coincide.

It needs to be noted that the representative of the group of the Members of the Seimas which applied to the Constitutional Court regarding the construction of certain provisions of the Constitutional Court ruling of 8 June 2009 is the Member of the Seimas V. Gedvilas who was one of the representatives of the group of the Members of the Seimas, the petitioner, in the constitutional justice case wherein the Constitutional Court ruling of 8 June 2009 was adopted.

Taking account of the fact that the composition of the group of the Members of the Seimas which applied to the Constitutional Court regarding the construction of certain provisions of the Constitutional Court ruling of 8 June 2009 and that of the group of the Members of the Seimas that was the petitioner in the constitutional justice case wherein the Constitutional Court ruling of 8 June 2009 was adopted, do not coincide and, because of this, the group of the Members of the Seimas which applied regarding the construction of the provisions of the Constitutional Court ruling of 8 June 2009 is not a party to the case, the petition submitted to the Constitutional Court by this group of the Members of the Seimas is to be treated as the petition of the Member of the Seimas V. Gedvilas requesting to construe certain provisions of the Constitutional Court ruling of 8 June 2009.

6. In its acts the Constitutional Court has held more than once that the purpose of the institute of construction of Constitutional Court rulings and other final acts is to reveal the contents and meaning of corresponding provisions of a Constitutional Court ruling or other final act more broadly and in more detail, if it is necessary, in order to ensure proper execution of that Constitutional Court ruling or other final act so that this Constitutional Court ruling or other final act would be followed.

7. The powers of the entities indicated in Article 61 of the Law on the Constitutional Court to apply to the Constitutional Court with a petition requesting to construe a Constitutional Court ruling mean that the Constitutional Court must be requested to construe the precisely indicated provisions of the corresponding Constitutional Court ruling (Constitutional Court decision of 14 March 2006).

8. Under Paragraph 3 of Article 61 of the Law on the Constitutional Court, the Constitutional Court must construe its ruling without changing its content. The Constitutional Court has held more than once that this provision of Paragraph 3 of Article 61 of the Law on the Constitutional Court, among other things, means that, while construing its ruling, the Constitutional Court cannot construe its content so that the meaning of its provisions, inter alia the notional entirety of the elements constituting the content of the ruling, the arguments and reasons upon which that Constitutional Court ruling is based, is changed, also that the Constitutional Court may not construe what was not investigated in that constitutional justice case subsequent to which the construed ruling was adopted, either. The Constitutional Court has held more than once that the consideration of a petition requesting to construe a Constitutional Court ruling or its other final act does not imply a new constitutional justice case.

II

1. The Member of the Seimas V. Gedvilas, the petitioner, inter alia requests to construe whether the provision “<...> the guilt of the legal person is to be linked to the guilt of the natural person who acts for the benefit or in the interests of the legal person” of the Constitutional Court ruling of 8 June 2009 means that in order to establish the guilt of the legal person of the commission of a criminal deed it is necessary and sufficient only to state the guilt of the natural person who meets the features entrenched in Paragraph 2 of Article 20 of the Criminal Code or it is also necessary to additionally establish the feature that the legal person received benefit from the criminal deed committed by the natural person and recognised that benefit, or the legal person was interested in the criminal deed of the natural person and the consequences created by it.

2. The provision of the Constitutional Court ruling of 8 June 2009, the construction of which is requested by the petitioner, is part of the text of Item 6 of Chapter V of the reasoning part of the Constitutional Court ruling of 8 June 2009, wherein it is held:

As it has already been held, the necessary condition of criminal liability of the legal person according to Paragraphs 2 and 3 of Article 20 of the CC is the fact that the natural person commits a criminal deed for the benefit or in the interests of the legal person. It has also been held that this feature helps to establish when a criminal deed committed by a natural person may be assessed as a criminal deed of a legal person, i.e. when from this deed the legal person has a specific benefit and when he recognises that benefit or when the legal person is interested in such deed and the consequences created by it.

The specificity of the legal person as the subject of a criminal deed, i.e. the fact that he is an independent subject of legal relations having legal capacity and capability, independent name, and organisational integrity, that his property is separated from the property of his participants, however, that he is a participant of legal relations through the natural persons who act on his behalf, also implies specificity of his guilt. The guilt of the legal person is to be linked to the guilt of the natural person who acts for the benefit or in the interests of the legal person. Thus, by the legal regulation established in Paragraphs 1, 2 and 3 of Article 20 of the CC, one does not create preconditions for the legal person’s liability without guilt.”

3. The Member of the Seimas V. Gedvilas, the petitioner, while requesting the Constitutional Court to construe the provision “<...> the guilt of the legal person is to be linked to the guilt of the natural person who acts for the benefit or in the interests of the legal person” of Item 6 of Chapter V of the reasoning part of the Constitutional Court ruling of 8 June 2009, maintains that: “it remains not clear from the ruling as to when the legal person is to be regarded guilty of the commission of a criminal deed, (I) when the deed for the benefit or in the interests of the legal person is committed by the corresponding natural person who is recognised guilty of the commission of the criminal deed, (II) or when the legal person has a specific benefit from the criminal deed of the natural person and when the legal person recognises that benefit, or when the legal person is interested in such a deed and the consequences created by it, (III) or when both aforesaid conditions exist.”

4. It needs to be noted that the provision “<...> the guilt of the legal person is to be linked to the guilt of the natural person who acts for the benefit or in the interests of the legal person” of Item 6 of Chapter V of the reasoning part of the Constitutional Court ruling of 8 June 2009, the construction of which is requested by the petitioner, was formulated while deciding whether the legal regulation established in Paragraphs 1, 2 and 3 of Article 20 of the CC is not in conflict with Paragraph 1 of Article 31 of the Constitution wherein it is established that a person shall be presumed innocent until proved guilty according to the procedure established by law and declared guilty by an effective court judgement. The aforementioned provision is derived from the construction of the legal regulation which is established in Paragraphs 1, 2 and 3 of Article 20 of the CC and is one of the arguments that substantiate the conclusion that the legal regulation established in Paragraphs 1, 2 and 3 of Article 20 of the CC does not create preconditions for the legal person’s liability without guilt.

5. It has been mentioned that the Member of the Seimas V. Gedvilas requests to construe the provision “<...> the guilt of the legal person is to be linked to the guilt of the natural person who acts for the benefit or in the interests of the legal person” of the Constitutional Court ruling of 8 June 2009. Although the petitioner requests to construe the provision of the Constitutional Court ruling, however, it is clear from the content of the petition that he requests to construe the legal regulation established in Paragraph 2 of Article 20 of the CC in the aspect that was not investigated by the Constitutional Court in its ruling, i.e. whether, while stating the guilt of the legal person of the commission of a criminal deed, it is also necessary to establish that the legal person received benefit from the criminal deed committed by the natural person and recognised that benefit, or the legal person was interested in the criminal deed of the natural person and the consequences created by it. Such a request virtually means that one requests to construe the question of the application of the legal regulation established in Article 20 of the CC.

It has also been mentioned that the Constitutional Court has the constitutional powers to officially construe not only the Constitution, but also the legal acts under investigation. It needs to be noted that the Constitutional Court construes the legal acts under investigation inasmuch as it is necessary to establish and adopt a decision whether these acts (parts thereof) are not in conflict with legal acts of higher power, inter alia (and, first of all) the Constitution. Questions of application of law are decided by a court which is considering a concrete case. In the context of the decision at issue it needs to be mentioned that the powers to construe and apply the provisions of the CC that regulate criminal liability of the legal person belong to courts of general jurisdiction when they consider concrete cases.

6. Taking account of the arguments set forth, the Constitutional Court will not construe whether the provision “<...> the guilt of the legal person is to be linked to the guilt of the natural person who acts for the benefit or in the interests of the legal person” of the Constitutional Court ruling of 8 June 2009 means that in order to establish the guilt of the legal person of the commission of a criminal deed it is necessary and sufficient only to state the guilt of the natural person who meets the features entrenched in Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania or it is also necessary to additionally establish the feature that the legal person received benefit from the criminal deed committed by the natural person and recognised that benefit, or the legal person was interested in the criminal deed of the natural person and the consequences created by it.

7. In addition, in the petition of the Member of the Seimas V. Gedvilas, the petitioner, it is requested to construe whether the provisions of the Constitutional Court ruling of 8 June 2009 are also applied to legal persons of unlimited liability. It needs to be noted that in this case the petitioner does not indicate which concrete provisions of the said ruling he requests to construe. Therefore, such a request of the petitioner is to be treated as the request to construe the entire ruling in the aspect as to whether it is also applied to legal persons of unlimited liability.

8. As it has been mentioned, the powers of the entities indicated in Article 61 of the Law on the Constitutional Court to apply to the Constitutional Court with a petition requesting to construe a Constitutional Court ruling mean that the Constitutional Court must be requested to construe the precisely indicated provisions of the corresponding Constitutional Court ruling. The petitioner, while seeking to elucidate whether the Constitutional Court ruling of 8 June 2009 is also applied to legal persons of unlimited liability, did not indicate any concrete provisions of the said ruling. On the other hand, as it is noted by the petitioner himself, in the said ruling, the Constitutional Court, “while analysing the questions of application of criminal liability of legal persons, did not discuss the compliance of Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania with Paragraph 5 of Article 31 of the Constitution in the case of one of such forms of persons—legal persons of unlimited liability”.

9. It has been mentioned that the Constitutional Court may not construe what was not investigated in that constitutional justice case subsequent to which the construed ruling was adopted.

10. Taking account of the arguments set forth, the Constitutional Court will not construe whether the provisions set forth in the Constitutional Court ruling of 8 June 2009 are also applied to legal persons of unlimited liability.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Article 1 and 61 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

decision:

1. To refuse to construe whether the provision “<...> the guilt of the legal person is to be linked to the guilt of the natural person who acts for the benefit or in the interests of the legal person” of the ruling of the Constitutional Court of the Republic of Lithuania of 8 June 2009 means that in order to establish the guilt of the legal person of the commission of a criminal deed it is necessary and sufficient only to state the guilt of the natural person who meets the features entrenched in Paragraph 2 of Article 20 of the Criminal Code of the Republic of Lithuania or it is also necessary to additionally establish the feature that the legal person received benefit from the criminal deed committed by the natural person and recognised that benefit, or the legal person was interested in the criminal deed of the natural person and the consequences created by it.

2. To refuse to construe whether the provisions set forth in the ruling of the Constitutional Court of the Republic of Lithuania of 8 June 2009 are also applied to legal persons of unlimited liability.

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

The decision is promulgated in the name of the Republic of Lithuania.

Justices of the Constitutional Court:         Armanas Abramavičius
                                                                              Toma Birmontienė
                                                                              Pranas Kuconis
                                                                              Kęstutis Lapinskas
                                                                              Ramutė Ruškytė
                                                                              Egidijus Šileikis
                                                                              Algirdas Taminskas
                                                                              Romualdas Kęstutis Urbaitis