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On the consideration of criminal cases under the appeal procedure upon coming into light of essentially different factual circumstances

Case no 9/2016

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

RULING

ON THE COMPLIANCE OF PARAGRAPH 4 OF ARTICLE 320 AND ITEM 4 OF PARAGRAPH 1 OF ARTICLE 326 OF THE CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

26 June 2017, no KT8-N6/2017
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Gintaras Goda, Vytautas Greičius, Danutė Jočienė, Gediminas Mesonis, Vytas Milius, Daiva Petrylaitė, Janina Stripeikienė, 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 6 June 2017, at a hearing of the Court, considered, under written procedure, constitutional justice case no 9/2016 subsequent to the petition (no 1B-13/2016) of the Court of Appeal of Lithuania (Lietuvos apeliacinis teismas), the petitioner, requesting an investigation into whether Paragraph 4 (wording of 28 June 2007) of Article 320 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as a court considering in criminal proceedings an appeal of a convicted person under the appeal procedure is prohibited from worsening the situation of another convicted or acquitted person, or the situation of a person against whom the case has been dismissed, where no appeal is filed by a prosecutor, private prosecutor, victim, or civil claimant, is in conflict with Paragraph 2 of Article 31 and Paragraph 1 of Article 109 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

The arguments of the petitioner

1. The Court of Appeal of Lithuania was considering a criminal case subsequent to an appeal filed by a convicted person against the judgment of the court of first instance by which, pursuant to Paragraph 1 of Article 129 of the Criminal Code of the Republic of Lithuania (Baudžiamasis kodeksas (BK), hereinafter referred to as the BK), the said convicted person was declared guilty of murder.

2. In the context of the constitutional justice case at issue, the following circumstances of the criminal case examined by the petitioner are relevant:

a criminal case was transferred to the court of first instance in which, based on the evidence gathered in the case, inter alia, the findings of a forensic medical specialist, three accused were charged with murder (originally, a person was struck by one of the accused after a conflict had occurred between them, and then the other two accused struck repeatedly the same person in another place after a conflict had occurred between them, after which the said person died of the strikes within a few hours);

in the course of criminal proceedings before the first instance court, this court ordered an expert opinion of a forensic medical commission; on the basis of this expert report, it was possible to assume that the person died from the blows delivered by the first accused; having regard to this, at the request of the prosecutor, the charge was changed – only the accused who was the first to deliver the blows was charged with murder; the other two accused were charged with disrupting public order (it was believed that their blows caused negligible impairment of the person’s health); on 10 December 2013, on the basis of the changed charge, the court of first instance adopted the conviction that declared the accused who first delivered the blows to the victim guilty of deliberate murder (and sentenced him to 10 years of the deprivation of liberty, as well as ordered him to compensate for material and non-material damage), while the other two accused were declared guilty of disrupting public order;

the convicted person who was found guilty of deliberate murder brought an appeal requesting to change the sentence handed down by the court of first instance – to classify his act according to Paragraph 1 of Article 140 of the BK (causing physical pain or negligible health impairment) and to impose the punishment provided for in the sanction of this article, or to mitigate his criminal liability and resolve differently the issue of indemnification for damages caused by his criminal act, or to overturn the judgment of the court of first instance and refer the criminal case back to the prosecutor; the judgment of the court of first instance was not appealed against by the persons convicted of disrupting public order, or the prosecutor, or the victims (the parents of the murdered person);

in the course of the consideration of the criminal case before the court of appeal instance, in order to remove all doubts in the criminal case that were pointed out by the convicted person, on 20 March 2015, the court of appeal instance ordered a new expert opinion of a forensic medical commission; on the basis of this expert report, which was received on 10 December 2015, the court of appeal instance considers that the person could have died of a blow (or blows) delivered by any of the three convicts.

The petitioner, the Court of Appeal of Lithuania, unable to worsen the situation of the other convicted persons, as no appeal had been filed by the prosecutor, private prosecutor, victim, or civil claimant, and considering that, due to this, it could not resolve the case in a fair manner, held that there were sufficient grounds for doubting the constitutionality of Paragraph 4 (wording of 28 June 2007) of Article 320 of the Code of Criminal Procedure (Baudžiamojo proceso kodeksas (BPK), hereinafter also referred to as the BPK), suspended the consideration of the criminal case and applied to the Constitutional Court with a petition requesting an investigation into the compliance of the said paragraph with the Constitution.

3. The petition is substantiated by the following arguments.

Under Paragraph 4 of Article 320 of the BPK, the court of appeal instance may worsen the situation of a convicted or acquitted person, as well as of a person against whom the case has been dismissed, only where there is an appeal of a prosecutor, private prosecutor, victim, or civil claimant; in addition, the situation of a convicted or acquitted person, or a person against whom the case has been dismissed may not be worsened to a larger extent than is requested in an appeal.

Under the existing legal regulation that prohibits worsening the legal situation of a convicted person, or an acquitted person, or the situation of a person against whom the case has been dismissed, on the basis of an appeal filed by another person and in the absence of an appeal filed by a prosecutor, private prosecutor, victim, or civil claimant, such a situation could arise where a court of appeal instance, having examined evidence and having established factual circumstances that are different from those established by the court of first instance, would have to adopt a manifestly unfair and, at the same time, unlawful decision, since it would not have any procedural legal possibility of either assessing the guilt of another convicted person, or an acquitted person, or the guilt of a person against whom the case has been dismissed, or referring a criminal case back to the court of first instance for reconsideration or back to the prosecutor for the purpose of drawing up a new indictment. Owing to such a legal regulation, it may be impossible for the court of appeal instance to fulfil its functions – to prevent the entry into force of unlawful and unreasonable sentences, to eliminate mistakes made by lower courts, and to prevent injustice. Thus, the possibility of imposing fair punishments on persons who have committed criminal acts is not guaranteed, and the right of defence of a convicted person who has lodged an appeal could be violated, because, if other persons are (also) declared guilty, the issue of the criminal liability of the convicted person and the issue of damages he is ordered to pay could be decided differently (by alleviating his situation). The court, having adopted a manifestly unfair and, thus, unlawful decision, cannot be regarded as impartial and independent; therefore, it is doubtful whether Paragraph 4 of Article 320 of the BPK is in compliance with Paragraph 2 of Article 31 and Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

II

The arguments of the representative of the party concerned

4. In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations were received from Rimas Andrikis, the member of the Seimas acting as the representative of the Seimas, the party concerned, in which it is maintained that the impugned legal regulation is not in conflict with the Constitution. The position of the representative of the party concerned is substantiated by the following arguments.

4.1. In the criminal process, it is essential to properly distinguish the procedural functions of the state institutions (officials) participating in it. The court in the criminal process must be an impartial arbiter, who objectively assesses the data (evidence) of the circumstances of the commission of a criminal act in a criminal case and adopts a fair decision regarding the guilt of the person charged with committing the criminal act. The constitutional function of the administration of justice, which is fulfilled by courts, is substantially different from being in charge of the pretrial investigation of a case, the control of this investigation, the upholding of charges on behalf of the state, etc. The upholding of charges on behalf of the state is a constitutional function of the prosecutor. A violation of the separation of procedural functions would encroach on the essence of the criminal process and its system. According to Articles 256 and 320 of the BPK, the court of appeal instance enjoys the powers to change the factual circumstances of an incriminating act to those different in substance only in situations where the appeal of a prosecutor or that of a victim (their representative) requests so.

4.2. The principle of tantum devolutum quantum appellatum, according to which the court of appeal instance must examine and assess only the lawfulness and validity of the appealed part of the decision of the court of first instance, and must not examine and assess whether the parts of the decision that have not been appealed against are lawful and valid, is not absolute. In certain cases, the court of appeal instance not only may, but also must exceed the limits of an appeal; however, in the criminal process, the court may depart from the scope of the appeal not in order to worsen the situation of a convicted person or an acquitted person, but in order to ensure their rights and to alleviate their procedural situation.

4.3. The principle of tantum devolutum quantum appellatum is closely linked to the principle of non reformatio in peius (prohibition on worsening the legal situation of a person who has lodged an appeal). According to the case law of the Supreme Court of Lithuania, attention should be paid to Recommendation No R(92)17 of the Committee of Ministers of the Council of Europe of 19 October 1992 concerning consistency in sentencing, Part F of whose Appendix states that the principle of the prohibition of reformatio in peius should be taken into account where only the defendant appeals. In states where such a remedy exists, the powers of prosecutors to use their right to accessory appeal after an accused person lodges an appeal against the court decision should not be used with a view to undermining the principle of the prohibition of reformatio in peius, thereby deterring offenders from appealing. The explanatory memorandum to the said recommendation states that the Committee of Ministers is aware of the variety of rights to appeal against court decisions in the Member States; however, it is essentially unfair to impose a more severe penalty in the case of an appeal lodged for defence purposes only. Injustice comes not only because of the element of surprise (in cases where the prosecutor has not lodged a complaint), but also, in the more general sense, because of deterring accused persons from exercising their right to appeal against the respective court decisions. If an accused person believes that the outcome of the case may become more unfavourable to him/her after lodging an appeal, he/she is deterred from exercising this right.

4.4. If the court of appeal instance were granted the right to worsen the situation of a convicted person or an acquitted person, or the situation of a person against whom the case has been dismissed, where no appeal is filed by a prosecutor, private prosecutor, victim, or civil claimant, the recommendations offered by the Council of Europe would not be complied with and, moreover, the criminal process would become largely unpredictable. If the impugned provision were declared in conflict with the Constitution, the scope of the examination of an appeal would be substantially extended, which would prolong the time limits for the examination of appeals and increase the workload of courts of appeal instance.

The Constitutional Court

holds that:

I

The impugned and related legal regulation

5. In the constitutional justice case at issue, the Constitutional Court is requested to investigate the constitutionality of the BPK provisions that regulate the powers of a court of appeal instance to worsen the situation of a convicted person, acquitted person, or person against whom the case has been dismissed.

6. On 14 March 2002, the Seimas adopted the Republic of Lithuania’s Law on the Approval, Entry into Force, and Implementation of the Code of Criminal Procedure. By means of Article 1 of this law, the Seimas approved the Code of Criminal Procedure. This code, in accordance with Article 1 of the Republic of Lithuania’s Law on the Procedure for the Entry into Force and Implementation of the Criminal Code, as Approved by Law No VIII-1968 of 26 September 2000, the Code of Criminal Procedure, as Approved by Law No IX-85 of 14 March 2002, and the Code of the Enforcement of Punishments, as Approved by Law No IX-994 of 27 June 2002, came into force on 1 May 2003.

The BPK has been amended and/or supplemented on more than one occasion, inter alia, by the law, adopted by the Seimas on 28 June 2007, which amended, among other things, Paragraph 4 of Article 320 of the BPK, which is impugned by the petitioner.

7. Article 320 (wording of 14 March 2002 with subsequent amendments; Paragraph 4 (wording of 28 June 2007) whereof is impugned in the constitutional justice case at issue), titled “General Provisions of the Consideration of Cases Under the Appeal Procedure”, of Chapter XXV, titled “Appeal Proceedings”, of the BPK provides:

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

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

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

4. The court of appeal instance may worsen the situation of a convicted person, acquitted person, or person against whom the case has been dismissed only where there are appeals of a prosecutor, private prosecutor, victim, or civil claimant. The situation of a convicted or acquitted person, or a person against whom the case has been dismissed may not be worsened to a larger extent than is requested in an appeal.

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

6. The court of appeal instance shall consider cases publicly with the exception of the situations provided for in Article 9 of this Code. When a case is considered under the appeal procedure, the general provisions of Chapter XIX of this Code regarding the consideration of cases in courts shall be applied. In the situations referred to in Article 3251 of this Code, the case may be examined by written procedure.

7. In the course of considering a case before the court of appeal instance under oral procedure, the minutes of the court hearing shall be taken.”

Thus, this article regulates the conditions and limits of the consideration of a case under the appeal procedure, the composition of the court of appeal instance, and other general issues of the consideration of cases before the court of appeal instance.

Under Paragraph 4 (wording of 28 June 2007) of Article 320 of the BPK, which is impugned in this case, the court of appeal instance may worsen the situation of a convicted or acquitted person, or the situation of a person against whom the case has been dismissed only where there is an appeal filed by a prosecutor, private prosecutor, victim, or civil claimant; in doing so, the court must not exceed the extent of the appeal.

It needs to be noted that Paragraph 4 of Article 320 of the BPK establishes the principle of non reformatio in peius, according to which, in the course of an investigation of a case subsequent to a complaint of a convicted person, an acquitted person, or a person against whom the case has been dismissed, the court of appeal instance must not impair the legal position of the appellant, i.e. it must not adopt such a decision that would be less favourable for the appellant than the appealed court judgment or order. In addition, according to the legal regulation consolidated in the said paragraph, the situation of a convicted person, acquitted person, or person against whom the case has been dismissed must not be worsened not only based on his/her own appeal, but also on an appeal of another convicted person, acquitted person, or person against whom the case has been dismissed.

8. The content of Paragraph 4 (wording of 28 June 2007) of Article 320 of the BPK must be interpreted in the context of the overall legal regulation established in the BPK.

9. According to the legal regulation established in Paragraph 1 of Article 320 of the BPK, appeal cases are only heard where appeals have been filed. In addition, under Paragraph 3 of this article, the court of appeal instance reviews a case without exceeding the limits of the requests in the appeals and only with respect to the persons who filed the appeals or against whom such appeals were filed. The said provision, as well as the provision of Paragraph 4 (wording of 28 June 2007) of Article 320 of the BPK, whereby the court of appeal instance may not worsen the situation of a convicted person, acquitted person, or person against whom the case has been dismissed to a larger extent than is requested in the appeal filed by the prosecutor, private prosecutor, victim, or civil claimant, expresses the principle of tantum devolutum quantum appellatum, according to which the court of appeal instance must verify and assess only the lawfulness and validity of the appealed part of the judgment of the court of first instance and must not verify and assess whether the parts of the judgment that have not been appealed against are lawful and valid.

It should be noted that the principle of tantum devolutum quantum appellatum is not absolute. According to Paragraph 3 of Article 320 of the BPK, the limits of appeal procedure are expanded upon the establishment of substantial violations of the BPK that were not mentioned in the appeal and that have adversely affected the accused person, while, according to Paragraph 5 of this article, the said limits may be expanded when the sentence is commuted to other convicted persons who have not filed appeals.

9.1. According to Paragraph 3 of Article 320 of the BPK, the court of appeal instance, when examining a case, must verify whether, during the pretrial investigation and consideration of the case before the court of first instance, any significant violations of the BPK were committed that have adversely affected not only the person subsequent to whose appeal the case is considered, but also other convicted persons who have not lodged appeals, regardless of whether such violations are mentioned in the appeal. Under Paragraph 3 of Article 369 of the BPK, the violations of the requirements of this Code that have led to the restriction of law-guaranteed rights of the accused or that have precluded a court from considering a case exhaustively and impartially and from adopting a just judgment or order are deemed substantial violations of the BPK.

9.1.1. The main procedural rights of the accused are established in Paragraph 3 (wording of 15 May 2014) of Article 22, titled “The Accused”, of the BPK, according to which the accused has the right: to know what he/she is accused of and receive a copy of the indictment; get access to the case file at a court; make, in accordance with the established procedure, extracts from, or copies of, necessary documents; have counsel for the defence; receive an oral and written translation; inform consular authorities and one person; receive urgent medical assistance; make requests; make disqualification motions; submit evidence and take part during its examination; ask questions during the court proceedings; make explanations about the circumstances of the case investigated by the court and express his/her opinion regarding the requests made by other participants in the court proceedings; take part in closing arguments when there is no counsel for the defence; have the last word in the court; appeal against a court judgment and court orders. It needs to be noted that not only restrictions of the rights of the accused referred to in Paragraph 3 of Article 22, but also restrictions of the rights, enshrined in other articles, that the accused enjoys during the court trial, such as, for instance, a violation of the adversarial principle, which is established in Article 7, titled “The Examination of Cases by Following the Adversarial Principle”, a violation of the right of the accused to use a mother tongue or another language of which he/she has a command, which is enshrined in Article 8, titled “The Language of the Proceedings”, are deemed substantial violations of the BPK.

9.1.2. Any violations of the specific requirements of the BPK that raise doubts as to the lawfulness and validity of a judgment or order are deemed violations that have prevented a court from examining the case comprehensively and impartially and adopting a fair judgment or order. These can include violations of the rules governing the procedure for carrying out pretrial investigation actions, violations of proceedings in the courts of first instance or of appeal instance, as well as violations of the rules of passing a judgment or making an order, restrictions on the rights of parties to the proceedings other than the accused, etc.

9.2. However, even after establishing substantial violations of the BPK, a court of appeal instance may not worsen the situation of a convicted person, acquitted person, or person against whom the case has been dismissed to a larger extent than is requested in an appeal.

10. As mentioned above, under Paragraph 4 (wording of 28 June 2007) of Article 320 of the BPK, which is impugned in this case, the court of appeal instance may worsen the situation of a convicted or acquitted person, or the situation of a person against whom the case has been dismissed only in cases where there is an appeal filed by a prosecutor, private prosecutor, victim, or civil claimant. The situation of a person against whom an appeal is filed may be worsened, among other things, by reclassifying the criminal act as a more serious one, by making harsher the penalty imposed by the judgment, by convicting a person who has been acquitted by the judgment or a person against whom the case has been dismissed, or by awarding a greater amount of damages caused by a criminal act. One of the reasons that may lead to a deterioration in the situation of the person is that, upon the examination of evidence, the court of appeal instance establishes circumstances that are essentially different from those established by the court of first instance.

The procedure for changing in the court the factual circumstances of the act specified in the accusation is regulated in Paragraph 1 of Article 256, titled “Changing in the Court the Factual Circumstances of the Act Specified in the Accusation and Changing the Classification of the Act”, of Chapter XIX “General Provisions of Court Trials”, of the BPK.

10.1. In this context, it should be noted that, by its ruling of 15 November 2013, the Constitutional Court recognised that Paragraph 1 (wordings of 28 June 2007 and 22 December 2011) of Article 256 of the BPK, insofar as the said paragraph did not establish that a court may, on its own initiative, change the factual circumstances of a criminal act to circumstances different in substance, was in conflict with Paragraph 2 of Article 31 and Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of justice and a state under the rule of law.

10.2. In view of the Constitutional Court’s ruling of 15 November 2013, the legal regulation previously established in Paragraph 1 of Article 256 of the BPK was amended by means of the law that was adopted by the Seimas on 23 June 2015. The said law consolidated the possibility of changing the factual circumstances of the act that are specified in the accusation to those different in substance not only upon a written request of a prosecutor, private prosecutor, or victim, but also on the initiative of the court itself.

Paragraph 1 (wording of 23 June 2015) of Article 256 of the BPK prescribes:

A prosecutor, private prosecutor, or victim shall have the right, prior to the end of the investigation into the evidence in court, to file a written application requesting the changing of the factual circumstances of the act specified in the accusation to those that are different in substance. The application must contain the said circumstances that are different in substance. Having received such an application, as well as in situations where there are reasonable grounds to believe that the factual circumstances of an act specified in the accusation may be changed to those that are different in substance, the court shall immediately notify thereof the participants of the court trial. On receiving an application from the prosecutor, the private prosecutor, or the victim, requesting changing the factual circumstances of an act specified in the accusation to those that are different in substance, copies of this application shall be served on the participants of the court trial. After the consideration of the criminal case, the judgment may also retain the factual circumstances of an act that were specified in the indictment.”

It should be noted that this paragraph does not establish any limitations on the changing of the factual circumstances of the act specified in the accusation to those that are different in substance at the court of appeal instance.

10.3. Under Paragraph 6 (wording of 30 June 2016) of Article 320 of the BPK, in the course of the consideration of cases under the appeal procedure, the general provisions of Chapter XIX of the BPK regarding the consideration of cases in courts are applied by taking into account the peculiarities provided for in Chapter XXV, titled “Appeal Proceedings”, of the BPK. Consequently, in the course of considering a case under the appeal procedure, Paragraph 1 of Article 256 (wording of 23 June 2015) of the BPK must be applied by taking into account the peculiarities provided for in Chapter XXV, titled “Appeal Proceedings”, inter alia, in the impugned Paragraph 4 (wording of 28 June 2007) of Article 320.

10.4. Interpreting the legal regulation laid down in Paragraph 1 of Article 256 (wording of 23 June 2015) of the BPK in conjunction with the one established in Paragraph 4 (wording of 28 June 2007) of Article 320 of the BPK, it should be noted that, having examined new evidence or evidence already examined by the court of first instance, the court of appeal instance may change the factual circumstances of an act established by the court of first instance to those that are different in substance where this would lead to worsening of the situation of a convicted person, acquitted person, or person against whom the case has been dismissed, inter alia, to reclassifying the act as a more serious one, making harsher the penalty imposed by the judgment, sentencing the acquitted person or the person against whom the case has been dismissed, or awarding a greater amount of damages caused by a criminal act, only in cases when the court of appeal instance is requested to do so in an appeal filed by the prosecutor, private prosecutor, victim, or civil claimant, but not to a larger extent than is requested.

Consequently, a court hearing a criminal case under the appeal procedure is not granted the powers to change, on its own initiative, after examining new evidence or evidence already examined by the court of first instance, the factual circumstances of an act established by the court of first instance to those that are different in substance where this change would lead to the worsening of the situation of the convicted person, acquitted person, or person against whom the case has been dismissed, nor is it granted the powers to change the factual circumstances of an act established by the court of first instance to those that are different in substance where this would worsen the situation of the convicted person, acquitted person, or person against whom the case has been dismissed to a larger extent than is requested in an appeal of the prosecutor, private prosecutor, or victim. The court, after examining new evidence or evidence already examined by the court of first instance, may, on its own initiative, change the factual circumstances of an act established in the judgment of the court of first instance to those that are different in substance only if such a change leads to an improvement in the situation of the convicted person, acquitted person, or person against whom the case has been dismissed, or if, due to this, their situation remains the same.

Attention should be drawn to the fact that, under Paragraph 1 of Article 256 (wording of 23 June 2015) of the BPK, after the consideration of the criminal case, the judgment may also retain the factual circumstances of an act that were specified in the indictment.

11. As mentioned above, according to the petitioner, under the overall legal regulation established in the BPK, a court of appeal instance that investigates a criminal case subsequent to an appeal filed by the convicted person, having examined evidence and having established factual circumstances that are different from those established by the court of first instance, is prohibited not only from worsening the legal situation of a convicted person, acquitted person, or person against whom the case has been dismissed, where no appeal has been filed by the prosecutor, private prosecutor, victim, or civil claimant, but also from referring the criminal case back to the court of first instance for reconsideration or back to the prosecutor for the purpose of drawing up a new indictment.

11.1. According to Item 4 (wording of 28 June 2007) of Paragraph 1 of Article 326, titled “Types of Decisions Adopted by Courts of Appeal Instance after the Examination of Cases”, of the BPK, after examining at a court hearing a case on the basis of a filed appeal, the court of appeal instance issues the order “to overturn the judgment and refer the case back to the court so that it would be considered anew if the case was considered by a partial court of first instance or the case was considered in violation of the rules of judicial jurisdiction established in Articles 224 and 225 of this Code, or if it transpires at the court of appeal instance that, at the time of the commission of the act, the convicted person suffered from a mental illness or became mentally ill prior to the adoption of the judgment by the court of first instance, where the convicted person was subject to compulsory medical treatment”.

Thus, under Item 4 (wording of 28 June 2007) of Paragraph 1 of Article 326 of the BPK, the court of appeal instance overturns, by means of its order, the judgment and refers the case back to the court of first instance in the event that the judge of the court of first instance who heard the case (if the case was heard by a panel of judges, then at least one of the judges thereof) did not disqualify himself or was not disqualified from hearing the case in accordance with the procedure established in Article 59 of the BPK provided that there existed any of the grounds for disqualification, which are listed in Article 58 of the BPK. The judgment is also overturned and the case is referred back to the court for reconsideration, inter alia, in cases where the case falling within the jurisdiction of a regional court was heard by a district court, or if it transpires at the court of appeal instance that, at the time of the commission of the act, the convicted person suffered from a mental illness or became mentally ill prior to the adoption of the judgment by the court of first instance, where the convicted person was subject to compulsory medical treatment.

It needs to be noted that the list of situations enumerated in Item 4 (wording of 28 June 2007) of Paragraph 1 of Article 326 of the BPK is exhaustive: the court of appeal instance is not granted any powers to overturn the judgment and refer the case for its new consideration to the relevant court on the grounds other than those established in this item.

11.2. Under Item 5 (wording of 28 June 2007) of Paragraph 1 of Article 326 of the BPK, after examining at a court hearing the case on an appealed judgment, the court of appeal instance issues the order to overturn the judgment and refer the case to the prosecutor in situations where, at the time of the pretrial investigation, an indictment failing to meet the requirements of Article 219 of the BPK was drawn up, which prevents the consideration of the case.

Thus, under Item 5 (wording of 28 June 2007) of Paragraph 1 of Article 326 of the BPK, an order to overturn a judgment and refer the case to the prosecutor is issued at the court of appeal instance in the event that the court of first instance passed the judgment despite the fact that, at the time of the pretrial investigation, an indictment failing to meet the requirements of Article 219 of the BPK was drawn up, which prevents the consideration of the case. An indictment does not, in principle, meet the requirements established in Article 219, titled “Content of the Indictment”, of the BPK, which prevents the consideration of the case, among other things, when: the indictment does not indicate the place, time, methods, effects, and other relevant circumstances of a committed criminal act, where the said circumstances are in conformity with the features of the body of the criminal act, as established in the criminal law; the description of the criminal act presented in the indictment clearly does not correspond to the body of the crime or misdemeanour that is specified in the criminal law; the indictment does not indicate the part or item of the BK article that provides for liability for the committed act in situations where the BK article consists of paragraphs or items.

11.3. Thus, according to Items 4 and 5 (wording of 28 June 2007) of Paragraph 1 of Article 326 of the BPK, in cases where a court considering a criminal case under the appeal procedure, having conducted the investigation and assessment of new evidence or evidence already investigated by the court of first instance, could draw the conclusion that the factual circumstances are essentially different from those established by the court of first instance, due to which this could result in the worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed, the said court lacks a legal basis to overturn the judgment of the court of first instance and either to refer the case back to the court for reconsideration or to refer it back to the prosecutor.

11.4. It should also be noted that Article 326 (wording of 28 June 2007) of the BPK establishes the grounds on which the court of appeal instance may overturn an appealed judgment of the court of first instance and adopt a new or change the appealed judgment; however, when interpreting the legal regulation laid down in this article in conjunction with Paragraph 4 (wording of 28 June 2007) of Article 320 of the BPK, it is clear that, in cases where a court considering a criminal case under the appeal procedure, having conducted the investigation and assessment of new evidence or evidence already investigated by the court of first instance, could draw the conclusion that the factual circumstances are essentially different from those established by the court of first instance, due to which this could result in the worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed, the said court may not change or overturn the judgment of the court of first instance and pass a new one where no appeal has been filed by the prosecutor, private prosecutor, victim, or civil claimant.

12. In the context of the constitutional justice case at issue, it should be noted that an appeal against a court judgment may be filed within twenty days from the date of the pronouncement of the judgment (Paragraph 3 (wording of 28 June 2007) of Article 313 of the BPK). Persons entitled to file appeals who, due to important reasons, have missed the deadline for filing an appeal, have the right to apply to the court that passed the judgment, requesting the renewal of the missed deadline (Paragraph 1 of Article 314 of the Criminal Code); however, the request to renew the missed deadline for filing an appeal may not be filed if more than six months have passed from the date of the pronouncement of the judgment (Paragraph 4 (wording of 28 June 2007) of Article 314 of the BPK).

Thus, according to Paragraph 4 (wording of 28 June 2007) of Article 314 of the BPK, after the expiry of the deadline for filing an application with a court, requesting the renewal of the missed deadline for filing an appeal, the prosecutor, private prosecutor, victim, or civil claimant no longer have a legal opportunity, in defence of their own or the public interest, to file an appeal, although grounds for filing such an appeal can arise in cases where a court considering a criminal case under the appeal procedure, having conducted the investigation and assessment of new evidence or evidence already investigated by the court of first instance, could draw the conclusion that the factual circumstances are essentially different from those established by the court of first instance, due to which this could result in the worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed.

13. Attention should be drawn to the fact that the judgment of the court of first instance becomes effective if, after the expiry of the deadline for filing an appeal, no appeals have been filed against it; the appealed judgment of the court of first instance becomes effective as of the day of the pronouncement of the judgment of the court of appeal instance (Paragraphs 1 and 2 of Article 336 of the BPK). The judgment of the court of appeal instance becomes effective as of the day of its pronouncement (Paragraph 3 of Article 336 of the BPK).

14. It is possible to bring an appeal in cassation against effective court judgments and orders, but cassation appeals against effective court judgments and orders are only allowed on the issues that were considered by the court of appeal instance (Paragraph 3 (wording of 13 March 2014) of Article 367 of the BPK); moreover, the court of cassation instance deals with cases only on point of law (Paragraph 1 of Article 376 of the Criminal Code).

Thus, according to Paragraph 3 (wording of 13 March 2014) of Article 367 of the BPK, the prosecutor, private prosecutor, victim, or civil claimant have no legal opportunity, on the basis of new evidence investigated by the court of appeal instance or evidence already investigated by the court of first instance in cases where an assessment of the said evidence could lead to the conclusion that the factual circumstances are essentially different from those established by the court of first instance, due to which this could result in the worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed, to apply, in defence of their or the public interest, to the court of cassation instance in order to worsen the situation of a person against whom no appeal was filed or to worsen the situation of a person against whom an appeal was filed to a larger extent than was requested in the appeal.

15. According to Paragraph 1 of Article 443 of the BPK, an effective court judgment or order may be overturned and the criminal case reopened based on new circumstances, which are specified in Items 1–4 of Paragraph 1 of Article 444 to of the BPK:

1) after an effective court judgment establishes the falseness of the testimony of the witness or victim or the falseness of an expert report, as well as the uncertainty of other evidence on which the judgment or order is based;

2) after an effective court judgment establishes that there has been criminal abuse of office by the judges in the course of considering the case;

3) after an effective court judgment establishes that there has been criminal abuse of office by the officials in the course of the pretrial investigation, which resulted in an unlawful and unjustified judgment;

4) due to other circumstances that were not and could not have been known by the court at the time of passing the judgment or issuing the order, despite the fact that the pretrial investigation and the consideration of the case before the court were carried out in a comprehensive manner, and which, either taken separately or together with the circumstances established before, prove that the convicted person is innocent or that he/she has committed a criminal act that is less serious or more serious from that for which he/she was convicted, or which prove that the acquitted person or the person against whom the case has been dismissed is guilty.

In this context, it should be noted that a convicted person, an acquitted person, their defenders or representatives ex lege, a victim, a civil claimant, a civil defendant, or their representatives may file an application with the prosecutor regarding new circumstances (Paragraph 1 of Article 446 of the BPK). The prosecutor, if he/she assumes that there is at least one of the circumstances, envisaged in Article 444 of the BPK, based on which the criminal case may be reopened, either on his/her initiative or upon the request of the parties to the proceedings, adopts a decision to commence proceedings on the basis of new circumstances (Paragraph 3 of Article 446 of the BPK). When the investigation of the new circumstances is completed and there are grounds for reopening the case, the prosecutor submits the investigation material and his/her conclusion to the President of the Supreme Court of Lithuania (Paragraph 1 of Article 447 of the BPK). An effective judgment or order is overturned and cases are reopened based on new circumstances by a three-judge panel of the Criminal Division of the Supreme Court of Lithuania (Paragraph 2 of Article 443 of the BPK).

Thus, according to Paragraph 1 of Article 443 and Item 4 of Paragraph 1 of Article 444 of the BPK, only an effective court judgment or order may be overturned based on new circumstances; in addition, circumstances on the basis of which it is allowed to overturn a judgment or order and reopen a criminal case should be such that were not and could not have been known by the court at the time of passing the judgment or issuing the order, inter alia, they cannot be determined in the same judgment or order that is to be overturned in order to reopen the criminal case; both the prosecutor and the panel of justices of the Supreme Court of Lithuania have the discretion to determine whether relevant circumstances are new, whether they had an impact on the lawfulness and validity of court decisions, and whether there are grounds for reopening criminal cases.

Consequently, if a court considering a criminal case under the appeal procedure is aware or could be aware of circumstances other than those established by the court of first instance, after the entry into effect of a judgment or order of the court of appeal instance, there will not be any legal grounds for overturning due to the said circumstances the judgment or order and reopening the criminal case.

16. In the context of the constitutional justice case at issue, summing up the impugned and related legal regulation, it should be noted that:

when interpreting the legal regulation laid down in Paragraph 4 (wording of 28 June 2007) of Article 320 of the BPK in conjunction with the legal regulation established in Article 326 (wording of 28 June 2007) of the BPK, it is clear that, in cases where a court considering a criminal case under the appeal procedure, having conducted the investigation and assessment of new evidence or evidence already investigated by the court of first instance, could draw the conclusion that the factual circumstances are essentially different from those established by the court of first instance, due to which this could result in the worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed, the said court may not change or overturn the judgment of the court of first instance and pass a new one where no appeal has been filed by the prosecutor, private prosecutor, victim, or civil claimant;

according to Items 4 and 5 (wording of 28 June 2007) of Paragraph 1 of Article 326 of the BPK, in cases where a court considering a criminal case under the appeal procedure, having conducted the investigation and assessment of new evidence or evidence already investigated by the court of first instance, could draw the conclusion that the factual circumstances are essentially different from those established by the court of first instance, due to which this could result in the worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed, the said court considering a criminal case under the appeal procedure lacks a legal basis to overturn the judgment of the court of first instance and either to refer the case back to the court for reconsideration or to refer it back to the prosecutor;

according to Paragraph 4 (wording of 28 June 2007) of Article 314 of the BPK, after the expiry of the deadline for filing an application with the court that passed the judgment, requesting the renewal of the missed deadline for filing an appeal, the prosecutor, private prosecutor, victim, or civil claimant no longer have a legal opportunity, in defence of their own or the public interest, to file an appeal, although grounds for filing such an appeal can arise in cases where a court considering a criminal case under the appeal procedure, having conducted the investigation and assessment of new evidence or evidence already investigated by the court of first instance, could draw the conclusion that the factual circumstances are essentially different from those established by the court of first instance, due to which this could result in the worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed;

according to Paragraph 3 (wording of 13 March 2014) of Article 367 of the BPK, the prosecutor, private prosecutor, victim, or civil claimant have no legal opportunity, on the basis of new evidence investigated by the court of appeal instance or evidence already investigated by the court of first instance in cases where an assessment of the said evidence could lead to the conclusion that the factual circumstances are essentially different from those established by the court of first instance, due to which this could result in the worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed, to apply, in defence of their or the public interest, to the court of cassation instance in order to worsen the situation of a person against whom no appeal was filed or to worsen the situation of a person against whom an appeal was filed to a larger extent than was requested in the appeal;

according to Paragraph 1 of Article 443 and Item 4 of Paragraph 1 of Article 444 of the BPK, provided that a court considering a criminal case under the appeal procedure is aware or could be aware of circumstances other than those established by the court of first instance, after the entry into effect of a judgment or order of the court of appeal instance there are not any legal grounds for overturning due to the said circumstances the judgment or order and reopening the criminal case.

II

The provisions of the Constitution and the official constitutional doctrine

17. In the constitutional justice case at issue, the petitioner impugns the compliance of the provisions of the BPK that regulate the powers of a court of appeal instance to worsen the situation of a convicted person, acquitted person, or person against whom the case has been dismissed, with Paragraph 2 of Article 31 and Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

18. The Constitutional Court has held on more than one occasion that the constitutional principle of a state under the rule of law is especially broad; it comprises a range of various interrelated imperatives; this constitutional principle also embodies the striving for an open, just, and harmonious civil society and a state under the rule of law, as consolidated in the Preamble to the Constitution (inter alia, the Constitutional Court’s rulings of 19 September 2002, 13 December 2004, and 18 March 2014).

18.1. The striving for an open, just, and harmonious civil society and a state under the rule of law, as established in the Preamble to the Constitution, implies that it is obligatory to try to ensure the security of each person and all society against criminal attempts (inter alia, the Constitutional Court’s rulings of 16 January 2006, 4 June 2012, and 27 June 2016).

Crimes are violations of law that especially grossly violate human rights and freedoms, as well as other values protected and defended by the Constitution, make negative impact on the living conditions and the subsistence level of people, and encroach upon the fundamentals of the life of the state and society (inter alia, the Constitutional Court’s rulings of 8 May 2000, 29 December 2004, and 8 June 2009). The mission of the state as a political organisation of all society is to ensure human rights and freedoms and to guarantee the public interest; therefore, while exercising its functions and acting in the interests of all society, the state has the obligation to ensure the effective protection of human rights and freedoms, of other values protected and defended by the Constitution, of every person and all society against, inter alia, criminal attempts (inter alia, the Constitutional Court’s rulings of 29 December 2004, 16 January 2006, and 15 November 2013). If the state failed to take proper actions in order to prevent crimes, the trust in state authority and laws would be destroyed and disrespect in legal order and various social institutes would increase; therefore, according to the Constitution, the state, an organisation of all society, which must guarantee the public interest, has not only the right, but also the duty to take various lawful measures in order to prevent crimes, as well as to restrict and reduce crime (inter alia, the Constitutional Court’s rulings of 16 January 2006 and 8 June 2009). As noted by the Constitutional Court, according to the concept of a democratic state under the rule of law, which is consolidated in the Constitution, the state not only seeks to protect and defend a person and society from crimes and other dangerous violations of law, but also is able to do this effectively (inter alia, the Constitutional Court’s rulings of 29 December 2004, 16 January 2006, and 17 September 2008).

18.2. In its ruling of 16 January 2006, the Constitutional Court noted that the obligation of the state, which stems from the Constitution, to ensure the security of each person and all society against criminal attempts implies not only the right and duty of the legislature to define criminal acts and establish criminal liability for them by means of laws, but also its right and duty to regulate the relations connected with the disclosure and investigation of criminal acts and with the consideration of criminal cases, i.e. its right and duty to regulate criminal procedure relations; the relations of criminal procedure must be regulated by law in a way that would create the legal preconditions for detecting speedily and investigating thoroughly criminal acts, for punishing justly persons who committed the criminal acts (or for deciding the issue of their criminal liability by law otherwise), as well as the legal preconditions for ensuring that no one who is innocent would be punished; it is necessary to seek to ensure the protection of the rights of persons who suffered from criminal acts and to avoid any unreasonable restriction of the rights of persons who committed criminal acts; the legal regulation of criminal procedure should not create any preconditions for delaying the investigation of criminal acts or the consideration of criminal cases, nor should it create any preconditions for participants in criminal proceedings to abuse their procedural or other rights; otherwise, the constitutional obligations of the state to ensure by means of legal measures the security of each person and all society and the implementation of the legal order based on the constitutional values would become more difficult.

19. Certain requirements for court proceedings stem from Paragraph 2 of Article 31 of the Constitution, which prescribes that a person charged with committing a crime has the right to a public and fair hearing of his/her case by an independent and impartial court.

19.1. Interpreting the right of a person to the due court process, which arises out of Paragraph 2 of Article 31 of the Constitution and the principle of a state under the rule of law and which is a necessary condition for resolving a case in a fair manner, the Constitutional Court noted in its ruling of 16 January 2006 that the said right means that, in criminal proceedings before a court, it is necessary to pay regard to the clarity of the proceedings, the equality of the rights of the participants of proceedings, their participation in the process of providing proof, their right to a translator, the principle of adversarial argument, and other principles in order that the circumstances of committing a criminal act would be investigated comprehensively, objectively, and impartially and that a fair decision would be adopted in a criminal case; the Constitution obliges the legislature to establish, while regulating the relations of criminal proceedings, such a legal regulation that would also ensure the rights of participants in criminal proceedings: the proceedings must be such that the effective protection of the rights of a person who suffered from a criminal act would be ensured and that such a person would be able to make use of all rights arising from the Constitution; the criminal procedure must also ensure that the constitutional rights of a person suspected of the commission of a criminal act would not be violated: his/her right to defence, the right to an advocate, the right to be informed about the accusation, etc. must be ensured; when guaranteeing the rights of persons in court proceedings, it is necessary to ensure that proceedings are carried out fairly and professionally, that the rights of the parties to proceedings are respected, and that cases are considered by impartial judges. The stipulation of the Constitution that cases must be considered in a fair manner also implies the fact that courts must correctly establish the actual circumstances of cases and that they must correctly apply criminal laws (inter alia, the Constitutional Court’s rulings of 16 January 2006, 15 November 2013, and 27 June 2016).

19.2. The constitutional right to a fair trial, inter alia, means not only that, during the judicial procedure, principles and norms of criminal procedure law must be observed, but also that the punishment established in the penal law and imposed by a court must be just; the penal law must provide for all opportunities for a court to impose, in consideration of all circumstances of the case, a just punishment on the person who committed a criminal act; the imposition of an unjust punishment would imply that the right of a person to a fair trial is violated; consequently, in such a case, Paragraph 2 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law would also be violated (the Constitutional Court’s ruling of 15 November 2013).

20. As emphasised by the Constitutional Court, the duty to pay regard to the principles and norms of criminal procedure law during consideration of a criminal case at a court may not be interpreted as permitting raising the principles and norms of criminal procedure law or those of criminal proceedings above the principles and norms of the Constitution, or as permitting interpreting the principles and norms of criminal procedure law or those of criminal procedure in such a manner that the meaning of the provisions of the Constitution would be denied, distorted, or ignored, or as permitting opposing the principles and norms of criminal procedure law or those of criminal law on the one hand, and the general principles of law on the other hand (the Constitutional Court’s ruling of 16 January 2006).

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

21.1. When interpreting Article 109 of the Constitution, the Constitutional Court has held on more than one occasion (inter alia, in its rulings of 21 December 1999, 9 May 2006, and 8 May 2014) that, in the course of administering justice, courts must ensure the implementation of the law formulated in the Constitution, laws, and other legal acts, must guarantee the supremacy of law, and must protect human rights and freedoms. The constitutional concept of the administration of justice also implies that courts must decide cases only by strictly adhering to the procedural and other requirements established in laws, without exceeding the limits of their jurisdiction, and not exceeding their other powers (inter alia, the Constitutional Court’s rulings of 16 January 2006 and 15 November 2013). Paragraph 1 of Article 109 of the Constitution gives rise to the duty of courts to consider cases in a fair and objective manner, and to adopt reasoned and well-founded decisions (inter alia, the Constitutional Court’s rulings of 15 May 2007, 31 January 2011, and 8 May 2014). 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 as such in a court, but, rather, the adoption of a just court decision constitutes a constitutional value; the constitutional concept of justice implies not a perfunctory and nominal justice administered by a court, not an outward appearance of justice administered by a court, but such court decisions (other final court acts) that are not unjust according to their content; justice administered by a court only in a perfunctory manner is not the justice that is consolidated in, and protected and defended by, the Constitution (inter alia, the Constitutional Court’s rulings of 21 September 2006, 25 September 2012, and 8 May 2014).

21.2. The Constitutional Court has noted in its jurisprudence on more than one occasion that it is not allowed to establish such a legal regulation that would prevent a court from adopting a just decision in a case and, thus, from implementing justice where the court takes into account all important circumstances of a case, follows law, and does not violate the imperatives of justice and reasonableness stemming from the Constitution; otherwise, the powers of a court to administer justice, which stem, inter alia, from Paragraph 1 of Article 109 of the Constitution, would be limited or even denied, and the constitutional concept of courts as the institution administering justice in the name of the Republic of Lithuania, as well as the constitutional principles of a state under the rule of law and justice, would be deviated from (inter alia, the Constitutional Court’s rulings of 21 September 2006 and 6 December 2013).

21.3. The Constitutional Court held in its ruling of 16 January 2006 that the necessity to protect the rights and legitimate interests of a person, also the fact that a court is a state institution that, when administering justice, helps the state ensure the security of a person and all society from criminal attempts, determine certain powers of a court in criminal proceedings; in criminal proceedings, a court must also be an impartial arbiter, who objectively assesses the data (evidence) in a criminal case regarding the circumstances of committing a criminal act and who adopts a fair decision concerning the guilt of a person accused of having committed the said criminal act; at the same time, in order to establish the truth, a court must take an active part in criminal proceedings – a court must define the limits of the consideration of a criminal case, must perform certain procedural actions, must ensure that persons participating in court proceedings do not abuse their rights or powers, and must resolve other issues related to the consideration of a criminal case in a court; while considering a criminal case, a court must act in such a way that the truth is established in a criminal case and the question of the guilt of a person accused of having committed a criminal act is fairly resolved. Under Paragraph 1 of Article 109 of the Constitution and the constitutional principles of a state under the rule of law and the due court process, courts have the duty not only to investigate all circumstances of criminal cases in an exhaustive and impartial manner, but also to correctly apply criminal laws, inter alia, to properly classify a criminal act committed by the accused (the Constitutional Court’s ruling of 15 November 2013).

22. Under Paragraph 1 of Article 111 of the Constitution, the courts of the Republic of Lithuania are the Supreme Court of Lithuania, the Court of Appeal of Lithuania, regional courts, and local courts. The Constitution (inter alia, Paragraph 1 of Article 111 thereof) not only establishes a four-level system of courts of general jurisdiction (as a system of institutions), but also consolidates the fundamentals for the instance system of courts of general jurisdiction, as a system of procedural stages of judicial consideration of cases. The constitutional right of a person to apply to a court and the instance system of courts of general jurisdiction imply that a law must establish such a legal regulation that would make it possible to lodge an appeal with at least one court of higher instance against any final act adopted by a court of general jurisdiction or by a specialised court (inter alia, the Constitutional Court’s rulings of 16 January 2006 and 15 November 2013). The Constitutional Court has held that the mission of the instance system of courts of general jurisdiction is to create the preconditions for courts of higher instances to correct any mistakes of the fact (i.e. of the establishment and assessment of legally significant facts) or of the law (i.e. of the application of law), which for some reasons could be made by a court of lower instance, and to prevent the execution of injustice in any civil case, criminal case, or a case of another category considered by courts of general jurisdiction; otherwise, the constitutional principle of a state under the rule of law would be deviated from and the constitutional right of a person to the due court process would be violated; the said correction of mistakes made by courts of lower instance and the related prevention of injustice is the conditio sine qua non of the confidence of the parties of particular cases and society in general not only in the court of general jurisdiction that considers a particular case, but also in the whole system of courts of general jurisdiction (inter alia, the Constitutional Court’s rulings of 28 March 2006 and 15 November 2013).

23. In the context of the constitutional justice case at issue, while interpreting the provisions of Paragraph 2 of Article 31 and Paragraph 1 of Article 111 of the Constitution and taking into account the constitutional principle of justice, it needs to be noted that the constitutional right to a fair trial is the right of a person to a justified (reasoned) decision, where this right implies that a court of higher, inter alia, appeal, instance must have all the procedural possibilities of properly examining received appeals and adopting fair and justified (reasoned) decisions.

III

The jurisprudence of the European Court of Human Rights

24. In the context of the constitutional justice case at issue, the jurisprudence of the European Court of Human Rights (hereinafter referred to as the ECtHR) that is connected with the right to a fair trial, as well as with the powers of a court to change the classification of a criminal act on its own initiative is important.

24.1. The ECtHR, interpreting the content of the right to a fair trial, as consolidated in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention), has noted in its jurisprudence that, among other things, this right comprises the duty of the court not only to comprehensively and exhaustively examine all those circumstances of the case that would enable an independent and impartial court to reach a fair and reasoned decision in each case, but also to adopt such a decision within the shortest time possible; courts have the duty to ensure a fair balance between the said two different aspects of the content of the right to a fair trial (the ECtHR, the judgment of 12 October 1992, Boddaert v Belgium, no 12919/87).

It should be noted that the criteria on whose basis the ECtHR assesses whether the length of the proceedings complies with the requirements of Paragraph 1 of Article 6 of the Convention is the complexity of the case, the conduct of the person prosecuted in the criminal proceedings, the actions of the authorities in organising the proceedings, the significance of the process for the person who is prosecuted, etc. (the ECtHR, the judgment of 17 December 2004, Pedersen and Baadsgaard v Denmark, no 49017/99; the judgment of 13 January 2009, Sorvisto v Finland, no 19348/04). The conclusion of the conformity of particular proceedings with the requirements of Paragraph 1 of Article 6 of the Convention is always determined by the assessment of the totality of the criteria.

It should also be noted that Article 6 of the Convention does not provide for the right to appeal. This right in criminal proceedings is provided for in Article 2 of Protocol No 7 to the Convention. The ECtHR has noted that, although the right to appeal is not provided for in Article 6 of the Convention, in the case where the state provides for such a right under national law the guarantees provided for in Article 6 are applicable (the ECtHR, the judgment of 17 January 1970, Delcourt v Belgium, no 2689/65). How these guarantees apply depends on the peculiarities of the appeal process; account must be taken of the whole of the procedure under national law, the role of the appeal body in it, the powers it possesses, and the peculiarities of safeguarding the interests of the parties to the proceedings (the ECtHR, judgment of 2 March 1987, Monnell and Morris v the United Kingdom, nos 9562/81, 9818/82). If the court of appeal instance is empowered to deal with both fact and legal issues, it is generally the case that, during such proceedings, a person must be afforded the same level of protection of the right to a fair trial as in the court of first instance (the ECtHR, the judgment of 26 May 1988, Ekbatani v Sweden, no 10563/83; the judgment of 22 May 2007, Muttilainen v Finland, no 18358/02).

It should also be noted that, in the case law of the ECtHR, the right to a justified (reasoned) decision is an integral part of the right to a fair trial under Paragraph 1 of Article 6 of the Convention. The right to a justified (reasoned) decision relates to a wider guarantee – the proper implementation of justice. At the same time, it involves an opportunity for a person to file a complaint with a higher instance court, where the said person knows the specific reasoning that the court relied upon when making the relevant decision, as well as the possibility of reviewing the taken decision at a higher instance court (the ECtHR, the judgment of 22 February 2007, Tatishvili v Russia, no 1509/02). A justified (reasoned) court decision guarantees the public’s right to know whether justice has been properly served in a concrete situation (see, mutatis mutandis, the ECtHR, the judgment of 27 September 2001, Hirvisaari v Finland, no 49684/99).

24.2. According to the case law of the ECtHR, as such, the powers of the court to alter the classification of a criminal act on its own initiative, inter alia, by applying the criminal law that provides for a more serious crime, is not in conflict with the Convention.

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

Thus, according to the case law of the ECtHR, a court may alter on its own initiative the classification of a criminal act, inter alia, to apply the criminal law that provides for a more serious crime; however, the accused must be informed in advance about this and must have the opportunity to submit defence arguments regarding the changed accusation. In cases where the accused is not informed of a possible change in the classification of the act and does not have an opportunity to present defence arguments regarding the changed accusation, the fact is of essential importance whether the accused will have the right to file an appeal on points of law and fact with a higher instance court against the changed accusation.

IV

Assessment of the compliance of the provisions of Paragraph 4 (wording of 28 June 2007) of Article 320 and Item 4 (wording of 28 June 2007) of Paragraph 1 of Article 326 of the BPK with the Constitution

25. The petitioner requests an investigation into whether Paragraph 4 (wording of 28 June 2007) of Article 320 of the BPK, insofar as a court considering under the appeal procedure an appeal of a convicted person is prohibited from worsening the situation of another convicted or acquitted person, as well as the situation of a person against whom the case has been dismissed, where no complaint is filed by a prosecutor, private prosecutor, victim, or civil claimant, is in conflict with Paragraph 2 of Article 31 and Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

The doubts of the petitioner regarding the compliance of the impugned legal regulation with the Constitution are based on the fact that it may result in such a situation where a court of appeal instance, having examined evidence and having established factual circumstances that are different from those established by a court of first instance, would have to adopt a manifestly unfair and, at the same time, unlawful decision, since it would not have any legal possibility of either assessing the guilt of another convicted person, or an acquitted person, or the guilt of a person against whom the case has been dismissed, or referring the criminal case back to the court of first instance for reconsideration or back to the prosecutor for the purpose of drawing up a new indictment.

26. In this ruling, the following has been mentioned:

when interpreting the impugned legal regulation laid down in Paragraph 4 (wording of 28 June 2007) of Article 320 of the BPK in conjunction with the legal regulation established in Article 326 (wording of 28 June 2007) of the BPK, it is clear that, in cases where a court considering a criminal case under the appeal procedure, having conducted the investigation and assessment of new evidence or evidence already investigated by the court of first instance, could draw the conclusion that the factual circumstances are essentially different from those established by the court of first instance, due to which this could result in the worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed, the said court may not change or overturn the judgment of the court of first instance and pass a new one where no appeal has been filed by the prosecutor, private prosecutor, victim, or civil claimant;

according to Items 4 and 5 (wording of 28 June 2007) of Paragraph 1 of Article 326 of the BPK, in cases where a court considering a criminal case under the appeal procedure, having conducted the investigation and assessment of new evidence or evidence already investigated by the court of first instance, could draw the conclusion that the factual circumstances are essentially different from those established by the court of first instance, due to which this could result in the worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed, the said court considering a criminal case under the appeal procedure lacks a legal basis to overturn the judgment of the court of first instance and either to refer the case back to the court for reconsideration or to refer it back to the prosecutor;

according to Paragraph 4 (wording of 28 June 2007) of Article 314 of the BPK, after the expiry of the deadline for filing an application with the court that passed the judgment, requesting the renewal of the missed deadline for filing an appeal, the prosecutor, private prosecutor, victim, or civil claimant no longer have a legal opportunity, in defence of their own or the public interest, to file an appeal, although grounds for filing such an appeal can arise in cases where a court considering a criminal case under the appeal procedure, having conducted the investigation and assessment of new evidence or evidence already investigated by the court of first instance, could draw the conclusion that the factual circumstances are essentially different from those established by the court of first instance, due to which this could result in the worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed;

according to Paragraph 3 (wording of 13 March 2014) of Article 367 of the BPK, the prosecutor, private prosecutor, victim, or civil claimant have no legal opportunity, on the basis of new evidence investigated by the court of appeal instance or evidence already investigated by the court of first instance in cases where an assessment of the said evidence could lead to the conclusion that the factual circumstances are essentially different from those established by the court of first instance, due to which this could result in the worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed, to apply, in defence of their or the public interest, to the court of cassation instance in order to worsen the situation of a person against whom no appeal was filed or to worsen the situation of a person against whom an appeal was filed to a larger extent than was requested in the appeal;

according to Paragraph 1 of Article 443 and Item 4 of Paragraph 1 of Article 444 of the BPK, provided that a court considering a criminal case under the appeal procedure is aware or could be aware of circumstances other than those established by the court of first instance, after the entry into effect of a judgment or order of the court of appeal instance there are not any legal grounds for overturning due to the said circumstances the judgment or order and reopening the criminal case.

27. When interpreting the provisions of Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law, it has been noted that:

according to the Constitution, the state, as an organisation of all society, which must guarantee the public interest, inter alia, the effective protection of values protected and defended by the Constitution and of every person and the whole society against criminal attempts, is under the obligation to take various lawful measures in order to prevent crimes, as well as to restrict and reduce crime; the state must do it effectively; if the state failed to take proper actions in order to prevent crimes, the trust in state authority and laws would be destroyed and disrespect in legal order and various social institutions would increase;

this obligation of the state, which arises from the Constitution, implies the duty of the legislature to regulate by law the relations of criminal procedure in such a way that the legal preconditions would be created for speedily disclosing and thoroughly investigating criminal acts, and justly punishing the persons who committed criminal acts (or resolving the issue of their criminal liability otherwise on the basis of the law);

under the Constitution, it is not allowed to establish any such legal regulation that would not permit a court, after it takes account of all important circumstances of a case and by following law, without violating the imperatives of justice and reasonableness, which arise from the Constitution, to adopt a just decision in a case and, thus, to implement justice; otherwise, the powers of a court to administer justice, which stem from the Constitution, inter alia, Paragraph 1 of Article 109 thereof, would be limited or even denied, and the constitutional concept of courts as the institution administering justice in the name of the Republic of Lithuania, as well as the constitutional principles of a state under the rule of law and justice, would be deviated from.

courts have the duty not only to investigate all circumstances of criminal cases in an exhaustive and impartial manner, but also to correctly apply criminal laws, inter alia, to properly classify a criminal act committed by the accused;

the constitutional concept of justice implies not a perfunctory and nominal justice administered by a court, not an outward appearance of justice administered by a court, but such court decisions (other final court acts) that are not unjust according to their content; justice administered by a court in a perfunctory manner is not the justice that is consolidated in, and protected and defended by, the Constitution.

It has also been mentioned that, according to Paragraph 1 of Article 111 of the Constitution, the mission of the instance system of courts of general jurisdiction is to create the preconditions for courts of higher instances to correct any mistakes of the fact (i.e. of the establishment and assessment of legally significant facts) or of the law (i.e. of the application of law), which for some reasons could be made by a court of lower instance, and to prevent the execution of injustice in any civil case, criminal case, or a case of another category considered by courts of general jurisdiction; otherwise, the constitutional principle of a state under the rule of law would be deviated from and the constitutional right of a person to the due court process would be violated.

28. In deciding whether Paragraph 4 (wording of 28 June 2007) of Article 320 of the BPK is in conflict with the Constitution to the specified extent, it should be noted that the legislature has established such a criminal procedure that could create a situation where, having investigated new evidence or evidence already investigated by the court of first instance in cases where an assessment of the said evidence could lead to the conclusion that the factual circumstances essentially differ from the circumstances established by the court of first instance, due to which this could result in the essential worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed, the court considering the criminal case under the appeal procedure cannot remove the factual mistakes (i.e. the mistakes of the establishment and assessment of legally significant facts) made by the court of first instance and, thus, cannot adopt a fair decision in the case, as a prosecutor, private prosecutor, victim, or civil claimant has no legal possibility to file or supplement the appeal, and the court itself is limited by the principles of criminal procedural law reflected in the impugned provision, i.e. the principle of non reformatio in peius (under which, while considering a case subsequent to an appeal of a convicted or acquitted person, or a person against whom the case has been dismissed, the court is prohibited from worsening the situation of the appellant) and the principle of tantum devolutum quantum appellatum (under which, while considering a case under the appeal procedure, the court must verify and assess only the lawfulness and validity of the appealed part of the decision of the court of first instance).

It should be noted that such a situation may arise in the course of the proceedings not only on the basis of an appeal lodged by a convicted or acquitted person, or a person against whom the case has been dismissed, but also lodged by a prosecutor, private prosecutor, victim, or civil claimant.

In such a case, under Paragraph 3 (wording of 13 March 2014) of Article 367 of the BPK, no legal possibility exists for a prosecutor, private prosecutor, victim, or civil claimant to apply to the court of cassation instance in order to worsen the situation of a person against whom no appeal has been filed, or to worsen the situation of a person against whom an appeal has been filed to a larger extent than was requested in the said appeal. Under Paragraph 1 of Article 443 and Item 4 of Paragraph 1 of Article 444 of the BPK, there is also no legal possibility to annul an effective judgment or order and to reopen the criminal case due to circumstances that were known or could have been known to the court of appeal instance and that are different from those established by the court of first instance.

29. Thus, in view of the fact that such situations are possible where a court of appeal instance considering a criminal case under the appeal procedure, having examined new evidence or evidence already examined by the court of first instance in cases where an assessment of the said evidence could lead to the conclusion that the actual circumstances are essentially different from those established by the court of first instance, due to which this could result in the worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed, may not (as it is bound by the aforesaid principles of criminal procedure law) itself correct the mistakes made by the court of first instance regarding the establishment and/or assessment of legally significant facts, it should be noted in the context of the constitutional justice case at issue that the powers of courts to administer justice, arising out of the Constitution, inter alia, Paragraph 1 of Article 109 thereof, imply that a law must establish the powers of the court of appeal instance to refer in such a situation the case back to the court of first instance for reconsideration.

29.1. It has been mentioned that the grounds for overturning a judgment and referring a case back to the court of first instance for reconsideration are established in Item 4 (wording of 28 June 2007) of Paragraph 1 of Article 326 of the BPK.

As mentioned above, based on this item, the court of appeal instance issues the order to overturn the judgment and refer the case back to the relevant court so that it would be considered anew if the case was considered by a partial court of first instance or the case was considered in violation of the rules of judicial jurisdiction established in Articles 224 and 225 of the BPK, or if it transpires at the court of appeal instance that, at the time of the commission of the act, the convicted person suffered from a mental illness or became mentally ill prior to the adoption of the judgment by the court of first instance, where the convicted person was subject to compulsory medical treatment; the court of appeal instance is not granted any powers to overturn the judgment and refer the case for its new consideration to the relevant court on the grounds other than those established in this item.

29.2. It should be held that, by means of the legal regulation of criminal procedure, according to which the court of appeal instance, having examined new evidence or evidence already examined by the court of first instance in cases where an assessment of the said evidence could lead to the conclusion that the actual circumstances are essentially different from those established by the court of first instance, due to which this could result in the worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed, and because it is bound by the principles of non reformatio in peius and tantum devolutum quantum appellatum, does not have the powers to refer the case back to the court of first instance for reconsideration, no preconditions are created for the court to adopt a fair decision in the case (inter alia, to impose a fair punishment on a person who has committed a criminal act and to award just compensation for the damage inflicted by that criminal act) and to implement justice properly. Such a legal regulation does not ensure the effective protection of every person and society as a whole from criminal attempts, and denies the powers of a court to administer justice, which stem from the Constitution, inter alia, Paragraph 1 of Article 109 thereof; such a legal regulation also derogates from the constitutional concept of a court as an 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.

29.3. In the context of the constitutional justice case at issue, it needs to be emphasised that, under the Constitution, a court has the duty not only to investigate all the circumstances of a case that would allow the court to adopt a fair and reasonable decision, but also to deliver this decision within the shortest possible time. The said duty implies that, having investigated and assessed evidence leading to the conclusion that the factual circumstances essentially differ from the circumstances established by the court of first instance, the court considering the criminal case under the appeal procedure should annul the judgment of the court of first instance and refer the case back to it for reconsideration only in such a case where the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed, could be worsened in substance.

29.4. The Constitutional Court has held that, if it finds the unconstitutionality of provisions whose compliance with the Constitution is not impugned by a petitioner, but which are consolidated in the same legal act the constitutionality of whose other provisions is impugned by the petitioner, it must state that the said provisions that are not impugned by the petitioner are unconstitutional (inter alia, the Constitutional Court’s rulings of 11 July 2014 and 29 September 2015); the implementation of constitutional justice implies that a legal act (part thereof) that conflicts with the Constitution must be removed from the legal system (inter alia, the Constitutional Court’s rulings of 29 November 2001 and 22 September 2015).

29.5. In the light of the foregoing arguments, the conclusion should be drawn that Item 4 (wording of 28 June 2007) of Paragraph 1 of Article 326 of the BPK, insofar as this item does not establish the powers of the court of appeal instance to refer a case back to the court of first instance for reconsideration if, upon the investigation and assessment of evidence, such factual circumstances come into light that are essentially different from those established by the court of first instance and this could determine the essential worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed, is in conflict with Paragraph 1 of Article 109 of the Constitution, as well as the constitutional principles of a state under the rule of law and justice.

30. After the Constitutional Court has stated the foregoing, the legal arguments presented by the petitioner have lost their legal significance (according to the said arguments, because of the legal regulation established in Paragraph 4 (wording of 28 June 2007) of Article 320 of the BPK, such a situation may arise where, when considering a criminal case under the appeal procedure subsequent to the appeal filed by a convicted person and having established factual circumstances that are different from those established by the court of first instance, the court of appeal instance would be obliged to adopt a manifestly unfair, as well as unlawful, decision, as there would be no legal possibility for the court either to assess the guilt of another convicted or acquitted person, or the guilt of another person against whom the case has been dismissed, or to refer the criminal case back to the court of first instance for reconsideration or back to the prosecutor for the purpose of drawing up a new indictment).

30.1. Thus, there are no legal grounds for stating that the legal regulation established in Paragraph 4 (wording of 28 June 2007) of Article 320 of the BPK violates Paragraph 2 of Article 31 and Paragraph 1 of Article 109 of the Constitution, as well as the constitutional principle of a state under the rule of law.

30.2. In the light of the foregoing arguments, the conclusion should be drawn that Paragraph 4 (wording of 28 June 2007) of Article 320 of the BPK, insofar as a court considering under the appeal procedure an appeal of a convicted person is prohibited from worsening the situation of another convicted person, acquitted person, or a person against whom the case has been dismissed, where no appeal is filed by a prosecutor, private prosecutor, victim, or civil claimant, is not in conflict with Paragraph 2 of Article 31 and Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law.

31. In the context of the constitutional justice case at issue, it should be noted that the legislature has wide discretion to regulate criminal procedure relations and may establish various models for considering criminal cases before the court of appeal. However, the legislature may not establish such a legal regulation that would preclude a court of higher instance, having regard to all the circumstances of the case and following law and the imperatives of justice and reasonableness, which stem from the Constitution, from adopting a fair decision in the case and effectively ensuring the constitutional right of a person to proper and fair criminal proceedings.

Therefore, in order to ensure the right of a person to a trial within the shortest possible time, as well as the adoption of a fair and reasonable court decision based on the circumstances of the case, and the rights of defence, and having regard to the chosen model of the consideration of criminal cases in a court of appeal instance, the legislature can also establish other ways to remove, in the courts of higher instance, any mistakes that may be made due to some reasons by a court of lower instance in establishing and assessing legally significant facts; inter alia, the legislature can envisage the right of a prosecutor, private prosecutor, victim, or civil claimant to file (or supplement) an appeal in cases where, upon investigating and assessing the evidence at the court of appeal instance, the conclusion could be reached that the factual circumstances are essentially different from those established by the court of first instance, due to which this could result in the worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed.

32. At the same time, it needs to be noted that, as mentioned above, a person’s right to a justified (reasoned) decision is an integral part of the constitutional right to a fair trial, which implies the need for a higher court, inter alia, a court of appeal instance, to have all procedural possibilities of adequately examining received appeals and adopting just and justified (reasoned) decisions; in addition, correcting mistakes made by courts of lower instance and the related prevention of injustice is a necessary precondition for guaranteeing and building trust in the judicial system for parties to a case and society in general.

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

ruling:

1. To recognise that Paragraph 4 (wording of 28 June 2007; Official Gazette Valstybės žinios, 2007, No 81-3312) of Article 320 of the Code of Criminal Procedure of the Republic of Lithuania, insofar as a court considering in criminal proceedings an appeal of a convicted person under the appeal procedure is prohibited from worsening the situation of another convicted or acquitted person, or the situation of a person against whom the case has been dismissed, where no appeal is filed by a prosecutor, private prosecutor, victim, or civil claimant, is not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that Item 4 (wording of 28 June 2007; Official Gazette Valstybės žinios, 2007, No 81-3312) of Paragraph 1 of Article 326 of the of the Code of Criminal Procedure of the Republic of Lithuania, insofar as this item does not establish the powers of the court of appeal instance to refer a case back to the court of first instance for reconsideration if, upon the investigation and assessment of evidence, such factual circumstances come into light that are essentially different from those established by the court of first instance and this could determine the essential worsening of the situation of the convicted or acquitted person, or the situation of the person against whom the case has been dismissed, is in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, as well as the constitutional principles of a state under the rule of law and justice.

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

Justices of the Constitutional Court:   Elvyra Baltutytė
                                                                        Gintaras Goda
                                                                        Vytautas Greičius
                                                                        Danutė Jočienė
                                                                        Gediminas Mesonis
                                                                        Vytas Milius
                                                                        Daiva Petrylaitė
                                                                        Janina Stripeikienė
                                                                        Dainius Žalimas