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On the supplementary penalty of property confiscation

THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA

R UL I N G

On the compliance of the second paragraph of Article 148 of the Criminal Code of the Republic of Lithuania as well as Items 1 and 2 of Article 93 of the Code of Criminal Procedure of the Republic of Lithuania with the Constitution of the Republic of Lithuania

13 December 1993, Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Algirdas Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Vladas Pavilonis, Pranas Vytautas Rasimavičius, Stasys Stačiokas, Teodora Staugaitienė, Stasys Šedbaras and Juozas Žilys

The court reporter—Rolanda Stimbirytė

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court, in its public court hearing considered case No. 7 subsequent to the petition submitted to the Court by the Criminal College of the Supreme Court of the Republic of Lithuania requesting an investigation into the conformity of the norms of the Criminal Code providing for the confiscation of property and Items 1 and 2 of Article 93 of the Code of Criminal Procedure, with the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

On 31 March 1993, the Criminal College of the Supreme Court, considered the criminal case concerning the writ of appeal, submitted by convict A. Vorobjovas, against the sentence of Šiauliai District Court, adopted on 18 January 1993, in compliance with which he was sentenced according to Paragraph 2, Article 250, Paragraphs 2 and 3, Article 146, Paragraph 2 of Article 90, Paragraph 2 of Article 148 and Paragraph 1 of Article 153 of the Criminal Code. By summing up the sentences, the final sentence—imprisonment for the term of six years along with the confiscation of property—has been ordered. Together with the remaining unserved prison term upon the earlier sentence, the final punishment—imprisonment for the term of seven years in the Strict Regime Correctional Labour Colony, along with the confiscation of property—has been ordered. By the same decision other persons were convicted but no complaints or protests against it with respect to them have been lodged.

The Criminal College of the Supreme Court, upon the investigation into the lawfulness and the validity of said judgement, by its own decision suspended the investigation of said criminal case and addressed the Constitutional Court with the petition requesting an investigation into the compliance of the norms of the Criminal Code providing for the confiscation of property, as well as Items 1 and 2 of Article 93 of the Code of Criminal Procedure with Article 23 of the Constitution of the Republic of Lithuania.

In the decision, the Criminal College of the Supreme Court grounds their request on the fact that A. Vorobjovas by the ruling of Šiauliai District Court, in conformity with the second paragraph of Article 148 of the Criminal Code, besides the main punishment—imprisonment—has been subjected to a supplementary penalty—confiscation of property. It is established in Article 23 of the Constitution of the Republic of Lithuania that: “Property shall be inviolable”, thus, the Court of Cassation has doubts whether the norms of Criminal Code providing for the confiscation of property are in compliance with said Article of the Constitution.

In the opinion of the Criminal College of the Supreme Court, if the confiscation of property is not in compliance with the Criminal Code, it should be recognised in that case that actions of courts and other state agencies (e.g. customs offices) carrying out the confiscation of property conforming to Items 1 and 2 of Article 93 of the Code of Criminal Procedure, the Code of Administrative Offences, and other acts of Administrative Law, are also unlawful.

During the preliminary investigation of the case, the petitioner’s representative explained that the Criminal College of the Supreme Court, upon the adoption of the ruling on this case, has provided such a wording for it that the Constitutional Court should answer the question whether confiscation of property is allowed in general and not only referring to the Articles of the Criminal Code and the Code of Criminal Procedure that have been applied in this case.

The representative of the party concerned, during the preliminary investigation of said case, explained that in the event of illegal acquisition of property, the rights of other people are violated. Therefore, in case when illegal capital is later on invested into legal business, it, nevertheless can be maintained that the entire capital is illegal. However, if the property is in no way related to the committed crime, doubts arise, whether such property may be confiscated. Thus, confiscation of property set forth in the Criminal Code, should be carried out only in those cases when the connection between the property possessed and the crime committed is possible to establish.

The Constitutional Court

holds that:

The Criminal College of the Supreme Court, in the process of investigation of said criminal law, had doubts as to the possibility of inflicting a supplementary penalty—confiscation of property—in conformity with the second paragraph of Article 148 of Criminal Code, and confiscating instruments of crime in compliance with Items 1 and 2 of Article 93 of the Code of Criminal Procedure. In the decision of the Court of Cassation the issue of seizure of property is raised on a broader scale- whether this sanction of a criminal law and measures applied with respect to material evidence according to criminal procedure are on the whole in compliance with the provision of Article 23 of the Constitution of the Republic of Lithuania which establishes: “Property shall be inviolable”.

It is established in Article 67 of the Law on the Constitutional Court that, the Constitutional Court shall investigate only the compliance of laws and other legal acts, which shall be applicable in a concrete case, with the Constitution. Therefore, the Constitutional Court in this case conducts the investigation only of the conformity of the second paragraph of Article 148 of Criminal Code as well as Items 1 and 2 of Article 93 of the Code of Criminal Procedure with the Constitution. On the same grounds, the Constitutional Court does not investigate the compliance of the norms established in the Code of Administrative Offences with the Constitution.

On the compliance of the second paragraph of Article 148 of the Criminal Code providing for supplementary penalty—confiscation of property—with the Constitution of the Republic of Lithuania.

The second paragraph of Article 148 of Criminal Code, along with the main punishment—imprisonment—provides for a supplementary penalty—confiscation of property. In deciding whether the norms of Criminal Code providing for a supplementary penalty—confiscation of property—are in compliance with the Constitution, firstly, it should be clarified whether seizure of property against the owner’s will is possible at all, as in the first paragraph of Article 23 of the Constitution of the Republic of Lithuania it is established that: “Property shall be inviolable”.

The inviolability of property means, on the one hand, the right of the owner as the possessor of subjective rights to property, to require that other persons not violate his own rights as well as the duty of the state, on the other hand, to defend and protect property against illegal encroaching upon it.

It is set forth in the second paragraph of Article 23 of the Constitution that the property rights shall be protected by law. For this purpose, a body of norms of civil and other laws is established. However, as far as the theory of law is concerned, the protection of property rights by legal means presuppose, in turn, appropriate limits to such protection, as law in all cases of the regulation of public relations is valid only within certain limits. On the other hand, subjective rights, i.e. the owner’s rights to possess, use and dispose of property, can be limited by means of laws due to the nature of property possessed (e.g. weapons, narcotics, etc.) or due to obligatory public interest (ecological issues, etc.), or due to the owner’s committed acts. It is prescribed by law that actions for recovery of damages under liability arising from treaty, delictual and family relations, may be brought against property. The fact that property can be seized is also confirmed in the third paragraph of Article 23 of the Constitution which establishes: “Property may only be seized for the needs of society according to the procedure established by law and must be adequately compensated for”.

Limitations on property rights may also stem from international treaties because international agreements which are ratified in compliance with the third paragraph of Article 138 of the Constitution are a constituent part of the legal system of the Republic of Lithuania.

The provision specifying that, under certain conditions, property rights may be restricted, is also established in Item 2 of Article 17 of the Universal Declaration of Human Rights. It is set forth in this article: “No one shall be subjected to arbitrary deprivation of property”. This means that property can be seized but this must be done only according to the procedure established by law and by competent state body.

Thus, neither the Constitution, nor the valid system of other laws, nor universally recognised norms of international law deny the opportunity, under conditions and procedure prescribed by law, to alienate the property or limit its possession, use or disposal.

Insuring inviolability of property, as well as all other constitutional safeguards, may not be interpreted without taking the entire text of the Constitution into consideration, the more so, as it is established in Article 6 of the Constitution that the Constitution shall be an integral statute.

A universal requirement is set forth in Article 28 of the Constitution of the Republic of Lithuania: “While exercising their rights and freedoms, persons must observe the Constitution and the laws of the Republic of Lithuania and must not impair the rights and interests of other people.” If a person, while exercising property or other rights, impairs the rights and freedoms of other persons, he may be held liable under law and punished (Articles 30 and 31 of the Constitution). The ways of punishing such a person and applying restrictions of one or another kind on him or his property are prescribed by means of laws of specific branches of law in compliance with general requirements set forth in the Constitution, principles of forming sanctions of that branch of law regarding purposes of punishment.

The rights and freedoms of people as well as the most significant goods protected by law are grossly violated by committed crimes. Therefore, criminal laws while establishing rigid and differentiated system of punishments, have the aim not only to make an appropriate influence upon the convict (by restricting his personal, property or other rights) but also to ensure the protection of the interests of victims and society as well as to carry out prevention of crimes.

In the preamble to the Constitution, striving for an open, just, and harmonious civil society and State under the rule of law is written among other aspirations of Lithuania. From the point of view of Criminal Law, this means that it is aimed at establishing a State which would be free enough and protected from criminal acts. It cannot be stated, however, that society is just and human, if criminals may act more freely than people who abide by law. The criminality data of recent years show that threat to society is growing not only due to the rate of crimes but also due to its structure. The property of residents is threatened with growing frequency, more than two-thirds of crimes are of such type. The structure and dynamics of criminality may not influence the resolving of an issue whether some punishment is in conformity with the provisions established in the Constitution, though it is not permissible, however, not to assess the situation and indirect influence made on this phenomenon by established punishment.

Many crimes are committed when the culprit makes use of his property to ensure his criminal actions, for example, to store his means of crime, to hide the stolen property, to do it over, to change its appearance, to legalise “dirty” money, etc. In these cases, a culprit uses his property as a means for the violation of property and personal rights of other persons. Therefore, such property may be alienated according to the procedure and conditions prescribed by law.

In turn, by confiscation of property, as a supplementary criminal penalty, one seeks to exert influence upon that motivation of behaviour which conditions the commitment of selfish crimes. The purpose of a supplementary penalty is to individualise the punishment by taking into consideration the nature and degree of a committed crime and the personality of a culprit. Thus, combining criminal legal measures in such a way, their efficiency can be increased as well as presumptions for maximum striving towards the purposes of punishment can be established.

The arguments, by which a supplementary penalty—confiscation of property—is denied, are not grounded enough. It is maintained that, upon confiscation of property, a person is left without any property at all. In compliance with valid laws not all the property is confiscated. It is established in Article 36 of the Criminal Code which property may not be confiscated. Furthermore, the Court, by individualising the penalty imposed on the convict, in every criminal case takes into consideration the nature of the crime, the degree of its threat, the personality of the culprit and other circumstances pertaining to the case. The Court has also a possibility of heeding the property status of the accused, the sources of the acquired property, to evaluate whether the convict’s property was connected with the committed crime, etc. On the basis of the aforesaid, the Court may impose a confiscation of some part of the property or of separate articles.

In denying confiscation of property, an argument that the confiscation of the convict’s property can have influence on property interests of his family or other persons, is used. It must be noted, however, that only the property belonging to the very convict is confiscated. Furthermore, in the existing system of punishments, the majority of punishments consider not only the convict’s interests as, upon imposition of a severe penalty or a long-term imprisonment on him, his family (relatives) can have not less difficulties of property nature than upon confiscation of a part of his property or separate articles.

While evaluating the confiscation of property as a supplementary penalty it should be noted that UN by its Resolution have confirmed Standard Minimum Rules for the Measures Unrelated with Imprisonment (Tokyo Rules A/RES/45/110), in Item 8.2 of which it is recommended, besides other punishments, to apply confiscation of property or deprivation of the property rights.

By way of summarising what has been said above, it can be stated that confiscation of property is one of legal means with the help of which attempts are made to put a stop to selfish crimes that threaten other persons’ property which is protected by the Constitution. A criminal act provided for by the second paragraph of Article 148 of the Criminal Code (burglary) is of the aforementioned kind.

On the basis of the above-mentioned reasoning, the Constitutional Court draws the conclusion that a supplementary penalty—seizure of property—established in the second paragraph of Article 148 of the Criminal Code does not contradict the Constitution of the Republic of Lithuania.

On the compliance of Items 1 and 2 of Article 93 of the Code of Criminal Procedure with the Constitution of the Republic of Lithuania.

Item 1 of Article 93 of the Code of Criminal Procedure provides that instruments of crime must be confiscated and handed over to appropriate organisations or destroyed. It is established in Item 2 of this Article that money and other values obtained or acquired in criminal way, if their owners are not identified, go over to state revenue upon the judgement of the Court. Other articles are returned to their legal owners, and, in case they are not identified, become state property. A dispute over the ownership of these articles is resolved according to the civil procedure of law.

In case when a person uses a property belonging to him by property right for committing a crime, legal means with regard to the property he used must be established for him. In opposite case, the culprit after serving his term of imprisonment, in some cases can use the property he possesses (e.g. money forgery equipment, weapons) for committing new crimes, therefore, the seizure of property of such a culprit, established in the laws of Criminal Procedure, is grounded.

The impact upon the interests of people, society or state is made when the property is used not only as a means of committing a crime but also as an object of crime (in illegal transportation of materials, items, currency, etc. across the border). Furthermore, some materials and items pose a direct threat to people’s life, health and security. The smuggling of property inflicts harm on economic interests of people and society. Thus, the establishment of the confiscation of said property in laws is grounded.

On the basis of aforesaid reasoning, the Constitutional Court draws the conclusion that Items 1 and 2 of Article 93 of the Code of Criminal Procedure do not contradict the Constitution of the Republic of Lithuania.

Conforming to Article 102 of the Constitution of the Republic of Lithuania as well as Articles 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 second paragraph of Article 148 of the Criminal Code of the Republic of Lithuania and Items 1 and 2 of Article 93 of the Code of Criminal Procedure of Republic of Lithuania are in compliance with the Constitution of the Republic of Lithuania.

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

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

 Algirdas Gailiūnas                           Kęstutis Lapinskas                           Zigmas Levickis

 Vladas Pavilonis                              Pranas Vytautas Rasimavičius         Stasys Stačiokas

 Teodora Staugaitienė                       Stasys Šedbaras                               Juozas Žilys