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On dismissing criminal proceedings after the expiry of a statutory limitation period for criminal liability

Case no 3/2015-13/2015-15/2015

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 

RULING

ON THE COMPLIANCE OF THE PROVISION OF PARAGRAPH 1 OF ARTICLE 3, PARAGRAPH 1 OF ARTICLE 235, PARAGRAPH 4 OF ARTICLE 254, AND ITEM 1 OF ARTICLE 327 OF THE CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

27 June 2016, no KT19-N10/2016

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Vytautas Greičius, Danutė Jočienė, Pranas Kuconis, Gediminas Mesonis, Vytas Milius, Egidijus Šileikis, Algirdas Taminskas, and Dainius Žalimas

The court reporter – Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, at the Court’s hearing, on 14 June 2016, considered, under written procedure, constitutional justice case no 3/2015-13/2015-15/2015 subsequent to the petition (no 1B-79/2014) of the Supreme Court of Lithuania (Lietuvos Aukščiausiasis Teismas), a petitioner, the petition (no 1B-19/2015) of the Court of Appeal of Lithuania (Lietuvos apeliacinis teismas), a petitioner, and the petition (no 1B-22/2015) of the Kaunas Regional Court (Kauno apygardos teismas), a petitioner, requesting an investigation into whether the provision of Article 3 of the Code of Criminal Procedure of the Republic of Lithuania whereby criminal proceedings must be terminated if the statutory limitation period for criminal liability has expired, insofar as this provision prohibits the continuation of the proceedings before a court where the continuation is requested by the accused, is in conflict with Paragraph 2 of Article 21, Paragraph 4 of Article 22, Paragraph 1 of Article 29, and Paragraph 2 of Article 31 of the Constitution of the Republic of Lithuania, as well as with the constitutional principle of a state under the rule of law.

By the Constitutional Court’s decision of 2 June 2016, the foregoing petitions were joined into one case, and it was given reference no 3/2015-13/2015-15/2015.

The Constitutional Court

has established:

I

1. The Supreme Court of Lithuania, a petitioner, was considering a criminal case subsequent to a cassation appeal against an order of the court of appeal instance by which an acquittal judgment delivered by the court of first instance had been overturned and the criminal case had been dismissed upon the expiry of the statutory limitation period for criminal liability. The cassation appeal requested the Supreme Court of Lithuania to overturn the order of the court of appeal instance and to uphold the acquittal judgment of the court of first instance.

2. The Court of Appeal of Lithuania, a petitioner, was considering a criminal case subsequent to an appeal against a judgment of the court of first instance by which a person had been acquitted of a part of filed charges and, as regards one charge, the criminal case had been dismissed upon the expiry of the statutory limitation period for criminal liability. The appeal requested the Court of Appeal of Lithuania to overturn the part of the judgment of the court of first instance by which the criminal case had been dismissed upon the expiry of the statutory limitation period for criminal liability and to pass an acquittal judgment.

3. The Kaunas Regional Court, a petitioner, was considering a criminal case subsequent to an appeal against an order of the court of first instance by which the criminal case had been dismissed upon the expiry of the statutory limitation period for criminal liability. The appeal requested the Kaunas Regional Court, among other things, to consider the criminal case on its merits and to pass an acquittal judgment.

4. By means of the orders issued by them, the petitioners suspended the consideration of the criminal cases and applied to the Constitutional Court.

II

The petitions of the Supreme Court of Lithuania, the Court of Appeal of Lithuania, and the Kaunas Regional Court, the petitioners, are substantiated by the following arguments.

1. Under the legal regulation laid down in Article 3 of the Code of Criminal Procedure (Baudžiamojo proceso kodeksas (BPK), hereinafter also referred to as BPK), upon the expiry of the statutory limitation period for criminal liability, a court must dismiss the case and may deliver neither a convicting judgment nor an acquittal judgment. This prohibition is applicable regardless of the request of an accused person to continue the proceedings and pass an acquittal judgment.

2. Public charges, in the absence of any possibility for their public denial after hearing a case in a court, in principle create the preconditions for giving rise to irreversible damage to the honour and dignity of an accused person. The indictment expresses the view of the state, which acts through an independent prosecutor, that sufficient data have been collected to prove the fault of the accused in committing a criminal act. The public announcement of such a view creates the preconditions for the public to seriously question the good repute of the person against whom the charge has been made. Although, after the dismissal of a case upon the expiry of the statutory limitation period, these charges may not be made again and the presumption of innocence is not denied, the aforementioned doubts in society may persist. In addition, the prohibition on finishing to investigate the charge formulated in a criminal case can preclude the determination of circumstances whose significance go beyond the criminal case and can harm other legitimate interests of a person against whom the case has been dismissed.

In support of their position, the petitioners refer, among other things, to the following provisions of the constitutional doctrine that were formulated in the Constitutional Court’s ruling of 7 July 2011: a special condition established for persons seeking to hold or holding a position in state service where such a position is connected with the use or protection of classified information is an especial and not in the least questionable reliability of these persons and their loyalty to the State of Lithuania; this condition relates to the trust of the state in such a person; the fact that a person is not held guilty of committing a criminal act until the guilt of the person in committing the said act is proved in accordance with the procedure established by law and recognised by an effective court judgment does not yet mean that a person seeking to hold or holding a position in state service where such a position is connected with the use of classified information and protection thereof necessarily deserves the trust of the state and that a state institution authorised by law may not have certain doubts as to the reliability of that person or his/her loyalty to the State of Lithuania, which would be raised not as a result of the established guilt of the person in committing a criminal act, but by certain significant factual circumstances, the activity of the person, his/her personal characteristics, reputation, ties, or other significant circumstances, including ones relating to a possibly committed criminal act; in assessing the said circumstances, a state institution authorised by law does not administer justice, nor does it judge the person’s guilt in committing a criminal act.

3. According to the petitioners, the provision of Paragraph 2 of Article 31 of the Constitution, by which a person charged with committing a crime has the right to a public and fair hearing of his/her case by an independent and impartial court, may also be understood as one whereby, after it transpires at the court of first instance that the statutory limitation period for passing a convicting judgement has expired, the case must be considered on its merits at the request of the accused. On the other hand, in order to ensure the coherence and clarity of the legal regulation, the BPK should clearly consolidate the opportunity to dismiss a criminal case owing to the expiry of the statutory limitation period when the consideration thereof on its merits has been finished and, by adopting a final act, to hold that the accused has committed the criminal act specified in the charge if no grounds have been found for acquitting the accused. In exercising his/her right to continue the consideration of his/her case, the accused must assume the risk that the charge may be confirmed by the court, but he/she must be protected from criminal sanctions for the criminal act regarding which the case has been dismissed.

4. According to the interpretation, established in case law, of Item 7 of Paragraph 1 of Article 3 of the BPK, if, in the course of criminal proceedings before the court of first instance the accused dies, the proceedings must be continued if the representatives of the said person so request in order to obtain an acquittal. This constitutes grounds for doubting whether the prohibition, provided for in Article 3 of the BPK, on continuing the proceedings where the accused so requests is in conflict with the principle of the equality of persons, which is enshrined in Article 29 of the Constitution. In the opinion of the petitioners, these groups of persons are treated in a different manner, although between the said groups of persons there are no differences of such a character or extent that could objectively justify their uneven treatment.

III

In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations were received from the representatives of the Seimas of the Republic of Lithuania, the party concerned, who were Seimas member Vitalijus Gailius, Seimas member Stasys Šedbaras, and Rūta Rutkauskaitė, the chief specialist from the Civil Law Unit of the Legal Department of the Office of the Seimas, in which they asserted that the impugned legal regulation was not in conflict with the Constitution. The position of the representatives of the Seimas is substantiated by the following arguments.

1. The initiation of a criminal case, the carrying out of a pretrial investigation, the drawing up of an indictment, and other actions performed in the course of criminal procedure cannot be considered an encroachment on personal dignity, since otherwise officials would not be able to carry out any actions in the course of criminal procedure at all and, due to this, no committed criminal acts would be investigated and no persons accused of committing criminal acts would be convicted. The indictment drawn up by the prosecutor while upholding the charges in criminal cases, if assessed from the point of view of the legal situation of the suspect, a participant in the criminal procedure, cannot be compared with a convicting court judgment: the said acts create different legal consequences: a person against whom an indictment has been drawn up under the procedure established by the BPK becomes an accused person, and a person in whose respect the court has passed a convicting judgment becomes a convicted person. Where a case is dismissed upon the expiry of the statutory limitation period, the accused person is not recognised guilty; therefore, the question arises as to the validity of the rehabilitation of such a person.

2. The legislature has the discretion to choose and establish in laws such a legal regulation whereby, upon the expiry of the statutory limitation period for criminal liability, the court, despite the request of the accused to continue the proceedings and pass an acquittal judgment, must dismiss the case and may not pass not only a convicting, but also an acquittal judgment. Any measure applied by state authorities must be adequate to the objective sought by the said measure, but the circle of persons who are interested in continuing the proceedings upon the expiry of the statutory limitation period can be extremely large, thus disproportionately increasing the workload of courts of general jurisdiction, which may be not in line with the principles of procedural economy and proportionality, both of which arise from the constitutional principle of a state under the rule of law.

IV

In the course of the preparation of the case for the hearing of the Constitutional Court, a written opinion was received from Juozas Bernatonis, Minister of Justice of the Republic of Lithuania.

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 means of Article 1 of this law, the Seimas approved the Code of Criminal Procedure of the Republic of Lithuania. Under Article 2 of this law, the date of the entry into force of the BPK had to be established by means of a separate law.

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

2. Article 3 (whose provision is impugned in the constitutional justice case at issue), titled “Circumstances in Which Criminal Proceedings Are Not Possible”, of Chapter I, titled “The Purpose and Basic Rules of Criminal Proceedings” of the BPK, prescribed:

1. Criminal proceedings may not be started, and any commenced proceedings must be dismissed:

1) where no act with the characteristics of a crime or a misdemeanour has been committed;

2) where the statutory limitation periods for criminal liability have expired;

3) where the criminal act has been committed by a person who, in accordance with international law, has immunity from criminal jurisdiction, or where there is no permission from a competent authority to bring a person to criminal responsibility when this permission is required by law;

4) where a person who, at the time of the commission of a criminal act, was not yet of the age from which he/she is liable under criminal law;

5) where a victim has made peace with a person accused of committing the criminal act referred to in Article 407 of this Code;

6) where there is no complaint of a victim or no statement of his/her legal representative, or where there is no prosecutor’s request to initiate proceedings in cases where the proceedings can be commenced only subsequent to a complaint of the victim or a statement of his/her legal representative, or subsequent to a prosecutor’s request;

7) with respect to a deceased person, except in cases where the proceedings are necessary for the rehabilitation of the deceased person or for the reopening of the case with respect to other persons due to newly discovered circumstances;

8) with respect to a person who is the subject of an effective court judgment on the same charge or who is the subject of an effective court order or an effective prosecutor’s ruling to dismiss the proceedings on the same grounds;

9) if there is a circumstance removing the criminal liability, as provided for in Chapter V of the Criminal Code of the Republic of Lithuania.

2. If the circumstance specified in Item 1 of Paragraph 1 of this Article becomes evident in the proceedings before a court, the court shall finish the examination of the case and pass an acquittal judgment.”

The BPK has been amended and/or supplemented on more than one occasion, inter alia, by the Republic of Lithuania’s Law on Amending and Supplementing Articles 3, 9, 40, 63, 64, 145, 147, 152, 154, 158, 160, 161, 162, 163, 170, 172, 178, 179, 181, 183, 212, 214, 217, 218, 220, 237, 254, 276, 372, 373, 3741, 3742, 418, 419, 421, 422, 426, 429 of the Code of Criminal Procedure of the Republic of Lithuania and Supplementing the Code with Articles 32 and 1601, which was adopted by the Seimas on 21 June 2011 and came into force (with certain exceptions) on 1 September 2011 (Article 41). This law amended, inter alia, Article 3 of the BPK, which is impugned by the petitioners to the specified extent – Item 3 of Paragraph 1 of the same Article 3 was declared as no longer valid (Article 1).

Article 3 of the BPK (wording of 14 March 2002 with the amendment of 21 June 2011) has not been subsequently amended and/or supplemented.

Thus, Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2011) of Article 3 of the BPK lists the circumstances in which criminal proceedings are not commenced or, if commenced, are terminated; one of such circumstances is the expiry of a statutory limitation period for criminal liability. Paragraph 2 of Article 3 of the BPK establishes the type of a decision to be taken by a court in cases where it is determined in the proceedings before the court that no act with the characteristics of a crime or a misdemeanour has been committed.

It should be noted that Article 3 (wording of 14 March 2002 with the amendment of 21 June 2011) of the BPK does not stipulate that, upon the expiry of the statutory limitation period for criminal liability, the criminal proceedings may be continued if the suspect or accused so requests.

2.1. The provision “Criminal proceedings may not be started, and any commenced proceedings must be dismissed” of Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2011) of Article 3 of the BPK is implemented in accordance with the procedure established in other articles (paragraphs and items thereof) of the BPK, such as:

– “A prosecutor or a pretrial investigation official, upon the receipt of a complaint, a statement, or a report, and, if necessary, an additional specification thereof, refuses to initiate a pretrial investigation only in cases where the specified data on the criminal act are manifestly incorrect or there is a clear indication of the circumstances referred to in Paragraph 1 of Article 3 of this Code […]” (Paragraph 1 (wording of 21 June 2012) of Article 168, titled “Refusal to Begin a Pretrial Investigation”);

– “When refusing to begin a pretrial investigation, a prosecutor or a pretrial investigation official draws up a reasoned ruling. The pretrial investigation official may refuse to begin a pretrial investigation only with the consent of the head of a pretrial investigation establishment or a person authorised by him/her” (Paragraph 2 (wording of 19 June 2003) of Article 168, titled “Refusal to Begin a Pretrial Investigation”);

– “A pretrial investigation shall be terminated:

1) when, during the pretrial investigation, it becomes evident that there exist circumstances provided for in Articles 3 or 32 of this Code (Item 1 (wording of 21 June 2011) of Article 212, titled “Cases When Pretrial Investigations Must Be Terminated”);

– “In the cases provided for in Items 1 and 2 of Article 212 of this Code, a pretrial investigation shall be terminated by ruling of the prosecutor or by order of the investigating judge” (Paragraph 1 (wording of 13 November 2012) of Article 214, titled “Procedure for Terminating Pretrial Investigations”);

– “During the preparation of a case for a court trial, the following orders are made: […]

7) to dismiss the case” (Item 7 (wording of 8 July 2004) of Article 232, titled “Orders Made during the Preparation of a Case for a Court Trial”);

– “The case is dismissed when there are circumstances, provided for in Paragraph 1 of Article 3 of this Code, in which the proceedings are not possible […]” (Paragraph 1 of Article 235, titled “Dismissal of Cases”);

– “In the proceedings before the court, when the circumstances provided for in Items 2–9 of Paragraph 1 of Article 3 of this Code are established, the case is dismissed by court order” (Paragraph 4 (wording of 10 April 2003) of Article 254, titled “Separation of Cases, Joining or Dismissal of Cases, or Referral of Cases to Prosecutors”);

– “Having considered a case at a court hearing, the court of appeal instance shall make an order regarding the appealed judgment: […]

2) to overturn the judgment and dismiss the case on the grounds provided for in Paragraph 1 of Article 327 of this Code” (Item 2 (wording of 28 June 2007) of Paragraph 1 (wording of 28 June 2007) of Article 326, titled “Types of Decisions Adopted by Courts of Appeal Instance after the Examination of Cases”);

– “The court of appeal instance shall overturn a judgment of the court of first instance and dismiss the case if:

1) there are circumstances, provided for in Items 2–9 of Paragraph 1 of Article 3 of this Code, in which the criminal proceedings are not possible (Item 1 (wording of 28 June 2007) of Article 327, titled “Grounds for Overturning Judgments and Dismissing Cases”);

Upon hearing a cassation case, the court shall make one of the following orders: […]

2) to overturn the judgment and subsequent court orders and to dismiss the case” (Item 2 of Article 382, titled “Orders Made by the Court That Has Examined a Cassation Case”).

2.1.1. Thus, Articles 168, 212, 214, 232, 235, 254, 326, 327, and 382 (paragraphs and items thereof) of the BPK establish, inter alia, the entities that make decisions in criminal proceedings in the event that it is set out that the statutory limitation period for criminal liability has expired and the types of decisions to be taken in such a case:

the beginning of a pretrial investigation is refused by a reasoned ruling passed by the prosecutor or the pretrial investigation official;

a pretrial investigation is terminated by a ruling passed by the prosecutor or an order made by the investigating judge;

a criminal case is dismissed by order of the court examining the case.

It should be noted that, in the aforementioned articles (paragraphs and items thereof) of the BPK, there are no provisions according to which, when a statutory limitation period for criminal liability has expired, the criminal proceedings could be continued if requested by the suspect or the accused.

2.1.2. It has been mentioned that, according to Paragraph 1 of Article 235 of the BPK, the case is dismissed when there are circumstances, provided for in Paragraph 1 of Article 3 of the BPK, in which the proceedings are not possible. Article 235 of the BPK is in Chapter XVIII, titled “Preparation of a Case for a Court Trial”, of the BPK. Under Paragraph 1 of Article 231 of the BPK, the president or the deputy president of a court, or the chairperson of the criminal division of a court shall, within two days from the receipt of the case at the court, appoint a judge who will prepare the case for a court trial and examine it after the case has been referred to the examination at a court trial; the appointed judge, having become acquainted with the case, makes one of the orders provided for in Article 232 of the BPK, except in the case envisaged in Paragraph 2 of Article 235 of the BPK. Under Paragraph 2 of Article 235 of the BPK, the issues of dismissing a case are considered at a court hearing; the prosecutor, the accused, counsel for the defence, the victim and his/her representative participate in this hearing; if the accused has not chosen his/her defence lawyer, he/she is appointed by the judge. According to Paragraph 3 of Article 235 of the BPK, in this court hearing, the judge makes a statement on the issue in question; then the prosecutor and the defence lawyer speak; other persons participating in this hearing also have the right to speak; the judge or the panel of judges make the order to dismiss the case in the deliberation room.

Thus, according to the regulation laid down in Paragraph 1 of Article 231 and Article 235 of the BPK, in the case where the judge appointed to consider a case, having become acquainted with the criminal case during its preparation for a court trial, determines that the statutory limitation period for criminal liability has expired (there is a circumstance provided for in Item 2 of Paragraph 1 of Article 3 of the BPK), a court hearing is held in which the issue of dismissing the case is dealt with. It should be noted that, in such a case, according to the regulation laid down in the BPK, the case is not considered on its merits and the court does not decide on whether the accused has been reasonably charged with committing the criminal act.

2.1.3. Under the legal regulation laid down in Paragraph 4 (wording of 10 April 2003) of Article 254 of the BPK, in the course of the examination of a criminal case before a court this case is dismissed when the court finds that the statutory limitation period for criminal liability has expired. It should be noted that, in such a case, the court is allowed not to decide whether the accused has committed an act punishable by a criminal law.

2.1.4. According to the legal regulation laid down in Item 1 (wording of 28 June 2007) of Article 327 of the BPK, in the event that it is established that the statutory limitation period for criminal liability had expired before the conviction was passed, the convicting judgment, the acquittal judgment, or the judgment to dismiss the criminal case are annulled. It needs to be noted that, according to this legal regulation, the annulment of the acquittal judgment or the dismissal of the criminal case upon the expiry of the statutory limitation period for criminal liability allow the court not to decide whether the acquitted person has been reasonably acquitted of the criminal act with which he/she was charged.

2.2. The Code of Criminal Procedure does not establish statutory limitation periods for criminal liability. Section XII, titled “Statutory Limitation for Criminal Liability”, of the Criminal Code of the Republic of Lithuania (Baudžiamasis kodeksas (BK), hereinafter referred to as BK) regulates a statutory limitation for passing a convicting judgment (Article 95) and a statutory limitation for the enforcement of a convicting judgment (Article 96). Thus, the statutory limitation periods for criminal liability that are mentioned in Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2002) of Article 3 of the BPK are set out in Article 95 (wording of 15 June 2010 with subsequent amendments), titled “Statutory Limitation for Passing a Convicting Judgment”, of the BK, which provides:

1. A person who has committed a criminal act may not be subject to a convicting judgment where:

1) the following period has lapsed:

a) three years, in the event of the commission of a misdemeanour;

b) eight years, in the event of the commission of a negligent or minor premeditated crime;

c) twelve years, in the event of the commission of a less serious premeditated crime;

d) fifteen years, in the event of the commission of a serious crime;

e) twenty-five years, in the event of the commission of a grave crime;

f) thirty years, in the event of the commission of a crime relating to a premeditated homicide;

2) within the period laid down in Item 1 of Paragraph 1 of this Article, the person did not hide from a pretrial investigation or a trial and did not commit a new criminal act.

2. The statutory limitation period shall run from the commission of a criminal act until the passing of a judgment.

3. If a minor suffers from the criminal acts provided for in Chapters XVIII, XX, XXI, XXIII, and XLIV of this Code, the statutory limitation period must not expire before the person reaches the age of twenty-five years.

4. Where a person who has committed a criminal act hides from a pretrial investigation or a trial, the statutory limitation shall stop running. The statutory limitation shall resume running from the day when the person is detained or when he/she appears before a pretrial investigation official, a prosecutor, or a court. However, a convicting judgment must not be passed where twenty-five years have lapsed since the commission of the criminal act by the person and thirty years have lapsed since the commission of a crime relating to a premeditated homicide, and where the running of the statutory limitation has not been interrupted due to the commission of a new crime.

5. Where a person who has committed a criminal act enjoys, under laws of the Republic of Lithuania or international legal norms, immunity from criminal jurisdiction and where there is no permission from a competent authority to prosecute the person, the statutory limitation shall stop running. The statutory limitation shall resume running from the receipt of the competent authority’s permission to prosecute the person who has committed the criminal act or after he/she loses immunity referred to in this paragraph by other means.

6. In the course of hearing a case before a court, the statutory limitation shall stop running for a period for which:

1) the court announces a break in the hearing before the court or postpones the hearing of the case due to the absence of the accused or his/her defence counsel;

2) the court announces a break in the hearing before the court pending an expert examination, or a professional investigation assigned by the court, or satisfaction of a request for legal assistance submitted to a foreign state;

3) the court announces a break in the hearing before the court and charges a prosecutor or an investigating judge with taking the procedural actions provided for in the Code of Criminal Procedure of the Republic of Lithuania;

4) the court announces a break in the hearing before the court for the new defence counsel of the accused to become acquainted with the case file.

7. In the cases provided for in Paragraph 5 of this Article, a convicting judgment cannot be passed where a period exceeding that provided for in Paragraph 1 by five years has lapsed since the commencement of the statutory limitation period.

8. Where a person commits a new premeditated criminal act before the expiry of the terms indicated in this Article, the running of the statutory limitation is interrupted. In such a case, the statutory limitation in respect of the first criminal act shall start to run from the commission of the new crime or misdemeanour.

9. The following crimes provided for in this Code shall have no statutory limitation:

1) genocide (Article 99);

2) the treatment of persons prohibited under international law (Article 100);

3) enforced disappearance (Article 1001);

4) the killing of the persons protected under international humanitarian law (Article 101);

5) the deportation or transfer of civilians (Article 102);

6) the causing of bodily harm to, torture or other inhuman treatment of, the persons protected under international humanitarian law or violation of the protection of their property (Article 103);

7) a forcible use of civilians or prisoners of war in the armed forces of the enemy (Article 105);

8) the destruction of protected objects or the plunder of national valuable properties (Article 106);

9) aggression (Article 110);

10) a prohibited military attack (Article 111);

11) the use of prohibited means of warfare (Article 112);

12) negligent performance of a commander’s duties (Article 1131).”

Thus, Article 95 of the BK sets the following: the time periods upon the expiry of which a convicting judgment must not be passed against a person who has committed a criminal act; the rules for calculating these time periods (inter alia, the conditions for situations where a statutory limitation stops running or is interrupted); and the crimes that have no statutory limitation. The legal regulation laid down in Article 95 of the BK means that, upon the expiry of the periods specified in this article, a person who has committed a criminal act must not be subject to criminal liability.

2.3. In this context, it should be mentioned that Article 303 (wording of 14 March 2002 with subsequent amendments), titled “Types of Judgments”, of the BPK prescribes:

1. A court judgment may be a convicting or an acquitting one. In addition, a criminal case may be dismissed by judgment.

2. A convicting judgment declares the accused guilty of a criminal act provided for in the criminal law and imposes punishment on him/her.

3. When an accused person becomes ill with a severe, incurable disease due to which it would be too difficult to serve a sentence, the court may, upon passing a convicting judgment, release the convicted person from serving the sentence.

4. The court dismisses a case by its judgment if there are grounds for releasing the accused from criminal liability, as provided for in Articles 36–40, 93, Paragraph 3 of Article 114, Paragraph 2 of 1891, Paragraph 4 of Article 227, Paragraph 3 of Article 259, and Paragraphs 2 and 3 of Article 291 of the Criminal Code of the Republic of Lithuania.

5. The court shall pass an acquittal judgment:

1) where no act with the characteristics of a crime or a misdemeanour has been committed;

2) where it has not been proved that the accused participated in committing a criminal act.

6. If an acquittal judgment is passed on the basis of Item 2 of Paragraph 5 of this Article, and the person who committed the criminal act remains unidentified, the court shall, after this judgment becomes effective, refer the case to the prosecutor so that he/she take steps to establish the person who committed the criminal act.”

Thus, according to the legal regulation laid down in Article 303 (wording of 14 March 2002 with subsequent amendments) of the BK, there are three types of judgments: 1) convicting judgments; 2) acquittal judgments; 3) judgments dismissing a criminal case.

2.4. If the legal regulation established in Article 95 (wording of 15 June 2010 with subsequent amendments) of the BK were interpreted separately from the legal regulation laid down in the BPK, it would be possible to state that only a convicting judgment must not be adopted upon the expiry of the statutory limitation period for passing a convicting judgment, however, an acquittal judgment or a judgment to dismiss the criminal case may be passed. Still, under the legal regulation established in Articles 3, 168, 212, 214, 232, 235, 254, 326, 327, and 382 (paragraphs and items thereof) of the BPK, upon the expiry of a statutory limitation period for criminal liability (for passing a convicting judgment), the criminal proceedings cannot be commenced, while the commenced criminal proceedings must be terminated (by means of a ruling of the prosecutor or a court order), where not only a convicting, but also an acquittal judgment or a judgment to dismiss the case must not be passed.

3. In the context of the constitutional justice case at issue, certain aspects of the legal regulation, consolidated in the BPK, that are related to bringing charges on behalf of the state are worth noting.

Bringing charges on behalf of the state are the activities of the prosecutor aimed at proving that a person accused of the commission of a criminal act is guilty (Article 42, titled “Bringing Charges on Behalf of the State”). An accused person is a participant in a court trial (Paragraph 1 of Article 22, titled “The Accused”). An accused person is considered to be: a person who is the subject of an indictment issued in accordance with the procedure established by the BPK or the subject of an application by a prosecutor for punishing this person by court penal order; a person against whom proceedings have been instituted by means of private prosecution and these proceedings are considered before a court; or a person against whom a case is considered before a court under fast track procedure (Paragraph 2 of Article 22). An indictment is a document adopted by a prosecutor. By means of the indictment a pretrial investigation is finished, a criminal act is described, and the data upon which the accusation is based and a criminal law providing for that act are indicated (Article 23, titled “The Indictment”).

Thus, charges on behalf of the state are brought against a person by means of an indictment drawn up by a prosecutor. After the indictment has been issued, the suspect becomes an accused person.

In this context, it needs to be mentioned that, in its ruling, the Supreme Court of Lithuania, which develops the case law of courts of general jurisdiction, explains that bringing a charge against a person is not just a formal act of the prosecutor, which establishes the limits of the judicial examination, indicating the data that form the basis for accusing the person of having committed a criminal act; bringing charges against a person expresses the official position of the prosecutors as officials acting on behalf of the state that sufficient evidence has been gathered in a criminal case about the commission of a criminal act; the expression of such a position also implies that there are serious grounds for doubting the good repute of the person against whom the charge has been brought; charges brought against a person give rise to the doubt about his/her honour, taints the good name and reputation of this person and of his/her family members (the Supreme Court of Lithuania, the ruling of 10 November 2011 passed at the plenary session of the Criminal Division in criminal case no 2K-P-444/2011).

4. Summing up the impugned legal regulation, established in Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2011) of Article 3 of the BPK, together with the related legal regulation, it should be noted that:

under the legal regulation established in the BPK, upon the expiry of the statutory limitation period for criminal liability (for passing a convicting judgment), the criminal proceedings cannot be commenced, while the commenced criminal proceedings must be terminated; in such a situation, not only a convicting, but also an acquittal judgment or a judgment to dismiss the case must not be passed;

neither Article 3 of the BPK nor other articles thereof contain provisions according to which, when the statutory limitation period for criminal liability expires, the criminal proceedings could be continued if the suspect or the accused so requests;

under the legal regulation laid down in Paragraph 1 of Article 235, Paragraph 4 (wording of 10 April 2003) of Article 254, and Item 1 (wording of 28 June 2007) of Article 327 of the BPK, a criminal case is dismissed when the court finds that the statutory limitation period for criminal liability has expired; in such a case, the court is allowed not to decide whether the accused person has been reasonably charged with committing a criminal act or whether the acquitted person has been reasonably acquitted of the criminal act with which he/she was charged.

II

1. In the constitutional justice case at issue, the Constitutional Court investigates the compliance of the norm of the BPK that establishes the circumstance – the expiry of the statutory limitation period – in which criminal proceedings are not possible with Paragraph 2 of Article 21, Paragraph 4 of Article 22, Paragraph 1 of Article 29, and Paragraph 2 of Article 31 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

2. The Constitutional Court has held that the striving for an open, just, and harmonious civil society and a state under the rule of law, as established in the Preamble to the Constitution, implies that it is obligatory to try to ensure the security of each person and all society against criminal attempts (inter alia, the Constitutional Court’s rulings of 16 January 2006 and 4 June 2012). The obligation of the state, which stems from the Constitution, to ensure the security of each person and all society against criminal attempts implies not only the right and duty of the legislature to define criminal acts and establish criminal liability for them by means of laws, but also its right and duty to regulate the relations linked with the detection of, and an investigation into, criminal acts and with the consideration of criminal cases, i.e. its right and duty to regulate criminal procedure relations; when regulating criminal procedure relations by law, the legislature has broad discretion; however, when implementing the said discretion, the legislature must pay regard to the norms and principles of the Constitution; the relations of criminal procedure must be regulated by law in a way that would create the legal preconditions for detecting speedily and investigating thoroughly criminal acts, for punishing justly persons who committed the criminal acts (or for deciding the issue of their criminal liability by law otherwise), as well as the legal preconditions for ensuring that no one who is innocent would be punished; it is necessary to seek to ensure the protection of the rights of persons who suffered from criminal acts and to avoid any unreasonable restriction of the rights of persons who committed criminal acts (inter alia, the Constitutional Court’s rulings of 16 January 2006 and 17 February 2016).

2.1. When the relations of criminal procedure are regulated, it is also necessary to pay regard to the fact that the Constitution entrenches the institutions of a pretrial investigation, the consideration of criminal cases before a court, and upholding charges on behalf of the state in criminal cases; these constitutional institutions imply the following general constitutional model of criminal proceedings: a pretrial investigation and the consideration of a criminal case before a court are different stages in criminal proceedings; during a pretrial investigation, the necessary information is collected and assessed in order to decide whether the pretrial investigation must be continued and whether, after it has been completed, a relevant criminal case must be referred to a court; in addition, the said information is collected and assessed in order to consider a case referred to a court and to resolve it in a fair manner; charges on behalf of the state are upheld in the course of considering a case before a court (the Constitutional Court’s ruling of 16 January 2006).

2.2. According to Article 118 (wording of 20 March 2003) of the Constitution, a pretrial investigation is organised and directed, and charges on behalf of the state in criminal cases are upheld, by prosecutors. The Constitutional Court has held that, under the Constitution, the prosecutor is a state official enjoying specific authoritative powers and that the functions of the prosecutor are different from the administration of justice (inter alia, the Constitutional Court’s ruling of 13 May 2004); under the Constitution, the prosecutor does not administer justice; justice is not administered at the stage of a pretrial investigation, either (the Constitutional Court’s rulings of 16 January 2006 and 7 April 2011).

Under the Constitution, no one else but prosecutors may organise and direct a pretrial investigation (inter alia, the Constitutional Court’s rulings of 13 May 2004 and 16 January 2006); the provision of Paragraph 1 of Article 118 of the Constitution gives rise to the duty of prosecutors to organise and direct a pretrial investigation in such a manner that objective and comprehensive information would be collected about a criminal act and about a person who is suspected of committing this act, which, inter alia, would create the legal preconditions for a court to establish the truth in the criminal case and adopt a just decision concerning the guilt of the person accused of committing the criminal act (the Constitutional Court’s rulings of 16 January 2006 and 7 April 2011).

2.3. Paragraph 1 of Article 31 of the Constitution prescribes: “A person shall be presumed innocent until proved guilty according to the procedure established by law and declared guilty by an effective court judgment.”

The presumption of innocence, consolidated in Paragraph 1 of Article 31 of the Constitution, is one of the most important guarantees of the administration of justice in a democratic state under the rule of law. This is a fundamental principle of the administration of justice in criminal proceedings, one of the most important guarantees of the administration of justice in a democratic state under the rule of law, and an important guarantee of human rights and freedoms; a person is presumed innocent of the crime until proved guilty according to the procedure established by law and declared guilty by an effective court judgement (inter alia, the Constitutional Court’s rulings of 29 December 2004 and 7 July 2011).

In its acts, the Constitutional Court has held on more than one occasion that the presumption of innocence may not be interpreted only linguistically, i.e. as one that is linked only with the administration of justice in criminal proceedings; the presumption of innocence, when evaluated in the context of other provisions of the Constitution, has broader content and must not be linked with criminal legal relations only; it is especially important that state institutions and officials respect the presumption of innocence and that, in general, public persons restrain from referring to a person as a criminal until the said person is proved guilty of committing a crime according to the procedure established by law and declared guilty by an effective court judgment (inter alia, the Constitutional Court’s rulings of 29 December 2004, 16 January 2007, and 7 July 2011).

2.4. As it has been held by the Constitutional Court on more than one occasion, the constitutional principle of a state under the rule of law implies the right of a person to due process; due process includes court proceedings; thus, the constitutional principle of a state under the rule of law gives rise to the right of a person to due court process; certain requirements for court proceedings stem from Paragraph 2 of Article 31 of the Constitution, which prescribes that “A person charged with committing a crime shall have the right to a public and fair hearing of his case by an independent and impartial court”. Paragraph 2 of Article 31 of the Constitution and the principle of a state under the rule of law give rise to the right of a person to due court process, which is a necessary condition for resolving a case in a fair manner; the said right means that, in criminal proceedings before a court, it is necessary to pay regard to the clarity of the proceedings, the equality of the rights of participants of proceedings, their participation in the process of providing proof, their right to a translator, the principle of adversarial argument, and other principles in order that the circumstances of committing a criminal act would be investigated comprehensively, objectively, and impartially and that a fair decision would be adopted in a criminal case (the Constitutional Court’s rulings of 16 January 2006, 28 May 2008, and 8 June 2009). The stipulation of the Constitution that cases must be considered in a fair manner implies the fact that courts must correctly establish the actual circumstances of cases and that they must correctly apply criminal laws (inter alia, the Constitutional Court’s rulings of 16 January 2006 and 15 November 2013). While considering a criminal case, a court must act in such a way that the truth is established in the criminal case and the question of the guilt of a person accused of having committed a criminal act is fairly resolved (inter alia, the Constitutional Court’s rulings of 16 January 2006 and 7 April 2011). The Constitution obliges the legislature to establish, while regulating the relations of criminal procedure, such a legal regulation that would also ensure the rights of participants in criminal procedure, inter alia, the criminal procedure must ensure that the constitutional rights of a person suspected and accused of the commission of a criminal act would not be violated: his/her rights to defence, to an advocate, etc. must be ensured (inter alia, the Constitutional Court’s rulings of 16 January 2006 and 9 July 2015).

2.5. The Constitutional Court has also held that, when defining by law criminal acts and establishing criminal liability for such acts, the legislature has also the discretion to establish the time limits within which criminal liability may be applied to persons who have committed criminal acts; establishing such time limits, the legislature must take into account, inter alia, the character and dangerousness (gravity) of a criminal act; such criteria may also determine such a legal regulation whereby no time limits are applied as regards criminal liability for the gravest crimes (the Constitutional Court’s ruling of 18 March 2014).

2.6. In the context of the constitutional justice case at issue, it should be noted that, under the Constitution, the legislature has the discretion to establish various models of calculating the time limits during which criminal liability could be applied to persons who have committed criminal acts. For instance, it is allowed to establish absolute time limits or they may be related to certain circumstances, for example, filing a charge. When establishing such time limits, the legislature must pay regard to the requirement, which stems from the Constitution, inter alia, Paragraph 2 of Article 31 thereof, that such preconditions must be created for a court considering a criminal case that would enable the said court to establish the truth in the criminal case and to decide in a fair manner the issue of the guilt of a person accused of committing a crime.

2.7. In the context of the constitutional justice case at issue, it should also be noted that the Constitution, inter alia, Paragraphs 1 and 2 of Article 31 thereof, and the constitutional principle of a state under the rule of law imply the duty of the legislature, when regulating criminal procedure relations in cases where the time limits during which criminal liability may be applied to persons who committed criminal acts have expired, to balance the constitutional values – the presumption of innocence and the right of a person to due court process. The legislature is under the duty to establish such a legal regulation that would create the preconditions to ensure that a court decision adopted after the time limits during which criminal liability may be applied to persons who committed criminal acts have expired would solve the issue of whether the accused was reasonably charged with committing a criminal act in order to drop the charge in the case where a court decision does not recognise that the person is guilty of committing a criminal act.

3. Paragraph 2 of Article 21 and Paragraph 4 of Article 22 of the Constitution consolidate the provisions related to the protection and defence of human dignity and the honour of persons.

3.1. Paragraph 2 of Article 21 of the Constitution prescribes: “Human dignity shall be protected by law.”

In interpreting the provisions of Article 21 of the Constitution that consolidate the duty of the state to ensure the protection and defence of human dignity, the Constitutional Court has held that dignity is an integral characteristic of an individual as the greatest social value; every member of society has innate dignity; the fact that the legislature, while regulating relations linked with the implementation of human rights and freedoms, must guarantee their proper protection constitutes one of the conditions for ensuring human dignity as a constitutional value (inter alia, the Constitutional Court’s rulings of 29 December 2004 and 2 September 2009).

3.2. Paragraph 4 of Article 22 of the Constitution prescribes: “The law and courts shall protect everyone from arbitrary or unlawful interference with his private and family life, as well as from encroachment upon his honour and dignity.”

This constitutional provision is one of the most important guarantees of the inviolability of the private life of a person: the said provision protects the private life of an individual against unlawful interference by the state, other institutions, their officials, and other persons (the Constitutional Court’s rulings of 19 September 2002 and 29 December 2004); if the private life of an individual is interfered with in an arbitrary and unlawful manner, then, at the same time, his/her honour and dignity are encroached upon (inter alia, the Constitutional Court’s rulings of 21 October 1999 and 21 December 2006); a person who has committed a criminal act must not and may not expect that his/her private life will be protected in a manner equal to that of persons who do not violate laws (inter alia, the Constitutional Court’s rulings of 24 March 2003 and 26 February 2015).

4. Paragraph 1 of Article 29 of the Constitution prescribes: “All persons shall be equal before the law, courts, and other state institutions and officials.”

The Constitutional Court, in interpreting the provisions of Article 29 of the Constitution, has held on more than one occasion that the constitutional principle of the equality of all persons before the law, as consolidated in the said article, requires that fundamental rights and duties be established in law equally to all; this principle means the human right to be treated equally, it imposes the obligation to assess homogenous facts in the same manner and prohibits any arbitrary assessment of the facts that are the same in essence in a different manner; the constitutional principle of the equality of persons would be violated if certain persons or groups of persons were treated in a different manner even though between the said persons or groups of persons there would be no differences of such a character or extent that could objectively justify their uneven treatment.

III

In the context of the constitutional justice case at issue, it is important to disclose some aspects of the legal regulation of criminal liability in other countries, as well as some aspects of the jurisprudence of the European Court of Human Rights (hereinafter referred to as ECtHR) on the presumption of innocence and statutory limitation periods.

1. It is clear from the material of this constitutional justice case that the legal regulation of statutory limitation is very diverse, and the models and periods of statutory limitation differ.

In some countries, statutory limitation periods run until a concrete individual is placed under formal suspicion of committing a criminal act (such as in Austria, Spain) or until filing a charge with the court (such as in Finland, Georgia, Latvia, the United States of America), while in other countries statutory limitation periods are interrupted and start running afresh after each procedural action directed against a suspect (or an accused person), for example, after he/she has been apprehended, after charges have been brought against him/her, after a trial has begun, after a judicial inquiry has been conducted, etc. (such as in Croatia, the Czech Republic, France, Germany, Kosovo). In some countries, an accused person has the right to request that the proceedings be continued after the expiry of the statutory limitation period (such as in Bulgaria, Italy, Moldova, Romania, Slovakia).

In most countries of common law tradition (such as in Australia, Canada, Ireland, the United Kingdom), there is no such institution of statutory limitation as in the European states mentioned.

2. Paragraph 2 of Article 6, titled “Right to a Fair Trial”, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention) states that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. The ECtHR, while interpreting in its jurisprudence the content of the presumption of innocence enshrined in this paragraph, has noted a number of times that this presumption is one of the elements of a fair trial required by Paragraph 1 of Article 6 of the Convention. The presumption of innocence is violated if a judicial decision concerning a suspect reflects an opinion that he/she is guilty before he/she has been proved guilty according to law, in particular, when he/she has been unable to exercise his/her rights of defence; it suffices, even in the absence of any formal finding, for there to be some reasoning suggesting that the court regards the accused as guilty; there is a fundamental distinction to be made between a clear judicial declaration, in the absence of a final conviction, that an individual has committed the crime in question and a statement that someone is merely suspected of having committed a crime (this is the so-called description of a suspect status) (see the ECtHR, the judgment of 14 April 2009, Didu v Romania, no 34814/02). The first decisions violate the presumption of innocence, while the second ones have repeatedly been found by the ECtHR to comply with Article 6 of the Convention (see the ECtHR, the judgment of 13 January 2005, Capeau v Belgium, no 42914/98; the judgment of 10 January 2012, Vulakh and others v Russia, no 33468/03; etc.). In addition, the presumption of innocence can be violated not only by a judge or court, but also by other authorities (see the ECtHR, the judgment of 10 February 1995, Allenet de Ribemont v France, no 15175/89; etc.). Whether an official’s statement violates the presumption of innocence must be decided in the light of the particular circumstances in which the challenged statement was made (see the ECtHR, the judgment of 26 March 1982, Adolf v Austria, no 8269/78).

The ECtHR has held that, in cases where a court of final instance overturns acquittal judgments passed by courts of lower instance by declaring that the person is guilty and by simultaneously dismissing the criminal case upon the expiry of the statutory limitation period for the criminal liability, the presumption of innocence, enshrined in Paragraph 2 of Article 6 of the Convention, is violated in the aspect that the right of the accused to defence has not been ensured in the proceedings before the court of final instance, even though this is the first court that has found the person guilty (see the ECtHR, the judgment of 14 April 2009, Didu v Romania, no 34814/02).

The ECtHR has also established the violation of the presumption of innocence where the court of cassation overturned an acquittal judgment passed by the court of appeal, by finding that the prosecution had to be brought to an end upon the expiry of a statutory limitation period, but did not say anything about the guilt of the person concerned. The ECtHR noted that that the judgment of the cassation court contained no reasoning that would allow considering the applicant guilty. However, by overturning the acquittal judgment of the court of appeal and, at the same time, deciding that the prosecution should have been brought to an end upon the expiry of the statutory limitation period, it created the impression that it had been the statutory limitation that prevented the conviction of the applicant (see the ECtHR, the judgment of 3 May 2011, Giosakis v Greece, no 5689/08).

The ECtHR has noted that the Convention does not in itself prohibit such criminal proceedings in which the statutory limitation for passing a convicting judgment is applied and the case is dismissed by court decision following the consideration of the case on its merits and ensuring the defence rights of the accused, having declared the accused guilty of a criminal act irrespective of the fact that the statutory limitation period has expired before passing this judgment. Such a court judgment is also enforceable in civil proceedings (see the ECtHR, the judgment of 19 June 2012, Constantin Florea v Romania, no 21534/05).

IV

On the compliance of the provision of Paragraph 1 of Article 3, Paragraph 1 of Article 235, Paragraph 4 of Article 254, and Item 1 of Article 327 of the Code of Criminal Procedure with the Constitution

1. The Supreme Court of Lithuania, the Court of Appeal of Lithuania, and the Kaunas Regional Court request an investigation into the constitutionality of the provision of Article 3 of the BPK, under which criminal proceedings must be dismissed if the statutory limitation period for criminal liability has expired, insofar as this provision prohibits the continuation of the proceedings before a court where the continuation is requested by the accused.

2. It should be noted that, as mentioned above, the provision that criminal proceedings must be dismissed upon the expiry of a statutory limitation period for criminal liability is established in Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2011) of Article 3 of the BPK.

Thus, the petitions requesting an investigation into whether the provision of Article 3 of the BPK, to the specified extent, is in conflict with the Constitution should be treated as petitions requesting an investigation into whether the provision “Criminal proceedings […] must be dismissed: […] where the statutory limitation periods for criminal liability have expired” of Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2011) of Article 3 of the BPK is in conflict with the Constitution, insofar as this provision prohibits the continuation of the proceedings before a court where the continuation is requested by the accused.

3. According to the petitioners, after a statutory limitation period for criminal liability expires, the accused must have the right to request that the proceedings before the court be continued and an acquittal be issued; otherwise, the preconditions are created for causing irreversible damage to the honour and dignity of the accused, and the court is precluded from deciding the case in a fair manner.

4. Summing up the impugned legal regulation established in Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2011) of Article 3 of the BPK, as well as the related legal regulation, it has been mentioned that:

under the legal regulation established in the BPK, upon the expiry of the statutory limitation period for criminal liability (for passing a convicting judgment), the criminal proceedings cannot be commenced, while the commenced criminal proceedings must be terminated; in such a situation, not only a convicting, but also an acquittal judgment or a judgment to dismiss the case must not be passed;

neither Article 3 of the BPK nor other articles thereof contain provisions according to which, when a statutory limitation period for criminal liability expires, the criminal proceedings could be continued if the suspect or the accused so requests;

under the legal regulation laid down in Paragraph 1 of Article 235, Paragraph 4 (wording of 10 April 2003) of Article 254, and Item 1 (wording of 28 June 2007) of Article 327 of the BPK, a criminal case is dismissed when the court finds that the statutory limitation period for criminal liability has expired; in such a case, the court is allowed not to decide whether the accused person has been reasonably charged with committing a criminal act or whether the acquitted person has been reasonably acquitted of the criminal act with which he/she was charged.

5. It has also been mentioned that the Constitution establishes the duty of the state to ensure the protection and defence of human dignity; the fact that the legislature, while regulating relations linked with the implementation of human rights and freedoms, must guarantee their proper protection constitutes one of the conditions for the ensuring of human dignity as a constitutional value; the presumption of innocence, consolidated in Paragraph 1 of Article 31 of the Constitution, is one of the most important guarantees of the administration of justice in a democratic state under the rule of law, which is a fundamental principle of the administration of justice in criminal proceedings, one of the most important guarantees of the administration of justice in a democratic state under the rule of law, and, at the same time, an important guarantee of human rights and freedoms; the right of a person to due court process, which arises from Paragraph 2 of Article 31 of the Constitution and the principle of a state under the rule of law, means, among other things, that a court, when examining a criminal case, must act in such a way that the truth would be established in a criminal case and the question of the guilt of a person accused of committing a criminal act would be solved; the Constitution, inter alia, Paragraphs 1 and 2 of Article 31 thereof, and the constitutional principle of a state under the rule of law imply the duty of the legislature, when regulating criminal procedure relations in cases where the time limits during which criminal liability may be applied to persons who committed criminal acts have expired, to balance the constitutional values – the presumption of innocence and the right of a person to due court process; the legislature must establish such a legal regulation that would create the preconditions for ensuring that a court decision adopted after the time limits during which criminal liability may be applied to persons who committed criminal acts have expired would solve the issue of whether the accused was reasonably charged with committing a criminal act in order to drop the charge in the case where the court decision does not recognise that a person is guilty of committing a criminal act.

6. When deciding whether the provision of Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2011) of Article 3 of the BPK to the specified extent is in conflict with the Constitution, it is first necessary to clarify the essence of the legal regulation set out in Article 95 of the BK and to evaluate the procedure for the implementation of this regulation, as established, inter alia, in Paragraph 1 of Article 235, Paragraph 4 (wording of 10 April 2003) of Article 254, and Item 1 (wording of 28 June 2007) of Article 327 of the BPK.

6.1. It has been mentioned that Article 95 of the BK sets the following: the time periods upon the expiry of which a convicting judgment must not be passed against a person who has committed a criminal act; the rules for calculating these time periods (inter alia, the conditions for situations where a statutory limitation stops running or is interrupted); and the crimes that have no statutory limitation.

It needs to be emphasised that, according to the legal regulation established in Article 95 of the BK, a convicting judgment must not be passed against a person who has committed a criminal act. Consequently, when applying Article 95 of the BK, it is necessary, first of all, to establish, in the manner prescribed in the BPK, whether a person has been reasonably charged with committing a criminal act.

Having compared the institution of a statutory limitation for adopting a convicting judgment with other criminal law institutions, it is possible to draw the conclusion that, in essence, the former is similar to the institution of release from criminal liability: under the conditions established by the BK, a person who has committed a criminal act is released from criminal liability (Article 36, titled “Release from Criminal Liability When a Person or Criminal Act Loses Its Dangerousness”; Article 37, titled “Release from Criminal Liability due to Minor Relevance of a Crime”; Article 38, titled “Release from Criminal Liability upon Reconciliation between the Offender and the Victim”; Article 39, titled “Release from Criminal Liability on the Basis of Mitigating Circumstances”; Article 40, titled “Release from Criminal Liability on Bail”). It has been mentioned that, according to the legal regulation laid down in Paragraph 4 of Article 303 (wording of 14 March 2002 with subsequent amendments) of the BPK, in cases where there are grounds provided for in Articles 36–40 of the BK for releasing the accused from criminal liability, the court dismisses a case by its judgment.

6.2. It has been mentioned that the prohibition, established in Article 95 of the BK, on passing a convicting judgment against a person who committed a criminal act upon the expiry of the statutory limitation periods provided for in the said article is implemented in accordance with the procedure laid down in Item 2 of Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2011) of Article 3 of the BPK and in Articles 168, 212, 214, 232, 235, 254, 326, 327, and 382 (paragraphs and items thereof) of the BPK: when it is established that the statutory limitation period for criminal liability has expired, by means of a reasoned ruling of the prosecutor or of the pretrial investigation official the initiation of a pretrial investigation is refused, or by means of a ruling of the prosecutor or an order of the investigating judge the pretrial investigation is ended, or the criminal case is dismissed by order of the court considering the case. It has also been mentioned that, according to the legal regulation laid down in Paragraph 1 of Article 235, Paragraph 4 (wording of 10 April 2003) of Article 254, and Item 1 (wording of 28 June 2007) of Article 327 of the BPK, a court, having established that the statutory limitation period for criminal liability has expired, may dismiss a criminal case without ascertaining whether the accused has been reasonably charged with having committed a crime or whether the acquitted person has been reasonably acquitted of a crime with which he/she was charged.

It needs to be noted that, according to the legal regulation laid down in Paragraph 4 (wording of 10 April 2003) of Article 254 of the BPK, a different situation may also be possible, i.e., based on the expiry of the statutory limitation period for criminal liability, a court may dismiss a criminal case after considering it on its merits. Such a situation arises when the court concludes that the criminal act committed by the accused must be classified in accordance with the BK article that provides for a less dangerous criminal act than that with which he/she has been charged and, with respect to that less serious criminal act, the statutory limitation period for passing a convicting judgment, provided for in Article 95 of the BK, has already expired. For example, a person was accused of having committed a crime provided for in Paragraph 1 of Article 135 of the BK (severe health impairment, which is classified as a serious crime; under Item 1d of Paragraph 1 of Article 95 of the BK, the statutory limitation period for passing a convicting judgment is fifteen years with respect to serious crimes), but the court concludes that the act committed by the accused must be classified in accordance with Paragraph 1 of Article 138 of the BK (non-severe health impairment, which is classified as a minor crime; under Item 1b of Paragraph 1 of Article 95 of the BK, the statutory limitation period for passing a convicting judgment is eight years with respect to minor crimes) and nine years have elapsed between the day the crime was committed and the date of passing a judgment.

6.3. Taking into account the legal regulation laid down in Article 95 (wording of 15 June 2010 with subsequent amendments) of the BK, the legal regulation set out in the provision “Criminal proceedings […] must be dismissed: […] 2) where the statutory limitation periods for criminal liability have expired” of Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2011) of Article 3 of the BPK must be interpreted as meaning that, upon the expiry of the statutory limitation period for criminal liability (for passing a convicting judgment), the criminal proceedings may be dismissed only if it has been established in accordance with the procedure laid down in the BPK that the person was reasonably charged with committing a criminal act. If the legal regulation laid down in the said provision of Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2011) of Article 3 of the BPK is interpreted in this way, no legal meaning can be attached to the arguments that, under the said provision, upon the expiry of a statutory limitation period for criminal liability, it is prohibited to continue proceedings before a court where the continuation of the proceedings is requested by the accused, since, in this case, regardless of the will of the accused, proceedings must be continued until the charges upheld by the prosecutor on the behalf of the state are either confirmed or refuted.

Thus, since the legal regulation laid down in the provision “Criminal proceedings […] must be dismissed: […] 2) where the statutory limitation periods for criminal liability have expired” of Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2011) of Article 3 of the BPK is to be understood in this way, there are no legal grounds for maintaining that this legal regulation creates the preconditions for causing irreversible damage to the honour and dignity of the accused, or that it precludes a court from fairly deciding a case, or that this legal regulation violates the constitutional principles of the equality of persons and a state under the rule of law.

6.4. It has been mentioned that the statutory limitation periods for criminal liability that are specified in Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2002) of Article 3 of the BPK are set out in Article 95 (wording of 15 June 2010 with subsequent amendments), titled “Statutory Limitation for Passing a Convicting Judgment”, of the BK. It should be noted that the same terms – statutory limitation periods – are named differently in the BK and the BPK: the BK names them as statutory limitation periods for passing a convicting judgement, while the BPK refers to them as statutory limitation periods for criminal liability. Thus, the terms used by the BK and the BPK do not coincide.

The Constitutional Court has held on more than one occasion that, under the Constitution, the Constitutional Court does not decide the issues of the compatibility and rivalry of legal acts of the same rank (inter alia, the Constitutional Court’s decisions of 29 September 1999, 16 November 2010, 25 April 2012, as well as its ruling of 19 June 2012).

7. In the light of the foregoing arguments, the conclusion should be drawn that the provision “Criminal proceedings […] must be dismissed: […] where the statutory limitation periods for criminal liability have expired” of Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2011) of Article 3 of the BPK is not in conflict with Paragraph 2 of Article 21, Paragraph 4 of Article 22, Paragraph 1 of Article 29, and Paragraph 2 of Article 31 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

8. The Constitutional Court has held on more than one occasion that, having found that the provisions of a law whose compliance with the Constitution is not impugned by a petitioner, but which regulate part of the relations covered by an impugned law, are in conflict with the Constitution, the Constitutional Court must state that such provisions are unconstitutional (inter alia, the Constitutional Court’s rulings of 14 January 2002, 1 July 2013, and 11 June 2015). The implementation of constitutional justice implies that a legal act (part thereof) that conflicts with the Constitution must be removed from the legal system (inter alia, the Constitutional Court’s ruling of 29 November 2001).

8.1. In this ruling of the Constitutional Court, it has been mentioned that:

Paragraph 1 of Article 235 of the BPK prescribes: “The case is dismissed when there are circumstances, provided for in Paragraph 1 of Article 3 of this Code, in which the proceedings are not possible […]”; in such a case, according to the legal regulation laid down in the BPK, the case is not considered on its merits and the court does not decide on whether the accused has been reasonably charged with committing the criminal act;

Paragraph 4 (wording of 10 April 2003) of Article 254 of the BPK prescribes: “In the proceedings before the court, when the circumstances provided for in Items 2–9 of Paragraph 1 of Article 3 of this Code are established, the case is dismissed by court order”; under this legal regulation, a criminal case is dismissed when the court finds that the statutory limitation period for criminal liability has expired; in such a case, the court is allowed not to decide whether the accused person has been reasonably charged with committing a criminal act;

Item 1 (wording of 28 June 2007) of Article 327 of the BPK prescribes: “The court of appeal instance shall overturn a judgment of the court of first instance and dismiss the case if: 1) there are circumstances, provided for in Items 2–9 of Article 3 of this Code, in which the criminal proceedings are not possible; […]”; according to this legal regulation, the annulment of the acquittal judgment and the dismissal of the criminal case upon the expiry of a statutory limitation period for criminal liability allow the court not to decide whether the acquitted person has been reasonably acquitted of the criminal act with which he/she was charged.

8.2. Thus, the legal regulation laid down in Paragraph 1 of Article 235, Paragraph 4 (wording of 10 April 2003) of Article 254, and Item 1 (wording of 28 June 2007) of Article 327 of the BPK creates the preconditions for a court to dismiss a case without assessing the charges brought against the accused and without ascertaining whether the accused has been reasonably charged with having committed a crime or whether the acquitted person has been reasonably acquitted of a crime with which he/she was charged. Consequently, this legal regulation precludes a court from acting in such a way that the truth in a criminal case could be established and the question of the guilt of the person accused of having committed a crime could be fairly resolved. This legal regulation disregards the right of a person to due court process, which stems from Paragraph 2 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

It should also be noted that, under the legal regulation laid down in Paragraph 1 of Article 235, Paragraph 4 (wording of 10 April 2003) of Article 254, and Item 1 (wording of 28 June 2007) of Article 327 of the BPK, which is assessed in conjunction with the legal regulation established in Article 95 (wording of 15 June 2010 with subsequent amendments) of the BK, if a court fails to assess whether the charges brought against the accused person are reasonable and the case is dismissed for the reason that the statutory limitation period for criminal liability has expired, the impression is created that the expiry of the prescribed limitation period prevented the conviction of the accused. Such a legal regulation creates the preconditions for the continued doubts as to whether the accused has been reasonably charged with having committed a criminal act, as well as for the continued doubts as to the good repute of the accused.

9. In the light of the foregoing arguments, the conclusion should be drawn that:

Paragraph 1 of Article 235 of the BPK, insofar as, under this paragraph, a case must be dismissed under the circumstance that is provided for in Item 2 of Paragraph 1 of Article 3 of the BPK, is in conflict with Paragraph 2 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law;

Paragraph 4 (wording of 10 April 2003) of Article 254 of the BPK, insofar as, under this paragraph, if the circumstance provided for in Item 2 of Paragraph 1 of Article 3 of the BPK is established during court proceedings, the court must dismiss such a case by its order without ascertaining whether the accused has been reasonably charged with having committed a crime, is in conflict with Paragraph 2 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law;

Item 1 (wording of 28 June 2007) of Article 327 of the BPK, insofar as, under this item, a court of appeal instance must overturn an acquittal judgment handed down by a court of first instance under the circumstance that is provided for in Item 2 of Paragraph 1 of Article 3 of the BPK where the court of appeal instance is precluded from ascertaining whether the acquitted person has been reasonably acquitted of a crime with which he/she was charged, is in conflict with Paragraph 2 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

10. In the context of the constitutional justice case at issue, it is worth noting that, during a pretrial investigation, justice is not administered; as mentioned above, a pretrial investigation involves collecting and assessing information that is necessary for deciding whether charges on behalf of the state must be brought against a person and whether a criminal case must be referred to a court. Consequently, the termination of a pretrial investigation upon the expiry of the statutory limitation for criminal liability means that, within the prescribed period, no necessary data has been collected to bring charges against a certain person and that there are no grounds to believe that the accused has committed a crime.

It should also be noted that, as mentioned before, the Constitution, inter alia, Paragraphs 1 and 2 of Article 31 thereof, and the constitutional principle of a state under the rule of law imply the duty of the legislature, when regulating criminal procedure relations in cases where the time limits during which criminal liability may be applied to persons who committed criminal acts have expired, to lay down such a legal regulation that would create the preconditions for ensuring that a charge is dropped in the case where such a charge is not confirmed. Consequently, in cases where, after the expiry of statutory limitation periods, it is ascertained that the charges brought against the accused for having committed a crime are unfounded, a court must deliver an acquittal judgment.

V

1. When interpreting Paragraph 1 of Article 107 of the Constitution, the Constitutional Court has disclosed the content of the presumption of the constitutionality of legal acts and of the constitutionality of the consequences as a result of the application of such legal acts: the provision of Paragraph 1 of Article 107 of the Constitution, whereby a law (part thereof) may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (part thereof) is in conflict with the Constitution, means that, as long as the Constitutional Court has not adopted a decision that a certain legal act (part thereof) is in conflict with the Constitution, it is presumed that such a legal act (part thereof) is in compliance with the Constitution and that the legal consequences that have appeared on the basis of the act in question are legitimate (inter alia, the Constitutional Court’s rulings of 30 December 2003, 19 December 2012, and 27 April 2016).

Consequently, under Paragraph 1 of Article 107 of the Constitution, until the moment of the official publication of the Constitutional Court’s decision that a certain legal act (part thereof) is in conflict with the Constitution, it is presumed that the legal act (part thereof) in question is in compliance with the Constitution, and that the legal consequences (as, for instance: when, under a corresponding decision of an institution, which was adopted by following the act in question (or part thereof), a person has acquired certain rights or a certain legal status, or when, under a corresponding decision of an institution, a person has not been granted certain rights or a certain legal status) that have appeared on the basis of the legal act (part thereof) in question are legitimate (the Constitutional Court’s rulings of 25 October 2011 and 27 April 2016).

2. The Constitutional Court has held that the general rule, laid down in Paragraph 1 of Article 107 of the Constitution, that establishes the prospective legal force of decisions passed by the Constitutional Court is not absolute (the Constitutional Court’s rulings of 30 December 2003, 25 October 2011, its decision of 19 December 2012, and its ruling of 27 April 2016). As it was noted in the Constitutional Court’s decision of 19 December 2012, the provisions of Paragraph 1 of Article 102 and Paragraph 2 of Article 107 of the Constitution, interpreted in the context of the fundamental constitutional values consolidated in Articles 1 and 18 of the Constitution, and in the context of the principle of the supremacy of the Constitution and the constitutional imperative of the rule of law, inter alia, give rise to the powers of the Constitutional Court as an institution administering constitutional justice and guaranteeing constitutional legality and the supremacy of the Constitution in the legal system, upon establishing in a constitutional justice case that an impugned legal act (part thereof) is not only in conflict with the Constitution, but also denies the essence of the fundamental constitutional values – the independence of the State of Lithuania, democracy, and the republic, or the innate nature of human rights and freedoms, also to declare anticonstitutional the consequences of the application of such a legal act (part thereof).

3. It should be noted that, after recognising in this constitutional justice case that, to the specified extent, Paragraph 1 of Article 235, Paragraph 4 (wording of 10 April 2003) of Article 254, and Item 1 (wording of 28 June 2007) of Article 327 of the BPK are in conflict with the Constitution, there are no grounds for denying the legality of the legal consequences arising from the presumption that the said paragraphs and item were in compliance with the Constitution. These provisions do not deny the essence of the aforementioned fundamental constitutional values, inter alia, the nature of human rights and freedoms, thus, there is no legal basis for declaring the consequences of the application of these provisions anticonstitutional, inter alia, there is no legal basis for declaring anticonstitutional those court decisions by which criminal cases were dismissed upon the expiry of the statutory limitation period for criminal liability (for passing a convicting judgment). Thus, as such, the mere fact that this ruling of the Constitutional Court has recognised that, to the specified extent, Paragraph 1 of Article 235, Paragraph 4 (wording of 10 April 2003) of Article 254, and Item 1 (wording of 28 June 2007) of Article 327 of the BPK are in conflict with the Constitution does not constitute a ground for reopening criminal proceedings and reviewing final court decisions in cases that were dismissed upon the expiry of the statutory limitation period for criminal liability.

In this context, attention should be drawn to the fact that Article 110 of the Constitution establishes an exception to the general rule prescribed in Paragraph 1 of Article 107 thereof that the legal force of decisions of the Constitutional Court is prospective: a court in a case considered by it may not apply a legal act (part thereof) that was declared as being in conflict with the Constitution by the Constitutional Court when it was implementing the powers established in Paragraph 1 of Article 102 of the Constitution; if the prohibition, which is consolidated in Paragraph 1 of Article 110 of the Constitution, on applying a legal act (part thereof) that is in conflict with the Constitution is interpreted in a different manner, the principle of the supremacy of the Constitution, which is consolidated in Paragraph 1 of Article 7 of the Constitution, the related constitutional imperative of the rule of law, as well as other aspects of the principle of the supremacy of the Constitution, would be denied, inter alia, the principle of the direct application of the Constitution, which is consolidated in Paragraph 1 of Article 6 of the Constitution, the essence of the right of every person to defend his/her rights directly by invoking the Constitution, which is consolidated in Paragraph 2 of this article, and the essence of the right of every person to apply to a court while defending the violated constitutional rights or freedoms, which is consolidated in Paragraph 1 of Article 30 of the Constitution, would be denied (the Constitutional Court’s decision of 19 December 2012).

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that the provision “Criminal proceedings […] must be dismissed: […] where the statutory limitation periods for criminal liability have expired” of Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2011; Official Gazette Valstybės žinios, 2011, No 81-3965) of Article 3 of the Code of Criminal Procedure of the Republic of Lithuania is not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that Paragraph 1 (Official Gazette Valstybės žinios, 2002, No 37-1341) of Article 235 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as, under this paragraph, a case must be dismissed under the circumstance that is provided for in Item 2 of Paragraph 1 of Article 3 of the Code of Criminal Procedure, is in conflict with Paragraph 2 of Article 31 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

3. To recognise that Paragraph 4 (wording of 10 April 2003; Official Gazette Valstybės žinios, 2003, No 38-1734) of Article 254 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as, under this paragraph, if the circumstance provided for in Item 2 of Paragraph 1 of Article 3 of the Code of Criminal Procedure is established during court proceedings, the court must dismiss such a case by its order without ascertaining whether the accused has been reasonably charged with having committed a crime, is in conflict with Paragraph 2 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

4. To recognise that Item 1 (wording of 28 June 2007; Official Gazette Valstybės žinios, 2007, No 81-3312) of Article 327 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as, under this item, a court of appeal instance must overturn an acquittal judgment handed down by a court of first instance under the circumstance that is provided for in Item 2 of Paragraph 1 of Article 3 of the Code of Criminal Procedure where the court of appeal instance is precluded from ascertaining whether the acquitted person has been reasonably acquitted of a crime with which he/she was charged, is in conflict with Paragraph 2 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

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

Justices of the Constitutional Court:               Elvyra Baltutytė

                                                                                    Vytautas Greičius

                                                                                    Danutė Jočienė

                                                                                    Pranas Kuconis

                                                                                    Gediminas Mesonis

                                                                                    Egidijus Šileikis

                                                                                    Algirdas Taminskas

                                                                                    Dainius Žalimas