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On the right to a one-off insurance payment upon the death of the insured due to an accident at work

Case No. 43/2011

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF PARAGRAPH 3 OF ARTICLE 6.270 OF THE CIVIL CODE OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 6 December 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, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, in the Court’s hearing, on 26 November 2013, considered under written procedure constitutional justice case No. 43/2011 subsequent to the petition (No. 1B-54/2011) of the Supreme Court of Lithuania requesting an investigation into whether Paragraph 3 of Article 6.270 of the Civil Code of the Republic of Lithuania, insofar as it provides that, where the loss of control of an object of increased danger is also in part due to the fault of the possessor, the latter and the person who took unlawful possession of the object of increased danger shall be jointly and severally liable for the damage inflicted by the object of increased danger, is not in conflict with 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.

 

The Constitutional Court

has established:

I

The petition of the Supreme Court of Lithuania, the petitioner, is substantiated by the following arguments.

  1. While referring to the Constitutional Court’s jurisprudence, the petitioner notes that the necessity to compensate a person for inflicted damage is a constitutional principle. Under the Constitution, normally, a person who inflicted the damage or a person responsible for the actions of the former must compensate for it. However, when the impugned legal regulation consolidated in Paragraph 3 of Article 6.270 of the Civil Code (hereinafter also referred to as the CC) is applied, a person who inflicted direct damage by means of an object of increased danger and the possessor of the object of increased danger who lost it because of their own fault are jointly and severally liable for the damage inflicted by the said object of increased danger, even though the possessor of that object of increased danger, who, through carelessness, lost their object of increased danger, did not act in concert with the person that inflicted the damage, and the actions of the former are not directly related to the consequences of those of the latter, and even though there is not any direct causal link between the actions of the possessor of the object of increased danger and the occurrence of the damage, whilst the part of his fault, if compared to that of the person who inflicted direct damage, is much smaller.

Although Paragraph 3 of Article 6.270 of the CC provides for the right of recourse of the possessor of the object of increased danger, i.e., having compensated for the damage, they may demand that the person who took possession of the said object and inflicted the damage should compensate them for damages paid, in the opinion of the petitioner, this is not enough in order to individualise the liability. In case the person who inflicted the damage were insolvent, the possessor of an object of increased danger, after they have compensated for the damage inflicted by the person who took unlawful possession of the object of increased danger, would not be able to recover the damages by means of recourse. Thus, a disproportionately large liability falls upon the possessor of an object of increased danger. Due to this, the petitioner doubts whether such legal regulation is not in conflict with the constitutional principle of justice according to which damage must be repaid either by the person who inflicted it or by the person responsible for their actions. The petitioner also doubts whether this legal regulation is not in conflict with the constitutional principle of proportionality as one of the elements of the constitutional principle of a state under the rule of law according to which applied legal measures must be proportionate to the objective sought and must not overstep the limits of necessity.

  1. When it applies the impugned legal regulation, a court considering a respective case is not allowed to take account of the amount of the fault of the possessor of an object of increased danger, the fact that their actions and those of the person who inflicted the damage could be made not necessarily in concert, and is not allowed to take account of the absence of any direct causal link. The same court is deprived of the opportunity to objectively assess the fact important for the individualisation of liability, thus, the court’s opportunities to administer justice are limited. Therefore, the petitioner has doubts whether the legal regulation consolidated in Paragraph 3 of Article 6.270 of the CC, which provides that the possessor of an object of increased danger who lost it and a person who took possession of that object of increased danger and, by means of it, inflicted damage, are jointly and severally liable, is not in conflict with Paragraph 1 of Article 109 of the Constitution.

II

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from Julius Sabatauskas, Chairperson of the Seimas Committee on Legal Affairs, and Dainius Zebleckis, senior adviser of the Civil Law Unit of the Legal Department of the Office of the Seimas, acting in the capacity of the representatives of the Seimas, the party concerned, in which they asserted that the impugned legal regulation was not in conflict with Constitution.

  1. Under the Constitution, the legislature has a duty to establish the legal regulation so that a person who sustained damage due to unlawful actions would have the right to claim proper and just compensation for the damage and that they would receive the compensation in reality. The impugned Paragraph 3 of Article 6.270 of the CC consolidates the legal regulation that ensures that a person who sustained damage would be able to claim compensation for the damage from all the persons who, by means of their unlawful actions, contributed to the emergence of the damage, i.e., from the possessor of an object of increased danger where there is a part of their fault leading to the loss of control of the object of increased danger, and from the person who directly inflicted the damage. Such legal regulation ensures the biggest possibility that a person who sustained damage from an object of increased danger will be compensated for it in reality.
  2. Larger liability and a larger duty to be careful are provided regarding the possessor of an object of increased danger, because the object of increased danger possessed by them poses a danger bigger than normally expected for surrounding persons. Thus, the possessor of an object of increased danger is under obligation to see to it that the object of increased danger possessed by them should not be easily accessible by other persons. The larger duty of carefulness falls upon the possessor of an object of increased danger, because they have special knowledge of how the object of increased danger must be operated and of the dangers posed by it. Before acquiring the right to possess an object of increased danger, a respective person must undergo a certain test and meet certain requirements established in legal acts. In view of this fact, legal acts establish certain duties related to objects of increased danger for possessors of objects of increased danger. Before acquiring the right to possess an object of increased danger, every possessor of an object of increased danger is familiarised with their duties and responsibilities. Failure to carry out these duties or failure to observe the requirements for the taking care of the security of an object of increased danger brings the possessor of the object of increased danger to liability.
  3. According to Paragraph 3 of Article 6.270 of the CC, the possessor of an object of increased danger and the person who took possession of the object of increased danger and, by means of it, inflicted damage, are jointly and severally responsible only when there is a part of the fault of the possessor of the object of increased danger in the damage, i.e., only when the possessor of the object of increased danger carried out certain unlawful actions, inter alia, failed to observe the requirements established in legal acts or did not carry out a general duty to act in a watchful and careful manner. The impugned legal regulation seeks to secure the proper observance of the duties that are established in legal acts and undertaken by persons possessing objects of increased danger, so that any infliction of damage might be avoided.

In cases where the victim sustained damage by means of an object of increased danger, where the loss of its control is also in part due to the fault of the possessor of the said object, the liability of the possessor, as provided for in Paragraph 3 of Article 6.270 of the CC, is proportionate and adequate, because the possessor of the object of increased danger has the right of recourse against the person who directly inflicted the damage. Such legal regulation seeks to avoid the situations where a victim who has sustained damage by means of an object of increased danger whose control was also lost partly through the fault of its possessor, would not be compensated for it at all and the constitutional principle of the necessity to compensate for the damage would thus be violated. Thus, the impugned legal regulation does not limit the opportunities of the court to administer justice but merely consolidates the mechanism of fair compensation for damage.

The Constitutional Court

holds that:

  1. The petitioner requests an investigation into whether Paragraph 3 of Article 6.270 of the CC, insofar as it provides that, where the loss of control of an object of increased danger is also in part due to the fault of the possessor, the latter and the person who took unlawful possession of the object of increased danger shall be jointly and severally liable for the damage inflicted by the object of increased danger, is 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.
  2. The petitioner substantiates its doubts about the compliance of the impugned legal regulation with the Constitution, inter alia, by the fact that, under the legal regulation consolidated in Paragraph 3 of Article 6.270 of the CC, disproportionately large liability falls upon the possessors of objects of increased danger for damage not inflicted by them, even though, according to the constitutional principle of compensation for damage, damage is normally compensated for by the person who inflicted it, therefore, in the opinion of the petitioner, the impugned legal regulation is in conflict with the constitutional principles of justice and proportionality.

In addition, when applying Paragraph 3 of Article 6.270 of the CC, courts do not have an opportunity to take into account the amount of the fault of the possessor of an object of increased danger, they cannot assess the fact that there was not any direct causal link between the actions of the possessor of an object of increased danger and the inflicted damage, and they cannot take into account other circumstances that are important for individualising the liability. Therefore, in the opinion of the petitioner, the impugned legal regulation is in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

  1. Article 6.270 “Liability Arising from the Exercise of Hazardous Activities” of the CC provides:

“1. A person whose activities are connected with increased danger for surrounding persons (the use of motor vehicles, machinery, electric or atomic energy, explosive or poisonous materials, activities in the sphere of construction, etc.) shall be liable to compensation for damage inflicted by the operation of the object of increased danger, unless they prove that the damage was caused by superior force or it occurred due to the victim’s intentional actions or the victim’s gross negligence.

  1. The defendant in the cases established in this Article shall be the possessor of an object of increased danger by the right of ownership or trust or on any other legitimate grounds (loan for use, lease, or any other contract, by the power of attorney, etc.).
  2. The possessor of an object of increased danger shall not be liable to compensation for damage it has inflicted if they prove to have lost the control thereof due to unlawful actions of other persons. In such an event, liability arises to the person or persons who took unlawful possession of an object of increased danger. Where the loss of control of an object of increased danger is also in part due to the fault of the possessor, the latter and the person who took unlawful possession of the object of increased danger shall be jointly and severally liable for the damage. Upon having compensated for the damage, the possessor shall acquire the right of recourse for the recovery of sums paid against the person who took unlawful possession of the object of increased danger.
  3. In the event where damage was inflicted on a third person in the result of reciprocity of several objects of increased danger, all the possessors of the objects concerned shall be jointly and severally liable for the damage inflicted.
  4. The damage incurred by the possessors of objects of increased danger in the result of the reciprocity thereof shall be compensated in accordance with the general provisions.”

Thus, Article 6.270 of the CC regulates the relations of the liability of the possessor (owner, lessee, user etc.) of an object of increased danger for damage inflicted by the operation of the object of increased danger and those of compensation for the damage.

3.1. It should be noted that, in civil law, an object of increased danger is understood as an object or its operation controlled by a person, where the said operation poses a danger bigger than normally expected for surrounding persons. The Supreme Court of Lithuania, which forms the case-law for courts of general jurisdiction, has noted that the following criteria are applied in the deciding of whether the character of a certain object or activity poses a danger bigger than normally expected for surrounding persons: 1) a very big risk for the emergence of damage; 2) the impossibility of the removal of such a risk by means of precautionary measures (the ruling of the Supreme Court of Lithuania of 18 November 2011 in civil case No. 3K-3-446/2011 and its ruling of 13 February 2012 in civil case No. 3K-3-13/2012). A person conducting an activity that is not prohibited by law, that is good for the public, is socially valuable, is profitable, but entails risks due to the fact that the said activity (work, processes) and/or objects used in that activity, because of their objective characteristics, pose a larger threat of the inflicting of damage upon others and it is impossible to eliminate that threat even by means of all precautionary measures, is the possessor of an object of increased danger (the ruling of the Supreme Court of Lithuania of 18 November 2011 in civil case No. 3K-3-446/2011).

It should also be noted that Paragraph 1 of Article 6.270 of the CC provides that the possessor of an object of increased danger shall be liable to compensation for damage inflicted by the operation of object of increased danger, unless they prove that the damage was caused by superior force or it occurred due to the victim’s faulty actions. Thus, the nature of an object of increased danger, which implies a bigger risk for the emergence of damage, determines the fact that the possessor of an object of increased danger is liable in the absence of their fault: the possessor of an object of increased danger is liable for damage inflicted by the operation of the object of increased danger even in situations where they did not perform any unlawful actions and did not violate any requirements established in legal acts, however, where a victim sustained damage caused by the operation of the object of increased danger.

3.2. Paragraph 3 of Article 6.270 of the CC, which is being impugned by the petitioner, regulates the liability of the possessor of an object of increased danger for damage inflicted by the said object in situations where the possessor of an object of increased danger loses the possibility of control of the object of increased danger because of unlawful actions done by other persons. The possessor of an object of increased danger is not liable for the damage inflicted by the operation of the said object if there is no fault of theirs in the loss of control of the object of increased danger. However, if there is also a part of the fault of the possessor of an object of increased danger in the loss of control of the said object, they are jointly and severally liable for the damage together with the person who took unlawful possession of the object of increased danger and, by means of the said object, inflicted the damage. In such a case, the possessor of the object of increased damage has a duty to compensate, jointly and severally with the person who took unlawful possession of the object and inflicted direct damage, for the damage inflicted by means of the object upon the victim.

It should be noted that, according to the impugned legal regulation, in every concrete situation, a court, when administering justice and deciding on the issue of the compensation for the victim for the damage inflicted by an object of increased danger, having taken into account all the circumstances of a respective case, must assess whether there is a part of the fault of the possessor of the object of increased danger and must decide whether there are grounds for the applying of civil liability together with the joint and several liability provided for in Paragraph 3 of Article 6.270 of the CC with regard to the possessor of the object of increased danger.

3.3. It should be noted that, according to Paragraph 3 of Article 6.270 of the CC, the possessor of an object of increased danger, having compensated for all the damage inflicted by the operation of the object of increased danger, or a part of the damage that is greater than required to be paid by them, has the right of recourse for exacting the part of the compensation for the damage that should have been paid by the person who took unlawful possession of the object of increased danger. This legal regulation creates a court’s duty, when it decides cases on the recovery of the part of the compensation for the damage that has been paid for the person who took unlawful possession of an object of increased danger, to take into account all important circumstances of the case in every concrete situation, to assess and to decide on the part the compensation for the damage payable by the possessor of an object of the increased danger and on the part payable by the person who took unlawful possession of the object and inflicted damage by means of it.

  1. The legal regulation, which is being impugned by the petitioner, should be construed in the context of the other provisions of the CC that regulate the conditions of joint and several liability and the compensation for damage.

4.1. Paragraph 4 of Article 6.6 of the CC provides that, if the debtors have a joint and several duty, the creditor has the right to demand the fulfilment of the obligation, either in full or in part, both by all the debtors or by several of them jointly, or by any of the debtors individually. Under Paragraph 5 of Article 6.6 of the CC, if one of the co-debtors fails to fulfil their joint and several obligation in full, a creditor may apply to any of the debtors, or to all of them jointly, for the remaining fulfilment of the obligation.

If the impugned legal regulation consolidated in Paragraph 3 of Article 6.270 of CC is construed in conjunction with that established Paragraphs 4 and 5 of the CC, it should be noted that persons who sustained damage as a result of the operation of an object of increased danger have the right to demand that the sustained damage be compensated for by the person who took unlawful possession of the object of increased danger and the possessor of the object of increased danger, in case the loss of control of the object of increased danger is also in part due to the fault of the possessor, i.e. that the damage, either in full or in part, be compensated for either jointly or individually by those persons. Thus, according to the impugned legal regulation, provided that it is construed in conjunction with other provisions of the CC, in case the loss of control of the object of increased danger is also in part due to the fault of the possessor of the object, full compensation for the damage inflicted as a result of the operation of the object of increased danger may be exacted from the said possessor. In cases where the possessor of an object of increased danger, having compensated for all the damage inflicted by the operation of the object of increased danger, or a part of the damage that is greater than required to be paid by them, has the right of recourse for exacting the part of the compensation for the damage that should have been paid by the person who took unlawful possession of the object of increased danger.

4.2. The CC also provides that every person shall have the duty to abide by the rules of conduct so as not to cause damage to another by their actions (Paragraph 1 of Article 6.263). Civil liability shall arise from non-performance of a duty established by law (unlawful refrainment from acting), or from performance of actions that are prohibited by law (unlawful acting), or from violation of the general duty to behave in a watchful and careful manner (Paragraph 1 of Article 6.246 of the CC). A person shall be deemed to have committed fault where taking into account the essence of the obligation and other circumstances they failed to behave with the care and wariness necessary in the corresponding conditions (Paragraph 3 of Article 6.248 of the CC).

These provisions of the CC consolidate a general duty for all persons to behave in a watchful and careful manner so that they, by their actions or refrainment from acting, would not violate any rights and legitimate interests of other persons and would not inflict damage; respective legal consequences—the application of civil liability—are provided for unlawful actions or unlawful refrainment from acting, inter alia, for failure to observe the duty to behave in a watchful and careful manner.

If the impugned legal regulation consolidated in Paragraph 3 of 6.270 of the CC is construed in conjunction with that laid down in Paragraph 1 of Article 6.263, Paragraph 1 of Article of 6.246, and Paragraph 3 of Article 6.248 of the CC, it should be noted that, if the possessor of an object of increased danger performs unlawful actions or fails to observe the requirement for behaving in such a watchful and careful manner so as not to lose the control of the object of increased danger and not to create any preconditions for the emergence of any such situations where other persons would be able to take possession of the object of increased danger and to inflict damage by means of its operation, they would be held liable for the loss of control of the object of increased danger and, alongside, for the damage.

  1. In this context it should be noted that, when construing the conditions for the emergence and application of several and joint liability, the Supreme Court of Lithuania has held that joint and several liability is not exclusively based on the fact that corresponding persons inflicted damage upon the victim at the same time and acting in concert; the joint infliction of damage may also be manifested by different and independent actions performed at different time; in order to detect that, a court must establish the factual (the question of whether the damage could emerge in the absence of unlawful actions, i.e., a conditio sine qua non) and legal causal link (the question of whether the damage is not too distant from the unlawful action) (the ruling of the Supreme Court of Lithuania of 19 November 2009 in civil case No. 3K-3-543/2009).
  2. The petitioner doubts about the compliance of the provision of Paragraph 3 of Article 6.270 of the CC through which, as mentioned before, the relations of liability for damage inflicted by the operation of the object of increased danger and those of compensation of the damage are regulated, with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law.
  3. In the Constitutional Court’s jurisprudence, it has been held on more than one occasion that the constitutional principle of a state under the rule of law, inter alia, implies that, in the course of the establishment of legal limitations and liability for violations of law, the requirement of reasonableness and the principle of proportionality must be heeded (inter alia, the Constitutional Court’s rulings of 13 December 2004, m. 29 September 2005, and 2 March 2009). The measures established by the state for violations of law must be proportionate (adequate) to the violation of law, they must be in line with the legitimate and generally important objectives sought, they must not restrict the person clearly more than necessary in order to reach these objectives (inter alia, the Constitutional Court’s rulings of 6 December 2000, 26 January 2004, 21 January 2008, and 31 January 2011).

It has also been held that, under the Constitution and, inter alia, the constitutional principle of a state under the rule of law, the establishment of any such legal regulation, in the course of the application of which a person who fails to observe requirements established by legal acts could avoid legal liability, is not allowed; the constitutional principle of a state under the rule of law would be violated if the law failed to establish corresponding legal measures for persons who do not observe requirements established in legal acts (the Constitutional Court’s ruling of 31 January 2011).

  1. The necessity to compensate for material and moral damage inflicted upon a person is a constitutional principle stemming from the Constitution, inter alia, Paragraph 2 of Article 30 thereof, which provides that compensation for material and moral damage inflicted upon a person shall be established by law (inter alia, the Constitutional Court’s rulings of 13 December 2004, 19 August 2006, and 6 January 2011). The general grounds for compensation for the damage sustained by a victim stem, inter alia, from the constitutional principles of justice and a state under the rule of law (inter alia, the Constitutional Court’s rulings of 3 February 2010 and 29 November 2010). The Constitutional Court has held on more than one occasion that the constitutional principle of proportionality is one of the elements of the constitutional principle of a state under the rule of law (inter alia, the Constitutional Court’s rulings of 29 December 2004, 29 September 2005, and 13 September 2012).

8.1. Consolidating the constitutional principle of compensation for damage, it is attempted to ensure that the persons who suffered material or moral damage be compensated for it (the Constitutional Court’s rulings of 20 January 1997 and 3 February 2010). Under the Constitution, the legislature has a duty to pass a law or laws providing for compensation for damage for a person who suffered material and moral damage (the Constitutional Court’s rulings of 30 June 2000, 13 December 2004, and 3 February 2010). The laws must create all the necessary preconditions for fair compensation for the inflicted damage (inter alia, the Constitutional Court’s rulings of 19 August 2006, 27 March 2009, and 6 January 2011). Under Paragraph 2 of Article 30 of the Constitution and the constitutional principle of justice, the legislature may not establish any such legal regulation, which would create preconditions for a situation, where the person who suffered damage, inter alia, moral damage, would not be able to get fair compensation for damages (the Constitutional Court’s rulings of 3 February 2010 and 29 November 2010).

Thus, the Constitution imperatively requires that a legal regulation be established by law to the effect that a person, who was inflicted damage by unlawful actions, would be able in all cases to claim for just compensation for that damage and to receive that compensation (inter alia, the Constitutional Court’s rulings of 19 August 2006, 27 March 2009, and 3 February 2010). When performing the duty to adopt a law or laws that establish the compensation for damage inflicted upon a person, the legislature, by using its discretion, may choose and consolidate in a law or laws various forms of compensation for inflicted damage (the Constitutional Court’s ruling of 3 February 2010).

8.2. The constitutional principle of justice, inter alia, also implies that the damage must normally be compensated for by the person who caused it or by another person liable for the actions of the latter (the Constitutional Court’s ruling of 3 February 2010). Under the Constitution, the compensation for damage inflicted upon a person must be real and fair (the Constitutional Court’s ruling of 3 February 2010).

8.3. The constitutional imperative that damage must be compensated for justly is also related to the constitutional principles of proportionality and adequacy of compensation for damage, which require that the measures which are established in laws and which are applied be proportionate to the objective sought and not limit the rights of a person more than it is necessary for achieving the lawful and universally significant, constitutionally grounded objective and not create preconditions for abusing law (inter alia, the Constitutional Court’s rulings of 27 March 2009, 3 February 2010, and 29 November 2010).

  1. The Constitutional Court has held that the provisions of Article 30 of the Constitution must be construed inseparably from other provisions of the Constitution, inter alia, Paragraph 1 of Article 109 thereof, in which it is established that, in the Republic of Lithuania, justice shall be administered only by courts.

9.1. The administration of justice is a function of courts, determining the place of this branch of power in the system of institutions of state power (inter alia, the Constitutional Court’s rulings of 21 December 1999, 13 May 2004, and 16 January 2006). When administering justice, courts must ensure the implementation of the law that is expressed in the Constitution, laws, and other legal acts, they must guarantee the superiority of law and protect human rights and freedoms. Under the Constitution, a 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, 21 January 2008, and 10 April 2009).

9.2. 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 the court, not an outward appearance of justice administered by the court, but such court decisions, 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 and 25 September 2012, its decision of 3 July 2013).

9.3. In its jurisprudence, the Constitutional Court has held on more than one occasion that the establishment of any such legal regulation obstructing the adoption of a just decision in a case and, thus, the administration of justice by a court, where the court has taken account of all the important circumstances of the case, is following law, and does not transgress the imperatives of justice and reasonableness stemming from the Constitution, would be impermissible; otherwise, the powers of a court to administer justice, which stem, inter alia, from Article 109 of the Constitution, would be limited or even denied, and one would deviate from the constitutional concept of the court as the institution administering justice in the name of the Republic of Lithuania, as well as from the constitutional principles of a state under the rule of law and justice (inter alia, the Constitutional Court’s rulings of 21 September 2006, 31 January 2011, and 6 December 2012).

9.4. The Constitutional Court has also held that the Constitution does not tolerate any such legal regulation where the court, which, under the Constitution (inter alia, Article 109 thereof), must administer justice, cannot, while taking account of all the significant circumstances of the case, establish the amount of the material and/or moral damage inflicted upon the person, nor, by following law, inter alia, not violating the imperatives of justice, reasonableness and proportionality, award fair compensation for the material and/or moral damage sustained by the person (the Constitutional Court’s rulings of 19 August 2006, 27 March 2009, and 6 January 2011).

  1. In order to decide whether the impugned provision of Paragraph 3 of Article 6.270 of the CC, where the loss of control of an object of increased danger is also in part due to the fault of the possessor, the latter and the person who took unlawful possession of the object of increased danger shall be jointly and severally liable for the damage inflicted by the object of increased danger, is not in conflict with the Constitution, it should be noted that, as mentioned before, this provision consolidates the liability of the possessor of an object of increased danger for damage inflicted by the said object in situations where the possessor of an object of increased danger loses the possibility of operating the object of increased danger because of unlawful actions done by other persons, but where the possessor is also partly at fault.
  2. In this ruling, it has been mentioned that every person shall have the duty to behave in a watchful and careful manner so as not to cause damage to anyone by their actions (Paragraph 1 of Article 6.263 and Paragraph 1 of Article 6.246 of the CC).

It has also been mentioned that an object of increased danger is understood as an object controlled by a person, or the activity by the said object that poses a danger bigger than normally expected for surrounding persons. Such a danger is characterised as a very big risk for the emergence of damage, where the removal of such a risk by means of regular precautionary measures is impossible.

Thus, the control of an object of increased danger implies its possessor’s duty of the carefulness and responsibility that are larger than normally required due to their undertaken risk of the control of the object of increased danger: solely due to the fact that the possessors of objects of increased danger control this object or are engaged in the activities posing an increased danger, they must behave in a very careful and responsible manner, must observe the requirements established in legal acts and/or originating from the requirements of the principle of reasonableness, inter alia, they must make sure that other persons do not take possession of the objects of increased danger. The required degree of carefulness and watchfulness should be such so as not to create any preconditions for the emergence of damage.

  1. It has been mentioned that, according to the impugned provision of Paragraph 3 of Article 6.270 of the CC, the possessor of an object of increased danger and the person who took unlawful possession of the object of increased danger are jointly and severally liable only where the loss of control of an object of increased danger is also in part due to the fault of the possessor.

It has also been mentioned that, according to Paragraph 3 of Article 6.270 of the CC, if it is construed in conjunction with the other provisions of the CC, if the possessor of an object of increased danger performs unlawful actions or fails to observe the requirement for behaving in such a watchful and careful manner so as not to lose the control of the object of increased danger and not create any preconditions for the emergence of any such situations where other persons would be able to take possession of the object of increased danger and to inflict damage by means of it, he or she is held liable for the loss of control of the object of increased danger and, alongside, for the emergence of damage.

Thus, according to the legal regulation, consolidated in the impugned Paragraph 3 of Article 6.270 of the CC and in other provisions of the CC, regarding the loss of control of an object of increased danger, if the possessor of an object of increased danger fails to observe the requirements established in legal acts, if, under corresponding conditions, they failed to behave as, or behaved not in the way expected from, a careful and watchful possessor of an object of increased danger in order to prevent other persons from taking unlawful possession of the object of increased danger, i.e. if the possessor of an object of increased danger fails to observe the requirements, stemming from the principle of bonus pater familias, to behave in a reasonable, wary, and careful manner, thus, to properly take care of the object of increased danger and not to create any preconditions for the infliction of damage after other persons have used it, the possessor of an object of increased danger is partly at fault.

In this context it should be noted that even though the faulty actions of the possessor of an object of increased danger that have created preconditions for other persons to take unlawful (facilitated) possession of the object of increased danger do not inflict any direct damage, however, due to the peculiarities of objects of direct danger, which, as mentioned before, manifest themselves in such facts that the risk posed by such objects cannot be removed by means of regular precautionary measures, the risk for the emergence of damage posed by such objects substantially increases. It means that, although the actions of the possessor of an object of increased danger are not the sole reason for the emergence of damage inflicted by means of the object of increased danger, however, such actions alongside with the unlawful actions of another person in using the object of increased danger determine the emergence of the damage. Thus, there is a causal link between such actions of the possessor of an object of increased danger and the inflicted damage, even though such a link is indirect, and the probability of the emergence of damage increases due to such actions of the possessor of an object of increased danger that result in the loss of the possibility of control of an object of increased danger (inter alia, where the possessor fails to behave in the way expected from a reasonable and wary possessor of an object of increased danger). Therefore, the possessor of an object of increased danger, who lost the possibility of control of the object of increased danger also in part due to their fault, where such loss of control gave rise to respective consequences, i.e., damage inflicted by means of actions of another person, must be held liable jointly with the person who inflicted damage upon other persons by means of the object of increased danger and must compensate for the damage.

  1. As mentioned before, the petitioner has doubts about the compliance of the impugned legal regulation with the constitutional principles of justice and a state under the rule of law because the petitioner believes that, according to the legal regulation consolidated in Paragraph 3 of Article 6.270 of the CC, a disproportionately large liability falls upon the possessor of an object of increased danger for the damage that they did not inflict.
  2. In this ruling, it has been mentioned that the necessity to compensate a person for inflicted damage is a constitutional principle; the laws must create all the necessary preconditions for fair compensation for the inflicted damage. It has been mentioned that the Constitution imperatively requires that a legal regulation be established by law to the effect that a person, who was inflicted damage by unlawful actions, would be able in all cases to claim for just compensation for that damage and to receive that compensation; the constitutional imperative that damage must be compensated for justly is also related to the constitutional principles of proportionality and adequacy of compensation for damage, which require that the measures which are established in laws and which are applied be proportionate to the objective sought.

It has been mentioned that the control of an object of increased danger implies an increased risk for its possessor, thus, also the duty of the carefulness and responsibility that are larger than normally required, inter alia, the duty to make sure that other persons do not take possession of the object of increased danger. It has also been mentioned that the possessor of an object of increased danger, where they lost the possibility of control of the object of increased danger also due to their own fault, creates preconditions for the emergence of such situations where other persons can take possession of and use the object of increased danger by means of which damage is inflicted, consequently, the possessor of such an object contributes indirectly to the emergence of the damage which, according to the impugned legal regulation, they must jointly and severally compensate for together with the person who inflicted the damage. It should also be noted that, as mentioned before, in cases where the possessor of an object of increased danger, having compensated for all the damage inflicted by the operation of the object of increased danger, or a part of the damage that is greater than required to be paid by them, has the right of recourse for exacting the part of the compensation for the damage that should have been paid by the person who took unlawful possession of the object of increased danger.

Thus, when fulfilling the requirement, which stems from the Constitution, inter alia, Paragraph 2 of Article 30 thereof, that a legal regulation be established by law to the effect that a person, who was inflicted damage by unlawful actions, would be able in all cases to claim for just compensation for that damage and to receive that compensation, the legislature, having consolidated the legal regulation in Paragraph 3 of Article 6.270 of the CC to the effect that a person, who was inflicted damage by means of an object of increased danger, has the right to claim for compensation for that damage to be paid, either in full or in part, either jointly by both the person who took unlawful possession of the object of increased danger and the possessor of the object of increased danger, if the loss of control of an object of increased danger is also in part due to the fault of the possessor, or by any of them individually, created preconditions for the victim to receive real compensation for damage.

Therefore, it should be held that the legal regulation consolidated in the impugned Paragraph 3 of Article 6.270 of the CC, which establishes the duty of the possessor of an object of increased danger to compensate jointly and severally for damage together with the person who took unlawful possession of the object and inflicted direct damage, should be assessed as in compliance with the imperative that stems from the Constitution, inter alia, Paragraph 2 of Article 30 thereof, according to which damage must be compensated for justly, and in compliance with the constitutional principle of compensation for damage which requires that the measures which are established in laws and which are applied be proportionate to the objective sought—to secure the right of a person who suffered from an object of increased danger to compensation for damage. Thus there is no ground for stating that the impugned legal regulation is in conflict with the constitutional principles of justice and a state under the rule of law.

  1. It has been mentioned that the petitioner’s doubts about the compliance of the impugned legal regulation with the Constitution are also substantiated by the fact that, when applying Paragraph 3 of Article 6.270 of the CC, courts do not have an opportunity to take into account the amount of the fault of the possessor of an object of increased danger, they cannot assess the fact that there was not any direct causal link between the actions of the possessor of an object of increased danger and the inflicted damage, and they cannot take into account other circumstances that are important for individualising the liability. Therefore, in the opinion of the petitioner, the impugned legal regulation is in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.
  2. In this ruling, it has been mentioned that, under the Constitution, the establishment of any such legal regulation obstructing the adoption of a just decision in a case and, thus, the administration of justice by a court, where the court has taken account of all the important circumstances of the case, is following law, and does not transgress the imperatives of justice and reasonableness stemming from the Constitution, would be impermissible, otherwise, the powers of a court to administer justice, which stem, inter alia, from Article 109 of the Constitution, would be limited or even denied, and one would deviate from the constitutional concept of the court as the institution administering justice in the name of the Republic of Lithuania, as well as from the constitutional principles of a state under the rule of law and justice.

It has been mentioned that, according to the impugned legal regulation, in every concrete situation, a court, when administering justice and deciding on the issue of the compensation for the victim for the damage inflicted by an object of increased danger, having taken into account all the circumstances of a respective case, must assess whether the possessor of the object of increased danger is at fault due to the loss of control of the object, i.e., whether the possessor followed the requirements established in legal acts, whether he or she behaved in a wary and careful manner as required by the principles of reasonableness and bonus pater familias so as not to lose the possibility of control of the object of increased danger and so that persons would not take possession of the object by their unlawful actions, whether there is a causal link, even if an indirect one, between the actions of the possessor due to which the possibility of control of the object of increased danger was lost and the damage inflicted by means of the object of increased danger, and must decide whether there are grounds to apply civil liability together with the joint and several liability provided for in Paragraph 3 of Article 6.270 of the CC with regard to the possessor of the object of increased danger.

It has also been mentioned that the legal regulation, according to which the possessor of an object of increased danger, having compensated for all the damage inflicted by the operation of the object of increased danger, or a part of the damage that is greater than required to be paid by them, has the right of recourse for exacting the part of the compensation for the damage that should have been paid by the person who took unlawful possession of the object of increased danger, implies a court’s duty, when it decides a case on the reclaiming of the part of the damage paid for the person who took unlawful possession of an object of increased danger, to take into account all circumstances of the case in every concrete situation, to assess and decide which part of the compensation for damage was payable by the possessor of an object of increased danger and which part thereof was payable by the person who took unlawful possession of the said object.

It should be held that the provision of Paragraph 3 of Article 6.270 of the CC to the effect that, where the loss of control of an object of increased danger is also in part due to the fault of the possessor, the latter and the person who took unlawful possession of the object of increased danger shall be jointly and severally liable for the damage inflicted by the object of increased danger, does not limit the opportunities of the court to take into account all significant circumstance of the case and to adopt, by invoking law, a just decision in the case. Thus, the impugned legal regulation does not limit or deny a court’s powers stemming from the Constitution, inter alia, Article 109 thereof, to administer justice and does not deviate from the constitutional principles of justice and a state under the rule of law.

  1. In the light of the foregoing arguments, the conclusion should be drawn that Paragraph 3 of Article 6.270 of the CC, insofar as it provides that, where the loss of control of an object of increased danger is also in part due to the fault of the possessor, the latter and the person who took unlawful possession of the object of increased danger shall be jointly and severally liable for the damage inflicted by the object of increased danger, is 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.

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

ruling:

To recognise that Paragraph 3 of Article 6.270 of the Civil Code of the Republic of Lithuania (Official Gazette Valstybės žinios, 2000, No. 74-2262), insofar as it provides that, where the loss of control of an object of increased danger is also in part due to the fault of the possessor, the latter and the person who took unlawful possession of the object of increased danger shall be jointly and severally liable for the damage inflicted by the object of increased danger, is not in conflict 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