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On payment for the costs of towing away and storing a vehicle

Case No. 30/2011

 

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 

RULING

ON THE COMPLIANCE OF PARAGRAPH 6 OF ARTICLE 33 OF THE REPUBLIC OF LITHUANIA’S LAW ON ROAD TRAFFIC SAFETY (WORDING OF 22 NOVEMBER 2007) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

20 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, 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 Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, on 17 December 2013, at the Court’s sitting, considered, under written procedure, constitutional justice case No. 30/2011 subsequent to the petition (No. 1B-38/2011) of the First Vilnius City Local Court, the petitioner, requesting an investigation into whether the provision “[t]he said costs must be paid prior to collecting the vehicle from the vehicle (impoundment) parking lot” of Paragraph 6 of Article 33 of the Republic of Lithuania’s Law on Road Traffic Safety (wording of 22 November 2007) is not in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

I

1. The First Vilnius City Local Court (at presentthe Vilnius City Local Court), the petitioner, was considering a civil case where a municipal enterprise, the plaintiff, requested that it be awarded the outstanding debt for the towing away and storage of a vehicle belonging to the defendant in that case. From the petition of the petitioner and the material of the civil case, it is clear that the vehicle belonging to the defendant was towed away upon the instruction of a police official for being parked on a pavement in violation of the Road Traffic Safety Regulations. Upon the submission of the application by the defendant, the aforesaid municipal enterprise refused the defendant the release of the impounded car until the costs of towing away and storing the car were not paid and indicated that, according to Paragraph 6 of Article 33 of the Law on Road Traffic Safety (hereinafter also referred to as the Law), the said costs must be paid prior to collecting the vehicle from the vehicle (impoundment) parking lot. The defendant did not accept the claim and requested the court to file a petition with the Constitutional Court regarding the compliance of the aforementioned provision with the Constitution.

2. The whole content of the petition of the petitioner makes it clear that the petition is in essence substantiated on the following arguments.

The impugned Paragraph 6 of Article 33 of the Law (wording of 22 November 2007) provides for the conditions for the refusal of the release of an impounded vehicle to its owner for an unlimited time period, with the additional debt of the owner being calculated for the continuing custody services, thus gradually increasing the liabilities of the owner to the provider of the services involved.

The impugned legal regulation is aimed at ensuring that the subjects providing the services of the transportation and storage of towed-away vehicles would be paid for their services. The interest of business subjects to receive payment for the provided services may not be defended to the extent greater than the interest of owners to recover the items owned by them by right of ownership. This interest of business subjects is not a public interest or any such a constitutional value the defence of which would justify the limitation of another constitutional valuethe right of ownership. In addition, the said interest of business subjects may be protected by other means: there always remains the possibility of claiming and recovering the outstanding debt for the provided services in accordance with the procedure for the enforcement of decisions. In the cases where the rights of ownership are limited, the principle of proportionality must be observed; whereas, the impugned legal regulation has been established without preserving the balance of interests, and the measure provided for through this regulation is inadequate to the objective sought.

In the petition, it is also indicated that the impugned provision was established at the same time as, in substance, an analogous provision of the Code of Administrative Violations of Law of the Republic of Lithuania, which permitted to retrieve the towed-away vehicle only after paying the imposed fine or serving the time of administrative arrest, and which was ruled in conflict with the Constitution by the Constitutional Court in its ruling of 10 April 2009.

II

In the course of the preparation of the case for the Constitutional Court’s sitting, written explanations were received from Julius Sabatauskas, a member of the Seimas, acting as the representative of the Seimas, the party concerned, where it is maintained that the impugned provision of Paragraph 6 of Article 33 of the Law (wording of 22 November 2007) is not in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of a state under the rule of law. The position of the representative of the party concerned is substantiated by the following arguments.

The matter of investigation in the Constitutional Court’s ruling of 10 April 2009 was not analogous to the matter under dispute in the case at issue, since there is the difference between an administrative penalty and the costs incurred by a subject providing the services of the transportation and storage of towed-away vehicles.

Having established that a vehicle may be towed away to a vehicle (impoundment) parking lot, operated by an economic subject who, in the manner prescribed by legal acts, has the right to engage in that economic-commercial activity, the legislature was also obliged to provide for the procedure under which the said economic subject would be paid for the provided services. The impugned legal regulation is aimed at reconciling, on the one hand, the interests of the owner of a vehicle that the vehicle will be protected against unlawful destruction, damage, or loss, and, on the other hand, the interests of the economic subject responsible for the storage of the vehicle that the costs incurred in relation to the storage of the vehicle will be covered. Thus, having consolidated the impugned legal regulation, the legislature has ensured the balance between the interests of the owner of the vehicle and the interests of the subject responsible for the storage of the vehicle and assessed the proportionality of the established measure.

According to the representative of the party concerned, the impugned provision, prescribing that the costs must be paid prior to collecting the vehicle from the vehicle (impoundment) parking lot, is designed to regulate the procedure for and time of the payment for the storage services, though this provision does not mean that an impounded vehicle may not be retrieved until the costs of storage have been paid. Therefore, the provision in question does not limit the rights of ownership of the owner of an impounded vehicle.

The Constitutional Court

holds that:

I

1. As mentioned before, the First Vilnius City Local Court requests an investigation into whether the provision “[t]he said costs must be paid prior to collecting the vehicle from the vehicle (impoundment) parking lot” of Paragraph 6 of Article 33 of the Law on Road Traffic Safety (wording of 22 November 2007) is not in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of a state under the rule of law.

2. Article 33 “Towing Away a Vehicle or Prohibition of Driving” of the Law (wording of 22 November 2007), inter alia, prescribes:

1. A vehicle may be towed away to a vehicle (impoundment) parking lot, operated by an economic subject who, in the manner prescribed by legal acts, has the right to engage in this economic-commercial activity, or a vehicle may be prohibited from being driven, where the possessor of the vehicle, by using that vehicle, poses a threat to the health or life of traffic participants or other persons or causes an obstruction to safe vehicle or pedestrian traffic and violates the requirements established by the Road Traffic Regulations or other legal acts. <...>

6. The costs related to towing a vehicle away to the vehicle (impoundment) parking lot in the cases specified in Paragraph 1 of this Article, as well as the costs related to its storage at the vehicle (impoundment) parking lot, shall be paid to the economic subject concerned jointly and severally by the owner and possessor of the vehicle. The said costs must be paid prior to collecting the vehicle from the vehicle (impoundment) parking lot.”

Thus, the impugned provision of Paragraph 6 of Article 33 of the Law (wording of 22 November 2007) regulates the relations connected, inter alia, to the recovery of towed-away vehicles stored at vehicle (impoundment) parking lots.

3. It should be noted that the compliance of the legal regulation related to the recovery of towed-away vehicles with the Constitution, from certain aspects, has already been investigated by the Constitutional Court.

In its Ruling “On the compliance of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the Code of Administrative Violations of Law of the Republic of Lithuania with the Constitution of the Republic of Lithuania” of 10 April 2009, the provision “[i]t is permitted to retrieve the towed-away vehicle (save the cases where the vehicle is confiscated) only after paying the imposed fine or serving the time of administrative arrest” of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of this code, insofar as it permitted to retrieve the towed-away vehicle only after paying the imposed fine or serving the time of administrative arrest, was ruled by the Constitutional Court to be in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of a state under the rule of law.

In the aforesaid ruling, the Constitutional Court held that, having established an administrative penalty—confiscation of the vehicle—for the commission of certain administrative violations of law, the legislature must, while paying regard to the norms and principles of the Constitution, consolidate the measures ensuring a possible confiscation of the vehicle. The Constitutional Court also noted that the legislature might, for instance, also establish the legal regulation whereby, upon the commission of an administrative violation of law for which the confiscation of the vehicle can be imposed, the release of the towed-away vehicle may be temporarily refused until the consideration of the case concerning the said administrative violation of law is finished.

Thus, in the Constitutional Court’s ruling of 10 April 2009, the compliance of the corresponding legal regulation with the Constitution was investigated from the aspects related to the refusal to release the towed-away vehicles in order to ensure the execution of administrative penalties (fines, administrative arrest, as well as a possible confiscation of the vehicle).

4. It has been mentioned that the First Vilnius City Local Court, the petitioner, was considering a civil case where a municipal enterprise, the plaintiff, requested that it be awarded the outstanding debt for the towing away and storage of a vehicle belonging to the defendant in that case. It has also been mentioned that the petition of the petitioner and the material of the civil case make it clear that, on the grounds of the impugned provision of Paragraph 6 of Article 33 of the Law (wording of 22 November 2007), the municipal enterprise refused the release of the impounded car until the costs of the towing it away and its storage were not paid.

Consequently, in the constitutional justice case at issue, the compliance of the impugned legal regulation with the Constitution is doubted insofar as the legal regulation in question regulates the fulfilment of the obligation of the owner and possessor of an impounded vehicle to cover the costs incurred by the economic subject concerned as a result of towing away and storing the said vehicle. Thus, the doubts regarding the compliance of the impugned legal regulation with the Constitution have been raised by the petitioner from the aspect other than those from which the corresponding legal regulation was investigated by the Constitutional Court in its ruling of 10 April 2009.

5. Thus, in the constitutional justice case at issue, subsequent to the petition of the First Vilnius City Local Court, the petitioner, the Constitutional Court will investigate whether the provision “[t]he said costs must be paid prior to collecting the vehicle from the vehicle (impoundment) parking lot” of Paragraph 6 of Article 33 of the Law on Road Traffic Safety (wording of 22 November 2007), insofar as it regulates the fulfilment of the obligation of the owner and possessor of an impounded vehicle to pay the costs incurred by the economic subject engaged in the economic-commercial activity concerned as a result of towing away and storing the said vehicle, is not in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of a state under the rule of law.

II

On the compliance of Paragraph 6 of Article 33 of the Law on Road Traffic Safety (wording of 22 November 2007) with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of a state under the rule of law

1. As mentioned before, in the constitutional justice case at issue, the Constitutional Court will investigate whether the provision “[t]he said costs must be paid prior to collecting the vehicle from the vehicle (impoundment) parking lot” of Paragraph 6 of Article 33 of the Law on Road Traffic Safety (wording of 22 November 2007), insofar as it regulates the fulfilment of the obligation of the owner and possessor of an impounded vehicle to pay the costs of towing away and storing the said vehicle, incurred by the economic subject engaged in the economic-commercial activity concerned, is not in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of a state under the rule of law.

2. On 22 November 2007, the Seimas adopted the Republic of Lithuania’s Law Amending the Law on Road Traffic Safety, which came into force (with certain exceptions) on 1 July 2008. Through that law, the Law on Road Traffic Safety was amended and set forth in its new wording.

3. Article 33 “Towing Away a Vehicle or the Prohibition of Driving” of the Law (wording of 22 November 2007), the compliance of the provision of Paragraph 6 whereof with the Constitution is being investigated in the constitutional justice case at issue, inter alia, prescribes:

1. A vehicle may be towed away to a vehicle (impoundment) parking lot, operated by an economic subject who, in the manner prescribed by legal acts, has the right to engage in this economic-commercial activity, or a vehicle may be prohibited from being driven, where the possessor of the vehicle, by using that vehicle, poses a threat to the health or life of traffic participants or other persons or causes an obstruction to safe vehicle or pedestrian traffic and violates the requirements established by the Road Traffic Regulations or other legal acts. <...>

3. A decision on towing away a vehicle or prohibiting it from being driven further, provided there are the grounds established in Paragraph 1 of this Article, may be adopted by police officials or the officials of the State Road Transport Inspectorate under the Ministry of Transport and Communications <...>. <...>

6. The costs related to towing a vehicle away to a vehicle (impoundment) parking lot in the cases specified in Paragraph 1 of this Article, as well as the costs related to its storage at the vehicle (impoundment) parking lot, shall be paid to the economic subject concerned jointly and severally by the owner and possessor of the vehicle. The said costs must be paid prior to collecting the vehicle from the vehicle (impoundment) parking lot.”

Thus, the impugned provision (“The said costs must be paid prior to collecting the vehicle from the vehicle (impoundment) parking lot”) of Paragraph 6 of Article 33 of the Law (wording of 22 November 2007) establishes a condition for the recovery of a vehicle towed away to a vehicle (impoundment) parking lot: prior to collecting the towed-away vehicle, the costs related to towing it away and storing must be paid, i.e., in no cases does it provide for the possibility of recovering the vehicle prior to paying the said costs (i.e., paying them later).

4. The impugned provision of Paragraph 6 of Article 33 of the Law (wording of 22 November 2007) should be construed in the context of the other provisions of Paragraphs 1, 3, and 6 of the same article.

It should be noted that, under the legal regulation consolidated in Paragraphs 1, 3, and 6 of Article 33 of the Law (wording of 22 November 2007), in the cases, as provided for in this law, related to the use of a vehicle in violation of the requirements established in legal acts, a competent official may adopt a decision to tow such a vehicle away to a vehicle (impoundment) parking lot, operated by an economic subject engaged in the economic-commercial activity of towing away and storing vehicles; in these cases, the possessor and owner of the towed-away vehicle have the joint and several obligation to pay the said economic subject the costs related to towing away and storing the vehicle.

The impugned provision (“The said costs must be paid prior to collecting the vehicle from the vehicle (impoundment) parking lot”) of Paragraph 6 of Article 33 of the Law (wording of 22 November 2007) lays down the legal regulation that, when construed in the context of other provisions of the same article, provides for the preconditions for the refusal of the release of a towed-away vehicle, stored at a vehicle (impoundment) parking lot, to its owner and (or) possessor until the owner and (or) possessor of the vehicle fulfil their obligation to pay the costs incurred by the subject engaged in the economic-commercial activity concerned as a result of towing away and storing the said vehicle.

Thus, by providing for the possibility of releasing a towed-away vehicle only once the costs of towing it away and storing have been paid, the legislature aimed at ensuring the fulfilment of the obligation of the owner and possessor of the vehicle to pay the said costs. Consequently, the impugned legal regulation consolidates the only means (applicable in all cases where towed-away vehicles are stored at their (impoundment) parking lot) of ensuring the fulfilment of the obligation of the owner and possessor of a towed-away vehicle to pay the costs of towing away and storing the vehicle—refusal of the release of the vehicle (or retention thereof) until the said obligation is fulfilled.

5. It should be mentioned that Paragraphs 1, 3, and 6 of Article 33 of the Law (wording of 22 November 2007) have neither been amended nor supplemented.

6. In order to construe the impugned provision of Paragraph 6 of Article 33 of the Law (wording of 22 November 2007), account should also be taken of the legal regulation laid down in the Civil Code of the Republic of Lithuania (wording of 18 July 2000) (hereinafter also referred to as the CC) regarding the means of securing the fulfilment of obligations, inter alia, the right of the retention of a thing.

6.1. Article 6.69 “The Right of Retention” of the CC prescribes that the creditor may exercise the right of the retention of a thing until the obligation is fulfilled by the debtor (Paragraph 1); the procedure for the implementation of the right of retention is established by the provisions of the Fourth Book of this code (Paragraph 2).

Section XIII “The Retention of a Thing” of Book 4 “Material Law”, inter alia, prescribes:

– “A lawful possessor of a thing belonging to another, who has the right of claim in respect of the owner of the thing, is entitled to retain the thing until his or her claim in respect of the owner of the thing is satisfied” (Paragraph 1 of Article 4.229);

– “The right of retention may not be exercised prior to the expiry of the term for the satisfaction of the outstanding claim” (Paragraph 2 of Article 4.229);

- “The right of retention shall be indivisible; therefore, the possessor of the thing may retain the entire thing until his or her claim is fully satisfied” (Article 4.230);

– “Having provided an adequate proof of the fulfilment of the due obligation, the debtor shall have the right to reclaim the possession of the thing retained by the creditor” (Paragraph 1 of Article 4.235).

To summarise the foregoing, it should be noted that the quoted provisions of the CC consolidate one of the means of securing the fulfilment of obligations—the right of the retention of a thing. Under the legal regulation consolidated in the aforementioned provisions:

the creditor, who is a lawful possessor of a thing belonging to another, upon the expiry of the term for the satisfaction of the outstanding claim, has the right to retain the said thing until the debtor fulfils the due obligation;

the creditor has the right to retain the entire thing in his or her possession until his or her claim is fully satisfied; thus, the creditor may retain the entire thing regardless of the amount of his or her outstanding claim;

the right of the retention of the withheld thing expires, inter alia, once the debtor provides the creditor with an adequate proof of the fulfilment of the due obligation; in this case, the debtor has the possibility of recovering the possession of the thing retained by the creditor prior to the moment that the due obligation is fulfilled.

6.2. In the context of the constitutional justice case at issue, it should also be noted that Article 6.840 “Remuneration for Deposit” of the CC, inter alia, prescribes: “Where the contract of deposit is onerous, the depositor is bound to pay remuneration to the depositary upon the termination of safekeeping. <...>” (Paragraph 1); “The depositary shall have the right to retain the thing delivered for safekeeping until the depositor pays the agreed remuneration” (Paragraph 5).

Thus, the CC provides for separate cases where the creditor is allowed to make use of the right of the retention of a thing. For instance, under Article 6.840 of the CC, the depositary, seeking to secure that the debtor fulfils the obligation, arising from the legal relations of deposit, to pay remuneration to the depositary upon the expiry of safekeeping, has the right to retain the thing delivered for safekeeping.

6.3. Consequently, the legal regulation laid down in the CC prescribes that, in certain cases, the possession of the thing delivered for safekeeping by the depositor and retained by the depositary may be recovered even prior to remuneration for its safekeeping has been paid in full (once the depositor ensures this will be fulfilled at a later time).

7. It has been mentioned that, in the constitutional justice case at issue, the Constitutional Court is investigating the compliance of the impugned legal regulation with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of a state under the rule of law.

8. The inviolability and protection of ownership, as consolidated in Article 23 of the Constitution, inter alia, Paragraphs 1 and 2 thereof, means that owners have the right to perform any actions, with the exception of those prohibited by law, with regard to their property, as well as to use their property and determine its future in any way that does not violate the rights and freedoms of other persons (inter alia, the Constitutional Court’s rulings of 14 March 2006, 8 June 2009, and 9 October 2013).

The Constitutional Court has also held on more than one occasion that, under the Constitution, the right of ownership is not absolute, and that this right can be limited by means of a law due to the character of an object of ownership, due to the committed deeds that are contrary to law, and/or due to a constitutionally justifiable need that is essential to society. In all cases where the rights of ownership are limited, the following conditions must always be observed: ownership may be limited only by invoking the law; limitations must be necessary in a democratic society in order to protect the rights and freedoms of other persons, the values consolidated in the Constitution, and the constitutionally important objectives that are essential to society; heed must be paid to the principle of proportionality, under which the measures provided for in laws must be in line with the objectives sought that are essential to society and are constitutionally justified (inter alia, the Constitutional Court’s rulings of 31 January 2011, 15 February 2013, and 5 July 2013).

9. As held by the Constitutional Court on more than one occasion, the constitutional principle of a state under the rule of law, which is consolidated in the Constitution, in addition to other requirements, also implies that human rights and freedoms must be ensured (inter alia, the Constitutional Court’s rulings of 23 February 2000, 22 December 2010, and 9 October 2013).

The Constitutional Court has also held in its acts 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, and that the principle of proportionality means that the measures provided for in a law must be in line with the legitimate objectives that are important to society, that these measures must be necessary in order to reach the said objectives, and that these measures must not restrain the rights and freedoms of a person clearly more than necessary in order to reach the said objectives (inter alia, the Constitutional Court’s rulings of 29 June 2010, 15 February 2013, and 9 October 2013).

10. As mentioned before, in the constitutional justice case at issue, the Constitutional Court is investigating whether the provision “[t]he said costs must be paid prior to collecting the vehicle from the vehicle (impoundment) parking lot” of Paragraph 6 of Article 33 of the Law (wording of 22 November 2007), insofar as it regulates the fulfilment of the obligation of the owner and possessor of an impounded vehicle to pay the costs of towing away and storing the said vehicle, incurred by the economic subject engaged in the economic-commercial activity concerned, is not in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of a state under the rule of law.

11. The petition of the petitioner requesting an investigation into the compliance of the impugned provision with the Constitution is, in essence, substantiated by the fact that the provision in question provides for the conditions for the refusal of the release of an impounded vehicle to its owner for an unlimited time period, thus causing the liabilities of the owner of the vehicle to the provider of the custody services involved to gradually increase; the interest of business subjects to receive payment for the provided services may not be defended to the extent greater than the interest of owners to recover the objects owned by them by right of ownership; the impugned legal regulation has been established without preserving the balance of interests, and the measure provided for by this regulation is inadequate to the objective sought.

12. In order to decide whether the provision “[t]he said costs must be paid prior to collecting the vehicle from the vehicle (impoundment) parking lot” of Paragraph 6 of Article 33 of the Law (wording of 22 November 2007), insofar as it regulates the fulfilment of the obligation of the owner and possessor of an impounded vehicle to pay the costs of towing away and storing the said vehicle, incurred by the economic subject engaged in the economic-commercial activity concerned, is not in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of a state under the rule of law, it should be noted that, as mentioned before, in all cases where the rights of ownership are limited, inter alia, the following conditions must always be observed: limitations must be necessary in a democratic society in order to protect the rights and freedoms of other persons, the values consolidated in the Constitution, and the constitutionally important objectives that are essential to society; and the principle of proportionality must be observed. The principle of proportionality, as one of the elements of the constitutional principle of a state under the rule of law, means that the measures provided for in a law must be in line with the legitimate objectives that are important to society, that these measures must be necessary in order to reach the said objectives, and that these measures must not restrain the rights and freedoms of a person clearly more than necessary in order to reach the said objectives.

12.1. It should be noted that, under the Constitution, inter alia, Item 2 of Article 67 thereof, and the constitutional principle of a state under the rule of law, the legislature, while regulating the relations connected to ensuring traffic safety, has the discretion to establish such a measure for ensuring traffic safety as towing away a vehicle, but, after having established such a measure, the legislature is also obliged to provide for the legal regulation that would ensure that the rights of the owner of a towed-away vehicle are not violated through the failure to protect the vehicle, inter alia, against its unlawful destruction, damage, or loss.

In the context of the constitutional justice case at issue, it should also be noted that the interest of the subject, who has taken, for certain consideration, into its custody a towed-away vehicle, to receive remuneration for storing that vehicle must be defended in the manner provided for by law; however, the legislature, when regulating, inter alia, the means of the defence of this interest, is obliged to pay heed to the Constitution, inter alia, the constitutional principle of proportionality.

12.2. It has been mentioned that the impugned provision (“The said costs must be paid prior to collecting the vehicle from the vehicle (impoundment) parking lot”) of Paragraph 6 of Article 33 of the Law (wording of 22 November 2007) lays down the legal regulation that provides for the preconditions for the refusal of the release of a towed-away vehicle, stored at a vehicle (impoundment) parking lot, to its owner and (or) possessor until the owner and (or) possessor of that vehicle fulfil(s) their obligation to pay the costs incurred by the subject engaged in the economic-commercial activity concerned as a result of towing away and storing the said vehicle; by providing for the possibility of the release of a towed-away vehicle only once the costs of towing it away and storing have been paid, the legislature aimed at ensuring the fulfilment of the obligation of the owner and possessor of the vehicle to pay the said costs.

Consequently, the impugned legal regulation provides for no possibility, in any cases (or under any conditions), for the owner or lawful possessor of a vehicle towed away and stored at a vehicle (impoundment) parking lot to use the said vehicle prior to their obligation to pay the costs of towing away and storing the vehicle has been fulfilled.

12.3. It has also been mentioned that the CC consolidates one of the means of securing the fulfilment of obligations—the right of the retention of a thing; in addition, as mentioned before, the CC provides for separate cases where the creditor is allowed to make use of the right of the retention of a thing; for instance, under Article 6.840 of the CC, the depositary, seeking to secure that the debtor fulfils the obligation, arising under the legal relations of the delivery of a certain deposit, to pay remuneration to the depositary upon the expiry of safekeeping, has the right to retain the thing delivered for safekeeping.

Under the legal regulation laid down in the CC, as mentioned before, the right of the retention of the withheld thing expires, inter alia, once the debtor provides the creditor with an adequate proof of the fulfilment of the due obligation; in this case, the debtor has the possibility of recovering the possession of the thing retained by the creditor prior to the moment that the due obligation is fulfilled.

The said legal regulation, as laid down in the CC, creates preconditions for the debtor to recover the possession of the thing owned by right of ownership, while the creditor, the satisfaction of whose claim has been ensured in the manner adequate to the substance of the obligation, is released from the duty to ensure the safety of the retained thing; thus, the legal regulation in question preserves the balance between the interests of the parties to the obligation and makes it possible that the abuse of the right of retention be avoided.

12.4. It should be noted that the relations connected to the custody of towed-away vehicles, inter alia, those related to the fulfilment of the statutory obligation of the owner and possessor of a towed-away vehicle to cover the costs of the custody services (in addition to the costs of towing the vehicle away), incurred by the economic subject concerned, should not be considered as characterised by any such specificity that would determine the necessity that the right of the owner or lawful possessor of a towed-away vehicle to freely use their vehicle at their own discretion be limited more than the rights of other debtors in the corresponding cases where they are refused the recovery of the possession of their things upon the exercise of the right of retention by the respective creditor.

12.5. It should be noted that, as mentioned before, the impugned legal regulation consolidates the only means (applicable in all cases where towed-away vehicles are stored at their (impoundment) parking lot) of ensuring the fulfilment of the obligation of the owner and possessor of a towed-away vehicle to pay the costs of towing away and storing the vehicle—refusal of the release of the vehicle (or retention thereof) until the said obligation is fulfilled.

Thus, the impugned legal regulation does not provide for any preconditions for the debtor (the owner or possessor of a towed-away vehicle), having adequately ensured that the due obligation will be fulfilled, to recover their vehicle, owned by right of ownership or lawfully possessed, without failing to observe the legitimate interests of the creditor (the respective economic subject engaged in the activity of towing away and storing vehicles).

It should also be noted that the costs related to the storage of a towed-away vehicle must be paid for the entire period of its storage. Consequently, the impugned legal regulation, failing to provide for the preconditions for the debtor (the owner or possessor of a towed-away vehicle) to adequately ensure that his or her obligation to cover the said costs will be fulfilled and, consequently, to recover the vehicle, simultaneously fails to provide for the preconditions for the debtor to avoid increase in the said obligation.

12.6. It needs to be held that the impugned provision (“The said costs must be paid prior to collecting the vehicle from the vehicle (impoundment) parking lot”) of Paragraph 6 of Article 33 of the Law (wording of 22 November 2007) lays down the legal regulation under which the fulfilment of the obligation of the owner and possessor of a towed-away vehicle to pay the costs of towing away and storing the said vehicle is ensured through the only means—the refusal of the release of the vehicle (or retention thereof), thus failing to provide for any preconditions for the recovery of the vehicle once the fulfilment of the aforesaid obligation has been adequately ensured; as a result, the right of the owner (lawful possessor) of the impounded vehicle to freely use at their own discretion the owned (lawfully possessed) property is limited more than it is necessary in order to protect the legitimate interests of economic subjects engaged in the activity of towing away and storing vehicles. Therefore, the impugned legal regulation is not in line with the imperatives of the inviolability and protection of ownership, stemming from Paragraphs 1 and 2 of Article 23 of the Constitution, and is incompatible with the principle of proportionality and, thus, the constitutional principle of a state under the rule of law.

13. In view of the foregoing arguments, the conclusion should be drawn that the provision “[t]he said costs must be paid prior to collecting the vehicle from the vehicle (impoundment) parking lot” of Paragraph 6 of Article 33 of the Law on Road Traffic Safety (wording of 22 November 2007), insofar as it does not provide for any possibility of recovering an impounded vehicle once the fulfilment of the outstanding obligation to pay the costs involved has been adequately ensured, is in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of 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, 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 the provision “[t]he said costs must be paid prior to collecting the vehicle from the vehicle (impoundment) parking lot” of Paragraph 6 of Article 33 of the Republic of Lithuania’s Law on Road Traffic Safety (wording of 22 November 2007; Official Gazette Valstybės žinios, 2007, No. 128-5213), insofar as it does not provide for any possibility of recovering the impounded vehicle once the fulfilment of the outstanding obligation to pay the costs involved has been adequately ensured, is in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution and the constitutional principle of a state under the rule of law.

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

Justices of the Constitutional Court:             Toma Birmontienė

                                                                    Gediminas Mesonis

                                                                    Egidijus Šileikis

                                                                    Algirdas Taminskas

                                                                    Romualdas Kęstutis Urbaitis

                                                                    Dainius Žalimas