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On changing an accusation in a court

Case No. 12/2010-3/2013-4/2013-5/2013

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
IN THE NAME OF THE REPUBLIC OF LITHUANIA
RULING

ON THE COMPLIANCE OF PARAGRAPH 2 (WORDING OF 10 APRIL 2003) OF ARTICLE 255, PARAGRAPH 1 (WORDINGS OF 28 JUNE 2007 AND 22 DECEMBER 2011) AND PARAGRAPH 4 (WORDINGS OF 28 JUNE 2007 AND 22 DECEMBER 2011) OF ARTICLE 256, PARAGRAPH 3 OF ARTICLE 320, AND ITEM 4 OF PARAGRAPH 1 (WORDING OF 28 JUNE 2007) OF ARTICLE 326 OF THE CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

15 November 2013
Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, 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 Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, at the Court’s public hearing, on 18 June 2013, considered under written procedure constitutional justice case No. 125/2010-26/2011-21/2012-6/2013-8/2013-10/2013 subsequent to:

1) the petition (No. 1B-12/2010) of the Supreme Court of Lithuania, a petitioner, requesting an investigation into whether:

the provisions of Articles 255, 256 of the Code of Criminal Procedure of the Republic of Lithuania to the effect that, if a person being held criminally liable may be found guilty on the grounds of a criminal law that is different from one specified in the accusation and provides for a less serious crime or a less serious criminal misdemeanour, without prior notification of the said person and other participants of the trial of this fact if the factual circumstances of an incriminated deed are not changed in substance, are not in conflict with Articles 29 and 31 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

Article 256 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as a court considering a criminal case is prohibited from changing, on its own initiative, the factual circumstances of an incriminated deed to circumstances different in substance also in the situations where the court gives prior notification of such a possibility to the accused and other participants of the trial, and ensures the right to be informed about the accusation and the implementation of the right to defence and that of the other constitutional principles of the due process of law, is not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principles of justice and a state under the rule of law;

Article 320 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as a court considering a criminal case under appeal procedure is prohibited from changing the factual circumstances of an incriminated deed to circumstances different in substance, where the filed appeals do not request so, also in the situations where the court gives prior notification of such a possibility to a person being held criminally liable and other participants of the trial, and ensures the right to be informed about the accusation and the implementation of the right to defence and that of the other constitutional principles of the due process of law, is not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principles of justice and a state under the rule of law;

2) the petition (No. 1B-6/2013) of the Court of Appeal of Lithuania, a petitioner, requesting an investigation into whether:

the provisions of Articles 255, 256 of the Code of Criminal Procedure of the Republic of Lithuania to the effect that, if a person being held criminally liable may be found guilty on the grounds of a criminal law that is different from one specified in the accusation and provides for a less serious crime or a less serious criminal misdemeanour, without prior notification of the said person and other participants of the trial of this fact if the factual circumstances of an incriminated deed are not changed in substance, are not in conflict with Articles 29 and 31 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

Article 256 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as a court considering a criminal case is prohibited from changing, on its own initiative, the factual circumstances of an incriminated deed to circumstances different in substance also in the situations where the court gives prior notification of such a possibility to the accused and other participants of the trial, and ensures the right to be informed about the accusation and the implementation of the right to defence and that of the other constitutional principles of the due process of law, is not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principles of justice and a state under the rule of law;

Article 320 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as a court considering a criminal case under appeal procedure is prohibited from changing the factual circumstances of an incriminated deed to circumstances different in substance, where the filed appeals do not request so, also in the situations where the court gives prior notification of such a possibility to a person being held criminally liable and other participants of the trial, and ensures the right to be informed about the accusation and the implementation of the right to defence and that of the other constitutional principles of the due process of law, is not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and the constitutional principles of justice and a state under the rule of law;

Item 4 of Paragraph 1 of Article 326 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as it prohibits the court of appeal instance from rescinding the judgment and referring a case to a court in order for investigating that case anew when, in the course of the consideration of the case under appeal procedure, new factual circumstances come to light, but the appeals themselves do not request changing the factual circumstances of the case, is not in conflict with Paragraph 1 Article 109 of the Constitution of the Republic of Lithuania and the constitutional principles of justice and a state under the rule of law;

3) the petitions (Nos. 1B-5/2013, 1B-9/2013) of the Vilnius Regional Court, a petitioner, requesting an investigation into whether Paragraph 1 of Article 256 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as it does not put any limitations on the changing of the factual circumstances, specified in an accusation, to substantially different circumstances at the court of appeal instance, is not in conflict with Paragraphs 2 and 6 of Article 31 and Paragraphs 1 and 4 of Article 111 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law.

By the Constitutional Court’s decision of 14 October 2013, the foregoing petitions were joined into one case, and it was given reference No. 12/2010-3/2013-4/2013-5/2013.

The Constitutional Court

has established:

I

1. The petitions (Nos. 1B-12/2010, 1B-6/2013) of the petitioners—the Supreme Court of Lithuania and the Court of Appeal of Lithuania—are substantiated by the following arguments.

1.1. According to Paragraph 2 of Article 255 of the Code of Criminal Procedure (hereinafter also referred to as the CCP), the accused may not be convicted under a different criminal law that provides for a more serious crime or a more serious criminal misdemeanour, or regarding a criminal deed whose factual circumstances differ in substance from those set forth in the indictment if the accused was not notified of such a possibility during the court trial, whilst, according to Paragraph 2 of Article 256 of the CCP, the requirements related to the right of the accused to be informed about the accusation and the ensuring of their right to defence are applied in situations where a court has grounds to believe that the deed specified in the accusation may be classified under a criminal law that provides for a more serious criminal deed, or where the prosecutor or the victim request in writing that a respective deed be classified in such a manner prior to the end of the investigation of evidence in court. However, under Paragraph 4 of Article 256 of the CCP, if a respective deed is classified under a criminal law that provides for a less serious criminal deed, the CCP does not provide for any special procedure regarding such a situation, the deed is correspondingly reclassified without prior notification of such a possibility provided the factual circumstances of the criminal deed do not change in substance.

It is possible to reclassify a criminal deed as a less serious crime or a less serious criminal misdemeanour where the factual circumstances of the criminal deed do not change. Such reclassification of the deed may also be determined by the statement about the existence of at least one new feature of corpus delicti (also a subjective feature could be among such features). Under Paragraph 4 of Article 256 of the CCP, in itself, such a legal meaning of the new feature does not give grounds for stating that this is a factual circumstance of the criminal deed that is new (changed) in substance. If it is recognised that it is possible to reclassify a deed as a less serious crime or a less serious criminal misdemeanour without changes in the factual circumstances of the case, the right to be informed about the accusation and the right to defence may not be subject to limitation. Otherwise, the person who is being held criminally liable would be unaware of what they must defend themselves from, because, after the deed is reclassified, they could be convicted not subsequent to the deed’s classification that was formally indicated in the indictment. Upon the change in the legal assessment of the deed, alongside, a different degree of dangerousness of the deed is always stated, where such a degree is directly related to the imposition of a punishment and must be assessed by a court when it individualises the punishment.

In case the law on criminal procedure fails to consolidate the requirement for ensuring the right of a person who is being held criminally liable to be informed about the accusation and for ensuring the right to defence in the situations where an incriminated deed is reclassified as a less serious crime or a less serious criminal misdemeanour (i.e., by failing to ensure equal procedural possibilities for all culprits to defend themselves and to seek justice), one also fails to meet the requirements of the constitutional principle of the equality of all persons before the law, the court or other state institutions or officials.

1.2. According to the legal regulation established in Paragraph 1 of Article 256 of the CCP, a court does not have the right to change, on its own initiative, the factual circumstances of an incriminated deed, which are specified in the indictment, to circumstances different in substance.

In the opinion of the petitioners—the Supreme Court of Lithuania and the Court of Appeal of Lithuania, the aspiration of a court to establish the truth, its duty to actively participate in the criminal procedure, to define the limits of the consideration in a criminal case, and not to allow any abuse of the rights or powers by persons participating in the judicial process, provide the grounds for an assumption that, under the Constitution, Article 109 thereof, and the constitutional principles of justice and a state under the rule of law, a court, when it investigates a criminal case, should not limit itself only to the factual circumstances specified in the indictment, but must resort to all the measures pointed out in the CCP in order to establish the actual circumstances of the incriminated deed. A court should enjoy the powers to establish the actual circumstances of the case, even when, according to the prosecutor or other participants of the court trial, these circumstances are different; a court should also enjoy such powers in situations where the circumstances established by the court are different in substance from those specified in the indictment. Otherwise, preconditions would be created where a decision in the case, thus, also, the administration of justice, would be determined an opinion of the participants of a court trial, but not by a court’s or a judge’s assessment of significant data (evidence). On the other hand, the said powers of a court to establish the actual circumstances of the case must be implemented by ensuring the constitutional right to be informed about the accusation, the right to defence, and other constitutional principles of the due process of law.

The factual circumstances of a deed pointed out in the indictment and its classification under procedure established in Article 256 of the CCP may be changed not only during the consideration of the case at a court of first instance, but also during the appeal procedure. However, the limits of the consideration of cases at the court of appeal must be taken into consideration: under Paragraph 3 of Article 320 of the CCP, while reviewing the case, the court does so without overstepping the limits of the requests in the appeals. If the provisions of Paragraph 1 of Article 256 and Paragraph 3 of Article 320 are construed in conjunction of one another, the conclusion should be drawn that the court of appeal instance enjoys the powers to change the factual circumstances of an incriminated deed to those different in substance only in situations where the appeal of a prosecutor or that of a victim (their representative) request so. If a person is guilty of a criminal deed specified in the indictment, but where the factual circumstances of the deed are substantially different, the court does not have any powers, on its own initiative, to investigate and establish these factual circumstances and to recognise this person guilty of the criminal deed and, providing there exist corresponding grounds, to impose a just punishment on such a person. Such legal regulation creates preconditions for acquitting a guilty person of a criminal deed, or for imposing an unreasonably mild punishment upon them, thus, by failing to ensure an effective protection of the public from criminal attempts.

1.3. The court of Appeal of Lithuania, a petitioner, also doubts (petition No. 1B-6/2013) regarding the compliance of Item 4 of Paragraph 1 of Article 326 of the CCP with the Constitution. The legal regulation established in the said item does not allow the court of appeal instance to rescind a judgment and to refer the case back for a new consideration by a court of first instance where, in the course of the consideration of the case under appeal procedure, new factual circumstances come to light, however, the appeals themselves do not ask that such circumstances be changed. Thus, the court of appeal may not correct the mistakes made by a court of first instance, nor can it refer the case back to the court of first instance so that it could rectify the miscarriage of justice. Such a provision prevents the court of appeal from implementing its functions in full—not to allow the entry into effect of unlawful and unreasonable judgments, to correct mistakes made by courts of lower instances and to prevent any possibilities of miscarriage of justice.

2. The petitions (Nos. 1B-5/2013 and 1B-9/2013) of the Vilnius Regional Court, a petitioner, are substantiated by the following arguments.

Paragraph 1 of Article 256 of the CCP has been formulated to the effect that it does not limit a possibility of changing the factual circumstances of the deed specified in an indictment to those that are different in substance in the course of the consideration of the case not only in a court of first instance, but also in the court of appeal. However, according to Paragraph 1 of Article 256 of the CCP, if the court of appeal satisfies the request to change the circumstances of a deed that are specified in an indictment to those that are different in substance, the participants of the process have no opportunity to appeal against the establishment and assessment of these new circumstances, i.e. the court of appeal becomes the first, the only, and the non-appealable court instance for the establishment and assessment of the circumstances that are different in substance, whilst the participants of the process are deprived of one court instance. Under Paragraph 1 of Article 256 of the CCP, in case the circumstances of the accusation are changed at the appeals instance court to those that are different in substance and if there are not any possibilities of appealing against the new circumstances that were established by the court subsequent to the changed indictment, the person with regard of whom the factual circumstances were changed into those that are different in substance has fewer opportunities to defend themselves in order to deny the accusation or to mitigate the liability, therefore, the right of a person to defence is thus violated.

II

1. In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from Olga Kisel, chief specialist of the Criminal and Administrative Law Unit of the Legal Department of the Office of the Seimas, acting as a representative of the Seimas, in which it was maintained that the provisions of the CCP impugned in the constitutional justice case at issue were not in conflict with the Constitution. The position of the representative of the Seimas is substantiated by the following arguments.

1.1. In order to legally regulate the relations that are sensitive with regard to human rights, the legislature used the formulation of an assessment character—“factual circumstances differ in substance”—in Paragraph 2 of Article 255 of the CCP. The analogous formulations—“to change the factual circumstances to those different in substance” and “provided the factual circumstances of the criminal deed do not change in substance”—are used in Article 256 of the CCP. The content of these formulations is of an assessment character, it is not precisely defined, and can be treated in a varied manner. This could mean that the factual circumstances changed so little and so insignificantly that, from the objective point of view, the situation remains the same in substance, therefore, there is neither any ground nor any sense of burdening the already complex process with additional procedural actions (the requirement of the notifying of the classification mitigating the criminal liability). The subjects that apply the CCP should check carefully in every concrete case whether the changed circumstances are not “different in substance”, should make sure that such circumstances will not aggravate the situation of the accused in the process and, it goes without saying, that they by no means will threaten the implementation of his or her essential constitutional right to defence, however, this is an issue of the application of law, but not that of legal regulation. Thus, there could arise the constitutionality issues because of the treatment of the legal norm and its application in a concrete situation, but such issues could not arise because of the legal norm itself.

It is beyond dispute that in situations where the law requires the notification of a new classification that mitigates the criminal liability, the right of the accused to defence would be better ensured. However, even such an important constitutional value as the right to defence should be co-ordinated in a systemic manner with other requirements raised for the criminal procedure. It is debatable whether it is expedient to burden the criminal proceedings with additional procedural actions that would be done in all cases in a compulsory manner, even when they are evidently not necessary. It is also doubtful whether an additional protection of the already ensured right to defence is necessary and whether it outweighs the necessity to ensure the complex of other purposes of the process.

The categorisation of the same deed as falling within a certain article (or a paragraph thereof) of the Criminal Code is of a somewhat formal character—it is rather a question of the specificity of codification, the systematisation of a legal act and the political decision of the legislature. However, under the discussed legal regulation, one should be notified of a substantial change in the accusation—a situation where the factual circumstances differ in substance from those set forth in the indictment.

1.2. The fact that the court, while passing a judgment, enjoys the powers only to specify, on its own initiative, the factual circumstances specified in the accusation, or to change them, providing such change is not substantive, whereas the factual circumstances of the deed specified in the accusation can be changed to those that are different in substance only by the prosecutor or on the initiative of the victim, is objectively determined by the differences of the functions of the participants of the process that represent the prosecution and the functions of a court. If the court changed the factual circumstances of an incriminated deed in substance, this would be in conflict with the “course of fair process”, because each participant of the process perform the functions attributed namely to them in the criminal procedure. In case of a violation of this rule, not only the system of the functions of the participants of the process and that of their procedural interaction would be unbalanced, but also the requirements of the rationality, speediness, the expediency of procedural actions, consistency, and systematicness would not be met.

1.3. The impugned legal regulation is not perfect, however, the petitioner has raised the issue of the application and construction of legal norms, therefore, there are not sufficient grounds for stating the existence of a conflict with the Constitution.

2. In the course of the preparation of the case for the Constitutional Court’s hearing, a letter from Seimas member Vitalijus Gailius, acting as a representative of the Seimas, was received in which this member of the Seimas assents to the written explanations of Olga Kisel, chief specialist of the Criminal and Administrative Law Unit of the Legal Department of the Office of the Seimas, a representative of the Seimas.

The Constitutional Court

holds that:

I

1. The Supreme Court of Lithuania, a petitioner, requests (petition No. 1B-12/2010) an investigation into whether:

the provisions of Articles 255, 256 of the CCP to the effect that, if a person being held criminally liable may be found guilty on the grounds of a criminal law that is different from one specified in the accusation and provides for a less serious crime or a less serious criminal misdemeanour, without prior notification of the said person and other participants of the trial of this fact if the factual circumstances of an incriminated deed are not changed in substance, are not in conflict with Articles 29 and 31 of the Constitution and the constitutional principle of a state under the rule of law;

Article 256 of the CCP, insofar as a court considering a criminal case is prohibited from changing, on its own initiative, the factual circumstances of an incriminated deed to circumstances different in substance also in the situations where the court gives prior notification of such a possibility to the accused and other participants of the trial, and ensures the right to be informed about the accusation and the implementation of the right to defence and that of the other constitutional principles of the due process of law, is not in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law;

Article 320 of the CCP, insofar as a court considering a criminal case under appeal procedure is prohibited from changing the factual circumstances of an incriminated deed to circumstances different in substance, where the filed appeals do not request so, also in the situations where the court gives prior notification of such a possibility to a person being held criminally liable and other participants of the trial, and ensures the right to be informed about the accusation and the implementation of the right to defence and that of the other constitutional principles of the due process of law, is not in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law.

1.1. In its petition, the petitioner requests an investigation into the compliance of Articles 255, 256, and 320 of the CCP with the Constitution, but does not indicate the wordings of the impugned articles.

The petition of the Supreme Court of Lithuania makes it is clear that the petitioner has faced doubts whether, to the corresponding extent, Article 255 (wording of 10 April 2003), Article 256 (wording of 28 June 2007), and Article 320 (wording of 14 March 2002 with the subsequent amendments of 21 June 2011) of the CCP are not in conflict with the Constitution.

Article 255 “The Limits of the Consideration Conducted by a Court” (wording of 14 March 2002 with the amendment of 10 April 2003) prescribes:

1. A court shall consider a case only regarding the accused and the criminal deeds regarding which this case was referred to the consideration at a court trial.

2. The accused may not be convicted under a different criminal law that provides for a more serious crime or a more serious criminal misdemeanour, or regarding a criminal deed whose factual circumstances differ in substance from those set forth in the indictment if the accused was not notified of such a possibility during the court trial.”

Article 256 “The Changing of the Substantial Factual Circumstances of the Deed Specified in the Accusation and the Changing of the Classification of the Deed in Court” (wording of 28 June 2007) of the CCP prescribed:

1. The prosecutor, the private accuser and the victim shall have the right, prior to the end of the investigation into the evidence in court, to file a written application requesting the changing of the factual circumstances of the deed specified in the accusation to those that are different in substance. The application must contain the said circumstances that are different in substance. Having received such an application, the court shall notify the accused of this fact immediately. Copies of this application shall be distributed among the participants of the trial.

2. The prosecutor, the private accuser and the victim shall have the right, prior to the end of the investigation into the evidence in court, to file a written application requesting the changing of the classification of the deed specified in the accusation, by applying a criminal law that provides for a more serious criminal deed. Having received such an application, as well as in other situations where there are reasonable grounds to believe that a specified deed may be classified according to a criminal law providing for a more serious criminal deed, the court shall notify the participants of the trial of such a possibility. Copies of the aforesaid application shall be distributed among the accused, their counsel for the defence, and other participants of the trial. After the consideration of a criminal case is finished, the accused can also be recognised guilty on the grounds of the classification of a deed as specified in the indictment.

3. In the situations specified in Paragraphs 1 and 2 of this Article, the court shall notify the accused and their counsel for the defence of their right to request an adjournment in order they could prepare for defence. Having granted such a request, the court shall establish a concrete time for the adjournment.

4. The provisions of Paragraphs 2 and 3 of this Article shall not be applied where the deed specified in the accusation has been reclassified according to a criminal law providing for a less serious crime or a less serious criminal misdemeanour if the factual circumstances of the deed are not changed in substance.”

Article 320 “General Provisions of the Consideration of Cases Under Appeal Procedure” (wording of 14 March 2002 with subsequent amendments) of the CCP prescribes:

1. Cases shall be considered under appeal procedure only where the appeals have been filed under the procedure and time-limits established in Article 313 of this Code.

2. Cases shall be considered under appeal procedure in a court’s hearing by a panel of three judges or by a mixed panel of three judges of the Criminal Cases Division and the Civil Cases Division of either a regional court or the Court of Appeal of Lithuania.

3. The court shall review a case without overstepping the limits of the requests in the appeals and only with respect to the persons who filed the appeals or against whom such appeals were filed. However, if the court, while reviewing a case, finds substantial violations of this Code, it, regardless of the fact whether the found violations were appealed against, shall verify whether this fact made any negative impact not only on the person that has filed the appeal, but also on the convicts who have not filed appeals.

4. The court of appeal instance may deteriorate the situation of a convicted or acquitted person, as well as of a person against whom a case was dismissed only where there are complaints of a prosecutor, a private accuser, a victim, and a civil claimant. The situation of a convicted or acquitted person, or a person with regard to whom a case was dismissed may not be deteriorated to a larger extent than is requested in an appeal.

5. If the court of appeal instance mitigates the judgment for the convicted persons who lodged an appeal against it, or with regard of whom the said judgment was appealed, on the grounds of the same arguments applicable to other convicted persons it can also mitigate the judgment with regard to the latter.

6. The Court of appeal instance shall consider cases publicly with the exception of the situations provided for in Article 9 of this Code. When a case is considered under appeal procedure, the general provisions of Chapter XIX of this Code regarding the consideration of cases in courts shall be applied.

7. When a case is considered under appeal procedure, the minutes of a court hearing shall be drawn up.”

1.2. The petitioner requests an investigation into whether the provisions of Articles 255, 256 of the CCP, according to which the accused may be found guilty on the grounds of a criminal law that is different from one specified in the accusation and provides for a less serious crime or a less serious criminal misdemeanour, without prior notification of the said person and other participants of the trial of this fact, if the factual circumstances of a criminal deed are not changed in substance, are not in conflict with Articles 29 and 31 of the Constitution and the constitutional principle of a state under the rule of law.

The arguments of the petitioner make it is clear that it impugns not the entire legal regulation established in Articles 255 and 256 of the CCP, but only Paragraph 2 (wording of 10 April 2003) of Article 255 and Paragraph 4 of Article 256 (wording of 28 June 2007) of the CCP.

Although the petitioner impugns the compliance of Paragraph 2 (wording of 10 April 2003) of Article 255 and Paragraph 4 of Article 256 (wording of 28 June 2007) of the CCP with entire Articles 29 and 31 of the Constitution, from the petitioner’s arguments it is clear that the petitioner faced doubts about the compliance of the aforesaid provisions of the CCP only with Paragraph 1 of Article 29 and Paragraphs 2 and 6 of Article 31 of the Constitution.

1.3. The petitioner requests an investigation into whether Article 256 of the CCP, insofar as a court considering a criminal case is prohibited from changing, on its own initiative, the factual circumstances of a criminal deed to circumstances different in substance also in the situations where the court gives prior notification of such a possibility to the accused and other participants of the trial, and ensures the right to be informed about the accusation and the implementation of the right to defence and that of the other constitutional principles of the due process of law, is not in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law.

The procedure of the changing of the factual circumstances specified in the accusation to those that are different in substance is regulated in Paragraph 1 of Article 256 of the CCP. Thus, the petitioner impugns Paragraph 1 of Article 256 of the CCP (wording of 28 June 2007) insofar as this paragraph does not provide that a court has the right to change, on its own initiative, the factual circumstances of a criminal deed to circumstances different in substance in a situation where the court gives prior notification of such a possibility to the accused and other participants of the trial, and ensures the right to be informed about the accusation and the implementation of the right to defence and that of the other constitutional principles of the due process of law.

1.4. The petitioner requests an investigation into whether Article 320 of the CCP, insofar as a court considering a criminal case under appeal procedure is prohibited from changing the factual circumstances of a criminal deed to circumstances different in substance, where the filed appeals do not request so, also in the situations where the court gives prior notification of such a possibility to a person being held criminally liable and other participants of the trial, and ensures the right to be informed about the accusation and the implementation of the right to defence and that of the other constitutional principles of the due process of law, is not in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law.

Although, in the operative part of its petition, the petitioner points out the entire Article 320 of the CCP, however, the arguments contained in the petition make it is clear that it only impugns Paragraph 3 of Article 320 of the CCP to the specified extent.

2. The Court of Appeal Lithuania, a petitioner, requests (petition No. 1B-6/2013) an investigation into whether:

the provisions of Articles 255, 256 of the CCP to the effect that, if a person being held criminally liable may be found guilty on the grounds of a criminal law that is different from one specified in the accusation and provides for a less serious crime or a less serious criminal misdemeanour, without prior notification of the said person and other participants of the trial of this fact if the factual circumstances of an incriminated deed are not changed in substance, are not in conflict with Articles 29 and 31 of the Constitution and the constitutional principle of a state under the rule of law;

Article 256 of the CCP, insofar as a court considering a criminal case is prohibited from changing, on its own initiative, the factual circumstances of an incriminated deed to circumstances different in substance also in the situations where the court gives prior notification of such a possibility to the accused and other participants of the trial, and ensures the right to be informed about the accusation and the implementation of the right to defence and that of the other constitutional principles of the due process of law, is not in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law;

Article 320 of the CCP, insofar as a court considering a criminal case under appeal procedure is prohibited from changing the factual circumstances of an incriminated deed to circumstances different in substance, where the filed appeals do not request so, also in the situations where the court gives prior notification of such a possibility to a person being held criminally liable and other participants of the trial, and ensures the right to be informed about the accusation and the implementation of the right to defence and that of the other constitutional principles of the due process of law, is not in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law;

Item 4 of Paragraph 1 of Article 326 of the CCP, insofar as it prohibits the court of appeal instance from rescinding the judgment and referring a case to a court in order for investigating that case anew when, in the course of the consideration of the case under appeal procedure, new factual circumstances come to light, but the appeals themselves do not request changing the factual circumstances of the case, is not in conflict with Paragraph 1 Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law.

2.1. In its petition, the petitioner requests an investigation into the compliance of Articles 255, 256, 320, and Item 4 of Paragraph 1 of Article 326 of the CCP with the Constitution, but does not indicate the wordings of the impugned articles.

The petition of the Court of Appeal of Lithuania makes it is clear that the petitioner has faced doubts whether, to the corresponding extent, Article 255 (wording of 10 April 2003), Article 256 (wording of 22 December 2011), Article 320 (wording of 14 March 2002), and Item 4 of Paragraph 1 (wording of 28 June 2007) of Article 326 of the CCP are not in conflict with the Constitution.

Article 255 “The Limits of the Consideration Conducted by a Court” (wording of 14 March 2002 with the amendment of 10 April 2003) prescribes:

1. A court shall consider a case only regarding the accused and the criminal deeds regarding which this case was referred to the consideration at a court trial.

2. The accused may not be convicted under a different criminal law that provides for a more serious crime or a more serious criminal misdemeanour, or regarding a criminal deed whose factual circumstances differ in substance from those set forth in the indictment if the accused was not notified of such a possibility during the court trial.”

Article 256 “The Changing of the Substantial Factual Circumstances of the Deed Specified in the Accusation and the Changing of the Classification of the Deed in Court” (wording of 28 June 2007 with its amendment of 22 December 2011) of the CCP prescribed:

1. The prosecutor, the private accuser and the victim shall have the right, prior to the end of the investigation into the evidence in court, to file a written application requesting the changing of the factual circumstances of the deed specified in the accusation to those that are different in substance. The application must contain the said circumstances that are different in substance. Having received such an application, the court shall notify the accused of this fact immediately. Copies of this application shall be distributed among the participants of the trial. After the consideration of the criminal case, the judgment may also contain the factual circumstances of a deed that were specified in the indictment.

2. The prosecutor, the private accuser and the victim shall have the right, prior to the end of the investigation into the evidence in court, to file a written application requesting the changing of the classification of the deed specified in the accusation, by applying a criminal law that provides for a more serious criminal deed. Having received such an application, as well as in other situations where there are reasonable grounds to believe that a specified deed may be classified according to a criminal law providing for a more serious criminal deed, the court shall notify the participants of the trial of such a possibility. Copies of the aforesaid application shall be distributed among the accused, their counsel for the defence, and other participants of the trial. After the consideration of a criminal case is finished, the accused can also be recognised guilty on the grounds of the classification of a deed as specified in the indictment.

3. In the situations specified in Paragraphs 1 and 2 of this Article, the court shall notify the accused and their counsel for the defence of their right to request an adjournment in order they could prepare for defence. Having granted such a request, the court shall establish a concrete time for the adjournment.

4. The provisions of Paragraphs 1, 2, and 3 of this Article shall not be applied where the deed specified in the accusation has been reclassified according to a criminal law providing for a less serious crime or a less serious criminal misdemeanour if the factual circumstances of the deed are not changed in substance.”

Article 320 “General Provisions of the Consideration of Cases Under Appeal Procedure” (wording of 14 March 2002 with subsequent amendments) of the CCP prescribes:

1. Cases shall be considered under appeal procedure only where the appeals have been filed under the procedure and time-limits established in Article 313 of this Code.

2. Cases shall be considered under appeal procedure in a court’s hearing by a panel of three judges or by a mixed panel of three judges of the Criminal Cases Division and the Civil Cases Division of either a regional court or the Court of Appeal of Lithuania.

3. The court shall review a case without overstepping the limits of the requests in the appeals and only with respect to the persons who filed the appeals or against whom such appeals were filed. However, if the court, while reviewing a case, finds substantial violations of this Code, it, regardless of the fact whether the found violations were appealed against, shall verify whether this fact made any negative impact not only on the person that has filed the appeal, but also on the convicts who have not filed appeals.

4. The court of appeal instance may deteriorate the situation of a convicted or acquitted person, as well as of a person against whom a case was dismissed only where there are complaints of a prosecutor, a private accuser, a victim, and a civil claimant. The situation of a convicted or acquitted person, or a person with regard to whom a case was dismissed may not be deteriorated to a larger extent than is requested in an appeal.

5. If the court of appeal instance mitigates the judgment for the convicted persons who lodged an appeal against it, or with regard of whom the said judgment was appealed, on the grounds of the same arguments applicable to other convicted persons it can also mitigate the judgment with regard to the latter.

6. The Court of appeal instance shall consider cases publicly with the exception of the situations provided for in Article 9 of this Code. When a case is considered under appeal procedure, the general provisions of Chapter XIX of this Code regarding the consideration of cases in courts shall be applied.

7. When a case is considered under appeal procedure, the minutes of a court hearing shall be drawn up.”

2.2. The petitioner requests an investigation into whether the provisions of Articles 255, 256 of the CCP to the effect that, if a person being held criminally liable may be found guilty on the grounds of a criminal law that is different from one specified in the accusation and provides for a less serious crime or a less serious criminal misdemeanour, without prior notification of the said person and other participants of the trial of this fact if the factual circumstances of an incriminated deed are not changed in substance, are not in conflict with Articles 29 and 31 of the Constitution and the constitutional principle of a state under the rule of law.

The arguments of the petitioner make it is clear that it impugns not the entire legal regulation established in Articles 255 and 256 of the CCP, but only Paragraph 2 (wording of 10 April 2003) of Article 255 and Paragraph 4 (wording of 22 December 2011) of Article 256 of the CCP.

Although the petitioner impugns the compliance of Paragraph 2 (wording of 10 April 2003) of Article 255 and Paragraph 4 (wording of 22 December 2011) of Article 256 of the CCP with entire Articles 29 and 31 of the Constitution, from the petitioner’s arguments it is clear that the petitioner faced doubts about the compliance of the aforesaid provisions of the CCP only with Paragraph 1 of Article 29 and Paragraphs 2 and 6 of Article 31 of the Constitution.

2.3. The petitioner requests an investigation into whether Article 256 of the CCP, insofar as a court considering a criminal case is prohibited from changing, on its own initiative, the factual circumstances of a criminal deed to circumstances different in substance also in the situations where the court gives prior notification of such a possibility to the accused and other participants of the trial, and ensures the right to be informed about the accusation and the implementation of the right to defence and that of the other constitutional principles of the due process of law, is not in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law.

The procedure of the changing of the factual circumstances specified in the accusation to those that are different in substance is regulated in the impugned Paragraph 1 of Article 256 of the CCP. Thus, the petitioner impugns Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP insofar as this paragraph does not provide that a court has the right to change, on its own initiative, the factual circumstances of a criminal deed to circumstances different in substance in a situation where the court gives prior notification of such a possibility to the accused and other participants of the trial, and ensures the right to be informed about the accusation and the implementation of the right to defence and that of the other constitutional principles of the due process of law.

2.4. The petitioner requests an investigation into whether Article 320 of the CCP, insofar as a court considering a criminal case under appeal procedure is prohibited from changing the factual circumstances of a criminal deed to circumstances different in substance, where the filed appeals do not request so, also in the situations where the court gives prior notification of such a possibility to a person being held criminally liable and other participants of the trial, and ensures the right to be informed about the accusation and the implementation of the right to defence and that of the other constitutional principles of the due process of law, is not in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law.

Although, in the operative part of its petition, the petitioner points out the entire Article 320 of the CCP, however, the arguments contained in the petition make it is clear that it only impugns Paragraph 3 (wording of 14 March 2002) of Article 320 of the CCP to the specified extent.

3. The Vilnius Regional Court, a petitioner, requests (petitions Nos. 1B-5/2013 and 1B-9/2013) an investigation into whether Paragraph 1 of Article 256 of the CCP, insofar as it does not put any limitations on the changing of the factual circumstances, specified in an accusation, to substantially different circumstances at the court of appeal instance, is not in conflict with Paragraphs 2 and 6 of Article 31 and Paragraphs 1 and 4 of Article 111 of the Constitution and with the constitutional principle of a state under the rule of law.

In its petitions, the petitioner requests an investigation into the compliance of the provisions of Paragraph 1 of Article 256 of the CCP with the Constitution, but does not indicate the wording of the impugned provisions.

The petitions of the petitioner make it is clear that the petitioner has faced doubts whether, to the corresponding extent, Paragraph 1 (wording of 22 December 2011) of 256 of the CCP is not in conflict with the Constitution.

4. Thus, taking account of the petitions of the petitioners, in the constitutional justice case at issue the Constitutional Court will investigate whether:

Paragraph 2 (wording of 10 April 2003) of Article 255 and Paragraph 4 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the CCP, insofar as the accused may be convicted according to a criminal law that is different from one specified in the accusation and provides for a less serious crime or a less serious criminal misdemeanour, without prior notification of the said person and other participants of the trial of this fact, if the factual circumstances of an incriminated deed are not changed in substance, are not in conflict with Paragraph 1 of Article 29 and Paragraphs 2 and 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law;

Paragraph 1 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the CCP, insofar as a court considering a criminal case is prohibited from changing, on its own initiative, the factual circumstances of a criminal deed to circumstances different in substance, is not in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law;

Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP, insofar as it does not put any limitations on the changing of the factual circumstances, specified in an accusation, to substantially different circumstances at the court of appeal instance, is not in conflict with Paragraphs 2 and 6 of Article 31 and Paragraphs 1 and 4 of Article 111 of the Constitution and with the constitutional principle of a state under the rule of law;

Paragraph 3 of Article 320 of the CCP, insofar as a court considering a criminal case under appeal procedure is prohibited from changing the factual circumstances of a criminal deed to circumstances different in substance, where the filed appeals do not request so, is not in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law;

Item 4 of Paragraph 1 (wording of 28 June 2007) of Article 326 of the CCP, insofar as it prohibits the court of appeal instance from rescinding the judgment and referring a case to a court in order for investigating that case anew when, in the course of the consideration of the case under appeal procedure, new factual circumstances come to light, but the appeals themselves do not request changing the factual circumstances of the case, is not in conflict with Paragraph 1 Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law.

II

1. In the constitutional justice case at issue the petitioners request an investigation into the compliance of the norms of the CCP that regulate the changing of both the factual circumstances of a criminal deed and the classification of the deed specified in the indictment in the course of the consideration of a case in court, with the Constitution.

2. 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 whereof, 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 CCP 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 of Entry into Effect and Implementation of the Criminal Code as Approved by Law No. VIII-1968 of 26 September 2000, the Code of Criminal Procedure, as Approved by Law No. IX- 785 of 14 March 2002, and the Code of Execution of Punishments as Approved by Law No. IX-994 of 27 June 2002, in which it inter alia established that the CCP shall come into force as from 1 May 2003 (Article 1) and that, after the entry into force of the new CCP, the old Code of Criminal Procedure shall become no longer valid (Paragraph 2 of Article 47).

3. Paragraph 2 of Article 255, Paragraphs 1 and 4 of Article 256, Paragraph 3 of Article 320, and Paragraph 1 of Article 326 of the CCP, whose provisions are being impugned to the corresponding extent in the constitutional justice case at issue, have been amended and/or supplemented:

by means of the Republic of Lithuania’s Law Amending and Supplementing Articles 21, 48, 50, 52, 127, 142, 143, 151, 158, 161, 163, 165, 212, 217, 232, 233, 234, 237, 244, 254, 255, 256, 266, 276, 287, 303, 318, 319, 322, 323, 326, 327, 329, 332, 342, 351, 353, 362, 375, 380, 397, 421, 440, 458, and 459 of the Code of Criminal Procedure as Approved by Law No. IX-785 of 14 March 2002, and Supplementing the Code with Article 3621, which was adopted by the Seimas on 10 April 2003 and came into force on 1 May 2003;

by means of the Republic of Lithuania’s Law Amending and Supplementing Articles 37, 40, 44, 46, 48, 53, 55, 56, 62, 63, 64, 65, 70, 73, 80, 82, 90, 93, 108, 110, 111, 130, 131, 132, 139, 140, 141, 142, 151, 154, 160, 161, 166, 167, 168, 171, 178, 186, 199, 212, 214, 217, 225, 232, 233, 234, 254, 256, 276, 287, 296, 300, 302, 303, 308, 310, 312, 313, 314, 316, 317, 318, 319, 320, 324, 326, 327, 329, 333, 342, 358, 367, 368, 370, 372, 373, 374, 375, 377, 380, 381, 382, 384, 385, 409, 413, 414, 439, 447, 448, 454, and 460 of the Code of Criminal Procedure, Recognising Article 306 of the Code as No Longer Valid, Supplementing the Code with Articles 411, 772, 801, 3741, 3742, and 4121 and Supplementing the Annex of the Code, which was adopted by the Seimas on 28 June 2007 and came into force (with certain exceptions) on 1 September 2007;

by means of the Republic of Lithuania’s Law Amending Articles 109, 219, 220, 227, 234, 254, 256, and 426 of the Code of Criminal Procedure and Supplementing the Code with Article 3081, which was adopted by the Seimas on 22 December 2011 and came into force on 31 December 2011.

4. Article 255 (wording of 10 April 2003) “The Limits of the Consideration Conducted by a Court” of Chapter XIX “General Provisions of the Consideration Conducted by a Court” of the CCP, which is impugned to a certain extent in the constitutional justice case at issue, as mentioned before, prescribes:

1. A court shall consider a case only regarding the accused and the criminal deeds regarding which this case was referred to the consideration at a court trial.

2. The accused may not be convicted under a different criminal law that provides for a more serious crime or a more serious criminal misdemeanour, or regarding a criminal deed whose factual circumstances differ in substance from those set forth in the indictment if the accused was not notified of such a possibility during the court trial.”

Thus, Article 255 of the CCP establishes the limits of the consideration of a criminal case conducted by a court, a prohibition on changing these limits in certain cases and on convicting the accused according to a different accusation, and a condition where, provided this condition is met, the limits of the consideration conducted by a court may be changed.

4.1. The legal regulation established in Article 255 of the CCP should be construed in conjunction with that established in other articles of the CCP. In the context of the constitutional justice case at issue the following provisions of the CCP should be mentioned:

– “The indictment is a document adopted by a prosecutor. By means of the indictment a pre-trial investigation is finished, a criminal deed is described, the data upon which the accusation is based and a criminal law providing for that deed are indicated” (Article 23);

– “In their ruling, a judge, while referring a case to its consideration at a court trial, shall formulate a decision to refer the case to its consideration at a court trial, shall specify the name and surname of the accused and the deed with the commission of which the accused is charged, a criminal law that provides for the said criminal deed, the time and place of the consideration of the case, shall decide which persons must be summoned to the court trial in the capacity of the accused, their legal representative, the victim, the civil claimant, the civil respondent and their representatives, as well as in the capacity of witnesses, experts, and specialists. If the accused person, as provided for in Paragraph 2 of Article 218 of this Code, has agreed that a reduced investigation into evidence be conducted, the judge may decide to summon only the accused and their representative to a court trial, and to inform other participants of the appointed time and place of trial and their right to participate in the trial. This decision of the judge shall not preclude a court from taking a decision later to conduct an extensive investigation into evidence” (Paragraph 3 (wording of 2 July 2013) of Article 233).

The legal regulation established in Paragraph 1 of Article 255 of the CCP, if it is construed in conjunction with that established in Article 23 and Paragraph 3 of Article 233 (wording of 2 July 2013), means, inter alia, that a court investigates a respective case regarding only those accused persons and only those criminal deeds with the commission of which they are charged, and only according to the laws providing for those criminal deeds that are specified both in the indictment and in the ruling of a judge to refer the case for its consideration at a court trial.

4.2. Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP contains a prohibition against convicting the accused under a different criminal law that provides for a more serious crime or a more serious criminal misdemeanour, or regarding a criminal deed whose factual circumstances differ in substance from those set forth in the indictment if the accused was not notified of such a possibility during the court trial.

4.2.1. The formulation “a criminal law that provides for a more serious crime or a more serious criminal misdemeanour” used in Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP should be construed according to the legal regulation laid down in the Criminal Code of the Republic of Lithuania (hereinafter also referred to as the CC).

Paragraph 3 (wording of 22 September 2011) of Article 3 “The Term of the Validity of a Criminal Law” of the CC prescribes: “A criminal law establishing the criminality of a deed, imposing a more severe penalty upon, or otherwise aggravating the legal circumstances of a person who has committed a criminal deed shall have no retroactive effect. <...>”

Thus, under Paragraph 2 of Article 255 of the CCP, a criminal law that provides for a more serious crime or a more serious criminal misdemeanour is one that provides for a stricter punishment or other more serious legal consequences than the criminal law on the grounds of which the deed of the accused was classified.

In this context it needs to be mentioned that, in its rulings, the Supreme Court of Lithuania, which forms the judicial practice of courts of general jurisdiction, provides its interpretation to the effect that the classification of an incriminated deed is changed by applying a criminal law that provides for a more serious crime or a more serious criminal misdemeanour, for example, where: an article (paragraph or item thereof) of the special part of the CC, whose sanction establishes a stricter punishment, is applied (inter alia, the ruling of the panel of justices of the Criminal Cases Division of the Supreme Court of Lithuania of 22 December 2008 in criminal case No. 2K-498/2008, its ruling of 24 February 2009 in criminal case No. 2K-53/2009); an article (paragraph or item thereof) of the general part of the CC, according to which the legal situation of the culprit is aggravated, is applied, for example, Article 22 of the CC (an attempt to commit a crime) is applied instead of Article 21 of the CC (preparation for commission of a crime) (inter alia, the ruling of the panel of justices of the Criminal Cases Division of the Supreme Court of Lithuania of 16 January 2007 in criminal case No. 2K-16/2007); the classification of crime according to an article (part thereof) of a general part of the CC, where the said classification could mitigate the legal situation of a culprit, is refused, for example, Paragraph 3 (the commission of a criminal deed by exceeding the limits of justifiable defence) of Article 28 of CC is not applied (inter alia, the ruling of the panel of justices of the Criminal Cases Division of the Supreme Court of Lithuania of 28 December 2004 in criminal case No. 2K-700/2004).

To construe the legal regulation established in Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP in conjunction with that laid down in Paragraph 1 of the same article and Paragraph 3 (wording of 22 March 2011) of Article 3 of the CC, it should be noted that the accused may not be convicted under a different criminal law, i.e. not the one specified in the indictment and the ruling of a judge to refer the case to the consideration at a court trial, where the sanction of such a different criminal law provides for a stricter punishment or otherwise aggravates the legal situation of a person who committed a criminal deed if, at a court trial, they were not informed about such a possibility in advance.

4.2.2. As mentioned before, the petitioners—the Supreme Court of Lithuania and the Court of Appeal of Lithuania—request an investigation into whether, inter alia, the provision of Article 255 of the CCP, according to which the accused may be convicted on the grounds of a criminal law that is different from one specified in the accusation and provides for a less serious crime or a less serious criminal misdemeanour, without prior notification of the said person and other participants of the trial of this fact if the factual circumstances of an incriminated deed are not changed in substance, is not in conflict with the Constitution.

It should be noted that Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP does not contain any notion “a criminal law that provides for a less serious crime or a less serious criminal misdemeanour”. This notion should be construed according to the legal regulation laid down in the CC.

Paragraph 2 “Term of the Validity of a Criminal Law” of Article 3 of the CC prescribes: “A criminal law nullifying the criminality of a deed, commuting a penalty or otherwise mitigating legal circumstances for the person who committed the criminal deed shall have a retroactive effect, i.e., it shall apply to the persons who committed the criminal deed prior to the coming into force of such a law, also to the persons serving a sentence and those with previous convictions.”

Thus, under Paragraph 2 of Article 255 of the CCP, a criminal law that provides for a less serious criminal deed is one that provides for a milder punishment or other less serious legal consequences than the criminal law on the grounds of which the deed of the accused was classified.

In this context it needs to be mentioned that, in its rulings, the Supreme Court of Lithuania, which forms the judicial practice of courts of general jurisdiction, provides its interpretation to the effect that the classification of an incriminated deed is changed by applying a criminal law that provides for a less serious crime or a less serious criminal misdemeanour, for example, where: an article (paragraph or item thereof) of the special part of the CC, whose sanction establishes a milder punishment, is applied (inter alia, the ruling of the panel of justices of the Criminal Cases Division of the Supreme Court of Lithuania of 6 February 2007 in criminal case No. 2K-85/2007, its ruling of 10 July 2007 in criminal case No. 2K-553/2007); an article (paragraph or item thereof) of the general part of the CC, according to which the legal situation of the culprit is mitigated is applied, for example, an incriminated accomplished criminal deed is reclassified as an attempt to commit such a deed (Article 22 of the CC) (inter alia, the ruling of the panel of justices of the Criminal Cases Division of the Supreme Court of Lithuania of 20 June 2006 in criminal case No. 2K-314/2006, its ruling of 14 September 2007 in criminal case No. 2K-539/2007).

4.2.3. It has been mentioned that, under the legal regulation laid down in Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP, the accused may not be convicted, inter alia, regarding a criminal deed whose factual circumstances differ in substance from those set forth in the indictment if the accused was not notified of such a possibility during the court trial.

The provisions of the CCP that regulate the content of procedural documents normally indicate as to what factual circumstances of a criminal deed must be established. For instance, Paragraph 1 “The Description of an Indictment” of Article 305 of the CCP prescribes:

1. The description of an indictment of conviction must contain the following:

1) the circumstances of a criminal deed that has been recognised as a proved one, i.e. the place, time, manner, and consequences of the commission of such a deed and other important circumstances are specified; <...>.”

Thus, the factual circumstances of a criminal deed are the place, time, manner, and consequences of the commission of a criminal deed and other important circumstances.

The articles of the CCP that enumerate the factual circumstances of a criminal deed do not present any exhaustive list of such factual circumstances. Consequently, the fact as to what factual circumstances must be established is decided in every concrete situation in the course of the investigation into a criminal deed or during the consideration of a case in court.

It should be noted that, in order to decide which factual circumstances of a criminal deed must be established, it is important to take into consideration, inter alia, the main provisions of criminal liability.

Article 2 “Basic Provisions of Criminal Liability” of the CC prescribes:

1. A person shall be held liable under this Code only when the deed committed by them is forbidden by a criminal law in force at the time of the commission of the criminal deed.

2. Ignorance of the law shall not exempt one from criminal liability.

3. A person shall be held liable under a criminal law only when they are guilty of the commission of a criminal deed and only if at the time of the commission of the deed the conduct of the person could have been reasonably expected to conform to the requirements of law.

4. Only a person whose deed as committed corresponds to a definition of the body of a crime or criminal misdemeanour provided for by a criminal law shall be liable under the criminal law.

5. Penalties, penal or reformative sanctions and compulsory medical treatment shall be imposed only in accordance with the law.

6. No one may be punished for the same criminal deed a second time.”

Thus, in the course of an investigation into a criminal deed and during the consideration of a case in court, the factual circumstances conforming to the provisions of criminal liability, which are provided for in Article 2 of the CC, must be established. In order to achieve these objectives, one must establish, inter alia, all actual facts corresponding to the features of the body of a criminal deed that is provided for in the law and of the commission of which a person is suspected (accused), as well as the features thereof defined in other laws or acts of lower legal power, which are necessary in order to apply the criminal law, and the features established in the norms of the general part of the CC, where the latter features are necessary to decide the questions of the criminal liability of a concrete person.

In order to construe the provision “factual circumstances differ in substance from those set forth in the indictment” of Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP, it should be noted that there might occur such a situation where, during the consideration of a case in court, it is established that a criminal deed was committed at a different time, at a different place and in a different manner, and the criminal deed gave rise to different consequences and was committed in circumstances that are different from those specified in the indictment. Having established the circumstances of a criminal deed that are different from those specified in the indictment, a court decides in every concrete situation whether those new circumstances differ in substance from those specified in the indictment, or whether the difference is not substantial.

In this context it should be mentioned that various rulings of the Supreme Court of Lithuania that forms the judicial practice of courts of general jurisdiction (inter alia, the ruling of the panel of justices of the Criminal Cases Division of the Supreme Court of Lithuania of 23 January 2007 in criminal case No. 2K-7-13/2006 and its ruling of 20 September 2011 in criminal case No. 2K-381/2011) provide the interpretation to the effect that the factual circumstances differ in substance from those set forth in the indictment when the episodes of the same criminal deed are added, the extent of criminal deeds, the time, place, manner, etc., of the commission of a criminal deed are changed in substance, provided this is influential on the classification of the criminal deed or on the punishment, or otherwise restricts the right of the defendant to defence; the fact whether the right of the accused would be restricted in the course of the changing of the factual circumstances of the criminal deed is decided by taking into consideration the circumstances of a concrete case and by assessing whether there are grounds to believe that the defence could be different due to the changed factual circumstances of the criminal deed (inter alia, the ruling of the panel of justices of the Criminal Cases Division of the Supreme Court of Lithuania of 18 December 2012 in criminal case No. 2K-651/2012).

4.2.4. Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP establishes a condition—an advance notification of the accused during a court trial that they can be convicted under a changed indictment—according to which, if this condition is met, the limits of the consideration of a case in court may be changed. This provision of Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP should be construed in conjunction with the legal regulation established in Article 256 of the CCP.

As mentioned before, Article 256 (wording of 28 June 2007) “The Changing of the Substantial Factual Circumstances of the Deed Specified in the Accusation and the Changing of the Classification of the Deed in Court” of Chapter XIX “General Provisions of the Consideration Conducted by a Court” of the CCP, which is impugned to a certain extent in the constitutional justice case at issue, prescribes:

1. The prosecutor, the private accuser and the victim shall have the right, prior to the end of the investigation into the evidence in court, to file a written application requesting the changing of the factual circumstances of the deed specified in the accusation to those that are different in substance. The application must contain the said circumstances that are different in substance. Having received such an application, the court shall notify the accused of this fact immediately. Copies of this application shall be distributed among the participants of the trial.

2. The prosecutor, the private accuser and the victim shall have the right, prior to the end of the investigation into the evidence in court, to file a written application requesting the changing of the classification of the deed specified in the accusation, by applying a criminal law that provides for a more serious criminal deed. Having received such an application, as well as in other situations where there are reasonable grounds to believe that a specified deed may be classified according to a criminal law providing for a more serious criminal deed, the court shall notify the participants of the trial of such a possibility. Copies of the aforesaid application shall be distributed among the accused, their counsel for the defence, and other participants of the trial. After the consideration of a criminal case is finished, the accused can also be recognised guilty on the grounds of the classification of a deed as specified in the indictment.

3. In the situations specified in Paragraphs 1 and 2 of this Article, the court shall notify the accused and their counsel for the defence of their right to request an adjournment in order they could prepare for defence. Having granted such a request, the court shall establish a concrete time for the adjournment.

4. The provisions of Paragraphs 2 and 3 of this Article shall not be applied where the deed specified in the accusation has been reclassified according to a criminal law providing for a less serious crime or a less serious criminal misdemeanour if the factual circumstances of the deed are not changed in substance.”

Thus, this article establishes the procedure of changing, in court, of the factual circumstances of a deed, which are specified in the accusation (indictment) and changing of the classification of a deed specified in the accusation (indictment).

4.2.4.1. Paragraph 1 of Article 256 (wording of 28 June 2007) of the CCP, which is impugned to a certain extent in the constitutional justice case at issue, regulates the procedure of changing of the factual circumstances of a deed that are specified in the accusation to factual circumstances that are different in substance in a court trial. The constituent parts of this procedure are these:

the prosecutor, the private accuser or the victim file a written application with the court requesting the changing of the factual circumstances of the deed specified in the accusation to those that are different in substance and they set forth these substantially different circumstances;

the application is filed prior to the end of the investigation of evidence in court;

having received such an application, the court notifies the accused of this fact immediately;

copies of the application are distributed among the participants of the trial.

In order to construe the legal regulation established in Paragraph 1 of Article 256 (wording of 28 June 2007) of the CCP, in the context of the constitutional justice case at issue, it should be noted that the list of the subjects that have the right to file an application with a court requesting the changing of the factual circumstances of the deed specified in the accusation to those that are different in substance is exhaustive; this paragraph does not establish that a court may change, on its own initiative, the factual circumstances of the deed specified in the accusation to those that are different in substance; this paragraph does not establish any limitations on the changing of the factual circumstances of the deed specified in the accusation to those that are different in substance at the court of appeal instance.

In the context of the constitutional justice case at issue it should also be noted that Paragraph 1 of Article 256 (wording of 28 June 2007) of the CCP establishes two ways of the notification of the participants of the trial regarding a received application requesting the changing of the factual circumstances of the deed specified in the accusation to those that are different in substance: 1) the court notifies the accused of such an application immediately; 2) copies of the application are distributed among the participants of the trial.

4.2.4.2. Paragraph 2 of Article 256 (wording of 28 June 2007) of the CCP regulates the procedure of the changing (at a court trial) of the classification of a deed specified in the accusation by applying a criminal law that provides for a more serious criminal deed.

In the context of the constitutional justice case at issue it should be noted that Paragraph 2 of Article 256 (wording of 28 June 2007) of the CCP establishes two ways of the notification of the participants of the trial regarding a possibility of the classification of the said deed according to a criminal law that provides for a more serious criminal deed: 1) the court notifies the participants of the trial of such a possibility immediately; 2) copies of the application requesting of the changing of the classification of a deed specified in the accusation by applying a criminal law that provides for a more serious criminal deed are distributed among the accused, the counsel for defence, and other participants of the trial.

4.2.4.3. Paragraph 3 of Article 256 (wording of 28 June 2007) of the CCP regulates the ways of the ensuring of the right of the accused to defence in cases when an application is received requesting the changing of the factual circumstances of a deed that are specified in the accusation to those that are different in substance or when there is a possibility of the classification of a deed specified in the indictment according to a criminal law that provides for a more serious criminal deed. In such situations, the court notifies the accused and their counsel for the defence of their right to request an adjournment in order they could prepare for defence; if an adjournment is requested and the court grants such a request, the concrete time of the adjournment is established.

4.2.4.4. Paragraph 4 of Article 256 (wording of 28 June 2007) of the CCP, which is impugned to a certain extent in the constitutional justice case at issue, regulates the procedure of the reclassification of a deed specified in the accusation according to a criminal law that provides for a less serious crime or a less serious criminal misdemeanour if the factual circumstances of the criminal deed do not differ in substance. Under the legal regulation laid down in Paragraph 4 of Article 256 (wording of 28 June 2007) of the CCP, if it is construed in conjunction with the legal regulation established in Paragraphs 2 and 3 of the same article (wording of 28 June 2007), a deed specified in the accusation may be reclassified according to a criminal law that provides for a less serious crime or a less serious criminal misdemeanour if the factual circumstances of the criminal deed do not differ in substance without a written application of the prosecutor, the private accuser, or the victim, and without prior notification of the accused and other participants of the trial of this fact.

In the context of the constitutional justice case at issue it should be noted that the other criminal law that provides for a less serious crime or a less serious criminal misdemeanour according to which a deed committed by the accused is classified, where the factual circumstances of the criminal deed do not differ in substance, may differ from the criminal law specified in the indictment and that specified in the ruling of the judge to refer the case to a court trial in various ways: for instance, it is possible that it will not include separate articles (paragraphs and items thereof) of the CC and separate features of a criminal deed (e.g., the features that the doctrine of criminal law names as giving grounds for the classification); it may establish different features of a criminal deed, which might mitigate the legal situation of the accused (e.g., the criminal deed was committed not intentionally, but through carelessness); it may establish new features of the criminal deed that mitigate the legal situation of the accused (e.g., the features that the doctrine of criminal law names as giving grounds for privileges), or circumstances that are significant for the classification of another deed.

4.2.5. Thus, Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP establishes a condition—an advance notification of the accused during a court trial that they can be convicted under a changed indictment—according to which, if this condition is met, the accused may be convicted under a different criminal law that provides for a more serious crime or a more serious criminal misdemeanour, or due to a criminal deed whose factual circumstances differ in substance from those set forth in the indictment. If this condition is construed in conjunction with the legal regulation established in Article 256 of the CCP, it means that the participants of the trial are verbally notified of such a possibility and they are given copies of a respective application requesting this.

It has been mentioned that, under the legal regulation established in Paragraph 1 of Article 255 of the CCP, if it is construed in conjunction with that established in Article 23 and Paragraph 3 of Article 233 (wording of 2 July 2013), a court investigates a respective case regarding only those accused persons and only those criminal deeds with the commission of which they are charged, and only according to the laws providing for those criminal deeds that are specified both in the indictment and in the ruling of a judge to refer the case for its consideration at a court trial. In this context it should be noted that the legal regulation laid down in Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP means, inter alia, that, during the consideration of a case in court, the factual circumstances of a deed (of the commission of which the accused is accused) that are specified in the indictment and the ruling of the judge to refer that case for the consideration at a court trial and the criminal law that provides for such a deed may be changed under procedure established in Article 256 (wording of 28 June 2007) of the CCP. It should be noted that in the course of changing the factual circumstances of a criminal deed or/and the criminal law that provides for this deed there can emerge various legal situations. For instance, a criminal law that provides for the criminal deed may be changed to a law that provides for a more serious criminal deed, a less serious criminal deed, or a criminal deed of the same gravity; the factual circumstances specified in the accusation may be changed to those that are different in substance or their changes could be insubstantial.

According to Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP, an advance notification of the accused is necessary in all situations where the factual circumstances of a deed that are specified in the accusation are changed to those that are different in substance, regardless of whether in such a case the criminal law providing for such a deed is changed or not; in the situation where the factual circumstances of a deed that are specified in the accusation are changed or are changed insubstantially, an advance notification of the accused is necessary only when the classification of the deed specified in the accusation is changed by applying a criminal law that provides for a more serious criminal deed. Consequently, under the legal regulation laid down in Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP, if it is construed in conjunction with that laid down in Paragraph 4 of Article 256 (wording of 28 June 2007) of the CCP, the accused may be convicted under a different criminal law that provides for a less serious crime or a less serious criminal misdemeanour, if the factual circumstances of a criminal deed do not differ in substance from those set forth in the indictment, without prior notification of the accused of this fact.

5. On 22 December 2011, the Seimas adopted the Law Amending Articles 109, 219, 220, 227, 234, 254, 256, 426 of the Code of Criminal Procedure and Supplementing the Code with Article 3081. By means of Article 7 of the said law, Paragraphs 1 and 4 of Article 256 (wording of 28 June 2007) of the CCP were amended.

As mentioned before, Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP prescribes:

The prosecutor, the private accuser and the victim shall have the right, prior to the end of the investigation into the evidence in court, to file a written application requesting the changing of the factual circumstances of the deed specified in the accusation to those that are different in substance. The application must contain the said circumstances that are different in substance. Having received such an application, the court shall notify the accused of this fact immediately. Copies of this application shall be distributed among the participants of the trial. After the consideration of the criminal case, the judgment may also contain the factual circumstances of a deed that were specified in the indictment.”

The comparison of the legal regulation established in Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP with that established in Paragraph 1 (wording of 28 June 2007) of the same article makes it is clear that this legal regulation has not changed from the aspect impugned by the petitioners.

As mentioned before, Paragraph 4 (wording of 22 December 2011) of Article 256 of the CCP prescribes: “The provisions of Paragraphs 1, 2, and 3 of this Article shall not be applied where the deed specified in the accusation has been reclassified according to a criminal law providing for a less serious crime or a less serious criminal misdemeanour if the factual circumstances of the deed are not changed in substance.”

The comparison of the legal regulation established in Paragraph 4 (wording of 22 December 2011) of Article 256 of the CCP with that established in Paragraph 4 (wording of 28 June 2007) of the same article makes it is clear that this legal regulation has not changed from the aspect impugned by the petitioners.

6. As mentioned before, Paragraph 3 (which to the specified extent is impugned in the constitutional justice case at issue by the Supreme Court of Lithuania and the Court of Appeal of Lithuania, the petitioners) of Article 320 “General Provisions of the Consideration of Cases Under Appeal Procedure” of the CCP, prescribes:

The court shall review a case without overstepping the limits of the requests in the appeals and only with respect to the persons who filed the appeals or against whom such appeals were filed. However, if the court, while reviewing a case, finds substantial violations of this Code, it, regardless of the fact whether the found violations were appealed against, shall verify whether this fact made any negative impact not only on the person that has filed the appeal, but also on the convicts who have not filed appeals.”

Thus, Paragraph 3 of Article 320 of the CCP establishes the limits of the consideration of criminal cases at the court of appeal instance.

6.1. In the context of the constitutional justice case at issue it should be noted that, as mentioned before, Paragraph 6 (wording of 28 June 2007) of Article 320 of the CCP prescribes:

The Court of appeal instance shall consider cases publicly with the exception of the situations provided for in Article 9 of this Code. When a case is considered under appeal procedure, the general provisions of Chapter XIX regarding the consideration of cases in courts shall be applied.”

Thus, under Paragraph 6 (wording of 28 June 2007) of Article 320 of the CCP, in the course of the consideration of cases under appeal procedure, the general provisions of Chapter XIX of the CCP regarding the consideration of cases in courts are applied by taking into account the peculiarities provided for in Chapter XXV “The Appeal Procedure” of the CCP. Consequently, when cases are considered under appeal procedure, inter alia, Paragraph 1 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the CCP is applied, which, as mentioned before, does not establish that a court may change, on its own initiative, the factual circumstances of the deed specified in the accusation to those that are different in substance.

In this context it needs to be mentioned that, in its rulings, the Supreme Court of Lithuania, which forms the judicial practice of courts of general jurisdiction, provides its interpretation to the effect that the court of appeal instance has the powers to change the factual circumstances of a deed specified in the accusation to those that are different in substance only when there is a request to do so in an appeal of a participant of the procedure that is specified in Paragraph 1 of Article 256 of the CCP (inter alia, the ruling of the panel of justices of the Criminal Cases Division of the Supreme Court of Lithuania of 8 May 2012 in criminal case No. 2K-190/2012).

6.2. If the legal regulation established in Paragraph 3 of Article 320 of the CCP is construed in conjunction with one established in Paragraph 6 (wording of 28 June 2007) of the same article and Paragraph 1 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the CCP, it should be noted that a court considering a case under appeal procedure is not granted any powers to change the factual circumstances of a criminal deed specified in the accusation to those that are different in substance when there is no request to do so in the lodged appeals.

7. Paragraph 1 (wording of 28 June 2007) of Article 326 “Types of Decisions Adopted by the Court of Appeal Instance upon the Consideration of Cases” of the CCP, Item 4 whereof to the specified extent is impugned in the constitutional justice case at issue by the Court of Appeal of Lithuania, a petitioner, inter alia, prescribes:

Having considered a case at a court hearing, the court of appeal instance shall adopt a ruling regarding an appealed judgment: <…>

4) to rescind the judgment and refer the case back to the court so that it would be considered anew if the case was considered by a partial court of first instance or the case was considered in violation of the cognisance rules established in Articles 224 and 225 of this Code, or if it transpires at the court of appeal instance that, at the time of the commission of the deed, the convict suffered from a mental illness or became mentally ill prior to the adoption of the judgment by the court of first instance and where the convict was subject to compulsory medical treatment; <...>.”

Thus, Item 4 of Paragraph 1 (wording of 28 June 2007) of Article 326 of the CCP enumerates the situations where the court of appeal instance is allowed to pass a ruling to rescind the judgment of the court of first instance and to refer the case for its new consideration.

In the context of the constitutional justice case at issue it should be noted that the list of the situations enumerated in Item 4 of Paragraph 1 (wording of 28 June 2007) of Article 326 of the CCP is an exhaustive one: the court of appeal instance is not granted any powers to rescind a judgment and refer a case for its new consideration by a court on the grounds other than those established in this item.

8. To summarise the legal regulation impugned in the constitutional justice case at issue, it should be noted that:

under the legal regulation established in Paragraph 2 (wording of 10 April 2003) of Article 255 and Paragraph 4 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the CCP, the accused may be convicted according to a criminal law that is different from one specified in the accusation and provides for a milder punishment or different, less serious, legal consequences without prior notification of the said person and other participants of the trial of this fact if the factual circumstances of an incriminated deed are not changed in substance;

Paragraph 1 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the CCP does not establish that a court may change, on its own initiative, the factual circumstances of the deed specified in the accusation to those that are different in substance;

under the legal regulation established in Paragraph 3 of Article 320 of the CCP, a court considering a criminal case under appeal procedure is not granted any powers to change the factual circumstances of a criminal deed to circumstances different in substance, where the filed appeals do not request so;

the court of appeal instance is not granted any powers to rescind a judgment and refer a case for its new consideration by a court on the grounds other than those established in Item 4 of Paragraph 1 (wording of 28 June 2007) of Article 326 of the CCP.

III

It has been mentioned that, in the constitutional justice case at issue, the petitioners request an investigation into the compliance of the provisions of the CCP with Paragraph 1 of Article 29, Paragraphs 2 and 6 of Article 31, Paragraph 1 of Article 109, Paragraphs 1 and 4 of Article 111 of the Constitution, and with the constitutional principles of justice and a state under the rule of law.

1. The striving for an open, just, and harmonious civil society and state under the rule of law that is established in the Preamble to the Constitution implies that it is obligatory to try to secure the safety of every individual and the whole society from criminal attempts against them (inter alia, the Constitutional Court’s rulings of 16 January 2006, 8 June 2009, 28 May 2010, and 4 June 2012). The purpose of the state as a political organisation of the entire society is to ensure human rights and freedoms and to guarantee the public interest, therefore, while exercising its functions and acting in the interests of the entire society, the state has the obligation to ensure effective protection of human rights and freedoms, of other values protected and defended by the Constitution, of every individual and the whole society against, inter alia, criminal attempts (the Constitutional Court’s rulings of 29 December 2004, 16 January 2006, and 8 June 2009).

In its ruling of 16 January 2006, the Constitutional Court held the following: “An 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 deeds and establish criminal liability for them by means of laws, but also its right and duty to regulate relations linked with the detection of, and an investigation into, criminal deeds and the consideration of criminal cases, i.e. the relations of criminal procedure; the relations of criminal procedure must be regulated by law in a way that legal pre-conditions might be created to speedily detect and thoroughly investigate criminal deeds, to punish the persons who committed the criminal deeds justly (or to decide the issue of their criminal liability by law otherwise), as well as legal pre-conditions might be created to ensure 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 deeds, also to avoid any unreasonable restriction of the rights of persons who committed criminal deeds; the legal regulation of criminal procedure should not create any pre-conditions for procrastinating investigations into criminal deeds and considering criminal cases, nor should it create any pre-conditions for participants of the criminal procedure to abuse their procedural and other rights; otherwise, the constitutional obligations of the state to ensure by means of legal measures the security of each person and the entire society and the implementation of the legal order based on the constitutional values would become more difficult.”

2. Paragraph 2 of Article 31 of the Constitution prescribes: “A person charged with the commission of a crime shall have the right to a public and fair hearing of his case by an independent and impartial court.”

This constitutional provision has consolidated the principle of a person’s right to the due process of law. The adherence to this principle is a necessary condition for a just decision of a case. When construing this principle, the Constitutional Court has noted, inter alia, the following (inter alia, the Constitutional Court’s rulings of 5 February 1999, 19 September 2000, 12 February 2001, 10 June 2003, 16 January 2006, 28 May 2008, and 8 June 2009):

the stipulation of the Constitution that cases must be investigated in a fair manner implies the fact that courts must correctly establish the actual circumstances of respective cases and that they must correctly apply criminal laws; the safeguarding of the impartiality of courts is one of the conditions for a just consideration of a case;

a person may not be recognised guilty of the commission of a crime, nor any criminal punishment may be imposed upon anyone without the proper judicial procedure enabling the accused to be familiarised with everything they are charged with and on what grounds the accusations against them are founded, as well as allowing them to prepare and present evidence for their defence; this must be secured by means of norms of criminal procedure that must be in conformity with the constitutional principles of lawfulness, the equality before the law and the court, the impartiality of courts and judges, and those of public and fair consideration of cases; the participants of trials—the accuser, the accused, counsel for the defence, the victim and their representative, the civil plaintiff and the civil respondent and their representatives—must be guaranteed by law the equal rights to present evidence, to take part in the investigation into the evidence, and to submit pleas; cases must be considered on the basis of the adversarial principle;

the criminal procedure must ensure that the constitutional rights of a person suspected of the commission of a criminal deed would not be violated: their right to defence, the right to an advocate, the right to be informed about the accusation, etc., must be secured;

the constitutional right to a fair trial, inter alia, means not only that, during the judicial procedure, the principles and norms of law of criminal procedure must be observed, but also that the punishment established in the penal law and imposed by a court must be just; the penal law must provide for all opportunities for the court to impose, in consideration of all circumstances of the case, a just punishment on the person who committed a criminal deed; the imposition of an unjust punishment would imply that the right of a person to a fair trial is violated, consequently, Paragraph 2 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law are also violated;

the norms and principles entrenched in the Constitution, inter alia, a person’s right, consolidated in Paragraph 2 of Article 31 of the Constitution, to a public and fair hearing of their case by an independent court, the principles of a state under the rule of law and justice, imply the model of the court as an institution administering justice, where the court cannot be understood as a passive observer of the process of cases, and that administration of justice cannot depend only upon the material submitted to the court; seeking to investigate all circumstances of the case objectively and comprehensively and to establish the truth in the case, a court enjoys the powers either to perform respective procedural actions by itself, or to commission certain institutions (officials), inter alia, the prosecutors, that they perform corresponding actions; when performing the procedural actions, the court must be impartial and act so that it would not create any preconditions to think that it is partial or dependent on anyone or anything.

3. Paragraph 6 of Article 31 of the Constitution prescribes: “A person suspected of the commission of a crime and the accused shall be guaranteed, from the moment of their detention or first interrogation, the right to defence as well as the right to an advocate.”

This provision has consolidated a person’s right to defence and their right to an advocate. When construing this provision, the Constitutional Court has held the following (inter alia, the Constitutional Court’s rulings of 5 February 1999, 12 February 2001, and 8 June 2009):

the right of the accused to defence is one of the guarantees for the establishment of the truth in the case; this right is considered a necessary condition in the implementation of the task of criminal procedure, which is justly to punish every person who committed a crime, and in ensuring that an innocent person would not be brought to criminal responsibility and convicted; the right of the accused to defence presupposes that fact that the accused must be guaranteed sufficient procedural means of defending themselves against the brought accusation and that they must have an opportunity to make use of such means;

the right of persons to defence and their right to an advocate are absolute: these rights may not be denied or restricted on any grounds or any conditions;

the prosecutor and the court must ensure that the accused should have an opportunity to defend themselves from the charge brought against them by means and ways as provided by law, as well as to ensure the protection of their personal and property rights;

if the accusation is replaced with a graver one, the situation of the accused becomes more difficult, therefore, the safeguarding of the right of an indicted person to defence becomes of crucial importance; the legal opportunities of defence in an attempt to deny the accusation or alleviate the liability may not be different as regards the person against whom a charge was brought during the phase of the initial investigation and the person against whom such a charge was brought in court; otherwise, a person’s right to defence would be violated;

it is possible to relate the right to defence established in the Constitution to the norms of acts of international law providing for respective standards for protection of the rights of a person charged with a crime; for instance, Paragraph 3 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter also referred to as the Convention) provides for the guarantees of a person charged with a crime; such an individual has the following minimum guarantees: a) to be informed promptly, in a language which they understand and in detail, of the nature and cause of the accusation against them; b) to have adequate time and facilities for the preparation of their defence; c) to defend themselves in person or through legal assistance of their own choosing or, if they have not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; d) to examine or have examined witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them; e) to have the free assistance of an interpreter if they cannot understand or speak the language used in court.

4. Paragraph 1 of Article 109 of the Constitution prescribes: “In the Republic of Lithuania, justice shall be administered only by courts.”

Administration of justice is a function of courts and it determines both the place of the judiciary in the system of institutions of state power and the status of judges. Neither any other state institution nor any other state official may exercise this function (inter alia, the Constitutional Court’s rulings of 21 December 1999, 13 May 2004, and 7 April 2011). Justice is administered by applying special procedural forms the purpose of which is to ensure a person’s rights in the judicial procedure, to facilitate the establishment of the actual circumstances of the case, and to pass a just decision (the Constitutional Court’s ruling of 18 April 1996).

When construing Article 109 of the Constitution, the Constitutional Court has held on more than one occasion (inter alia, in its rulings of 21 December 1999, 9 May 2006, 6 June 2006, and 25 September 2012) that, in the course of administering justice, courts must ensure the implementation of law formulated in the Constitution, laws, and other legal acts, must guarantee the supremacy of law, and must protect human rights and freedoms. The constitutional concept of justice also implies that courts must decide cases only by strictly adhering to the procedural and other requirements established in laws, without overstepping the limits of their jurisdiction, and not exceeding their other powers (the Constitutional Court’s rulings of 16 January 2006 and 24 October 2007). From Paragraph 1 of Article 109 of the Constitution, the duty arises for courts to decide cases justly and objectively and to adopt reasoned and well-grounded decisions (inter alia, the Constitutional Court’s rulings of 15 May 2007, 17 September 2008, 31 January 2011, and 25 September 2012). The principle of justice consolidated in the Constitution, as well as the provision that justice is administered by courts, means that not the adoption of a decision itself in a court, but rather the adoption of a just court decision, constitutes a constitutional value; the constitutional concept of justice implies not a perfunctory and nominal justice administered by a court, not an outward appearance of justice administered by a court, but, most importantly, such court decisions (other final court acts), which by their content are not unjust; the justice administered by the court only in a perfunctory manner is not the justice that is consolidated in and protected and defended by the Constitution (inter alia, the Constitutional Court’s rulings of 21 September 2006, 25 September 2012, and 19 December 2012).

In its ruling of 16 January 2006, the Constitutional Court held the following: under the Constitution, inter alia, Article 109 thereof, and under the principles of a state under the rule of law and justice, in the course of criminal procedure a court has a duty to make use of all possibilities in order to establish the objective truth in a criminal case and to adopt a just decision in respect of the person who is accused of committing a criminal deed; a court of first instance also has such a duty; in criminal procedure law, the provision of Paragraph 1 of Article 109 of the Constitution that justice is administered only by courts, inter alia, means that, during the trial, a court of first instance, while discharging this function, must thoroughly, fully, and objectively investigate all the circumstances of the criminal case and decide the case in substance. The constitutional function of a court—administration of justice—is substantially different from one’s being in charge of the pre-trial investigation of a case, the control of this investigation, the upholding of charges on behalf of the state, etc.; when administering justice, courts consider criminal cases that are already prepared, solve the issue of the guilt of defendants, and either impose punishments upon them or acquit them. On the other hand, courts and judges, in the course of administration of justice, are not bound by the evidence obtained during the pre-trial investigation of a case: the constitutional obligation of a court is a comprehensive, thorough, and objective investigation into all the material of a case and the adoption of a just decision (inter alia, the Constitutional Court’s rulings of 5 February 1999 and 8 May 2000).

5. Under Paragraph 1 of Article 111 of the Constitution, the courts of the Republic of Lithuania shall be the Supreme Court of Lithuania, the Court of Appeal of Lithuania, regional courts, and local courts. The Constitution (inter alia, Paragraph 1 of Article 111 thereof) not only establishes a four-level system of courts of general jurisdiction (as a system of institutions), but also consolidates the fundamentals for the instance system of courts of general jurisdiction, as a system of procedural stages of judicial consideration of cases. The instance system of courts of general jurisdiction, which stems from the Constitution, implies that there must be, under the established procedure, possibilities of filing a complaint against any final act of a court of general jurisdiction of first instance with a court of general jurisdiction of at least one higher instance (the Constitutional Court’s rulings of 28 March 2006, 24 October 2007, and 6 December 2012). Justice is always administered by leaving an opportunity to rectify a possible mistake or change the judgment in the light of new circumstances (the Constitutional Court’s rulings of 9 December 1998 and 24 January 2008). The Constitutional Court has held that the purpose of the instance court system is to remove possible mistakes of courts of lower instances, to prevent any execution of injustice and, thus, to protect the rights and legitimate interests of a person, society and the state (the Constitutional Court’s rulings of 16 January 2006 and 6 December 2012). Thus, the purpose of the instance system of courts of general jurisdiction is to create preconditions for courts of higher instances to correct any mistakes of the fact (i.e. of the establishment and assessment of legally significant facts) or of the law (i.e. of the application of law), which for some reasons could be made by a court of lower instance, and to prevent the execution of injustice in any civil case, criminal case or case of other category considered by courts of general jurisdiction (the Constitutional Court’s ruling of 28 March 2006); otherwise, the constitutional principle of a state under the rule of law would be deviated from and the constitutional right of a person to the due process of law would be violated (the Constitutional Court’s rulings of 21 September 2006, 24 October 2007, and 24 January 2008). The said correction of mistakes of courts of lower instance and the related prevention of injustice is the conditio sine qua non of the confidence of the parties of corresponding cases and society in general not only in the court of general jurisdiction that considers the corresponding case, but also in the whole system of courts of general jurisdiction (the Constitutional Court’s rulings of 28 March 2006 and 6 December 2012).

When assessing the legal regulation that establishes the limits of the consideration of a case at the court of appeal instance and the opportunities of that court to overstep the limits of an appeal in the defence of the public interest, in its ruling of 21 September 2006, the Constitutional Court noted that the principle tantum devolutum quantum appellatum (the court of appeal instance must verify and assess only the legitimacy and reasonableness of the appealed part of the decision of the court of first instance, and does not have to verify and assess whether the parts of the decision that were not appealed under the appeal procedure are legitimate and reasonable) is not absolute, inter alia, in the aspect that in certain cases the court of appeal instance not only can, but also must overstep the limits of an appeal:

the principle tantum devolutum quantum appellatum in itself does not imply that the court of appeal instance must be restricted by the limits of an appeal when the decision of the said court could essentially be unjust and when it could violate constitutional values;

under the Constitution, the establishment of any such legal regulation to the effect that a court, having received a respective application, would not be able to defended the public interest, or where a court, while deciding a case, would be forced to adopt a decision that would itself violate the public interest, thus, also a certain value (inter alia, a person’s right or freedom) established in, and defended and protected by the Constitution, is not allowed; if a court adopted such a decision, that decision would be unjust; it would mean that the court, in the name of the Republic of Lithuania, administered not the justice that is entrenched in the Constitution, but, under the Constitution, it administered non-justice; thus, the constitutional concept of the court as the institution that administers justice in the name of the Republic of Lithuania would also be denied.

Paragraph 4 of Article 111 of the Constitution provides that the formation and competence of courts shall be established by the Law on Courts. When regulating the said relations by law, the legislature must pay heed to the Constitution and, inter alia, the bases of the instance system of courts of general jurisdiction entrenched in it (the Constitutional Court’s ruling of 28 March 2006).

6. Paragraph 1 of Article 29 of the Constitution provides that all persons shall be equal before the law, the court, and other state institutions and officials. The constitutional principle of the equality of all persons before the law, which is consolidated in the said article, requires that the main rights and duties be established by law equally to all; this principle means the innate right of a human being to be treated equally with others, it obliges one to legally assess homogenous facts in the same manner and prohibits from the arbitrary assessment of the facts that are the same in essence in a different manner, but it does not deny a different legal regulation, established by law, with respect to certain categories of persons who are in different situations. The constitutional principle of the equality of persons before the law would be violated if certain persons or groups of such persons were treated in a different manner even though there are not any differences of such a character and to such an extent between the said groups of persons so that their uneven treatment could be objectively justified (inter alia, the Constitutional Court’s rulings of 29 July 2012, 14 December 2012, 15 February 2013, and 16 May 2013).

IV

In the context of the constitutional justice case at issue, it should also be noted that the construction of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms is relevant for this case. Paragraph 1 of Article 6 of the Convention consolidates, inter alia, everyone’s right to a fair process in criminal cases; Paragraph 3 (a) of this article guarantees the right of the accused to be informed promptly and in detail, of the nature and cause of the accusation against them, whilst Paragraph 3 (b)—the right to have adequate time and facilities for the preparation of their defence.

The Constitutional Court has held on more than one occasion that the jurisprudence of the European Court of Human Rights (hereinafter referred to as the ECtHR), as a source of construction of law, is also important for the construction and application of Lithuanian law.

1. The ECtHR has noted on more than one occasion that the provisions of Paragraph 3 (a) of Article 6 of the Convention, according to which everyone charged with a criminal offence has the right to be informed promptly, in a language that they understand and in detail, of the nature and cause of the accusation against them, point to the need for special attention to be paid to the notification of the “accusation” to the defendant; particulars of the offence play a crucial role in the criminal process, in that it is from the moment of their service that the suspect is formally put on notice of the factual and legal basis of the charges against them; Paragraph 3 (a) of Article 6 of the Convention affords the defendant the right to be informed not only of the cause of the accusation, that is to say the acts they are alleged to have committed and on which the accusation is based, but also the legal characterisation given to those acts; that information should be detailed (the judgment of 25 March 1999 in the case of Pélissier and Sassi v. France (petition No. 25444/94); the judgment of 1 March 2001 in the case of Dallos v. Hungary (petition No. 29082/95); the judgment of 24 April 2007 in the case of Juha Nuutinen v. Finland (petition No. 45830/99)). The scope of the above provision must in particular be assessed in the light of the more general right to a fair hearing guaranteed by Paragraph 1 of Article 6 of the Convention; in criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterisation that the court might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair; in this respect, it should be noted that Paragraph 3 (a) of Article 6 of the Convention does not impose any special formal requirement as to the manner in which the accused is to be informed of the nature and cause of the accusation against them; lastly, Paragraphs 3 (a) and 3 (b) of Article 6 are connected and the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused’s right to prepare their defence (the judgment of 25 March 1999 in the case of Pélissier and Sassi v. France (petition No. 25444/94); the judgment of 21 February 2002 in the case of Sipavičius v. Lithuania (petition No. 49093/99); the judgment of 25 January 2011 in the case of Block v. Hungary (petition No. 56282/09)).

The ECtHR has consistently upheld its position that in situations where a charge is amended in substance the accused must be given a proper opportunity to implement their rights to defence against the amended charge. In such a case, namely the impact of the reformulation of a charge on the possibilities of defence is a determining factor in the assessment of the compliance of the ensuring of the rights to defence with the Convention, i.e. an assessment is made whether the defence would be generally different because of the amended charge (the judgment of 25 September 2008 in the case of Seliverstov v. Russia (petition No. 19692/02)). For instance, the ECtHR, having found that the applicant had been unaware of the fact that the first instance court might reclassify the offence (abuse of office) with which he was charged as official negligence (a less serious criminal deed), held that this circumstance certainly impaired his ability to defend himself in respect of the charge; in view of the fact that the applicant was entitled to contest his conviction in respect of all relevant legal and factual aspects before the Court of Appeal, which heard the parties at an oral appeal hearing and reviewed the applicant’s complaints about the reclassification of the charge from both the procedural and substantive point of view, and the fact that the applicant’s case was reviewed at the level of cassation jurisdiction by the Supreme Court of Lithuania which also examined the substantive and procedural elements of the reclassification, and was competent to afford the applicant the relief he sought, no violation of the Convention was found in that case (the judgment of 21 February 2002 in the case of Sipavičius v. Lithuania (petition No. 49093/99)).

2. Under the ECtHR case-law, the powers of a court to apply, on its own initiative, a criminal law providing for a graver crime in themselves are not in conflict with the Convention.

In the case of I. H. and Others v. Austria, the ECtHR noted that the court had enjoyed the powers to reclassify the incriminated deed as more serious one; in this case a violation was found due to the fact that the accused had not been informed about a possible reclassification of their deed as more serious one (the judgment of 20 April 2006 in the case of I. H. and Others v. Austria (petition No. 42780/98)). In the case of Bäckström and Andersson v. Sweden, the ECtHR rejected the argument that the court, having raised the issue of the reclassification of the offence, where it reclassified an offence of attempted aggravated robbery as a completed offence of aggravated robbery, by its intervention upset the principle of “equality of arms”. The ECtHR found that the said principle had not been violated, because, under Swedish law, the court enjoyed the right to establish an aggravating classification and was not bound by the prosecutor’s characterisation (the decision as to the admissibility of 5 September 2006 in the case of Bäckström and Andersson v. Sweden (petition No. 67930/01)).

In its aforementioned judgment in the case of Pélissier and Sassi v. France, the ECtHR pointed out that, in using the right which it unquestionably had to recharacterise facts over which it properly had jurisdiction, the court of appeal instance should have given the applicants an opportunity to prepare their defence to the new charge; the ECtHR found nothing in the instant case capable of explaining why the hearing had not been adjourned for further argument or, alternatively, the applicants had not been requested to submit written observations while the court of appeal was in deliberation; on the contrary, the applicants had been given no opportunity to prepare their defence to the new charge, as it was only through the court of appeal’s judgment that they had learnt of the recharacterisation of the facts; plainly, that had been too late (the judgment of 25 March 1999 in the case of Pélissier and Sassi v. France (petition No. 25444/94).

According to the ECtHR jurisprudence, when by its ruling a court of lower instance modifies the classification of a deed and the accused is not informed about this fact in advance and, therefore, is not capable of providing the defence arguments regarding the modified charge, whilst the court of higher instance considers the case only in the aspect of law, i.e. in that court, the convicted person does not have an all-sufficient possibility of verifying and ascertaining the facts important in the classification of the deed, the defence rights consolidated in the Convention are violated (the judgment of 20 April 2006 in the case of I. H. and Others v. Austria (petition No. 42780/98); the judgment of 19 December 2006 in the case of Mattei v. France (petition No. 34043/02)). On the other hand, in cases where the counsel for the defence has an opportunity to challenge, in the aspect of fact and law, the new classification, the said rights are deemed to be ensured (the judgment of 21 February 2002 in the case of Sipavičius v. Lithuania (petition No. 49093/99); the judgment of 24 June 2004 in the case of Balette v. Belgium (petition No. 48193/99); the decision as to admissibility of 7 February 2006 in the case of Virolainen v. Finland (petition No. 29172/02)).

V

On the compliance of Paragraph 2 (wording of 10 April 2003) of Article 255 and Paragraph 4 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the Code of Criminal Procedure with Paragraph 1 of Article 29, Paragraphs 2 and 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

1. It has been mentioned that, in the constitutional justice case at issue, subsequent to the petitions of the Supreme Court of Lithuania and the Court of Appeal of Lithuania, the petitioners, the Constitutional Court is investigating whether Paragraph 2 (wording of 10 April 2003) of Article 255 and Paragraph 4 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the CCP, insofar as the accused may be convicted according to a criminal law that is different from one specified in the accusation and provides for a less serious crime or a less serious criminal misdemeanour, without prior notification of the said person and other participants of the trial of this fact if the factual circumstances of an incriminated deed are not changed in substance, are not in conflict with Paragraph 1 of Article 29 and Paragraphs 2 and 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

2. According to the petitioners, if a person being held criminally liable is not notified of the fact that they may be found guilty on the grounds of a criminal law that is different from one specified in the accusation and provides for a less serious crime or a less serious criminal misdemeanour, their right to be informed about the accusation and their right to defence might be limited, furthermore, in case the CCP fails to consolidate the requirement for ensuring the right of a person who is being held criminally liable to be informed about the accusation and for ensuring the right to defence in the situations where an incriminated deed is reclassified as a less serious crime or a less serious criminal misdemeanour (i.e., by failing to ensure equal procedural possibilities for all culprits to defend themselves and to seek justice), one also fails the meet the requirements of the constitutional principle of the equality of all persons before the law, the court or other state institutions or officials.

3. As mentioned before, Paragraph 2 (wording of 10 April 2003) of Article 255 “The Limits of the Consideration Conducted by a Court” of the CCP prescribes: “The accused may not be convicted under a different criminal law that provides for a more serious crime or a more serious criminal misdemeanour, or regarding a criminal deed whose factual circumstances differ in substance from those set forth in the indictment if the accused was not notified of such a possibility during the court trial.”

Paragraph 4 of Article 256 “The Changing of the Substantial Factual Circumstances of the Deed Specified in the Accusation and the Changing of the Classification of the Deed in Court” (wording of 28 June 2007) of the CCP prescribes: “The provisions of Paragraphs 2 and 3 of this Article shall not be applied where the deed specified in the accusation has been reclassified according to a criminal law providing for a less serious crime or a less serious criminal misdemeanour if the factual circumstances of the deed are not changed in substance.”

It has been mentioned that under the legal regulation laid down in Paragraph 2 (wording of 10 April 2003) of Article 255 and Paragraph 4 of Article 256 (wording of 28 June 2007) of the CCP, the accused may be convicted under a different criminal law that provides for a less serious crime or a less serious criminal misdemeanour if the factual circumstances of a criminal deed do not differ in substance from those set forth in the indictment, without prior notification of the accused of this fact.

It has also been mentioned that, according to Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP, an advance notification of the accused is necessary in all situations where the factual circumstances of a deed that are specified in the accusation are changed to those that are different in substance, regardless of whether in such a case the criminal law providing for such a deed is changed or not.

4. In order to decide whether Paragraph 2 (wording of 10 April 2003) of Article 255 and Paragraph 4 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the CCP, to the extent indicated by the petitioners, are not in conflict with Paragraph 1 of Article 29, Paragraphs 2 and 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law, it should be noted that, as it has been held in this ruling of the Constitutional Court:

the criminal procedure must ensure that the constitutional rights of a person suspected of the commission of a criminal deed would not be violated: their right to defence, the right to be informed about the accusation, etc., must be secured;

a person may not be recognised guilty of the commission of a crime, nor any criminal punishment may be imposed upon anyone without the proper judicial procedure enabling the accused to be familiarised with everything they are charged with and on what grounds the accusations against them are founded, as well as allowing them to prepare and present evidence for their defence;

the accused must be guaranteed sufficient procedural means of defending themselves against the brought accusation and that they must have an opportunity to make use of such means;

the right of persons to defence is absolute: this right may not be denied or restricted on any grounds or any conditions;

the constitutional principle of the equality of all persons before the law requires that the main rights and duties be established by law equally to all; this principle means the innate right of a human being to be treated equally with others, it obliges one to legally assess homogenous facts in the same manner and prohibits from the arbitrary assessment of the facts that are the same in essence in a different manner, but it does not deny a different legal regulation, established by law, with respect to certain categories of persons who are in different situations; the constitutional principle of the equality before the law would be violated if certain persons or groups thereof were treated in a different manner, even though there are not any differences of such a character and to such an extent between the said groups of persons so that their uneven treatment could be objectively justified.

5. It has been mentioned that Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP contains a prohibition against convicting the accused under a different criminal law that provides for a more serious crime or a more serious criminal misdemeanour, or regarding a criminal deed whose factual circumstances differ in substance from those set forth in the indictment if the accused was not notified of such a possibility during the court trial. Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP does not contain any prohibition against convicting the accused under a different criminal law that provides for a less serious crime or a less serious criminal misdemeanour, if the accused was not notified of such a possibility during the court trial, where the factual circumstances of a criminal deed do not differ in substance.

Thus, the petitioners impugn not the legal regulation established in Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP, but something that is not established in this paragraph, which, according to the petitioners, should have been established therein; in this situation, the issue of legislative omission is raised.

The Constitutional Court has held on more than one occasion that a legal gap, inter alia, legislative omission, always means that the legal regulation of corresponding social relations is established neither explicitly nor implicitly, neither in a certain legal act (part thereof) nor in any other legal act at all, even though there exists a need for a legal regulation of these social relations, whilst the said legal regulation, in the case of legislative omission, must be established, by paying heed to the imperatives of the consistency and inner non-discrepancy of the legal system and by taking into account the content of social relations, precisely in that legal act (precisely in that part thereof), because this is required by a certain legal act of higher power, inter alia, the Constitution itself.

6. In order to assess whether Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP, to the extent that it does not contain any prohibition against convicting the accused under a different criminal law that provides for a less serious crime or a less serious criminal misdemeanour, if the accused was not notified of such a possibility during the court trial, is not in conflict with the Constitution, it should be noted that, as mentioned before, the other criminal law that provides for a less serious crime or a less serious criminal misdemeanour according to which a deed committed by the accused is classified, where the factual circumstances of the criminal deed do not differ in substance, may differ from the criminal law specified in the indictment and that specified in the ruling of the judge to refer the case to a court trial in various ways: for instance, it is possible that it will not include separate articles (paragraphs and items thereof) of the CC and separate features of a criminal deed (e.g., the features that the doctrine of criminal law names as giving grounds for the classification); it may establish different features of a criminal deed, which might mitigate the legal situation of the accused (e.g., the criminal deed was committed not intentionally, but through carelessness); it may establish new features of the criminal deed that mitigate the legal situation of the accused (e.g., the features that the doctrine of criminal law names as giving grounds for privileges), or circumstances that are significant for the classification of another deed.

6.1. In the context of the constitutional justice case at issue, it should be noted that the relation between a criminal law that is applied by a court and provides for a less serious crime or a less serious criminal misdemeanour and the law specified in the indictment may be of a two-fold character: 1) the entirety of the features of a criminal deed established by the criminal law that is applied by a court is a part of the entirety of the features established by the criminal law specified in the indictment; 2) the criminal law that is applied by a court establishes different or new features of a criminal deed or other circumstances that are significant for the classification of a deed in comparison with the circumstances established in the criminal law that is specified in the indictment.

6.2. A situation where, without changing the factual circumstances of a criminal deed, the deed committed by the accused is reclassified according to a different criminal law that provides for a less serious crime or a less serious criminal misdemeanour, where the entirety of the features of the criminal deed established by the latter criminal law is a part of the features established in the criminal law that is specified in the indictment, should be treated as one that does not create any preconditions for the violation of the accused’s right to be informed about the accusation and their right to defence. In such a situation, conditions are created for the accused to be informed about the accusation and to have an opportunity to defend against all parts of the accusation: to dispute the factual circumstances of a criminal deed, the separate features of a criminal deed established in a criminal law, as well as the entirety of such features. Consequently, there is no ground for stating, that, under the Constitution, the law should establish that the accused must be informed about a possibility of such reclassification of a deed at the court trial in advance.

6.3. A situation where the accused is convicted according to a different criminal law that provides for a less serious crime or a less serious criminal misdemeanour and establishes new features of a criminal deed or other circumstances significant for the classification of a deed in comparison with the criminal law specified in the indictment, should be treated in a different manner. Even though in such a situation the accused is informed about the accusation and has an opportunity to defend against it (to dispute the factual circumstances of a criminal deed, the separate features of a criminal deed established in a criminal law, as well as the entirety of such features), however, they are not expected to foresee that the individual features of a criminal deed that are established in a criminal law could be changed to different features or that new features could be established. Being aware of such an opportunity, the accused could organise their defence in a different way. Consequently, the accused must be informed in the court trial in advance about the fact that they could be convicted according to a different criminal law that provides for a less serious crime or a less serious criminal misdemeanour and establishes new features of a criminal deed or other circumstances significant for the classification of a deed in comparison with the criminal law specified in the indictment.

It should be held that the legal regulation established in Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP, which does not prohibit from convicting the accused under a different criminal law that provides for a more serious crime or a more serious criminal misdemeanour and establishes new features of a criminal deed or other circumstances significant for the classification of a deed in comparison with the criminal law specified in the indictment if the accused is not notified of such a possibility at the court trial in advance, creates preconditions for non-securing the right of the accused to be informed about the accusation, non-guaranteeing sufficient procedural means for defending against the accusation, non-securing an opportunity to use such procedural means, restricting the right of the accused to defence, and for violating the constitutional principle of a state under the rule of law.

6.4. In view of the foregoing arguments, the conclusion should be drawn that Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP, insofar as it does not provide that the accused may not be convicted under a different criminal law that provides for a less serious crime or a less serious criminal misdemeanour and establishes new features of a criminal deed or other circumstances significant for the classification of a deed in comparison with the criminal law specified in the indictment, if the accused was not notified of such a possibility during the court trial, is in conflict with Paragraphs 2 and 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

6.5. Having held this, the Constitutional Court will not further investigate whether Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP to the extent specified by the petitioners is not in conflict with Paragraph 1 of Article 29 of the Constitution.

7. In order to assess whether Paragraph 4 of Article 256 (wording of 28 June 2007) of the CCP, insofar as the accused could be convicted according to a different criminal law that is different from one specified in the accusation and provides for a less serious crime or a less serious criminal misdemeanour, without prior notification of the said person and other participants of the trial of this fact if the factual circumstances of a criminal deed are not changed in substance, is not in conflict with Paragraph 1 of Article 29 and Paragraphs 2 and 6 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law, it should be noted that, as mentioned before, under the legal regulation laid down in Paragraph 4 of Article 256 (wording of 28 June 2007) of the CCP, if it is construed in conjunction with the legal regulation established in Paragraphs 2 and 3 of the same article (wording of 28 June 2007), a deed specified in the accusation may be reclassified according to a criminal law that provides for a less serious crime or a less serious criminal misdemeanour if the factual circumstances of the criminal deed do not differ in substance without a written application of the prosecutor, the private accuser, or the victim, and without prior notification of the accused and other participants of the trial of this fact.

It has also been mentioned that, under the legal regulation established in Paragraph 2 (wording of 10 April 2003) of Article 255 and Paragraph 4 (wording of 28 June 2007) of Article 256 of the CCP, the accused may be convicted according to a criminal law that is different from one specified in the accusation and provides for a milder punishment or different, less serious, legal consequences without prior notification of the said person and other participants of the trial of this fact if the factual circumstances of an incriminated deed are not changed in substance.

7.1. It should be noted that the Supreme Court of Lithuania, a petitioner, impugns the compliance of Paragraph 4 (wording of 28 June 2007) of Article 256 of the CCP with the Constitution on the grounds of the same arguments as regarding the compliance of Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP with the Constitution.

7.2. It has been held in this ruling of the Constitutional Court that Paragraph 2 (wording of 10 April 2003) of Article 255 of the CCP, insofar as it does not provide that the accused may not be convicted under a different criminal law that provides for a less serious crime or a less serious criminal misdemeanour and establishes new features of a criminal deed or other circumstances significant for the classification of a deed in comparison with the criminal law specified in the indictment, if the accused was not notified of such a possibility during the court trial, is in conflict with Paragraphs 2 and 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

7.3. Having held this, on the grounds of the same arguments, one is also to hold that Paragraph 4 of Article 256 (wording of 28 June 2007) of the CCP, insofar as it established that the provisions of Paragraphs 2 and 3 of Article 256 of the CCP must not be applied in the situations of the reclassification of a criminal deed specified in the accusation in accordance of a criminal law that provides for a less serious crime or a less serious criminal misdemeanour and establishes different or new features of a criminal deed or other circumstances that are significant for the classification of a deed in comparison with the circumstances established in the criminal law that is specified in the indictment if the factual circumstances of the deed are not changed in substance, was also in conflict with Paragraphs 2 and 6 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law.

Having held this, the Constitutional Court will not further investigate whether Paragraph 4 of Article 256 (wording of 28 June 2007) of the CCP to the extent specified by the petitioner is not in conflict with Paragraph 1 of Article 29 of the Constitution.

7.4. In view of the foregoing arguments, the conclusion should be drawn that Paragraph 4 of Article 256 (wording of 28 June 2007) of the CCP, insofar as it established that the provisions of Paragraphs 2 and 3 of Article 256 of the CCP must not be applied in the situations of the reclassification of a criminal deed specified in the accusation in accordance of a criminal law that provides for a less serious crime or a less serious criminal misdemeanour and establishes different or new features of a criminal deed or other circumstances that are significant for the classification of a deed in comparison with the circumstances established in the criminal law that is specified in the indictment if the factual circumstances of the deed are not changed in substance, was in conflict with Paragraphs 2 and 6 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law.

8. It has been mentioned that Article 7 of the Law Amending Articles 109, 219, 220, 227, 234, 254, 256, 426 of the Code of Criminal Procedure and Supplementing the Code with Article 3081, which was adopted by the Seimas on 22 December 2011, amended Paragraph 4 of Article 256 (wording of 28 June 2007) of the CCP.

It has also been mentioned that the comparison of the legal regulation established in Paragraph 4 (wording of 22 December 2011) of Article 256 of the CCP with that established in Paragraph 4 (wording of 28 June 2007) of Article 256 of the CCP makes it is clear that this legal regulation has not changed from the aspect impugned by the petitioners.

8.1. The Court of Appeal of Lithuania, a petitioner, impugns the compliance of Paragraph 4 (wording of 22 December 2011) of Article 256 of the CCP with the Constitution on the grounds of the same arguments as does the Supreme Court of Lithuania regarding the compliance of Paragraph 4 of Article 256 (wording of 28 June 2007) of the CCP with the Constitution.

8.2. In this ruling of the Constitutional Court, it has been held that Paragraph 4 (wording of 28 June 2007) of Article 256 of the CCP, insofar as it established that the provisions of Paragraphs 2 and 3 of Article 256 of the CCP must not be applied in the situations of the reclassification of a criminal deed specified in the accusation in accordance of a criminal law that provides for a less serious crime or a less serious criminal misdemeanour and establishes different or new features of a criminal deed or other circumstances that are significant for the classification of a deed in comparison with the circumstances established in the criminal law that is specified in the indictment if the factual circumstances of the deed are not changed in substance, was in conflict with Paragraphs 2 and 6 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law.

8.3. Having held this, on the grounds of the same arguments, it should also be held that Paragraph 4 (wording of 22 December 2011) of Article 256 of the CCP, insofar as it establishes that the provisions of Paragraphs 1, 2, and 3 of Article 256 of the CCP must not be applied in the situations of the reclassification of a criminal deed specified in the accusation in accordance of a criminal law that provides for a less serious crime or a less serious criminal misdemeanour and establishes different or new features of a criminal deed or other circumstances that are significant for the classification of a deed in comparison with the circumstances established in the criminal law that is specified in the indictment if the factual circumstances of the deed are not changed in substance, is in conflict with Paragraphs 2 and 6 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law.

Having held this, the Constitutional Court will not further investigate whether Paragraph 4 (wording of 22 December 2011) of Article 256 of the CCP to the extent specified by the petitioner is not in conflict with Paragraph 1 of Article 29 of the Constitution.

8.4. In the light of the foregoing arguments the conclusion should be drawn that Paragraph 4 (wording of 22 December 2011) of Article 256 of the CCP, insofar as it establishes that the provisions of Paragraphs 1, 2, and 3 of Article 256 of the CCP must not be applied in the situations of the reclassification of a criminal deed specified in the accusation in accordance of a criminal law that provides for a less serious crime or a less serious criminal misdemeanour and establishes different or new features of a criminal deed or other circumstances that are significant for the classification of a deed in comparison with the circumstances established in the criminal law that is specified in the indictment if the factual circumstances of the deed are not changed in substance, is in conflict with Paragraphs 2 and 6 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law.

VI

On the compliance of Paragraph 1 (wordings of 28 June 2007 and 22 December 2011) of Article 256, Paragraph 3 of Article 320, and Item 4 of Paragraph 1 (wording of 28 June 2007) of Article 326 of the Code of Criminal Procedure with the Constitution.

1. It has been mentioned that, in the constitutional justice case at issue, subsequent to the petitions of the Supreme Court of Lithuania and the Court of Appeal of Lithuania, the petitioners, the Constitutional Court is investigating whether, inter alia, Paragraph 1 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the CCP, insofar as a court considering a criminal case is prohibited from changing, on its own initiative, the factual circumstances of a criminal deed to circumstances different in substance, is not in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law.

2. The petitioners are of the opinion that, according to the legal regulation laid down in Paragraph 1 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the CCP, a court, having established that a person committed the criminal deed specified in the indictment, but in circumstances that are different in substance, does not enjoy any powers to change these factual circumstances on its own initiative. According to the petitioner, such legal regulation created preconditions for acquitting a guilty person of a criminal deed, or for imposing an unreasonably mild punishment upon them, thus, by failing to ensure an effective protection of the public from criminal attempts.

3. As mentioned before, Paragraph 1 (wording of 28 June 2007) of Article 256 of the CCP prescribed:

The prosecutor, the private accuser and the victim shall have the right, prior to the end of the investigation into the evidence in court, to file a written application requesting the changing of the factual circumstances of the deed specified in the accusation to those that are different in substance. The application must contain the said circumstances that are different in substance. Having received such an application, the court shall notify the accused of this fact immediately. Copies of this application shall be distributed among the participants of the trial.”

It has also been mentioned that Paragraph 1 (wording of 28 June 2007) of Article 256 of the CCP does not establish that a court may change, on its own initiative, the factual circumstances of the deed specified in the accusation to those that are different in substance.

4. When deciding whether Paragraph 1 (wording of 28 June 2007) of Article 256 of the CCP to the extent specified by the Supreme Court of Lithuania, a petitioner, was not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of justice and a state under the rule of law, it should be noted that, as already mentioned in this ruling of the Constitutional Court:

a person’s right, consolidated in Paragraph 2 of Article 31 of the Constitution, to a public and fair hearing of their case by an independent court, the principles of a state under the rule of law and justice, imply the model of the court as an institution administering justice, where the court cannot be understood as a passive observer of the process of cases, and that administration of justice cannot depend only upon the material submitted to the court; seeking to investigate all circumstances of the case objectively and comprehensively and to establish the truth in the case, a court enjoys the powers either to perform respective procedural actions by itself, or to commission certain institutions (officials), inter alia, the prosecutors, that they perform corresponding actions;

the constitutional right to a fair trial, inter alia, means not only that, during the judicial procedure, the principles and norms of law of criminal procedure must be observed, but also that the punishment established in the penal law and imposed by a court must be just; the penal law must provide for all opportunities for the court to impose, in consideration of all circumstances of the case, a just punishment on the person who committed a criminal deed; the imposition of an unjust punishment would imply that the right of a person to a fair trial is violated, consequently, Paragraph 2 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law are also violated;

under the Constitution, inter alia, Article 109 thereof, and under the principles of a state under the rule of law and justice, in the course of criminal procedure a court has a duty to make use of all possibilities in order to establish the objective truth in a criminal case and to adopt a just decision in respect of the person who is accused of committing a criminal deed; a court of first instance also has such a duty; in criminal procedure law, the provision of Paragraph 1 of Article 109 of the Constitution that justice is administered only by courts, inter alia, means that, during the trial, a court of first instance, while discharging this function, must thoroughly, fully, and objectively investigate all the circumstances of the criminal case and decide the case in substance; the constitutional function of a court—administration of justice—is substantially different from one’s being in charge of the pre-trial investigation of a case, the control of this investigation, the upholding of charges on behalf of the state, etc.; when administering justice, courts consider criminal cases that are already prepared, solve the issue of the guilt of defendants, and either impose punishments upon them or acquit them; on the other hand, courts and judges, in the course of administration of justice, are not bound by the evidence obtained during the pre-trial investigation of a case: the constitutional obligation of a court is a comprehensive, thorough, and objective investigation into all the material of a case and the adoption of a just decision.

5. While assessing whether Paragraph 1 of Article 256 (wording of 28 June 2007) of the CCP, insofar as, according to the Supreme Court of Lithuania, a petitioner, a court considering a criminal case is prohibited from changing, on its own initiative, the factual circumstances of a criminal deed to circumstances different in substance, is not in conflict with the Constitution, it should be noted that, under the legal regulation laid down in Paragraph 1 of Article 256 (wording of 28 June 2007) of the CCP, there can emerge a situation where, during a court trial, it transpires that the factual circumstances of a deed were established incorrectly, however, neither the prosecutor (or the private accuser), nor the victim reacts to such a fact and does not request the changing of the factual circumstances of the deed specified in the indictment, i.e. the place, time, manner, consequences, and other important circumstances of the commission of the criminal deed, to circumstances that are different in substance. In such a case, the said court would not be able, on its own initiative, to change the factual circumstances of an incriminated deed to circumstances that are different in substance.

5.1. According to Paragraph 1 of Article 256 (wording of 28 June 2007) of the CCP, which, as mentioned before, does not establish that a court may change the factual circumstances of an incriminated deed to circumstances that are different in substance on its own initiative, thus, a court of first instance is bound by the data collected during the pre-trial investigation, it is unable to use all opportunities to establish the truth in a criminal case, to establish the actual circumstances in the case and to adopt a just decision regarding the guilt of a person accused of the commission of a criminal deed. Such legal regulation creates pre-conditions, in violation of Paragraph 1 of Article 109 of the Constitution and the constitutional principles of a state under the rule of law and justice, for the fact that the decision in a case is determined not by the court assessment of significant data (evidence), but, rather, by an opinion of the participants of the court trial.

5.2. Under Paragraph 1 of Article 109 of the Constitution and the constitutional principles of a state under the rule of law and justice, courts have a duty not only to investigate all circumstances of criminal cases in an exhaustive and impartial manner, but also they have a duty to correctly apply criminal laws, inter alia, to properly classify a criminal deed committed by the accused. A court must investigate whether a deed specified in the indictment was committed in the substantial circumstances specified namely in that act with the exception of the situations where the prosecutor, the private accuser, or the victim, submit a request that the factual circumstances specified in the indictment be changed to circumstances that are different in substance. Should a court find that a person committed a criminal deed specified in the indictment, but the factual circumstance of the commissioning of the deed were different in substance, under the legal regulation laid down in Paragraph 1 (wording of 28 June 2007) of Article 256 of the CCP, the court would not have any powers to change, on its own initiative, these factual circumstances and to recognise this person guilty of the criminal deed and, providing there exist corresponding grounds, to impose a just punishment on such a person. Such legal regulation creates preconditions, in violation of Paragraph 2 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law, for acquitting a guilty person of the commission of a criminal deed or for imposing an unjust punishment on them.

5.3. Thus, it should be held that, under the Constitution, inter alia, Paragraph 2 of Article 31 and Paragraph 1 of Article 109 thereof, under the constitutional principles of a state under the rule of law and justice, opportunities must be created for a court considering a criminal case to change, on its own initiative, the factual circumstances specified in the indictment to circumstances that are different in substance. While implementing this right, a court must inform the accused and other participants of the court trial about such a possibility, must ensure the right to be informed about the accusation, the right to defence, and the implementation of the other constitutional principles of the due process of law.

5.4. In the light of the foregoing arguments, the conclusion should be drawn that Paragraph 1 (wording of 28 June 2007) of Article 256 of the CCP, insofar as it did not establish that a court may, on its own initiative, change the factual circumstances of a criminal deed to circumstances different in substance, was in conflict with Paragraph 2 of Article 31 and Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of justice and a state under the rule of law.

6. It has been mentioned that Article 7 of the Law Amending Articles 109, 219, 220, 227, 234, 254, 256, 426 of the Code of Criminal Procedure and Supplementing the Code with Article 3081, which was adopted by the Seimas on 22 December 2011, amended Paragraph 1 of Article 256 (wording of 28 June 2007) of the CCP.

It has also been mentioned that the comparison of the legal regulation established in Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP with that established in Paragraph 1 of Article 256 (wording of 28 June 2007) of the CCP makes it is clear that this legal regulation has not changed from the aspect impugned by the petitioners.

6.1. The Court of Appeal of Lithuania, a petitioner, impugns the compliance of Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP with the Constitution on the grounds of the same arguments as does the Supreme Court of Lithuania regarding the compliance of Paragraph 1 of Article 256 (wording of 28 June 2007) of the CCP with the Constitution.

6.2. It has been held in this ruling of the Constitutional Court that Paragraph 1 (wording of 28 June 2007) of Article 256 of the CCP, insofar as it did not establish that a court may, on its own initiative, change the factual circumstances of a criminal deed to circumstances different in substance, was in conflict with Paragraph 2 of Article 31 and Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of justice and a state under the rule of law.

6.3. Having held this, on the grounds of the same arguments, it should also be held that Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP, insofar as it does not establish that a court may, on its own initiative, change the factual circumstances of a criminal deed to circumstances different in substance, is in conflict with Paragraph 2 of Article 31 and Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of justice and a state under the rule of law.

6.4. In view of the foregoing arguments, the conclusion should be drawn that Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP, insofar as it does not establish that a court may, on its own initiative, change the factual circumstances of a criminal deed to circumstances different in substance, is in conflict with Paragraph 2 of Article 31 and Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of justice and a state under the rule of law.

7. It has been mentioned that the Vilnius Regional Court, a petitioner, requests (petitions Nos. 1B-5/2013 and 1B-9/2013) an investigation into whether Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP, insofar as it does not put any limitations on the changing of the factual circumstances, specified in an accusation, to substantially different circumstances at the court of appeal instance, is not in conflict with Paragraphs 2 and 6 of Article 31 and Paragraphs 1 and 4 of Article 111 of the Constitution and with the constitutional principle of a state under the rule of law.

8. The petitioner has doubts about the compliance of the legal regulation laid down in Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP with the Constitution, since, according to Paragraph 1 of Article 256 of the CCP, if the court of appeal satisfies the request to change the circumstances of a deed that are specified in an indictment to those that are different in substance, the participants of the process lose the opportunity to appeal against the establishment and assessment of these new circumstances, i.e. the court of appeal becomes the first, the only, and the non-appealable court instance for the establishment and assessment of the circumstances that are different in substance, whilst the participants of the process are actually deprived of one court instance; due to such a situation where the circumstances of the accusation are changed at the appeals instance court to those that are different in substance and if there are not any possibilities of appealing against the new circumstances that were established by the court subsequent to the changed indictment, the person with regard of whom the factual circumstances were changed into those that are different in substance has fewer opportunities to defend themselves in order to deny the accusation or to mitigate the liability, therefore, the right of a person to defence is thus violated.

9. As mentioned before, Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP, which is impugned in the constitutional justice case at issue, does not establish any limitations on the changing of the factual circumstances of a criminal deed specified in the indictment to essentially different circumstances at the court of appeal instance.

10. In order to decide whether Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP, to the extent indicated by the Vilnius Regional Court, a petitioner, is not in conflict with Paragraphs 2 and 6 of Article 31, Paragraphs 1 and 4 of Article 111 of the Constitution and the constitutional principle of a state under the rule of law, it should be noted that, as mentioned in this ruling of the Constitutional Court, under the Constitution:

the penal law must provide for all opportunities for the court to impose, in consideration of all circumstances of the case, a just punishment on the person who committed a criminal deed; the imposition of an unjust punishment would imply that the right of a person to a fair trial is violated, consequently, Paragraph 2 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law are also violated;

the right of persons to defence is absolute: this right may not be denied or restricted on any grounds or any conditions;

the Constitution (inter alia, Paragraph 1 of Article 111 thereof) not only establishes a four-level system of courts of general jurisdiction (as a system of institutions), but also consolidates the fundamentals for the instance system of courts of general jurisdiction, as a system of procedural stages of judicial consideration of cases; the instance system of courts of general jurisdiction, which stems from the Constitution, implies that there must be, under the established procedure, possibilities of filing a complaint against any final act of a court of general jurisdiction of first instance with a court of general jurisdiction of at least one higher instance; justice is always administered by leaving an opportunity to rectify a possible mistake or change the judgment in the light of new circumstances; the purpose of the instance court system is to remove possible mistakes of courts of lower instances, to prevent any execution of injustice and, thus, to protect the rights and legitimate interests of a person, society and the state; thus, the purpose of the instance system of courts of general jurisdiction is to create preconditions for courts of higher instances to correct any mistakes of the fact (i.e. of the establishment and assessment of legally significant facts) or of the law (i.e. of the application of law), which for some reasons could be made by a court of lower instance, and to prevent the execution of injustice in any civil case, criminal case or case of other category considered by courts of general jurisdiction; otherwise, the constitutional principle of a state under the rule of law would be deviated from and the constitutional right of a person to the due process of law would be violated;

Paragraph 4 of Article 111 of the Constitution provides that the formation and competence of courts shall be established by the Law on Courts; when regulating the said relations by law, the legislature must pay heed to the Constitution and, inter alia, the bases of the instance system of courts of general jurisdiction entrenched in it.

10.1. In this ruling the following has also been mentioned:

Article 256 of the CCP is in Chapter XIX “General Provisions of the Consideration Conducted by a Court” of the CCP;

under Paragraph 6 (wording of 28 June 2007) of Article 320 of the CCP, in the course of the consideration of cases under appeal procedure, the general provisions of Chapter XIX of the CCP regarding the consideration of cases in courts are applied by taking into account the peculiarities provided for in Chapter XXV “The Appeal Procedure” of the CCP.

Consequently, Article 256 of the CCP is not designed for the regulation of peculiarities of the consideration of cases at the court of appeal instance, therefore, there are no legal grounds for stating that Paragraph 1 of this article should establish certain limitations on the changing of the factual circumstances of a deed specified in the indictment to substantially different circumstances at the court of appeal instance.

10.2. It should be noted that Article 369 “The Grounds for Filing Cassation Complaints and the Consideration of Cases under Cassation Procedure” of the CCP prescribes:

1. Cassation complaints shall be lodged against effective judgments or rulings and cases shall be considered under cassation procedure if:

1) a criminal law has been applied incorrectly;

2) substantial violations of this Code have been committed.

2. Incorrect application of the norms of the general part of the Criminal Code of the Republic of Lithuania and the qualification of criminal deeds on the grounds of wrong items, paragraphs and articles of the Criminal Code of the Republic of Lithuania shall be deemed as incorrect application of a criminal law.

3. The violations of the requirements of this Code that have led to the restriction of law-guaranteed rights of the accused or that have precluded a court from considering a case exhaustively and impartially and from adopting a just judgment or ruling shall be deemed as substantial violations of this Code.”

Consequently, in situations, where a case is considered at the court of appeal instance, the substantial circumstances of a criminal deed specified in the judgment of a court of first instance are changed in accordance with the procedure established in the CCP, there are no legal grounds for stating that the convicted person is deprived of the right to apply to court. Under Article 369 of the CCP, such a person has the right to apply to the court of cassation instance regarding incorrect application of a criminal law, also, regarding any substantial violation of the CCP in the course of the establishment of the circumstances of a criminal deed at the court of appeal instance. In view of the fact that a violation of Paragraph 5 of Article 20 of CCP, which provides that judges shall assess evidence according to their inner convictions grounded on exhaustive and impartial consideration of a case and on the basis of law, may also be deemed as a substantial violation of the CCP, it is clear that the legal regulation established in the CCP does not prevent the filing a complaint with the court of cassation instance against the validity of the establishment of the new factual circumstances of a criminal deed established at the court of appeal instance.

10.3. It should also be noted that, if the legal regulation laid down in Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP and in other articles thereof limited the opportunities of the court of appeal instance, subsequent to a request by the prosecutor, the private accuser, or the victim, to change the factual circumstances of a deed specified in the indictment to circumstances that are different in substance, preconditions would be created for imposing unjust punishment on a person who committed a criminal deed in circumstances that are different in substance from those specified in the indictment, whilst this would mean that the right of a person to fair trial, thus, also Paragraph 2 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law, are violated. In addition, the fact that Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP provides for a duty of the court of appeal instance, after it receives a request of the prosecutor, the private accuser, or the victim, to change the factual circumstances of a deed specified in the indictment to circumstances that are different in substance, and to notify the accused of this fact without delay, allows ensuring a person’s right, consolidated in Paragraph 6 of Article 31 of the Constitution, to defence and the right to be informed about the accusation.

It should also be noted that, according to the legal regulation laid down in Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP, when changing, subsequent to a request of the prosecutor, the private accuser, or the victim, the factual circumstances of a deed specified in the indictment to circumstances that are different in substance, the court of appeal instance rectifies mistakes made by courts of first instance, does not allow the execution of injustice and thus protects the rights and legitimate interests of persons and society, whilst this is in line with the constitutional purpose of the instance system of courts of general jurisdiction. Such legal regulation is in line with the requirement stemming from the concept of the instance system of court of general jurisdiction that there must be, under the established procedure, possibilities of filing a complaint against any final act of a court of general jurisdiction of first instance with a court of general jurisdiction of at least one higher instance.

10.4. In view of the foregoing arguments, the conclusion should be drawn that Paragraph 1 (wording of 22 December 2011) of Article 256 of the Code of Criminal Procedure, insofar as it does not put any limitations on the changing of the factual circumstances, specified in an accusation, to substantially different circumstances at the court of appeal instance, is not in conflict with Paragraphs 2 and 6 of Article 31 and Paragraphs 1 and 4 of Article 111 of the Constitution and with the constitutional principle of a state under the rule of law.

11. It has been mentioned that the petitioners—the Supreme Court of Lithuania and the Court of Appeal of Lithuania—also request an investigation into whether, inter alia, Paragraph 3 of Article 320 of the CCP, insofar as a court considering a criminal case under appeal procedure is prohibited from changing the factual circumstances of a criminal deed to circumstances different in substance, where the filed appeals do not request so, is not in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law.

12. The petitioners are of the opinion that, under Paragraph 3 of Article 320 of the CCP, the court of appeal instance enjoys the powers to change the factual circumstances of an incriminated deed to those different in substance only in situations where the appeal of a prosecutor or that of a victim (their representative) request so. If a person is guilty of a criminal deed specified in the indictment, but where the factual circumstances of the deed are substantially different, the court does not have any powers, on its own initiative, to investigate and establish these factual circumstances and to recognise this person guilty of the criminal deed and, providing there exist corresponding grounds, to impose a just punishment on such a person. Such legal regulation creates preconditions for acquitting a guilty person of a criminal deed, or for imposing an unreasonably mild punishment upon them, thus, by failing to ensure an effective protection of the public from criminal attempts.

13. As mentioned before, in the constitutional justice case at issue, the impugned Paragraph 3 “General Provisions of the Consideration of Cases Under Appeal Procedure” of Article 320 of the CCP prescribes:

The court shall review a case without overstepping the limits of the requests in the appeals and only with respect to the persons who filed the appeals or against whom such appeals were filed. However, if the court, while reviewing a case, finds substantial violations of this Code, it, regardless of the fact whether the found violations were appealed against, shall verify whether this fact made any negative impact not only on the person that has filed the appeal, but also on the convicts who have not filed appeals.”

It has also been mentioned that, if the legal regulation established in Paragraph 3 of Article 320 of the CCP is construed in conjunction with one established in Paragraph 6 (wording of 28 June 2007) of Article 320 of the CCP and Paragraph 1 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the CCP, it follows that a court considering a case under appeal procedure is not granted any powers to change the factual circumstances of a criminal deed specified in the accusation to those that are different in substance when there is no request to do so in the lodged appeals.

14. It has been mentioned that, under the Constitution, the purpose of the instance system of courts of general jurisdiction is to create preconditions for courts of higher instances to correct any mistakes of the fact (i.e. of the establishment and assessment of legally significant facts) or of the law (i.e. of the application of law), which for some reasons could be made by a court of lower instance, and to prevent the execution of injustice in any criminal case or any case of other category considered by courts of general jurisdiction; in certain cases the court of appeal instance not only can, but also must overstep the limits of an appeal; the court of appeal instance must not be restricted by the limits of an appeal when the decision of the said court could essentially be unjust and when it could violate constitutional values.

14.1. In this ruling of the Constitutional Court it has been noted that, under Paragraph 6 (wording of 28 June 2007) of Article 320 of the CCP, in the course of the consideration of cases under appeal procedure, the general provisions of Chapter XIX of the CCP regarding the consideration of cases in courts are applied by taking into account the peculiarities provided for in Chapter XXV “The Appeal Procedure” of the CCP. Thus, when cases are considered under appeal procedure, Paragraph 1 of Article 256 of the CCP is also applied, in which the procedure for the changing of the factual circumstances specified in the indictment to circumstances that are different in substance is established.

It has been mentioned that Paragraph 1 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the CCP does not establish that a court may change, on its own initiative, the factual circumstances of the deed specified in the accusation to those that are different in substance.

14.2. It has been held in this Constitutional Court ruling that Paragraph 1 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the CCP, insofar as it does not establish that a court may, on its own initiative, change the factual circumstances of a criminal deed to circumstances different in substance, are in conflict with Paragraph 2 of Article 31 and Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of justice and a state under the rule of law.

Thus, the legal regulation laid down in Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP will have to be modified in accordance with the Constitution and the Law on the Constitutional Court.

In such circumstances, Paragraph 3 of Article 320 of the CCP acquires different contents. It should be held that, in this part of the case, the matter of investigation is no longer present.

14.3. It should be noted that the fact that the matter of investigation is absent in the case regarding the petition of the petitioners means that the petition does not fall within the jurisdiction of the Constitutional Court (inter alia, the Constitutional Court’s decision of 6 May 2003, its ruling of 13 May 2004, its decisions of 8 August 2006 and 5 November 2008, and its ruling of 18 April 2012).

Under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, the Constitutional Court, by its decision, refuses to consider petitions requesting an investigation into the compliance of a legal act with the Constitution if the consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

Paragraph 3 of Article 69 of the Law on the Constitutional Court prescribes that, if the grounds for the refusal to consider a petition have been established after the commencement of the consideration of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

14.4. In the light of the foregoing arguments, the part of the constitutional justice case, in which the petitioners request an investigation into the compliance of Paragraph 3 of Article 320 of the CCP, insofar as a court considering a criminal case under appeal procedure does not have the powers to change the factual circumstances of a criminal deed to circumstances different in substance, where the filed appeals do not request so, with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law, should be dismissed.

15. It has been mentioned that the Court of Appeal of Lithuania, a petitioner, requests an investigation into whether, inter alia, Item 4 of Paragraph 1 (wording of 28 June 2007) of Article 326 of the CCP, insofar as it prohibits the court of appeal instance from rescinding the judgment and referring a case to a court in order for investigating that case anew when, in the course of the consideration of the case under appeal procedure, new factual circumstances come to light, but the appeals themselves do not request changing the factual circumstances of the case, is not in conflict with Paragraph 1 Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law.

16. In the opinion of the petitioner, Article 326 of the CCP prohibits the court of appeal instance from rescinding the judgment and referring a case to the court of first instance in order for investigating that case anew when, in the course of the consideration of the case under appeal procedure, new factual circumstances come to light, but the appeals themselves do not request changing the factual circumstances of the case, therefore, the court of appeal instance may neither rectify the mistakes made by the court of first instance nor refer the case to the court of first instance so that the latter could correct its own mistake.

Thus, the petitioner virtually impugns not the legal regulation that is established expressis verbis in a law, but the legislative omission which, in its opinion, exists in this law, i.e. it impugns something, which has not been established in this legal act, even though, in the opinion of the petitioner, under the Constitution, it should have been established by the legislature, thus, the petition impugns such a gap in the legal regulation, which, in the opinion of the petitioner, is prohibited by the Constitution.

17. As mentioned before, Paragraph 1 (wording of 28 June 2007) of Article 326 of the CCP prescribes:

Having considered a case at a court hearing, the court of appeal instance shall adopt a ruling regarding an appealed judgment: <…>

4) to rescind the judgment and refer the case back to the court so that it would be considered anew if the case was considered by a partial court of first instance or the case was considered in violation of the cognisance rules established in Articles 224 and 225 of this Code, or if it transpires at the court of appeal instance that, at the time of the commission of the deed, the convict suffered from a mental illness or became mentally ill prior to the adoption of the judgment by the court of first instance and where the convict was subject to compulsory medical treatment; <...>.”

It has also been mentioned that the court of appeal instance is not granted any powers to rescind a judgment and refer a case for its new consideration by a court on the grounds other than those established in Item 4 of Paragraph 1 (wording of 28 June 2007) of Article 326 of the CCP.

18. It should be noted that the Constitutional Court has held on more than one occasion that that a legal gap, inter alia, legislative omission, always means that the legal regulation of corresponding social relations is established neither explicitly nor implicitly, neither in the said legal act (part thereof) nor in any other legal act at all, even though there exists a need for a legal regulation of these social relations, whilst the said legal regulation, in the case of legislative omission, must be established precisely in that legal act (precisely in that part thereof), since this is required by a certain legal act of higher power, inter alia, the Constitution itself (the Constitutional Court’s rulings of 2 March 2009, 22 June 2009, 11 December 2009, 29 September 2010, 29 November 2010, 7 July 2011, and 22 December 2011).

18.1. In this ruling of the Constitutional Court, it has been mentioned that, if the legal regulation established in Paragraph 3 of Article 320 of the CCP is construed in conjunction with one established in Paragraph 6 (wording of 28 June 2007) of Article 320 of the CCP and Paragraph 1 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the CCP, it follows that a court considering a case under appeal procedure is not granted any powers to change the factual circumstances of a criminal deed specified in the accusation to those that are different in substance when there is no request to do so in the lodged appeals.

18.2. In this ruling, it has been held that Paragraph 1 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the CCP, insofar as it does not establish that a court may, on its own initiative, change the factual circumstances of a criminal deed to circumstances different in substance, are in conflict with Paragraph 2 of Article 31 and Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of justice and a state under the rule of law.

In this ruling it has also been noted that the legal regulation laid down in Paragraph 1 (wording of 22 December 2011) of Article 256 of the CCP will have to be modified in accordance with the Constitution and the Law on the Constitutional Court.

In such circumstances, Item 4 of Paragraph 1 (wording of 28 June 2007) of Article 326 of the CCP acquires different contents. It should be held that, in this part of the case, the matter of investigation is no longer present.

18.3. It should be noted that the fact that the matter of investigation is absent in the case regarding the petition of the petitioners means that the petition does not fall within the jurisdiction of the Constitutional Court (inter alia, the Constitutional Court’s decision of 6 May 2003, its ruling of 13 May 2004, its decisions of 8 August 2006 and 5 November 2008, and its ruling of 18 April 2012).

Under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, the Constitutional Court, by its decision, refuses to consider petitions requesting an investigation into the compliance of a legal act with the Constitution if the consideration of the petition does not fall under the jurisdiction of the Constitutional Court.

Paragraph 3 of Article 69 of the Law on the Constitutional Court prescribes that, if the grounds for the refusal to consider a petition have been established after the commencement of the consideration of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

18.4. In view of the foregoing arguments, the part of the case, according to the petition of a petitioner, requesting an investigation into whether Item 4 of Paragraph 1 (wording of 28 June 2007) of Article 326 of the CCP, insofar as it does not grant the powers for the court of appeal instance to rescind the judgment and to refer a case to a court in order for investigating that case anew when, in the course of the consideration of the case under appeal procedure, new factual circumstances come to light, but the appeals themselves do not request changing the factual circumstances of the case, is not in conflict with Paragraph 1 Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law, should be dismissed.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 54, 55, 56 and 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that Paragraph 2 (wording of 10 April 2003; Official Gazette Valstybės žinios, 2003, No. 38-1734) of Article 255 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as it does not provide that the accused may not be convicted under a different criminal law that provides for a less serious crime or a less serious criminal misdemeanour and establishes new features of a criminal deed or other circumstances significant for the classification of a deed in comparison with the criminal law specified in the indictment, if the accused was not notified of such a possibility during the court trial, is in conflict with Paragraphs 2 and 6 of Article 31 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

2. To recognise that Paragraph 1 (wording of 28 June 2007, Official Gazette Valstybės žinios, 2007, No. 81-3312; wording of 22 December 2011, Official Gazette Valstybės žinios, 2011, No. 164-7797) of Article 256 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as it does (did) not establish that a court may, on its own initiative, change the factual circumstances of a criminal deed to circumstances different in substance, is (was) in conflict with Paragraph 2 of Article 31 and Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and with the constitutional principles of justice and a state under the rule of law.

3. To recognise that Paragraph 1 (wording of 22 December 2011; Official Gazette Valstybės žinios, 2011, No. 164-7797) of Article 256 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as it does not put any limitations on the changing of the factual circumstances, specified in the accusation, to substantially different circumstances at the court of appeal instance, is not in conflict with the Constitution of the Republic of Lithuania.

4. To recognise that Paragraph 4 of Article 256 (wording of 28 June 2007; Official Gazette Valstybės žinios, 2007, No. 81-3312) of the Code of Criminal Procedure of the Republic of Lithuania, insofar as it established that the provisions of Paragraphs 2 and 3 of Article 256 of the Code of Criminal Procedure must not be applied in the situations of the reclassification of a criminal deed specified in the accusation in accordance of a criminal law that provides for a less serious crime or a less serious criminal misdemeanour and establishes different or new features of a criminal deed or other circumstances that are significant for the classification of a deed in comparison with the circumstances established in the criminal law that is specified in the indictment if the factual circumstances of the deed are not changed in substance, was in conflict with Paragraphs 2 and 6 of Article 31 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law.

5. To recognise that Paragraph 4 of Article 256 (wording of 22 December 2011; Official Gazette Valstybės žinios, 2011, No. 164-7797) of the Code of Criminal Procedure of the Republic of Lithuania, insofar as it establishes that the provisions of Paragraphs 1, 2 and 3 of Article 256 of the Code of Criminal Procedure must not be applied in the situations of the reclassification of a criminal deed specified in the accusation in accordance of a criminal law that provides for a less serious crime or a less serious criminal misdemeanour and establishes different or new features of a criminal deed or other circumstances that are significant for the classification of a deed in comparison with the circumstances established in the criminal law that is specified in the indictment if the factual circumstances of the deed are not changed in substance, is in conflict with Paragraphs 2 and 6 of Article 31 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law.

6. To dismiss the part of the case regarding the compliance of Paragraph 3 (Official Gazette Valstybės žinios, 2002, No. 37-1341) of Article 320 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as a court considering a criminal case under appeal procedure does not have the powers to change the factual circumstances of a criminal deed to circumstances different in substance, where the filed appeals do not request so, with the Constitution of the Republic of Lithuania.

7. To dismiss the part of the case regarding the compliance of Item 4 of Paragraph 1 (wording of 28 June 2007; Official Gazette Valstybės žinios, 2007, No. 81-3312) of Article 326 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as it does not grant the powers for the court of appeal instance to rescind the judgment and to refer a case to a court in order for investigating that case anew when, in the course of the consideration of the case under appeal procedure, new factual circumstances come to light, but the appeals themselves do not request changing the factual circumstances of the case, with the Constitution of the Republic of Lithuania.

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

Justices of the Constitutional Court: Toma Birmontienė
                                                                      Pranas Kuconis
                                                                      Gediminas Mesonis
                                                                      Ramutė Ruškytė
                                                                      Egidijus Šileikis
                                                                      Algirdas Taminskas
                                                                      Romualdas Kęstutis Urbaitis
                                                                      Dainius Žalimas