THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

Transcription

1 Case No. 45/04 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA RULING ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 148 (WORDING OF 5 JULY 2004), PARAGRAPH 3 OF ARTICLE 168 (WORDING OF 26 SEPTEMBER 2000), PARAGRAPH 4 OF ARTICLE 182 (WORDING OF 5 JULY 2004), PARAGRAPH 5 OF ARTICLE 183 (WORDING OF 26 SEPTEMBER 2000), PARAGRAPH 4 OF ARTICLE 186 (WORDING OF 10 APRIL 2003) AND PARAGRAPH 4 OF ARTICLE 187 (WORDING OF 10 APRIL 2003) OF THE CRIMINAL CODE OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA 15 June 2006 Vilnius The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis The court reporter Daiva Pitrėnaitė Raimondas Šukys, a member of the Seimas, and Gytis Kaminskas, an advocate, acting as the representatives of a group of members of the Seimas of the Republic of Lithuania, the petitioner Girius Ivoška, advisor of the Law Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 13 June 2006, considered case No. 45/04 subsequent to the petition of a group of the members of the Seimas of the Republic of Lithuania, the petitioner, which was composed of Eligijus Masiulis, Gintaras Steponavičius, Dalia Teišerskytė,

2 2 Arminas Lydeka, Raimundas Palaitis, Algis Kašėta, Jonas Čekuolis, Saulius Lapėnas, Raimundas Šukys, Gintaras Šileikis, Stanislovas Buškevičius, Sergejus Dmitrijevas, Klemensas Rimšelis, Nikolajus Medvedevas, Artūras Melianas, Vasilijus Popovas, Dobilas Jonas Kirvelis, Julius Sabatauskas, Gražina Šmigelskienė, Alfonsas Pulokas, Rimantas Sinkevičius, Sigita Burbienė, Giedrė Purvaneckienė, Janė Narvilienė, Irena Šiaulienė, Romanas Algimantas Sedlickas, Jurgis Razma, Justinas Karosas, Antanas Valys, Artūras Vazbys, and Jonas Korenka, requesting an investigation into whether the provisions of Paragraph 2 of Article 148, Paragraph 3 of Article 168, Paragraph 4 of Article 182, Paragraph 5 of Article 183, Paragraph 4 of Article 186 and Paragraph 4 of Article 187 of the Criminal Code of the Republic of Lithuania that a person is held liable for the criminal deeds specified in these paragraphs only if there is a complaint of the victim or an application of his legitimate representative, or a demand of the prosecutor, are not in conflict with the constitutional principle of a state under the rule of law. The Constitutional Court has established: I A group of members of the Seimas of the Republic of Lithuania, the petitioner, have applied to the Constitutional Court with the petition requesting an investigation into whether the provisions of Paragraph 2 of Article 148, Paragraph 3 of Article 168, Paragraph 4 of Article 182, Paragraph 5 of Article 183, Paragraph 4 of Article 186 and Paragraph 4 of Article 187 of the Criminal Code (hereinafter also referred to as the CC or the new CC) that a person is held liable for the criminal deeds specified in these paragraphs only if there is a complaint of the victim or an application of his legitimate representative, or a demand of the prosecutor, are not in conflict with the constitutional principle of a state under the rule of law. The petition was received at the Constitutional Court on 12 November II The petition of the petitioner is based on the fact that, according to the petitioner, the impugned provisions mean that the pre-trial investigation subsequent to a demand of the prosecutor may also be instituted when there is no victim. Thus, corresponding deeds may be criminalised (groundlessly and disproportionately) and criminal liability for them may be applied namely because of the fact that the prosecutor has discretion either to institute or not to institute pre-trial investigation concerning them. III In the course of the preparation of the case for the Constitutional Court s hearing, written

3 3 explanations from G. Ivoška, a representative of the Seimas, the party concerned, were received in which it is held that the impugned provisions are not in conflict with the constitutional principle of a state under the rule of law. The position of the representative of the party concerned is grounded on the following arguments. 1. The provisions which are analogous to those whose compliance is impugned by the petitioner, are also included in Paragraph 3 of Article 139, Paragraph 3 of Article 140, Paragraph 3 of Article 145, Paragraph 5 of Article 149, Paragraph 5 of Article 150, Paragraph 3 of Article 151, Paragraph 2 of Article 152, Paragraph 3 of Article 154, Paragraph 3 of Article 155, Paragraph 2 of Article 165, Paragraph 5 of Article 178, Paragraph 5 of Article 179, Paragraph 5 of Article 184, Paragraph 3 of Article 188, Paragraph 3 of Article 294 and Paragraph 3 of Article 313 of the CC, however, their compliance with the Constitution is not questioned by the petitioner. 2. In the theory of criminal law, criminalisation of deeds is defined as selection of the signs which constitute the body of a criminal deed and their consolidation in the penal law while constructing dispositions of the articles. Under the Constitution, not the prosecutor, but the legislature has discretion to consolidate the signs which form the body of a criminal deed in the penal law. 3. In the law of criminal procedure, the notion victim describes the natural person, upon whom physical, material or moral damage was inflicted and it is recognised by means of a decision of the official of pre-trial investigation, the prosecutor or the court (Paragraph 1 of Article 28 of the Code of the Criminal Procedure of the Republic of Lithuania (hereinafter also referred to as the CCP or the new CCP)). In criminal law, the notion victim defines any private or public, natural or legal person or group of them, whose rights, freedoms and interests are violated by a criminal deed. 4. The demand of the prosecutor specified in the provisions impugned by the petitioner is a form of institution of criminal proceedings for defending the public interest, while an application of the victim or a complaint of his legitimate representative are meant for defending the private interest. These legitimate forms for instituting criminal proceedings should not be understood as denying each other, as they are meant for defending the rights and freedoms of a human being and a person, as well as the interests of society and the state. 5. The criminal proceedings concerning certain criminal deeds (inter alia, provided for in the articles of the CC specified by the petitioner) are instituted only if there is a complaint of the victim or an application of his legitimate representative, or a demand of the prosecutor. Under Article 167 and articles of Chapter XXX of the CCP, the victim has the right to decide whether to institute the criminal proceedings, or to resort to the measures which are established in other branches of law in order to defend his violated rights or interests.

4 4 6. The prosecutor may demand to institute the criminal proceedings concerning the said deeds when they are of public importance or when they inflict damage upon a person who cannot defend his rights and legitimate interests due to his helpless condition, physical or mental disabilities, official or material dependence on the culprit or other important reasons. IV In the course of the preparation of the case for the Constitutional Court s hearing, written explanations from A. Klimavičius, Prosecutor General of the Republic of Lithuania, and A. Čepas, Director of the Law Institute, were received. V 1. At the hearing of the Constitutional Court, R. Šukys and G. Kaminskas, the representatives of a group of members of the Seimas, the petitioner, repeated the arguments set forth in their written explanations and gave additional explanations. They explained, inter alia, that they doubt the constitutionality of the impugned provisions to the extent that the prosecutor has discretion to decide whether or not to institute the criminal proceedings concerning corresponding criminal deeds not only in the cases when these deeds are of public importance or when the victim (his representative) cannot defend his legitimate interests due to physical or mental disability or other important reasons, but also in the cases when such important reasons are absent. The representatives of the petitioner also held that even though, under the Constitutional Court s Ruling On the Compliance of Paragraph 4 (wording of 11 September 2001) of Article 131 of the Code of Criminal Procedure of the Republic of Lithuania with the Constitution of the Republic of Lithuania, on the Compliance of Paragraph 5 (wording of 10 April 2003 and 16 September 2003) of Article 234, Paragraph 2 (wordings of 10 April 2003 and 16 September 2003) of Article 244, Article 407 (wording of 19 June 2003), Paragraph 1 (wording of 14 March 2002) of Article 408, Paragraphs 2 and 3 (wording of 14 March 2002) of Article 412, Paragraph 5 (wording of 14 March 2002) of Article 413 and Paragraph 2 (wording of 14 March 2002) of Article 414 of the Code of the Criminal Procedure of the Republic of Lithuania with the Constitution of the Republic of Lithuania and on the Petitions of the Šiauliai District Local Court, the Petitioner, Requesting an Investigation into Whether Article 410 (wording of 14 March 2002) of the Code of the Criminal Procedure of the Republic of Lithuania Is Not in Conflict with the Constitution of the Republic of Lithuania of 16 January 2006, also in cases of private accusation the prosecutor has a duty to demand to bring the person to criminal liability if there is a need to defend the public interest or if the person himself cannot defend his violated rights due to his disability, mental condition or other reasons, in its activity the prosecutor s office continues to adhere to the view that, under the impugned legal regulation, the prosecutor has broad discretion to decide whether to demand that a person would be

5 5 brought to criminal liability for corresponding criminal deeds also in such cases, when there is no complaint of the victim or application of his legitimate representative. 2. At the hearing of the Constitutional Court, G. Ivoška, the representative of the Seimas, the party concerned, virtually repeated the arguments set forth in his written explanations. The Constitutional Court holds that: I 1. The petitioner applied to the Constitutional Court with a petition requesting an investigation into whether the provisions of Paragraph 2 of Article 148, Paragraph 3 of Article 168, Paragraph 4 of Article 182, Paragraph 5 of Article 183, Paragraph 4 of Article 186 and Paragraph 4 of Article 187 of the CC that a person is held liable for the criminal deeds specified in these paragraphs only if there is a complaint of the victim or an application of his legitimate representative, or a demand of the prosecutor, are not in conflict with the constitutional principle of a state under the rule of law. 2. On 26 September 2000, the Seimas adopted the Law on the Confirmation and Entry into Force of the Criminal Code of the Republic of Lithuania, whose Article 1 approved the new CC and under Article 2 of which the date of the entry into force of the new CC had to be established by means of an individual law. On 29 October 2002, the Seimas adopted the Republic of Lithuania s Law on the Procedure of the Entry into Effect and Implementation of the Criminal Code as Confirmed by Law No. VIII of 26 September 2000, of the Code of Criminal Procedure as Confirmed by Law No. IX-785 of 14 March 2002, and of the Code of Execution of Punishments as Confirmed by Law No. IX-994 of 27 June 2002, under Article 1 of which, the new CC had to enter into force on 1 May 2003, while under Paragraph 1 of Article 47 of which after the entry into force of the new CC, the Criminal Code, which was in effect till then, had to become no longer valid. The new CC came into force at this established time. 3. The new CC was amended and/or supplemented by the following laws: the Republic of Lithuania s Law on Amending and Supplementing Articles 4, 7, 9, 23, 25, 37, 39, 44, 46, 47, 48, 51, 61, 62, 65, 67, 74, 75, 90, 92, 95, 97, 102, 105, 118, 119, 143, 175, 178, 186, 187, 188, 189, 199, 202, 212, 213, 215, 227, 249, 250, 251, 257, 260, 263, 272, 281, 291 of the Law on the Procedure of the Entry into Effect and Implementation of the Criminal Code as Confirmed by Law No. VIII-1968 of 26 September 2000 and Supplementing the Code with Articles 39¹ and 306¹, which was adopted by the Seimas on 10 April 2003, the Law on Amending and Supplementing Articles 139, 140, 176, 180, 181, 190, 201, 212, 249 and 281 of the Criminal Code of the Republic

6 6 of Lithuania, which was adopted by the Seimas on 4 July 2003, the Law on Amending and Supplementing Articles 13, 162, 191, 196, 197, 203, 206, 216, 219, 221 and 309 of the Criminal Code of the Republic of Lithuania and Supplementing the Code with Articles 198¹ and 198², which was adopted by the Seimas on 29 January 2004, the Law on Amending and Supplementing Articles 233 and 235 of the Criminal Code of the Republic of Lithuania, which was adopted by the Seimas on 30 March 2004, the Law Supplementing Article 1 of the Criminal Code of the Republic of Lithuania and Supplementing the Code by with Articles 9¹ and 123² and Annex, which was adopted by the Seimas on 27 April 2004, the Law on Amending and Supplementing Articles 20, 42, 63, 67, 68, 72, 75, 77, 82, 90, 91, 92, 95, 97, 128, 144, 148, 150, 178, 182, 194, 195, 201, 204, 205, 210, 211, 212, 220, 221, 222, 223, 230,236, 246, 248, 260, 263, 287 and 306 of the Criminal Code of the Republic of Lithuania and Supplementing the Code with Article 228¹, which was adopted by the Seimas on 5 July 2004, the Law on Amending the Title of Chapter XXXVI of the Criminal Code of the Republic of Lithuania and Supplementing the Code with Article 253¹, which was adopted by the Seimas on 28 October 2004, the Law Supplementing the Criminal Code of the Republic of Lithuania with Article 250¹, which was adopted by the Seimas on 11 November 2004, the Law on Amending Article 292 and Supplementing the Annex of the Criminal Code of the Republic of Lithuania, which was adopted by the Seimas on 22 December 2004, the Law on Amending and Supplementing Articles 48, 60, 145, 147, 157, 212, 213, 214, 215, 226, 249, 251, 252, 256, 267, 270, 272, 274 and 280 and the Annex of the Criminal Code of the Republic of Lithuania and Supplementing the Code with Articles 147¹, 199¹, 199², 267¹, 270¹ and 308¹, which was adopted by the Seimas on 23 June 2005 and the Law on Amending Articles 300 and 302 of the Criminal Code of the Republic of Lithuania and Supplementing the Code with Article 302¹, which was adopted by the Seimas on 20 January At the time of submission of the petition of the petitioner at the Constitutional Court, the Articles of the CC specified by the petitioner were set forth as follows: Article 148 titled Restriction of Freedom of the Actions of the Human Being of the CC wording of 5 July 2004; it reads: 1. Those, who required from a person to perform unlawful actions or to restrain from performing lawful actions or to behave in a different way according to the order of the culprit while using a psychological coercion on the victim or his relatives, shall be imposed a fine or restriction of freedom, or arrest or imprisonment for up to three years. 2. A person shall be held liable for the criminal deed specified in Paragraph 1 of this Article only in the case when there is a complaint of the victim or an application of his legitimate

7 7 representative, or a demand of the prosecutor. 3. A legal person shall also be held liable for the deed provided for in this Article. Article 168 titled Unlawful Disclosure or Use of Information on Private Life of a Person of the CC wording of 26 September 2000; it reads: 1. Those, who announced in public, used or used for the good of other persons the information on the private life of other human being without an assent of that person, if he found out that information because of his office or profession or while performing a temporary task, or collected it while committing the deed provided for in Articles of this Code, shall be imposed public works or a fine, or restriction of freedom, or arrest, or imprisonment of up to three years. 2. A legal person shall also be held liable for the deed provided for in this Article. 3. A person shall be held liable for the criminal deed specified this Article only in the case when there is a complaint of the victim or an application of his legitimate representative, or a demand of the prosecutor. Article 182 titled Fraud of the CC wording of 5 July 2004; it reads: 1. Those, who acquired other person s property or property right for their benefit or the benefit of other persons, avoided the property liability or eliminated it by fraud, shall be imposed public works or a fine, or restriction of freedom, or arrest, or imprisonment of up to three years. 2. Those, who acquired other person s property of big value or property right for their benefit or the benefit of other persons, avoided the property liability or eliminated it by deception, shall be imposed imprisonment of up to eight years. 3. Those, who acquired other person s property or property right for their benefit or the benefit of other persons of small value, avoided the property liability of small value or eliminated it by fraud, committed a criminal misdemeanour and shall be imposed public works or a fine, or restriction of freedom, or arrest. 4. A person shall be held liable for the criminal deed specified Paragraphs 1 and 3 of this Article only in the case when there is a complaint of the victim or an application of his legitimate representative, or a demand of the prosecutor. 5. Legal persons shall also be held liable for the deeds provided for in Paragraphs 1 and 2 of this Article. Article 183 titled Conversion of Property of the CC wording of 26 September 2000; it reads: 1. Those, who converted someone else s property or property right that was entrusted to

8 8 them or at his disposal, shall be imposed public works or a fine, or imprisonment for up to three years. 2. Those, who converted someone else s property or property right of big value that was entrusted to them or at their disposal, shall be imposed imprisonment for up to ten years. 3. Those, who converted someone else s property or property right of small value that was entrusted to him or at his disposal, committed a criminal misdemeanour and shall be imposed public works or a fine, or arrest. 4. Legal persons shall also be held liable for the deeds provided for in Paragraphs 1 and 2 of this Article. 5. A person shall be held liable for the criminal deeds specified in Paragraphs 1 and 3 of this Article only in the case when there is a complaint of the victim or an application of his legitimate representative, or a demand of the prosecutor. Article 186 titled Pecuniary Damage Inflicted by Fraud of the CC wording of 10 April 2003; it reads: 1. Those, who avoided to pay for the done works, received goods, provided services or avoided the obligatory fees by fraud, and thus, inflicted pecuniary damage upon other person, shall be imposed public works or a fine, or restriction of freedom, or imprisonment of up to two years. 2. Those, who inflicted small pecuniary damage upon other person by fraud, committed a criminal misdemeanour and shall be imposed public works, or a fine, or restriction of freedom, or arrest. 3. Legal persons shall also be held liable for the deeds provided for in Paragraph 1 of this Article. 4. A person shall be held liable for the criminal deed specified in Paragraphs 1 and 3 of this Article only in the case when there is a complaint of the victim or an application of his legitimate representative, or a demand of the prosecutor. Article 187 titled Destruction or Damaging of Property of the CC wording of 10 April 2003; it reads: 1. Those, who destroyed or damaged someone else s property, shall be imposed public works or a fine, or restriction of freedom, or imprisonment of up to two years. 2. Those, who destroyed or damaged someone else s property in a publicly dangerous way or while disassembling or destroying the equipment or aggregate, if people could suffer from that,

9 9 or destroyed or damaged someone else s property of big value or the values that are of much scientific, historical or cultural importance, shall be imposed arrest or imprisonment for up to five years. 3. Those, who destroyed or damaged someone else s property of small value, committed a criminal misdemeanour and shall be imposed public works or a fine, or restriction of freedom, or arrest. 4. A person shall be held liable for the criminal deed specified in Paragraphs 1 and 3 of this Article only in the case when there is a complaint of the victim or an application of his legitimate representative, or a demand of the prosecutor. 5. It is obvious from the arguments of the petition of the group of members of the Seimas, the petitioner, as well as from the explanations of the representatives of the petitioner at the Constitutional Court s hearing that the petitioner had doubts and the Constitutional Court is requested to investigate whether Paragraph 2 of Article 148 (wording of 5 July 2004), Paragraph 3 of Article 168 (wording of 26 September 2000), Paragraph 4 of Article 182 (wording of 5 July 2004), Paragraph 5 of Article 183 (wording of 26 September 2000), Paragraph 4 of Article 186 (wording of 10 April 2003) and Paragraph 4 of Article 187 (wording of 10 April 2003) of the CC to the extent that they prescribe that a person shall be held liable for the criminal deed specified in these paragraphs not only in the case when there is a complaint of the victim or an application of his legitimate representative, not only in the case, when the prosecutor demands so, as the corresponding deed is of public importance and/or there are important reasons due to which the victim or his representative cannot defend his rights and legitimate interests, but, according to the petitioner, also in the case when there is a demand of the prosecutor, even though the corresponding deed is not of public importance and there are no important reasons due to which the victim or his representative cannot defend his rights and legitimate interests, are not in conflict with the constitutional principle of a state under the rule of law. It needs to be held that the petitioner had no doubts on the establishment of the criminal liability for the criminal deeds provided for in his specified articles of the CC or on the size of the sanctions for these deeds, for the categorisation of these criminal deeds as crimes or criminal misdemeanours, also on whether other articles (parts thereof) of the CC, which were not specified by the petitioner, including the provisions, which are analogous to those that are impugned by the petitioner, are not in conflict with the Constitution. Nor did the petitioner have doubts on the legal regulation which entrenches the subjects of criminal liability for corresponding criminal deeds; in this context, it should be noted that the criminal liability of legal persons is a new institute in criminal law of Lithuania, which has not been investigated in the jurisprudence of the Constitutional

10 10 Court so far; when the compliance of the impugned legal regulation with the Constitution is investigated in the aspect specified by the petitioner, the provisions linked thereto regarding the subjects of criminal liability for corresponding criminal deeds is not a matter of investigation. 6. While deciding, whether the provisions impugned by the petitioner are not in conflict with the constitutional principle of a state under the rule of law, one must take account of the constitutional status of the prosecutor, of the powers that he, under the Constitution, has in criminal proceedings, and of how they have been construed in the official constitutional doctrine. In this context, it should be noted that that the institute of the prosecutor entrenched in the Constitution (inter alia, Article 118 thereof) is linked to the constitutional right of a person to due process of law and with other constitutional values. Under Article 118 of the Constitution, the prosecutors shall perform the following functions: organise and direct the pre-trial investigation, as well as uphold charges on behalf of the state in criminal cases (Paragraph 1), in cases established by law, defend the rights and legitimate interests of the person, society and the state (Paragraph 2). In Paragraph 3 of Article 118 of the Constitution, it is entrenched that when performing his functions, the prosecutor shall be independent and shall obey only the law. It should be emphasised that, subsequent to the provision of Paragraph 2 of Article 118 of the Constitution, under which, in cases established by law, the prosecutor shall defend the rights and legitimate interests of the person, society and the state, a duty arises for the legislature to establish such legal regulation that the prosecutor could and would have to defend the rights and legitimate interests of the person, society and the state in reality: in all cases, when the rights or legitimate interests of the person, society or the state have been violated, or when it is attempted to violate them, the efficient defence and protection of such rights and legitimate interests, inter alia, against criminal attempts, must be ensured (the Constitutional Court s ruling of 16 January 2006). 7. In the articles of the CC, whose compliance with the Constitution is impugned by the petitioner, criminal liability is established for certain criminal deeds: restriction of freedom of actions of a human being, unlawful disclosure or use of information on private life of a person, fraud, conversion of property, pecuniary damage inflicted by fraud, destruction or damaging of property. The impugned provisions of the CC should be construed while taking account of certain provisions of the CC on such kinds of the criminal proceedings that are different from the constitutional model of general criminal procedure. In this context, it needs to be noted that, as the Constitutional Court held in its ruling of 16 January 2006, the Constitution does not prevent from entrenching by law various kinds of the criminal procedure, which are different from the constitutional model of the general criminal procedure, but establishment of different kinds of the criminal procedure must be constitutionally grounded, one must pay heed to the norms and

11 11 principles of the Constitution, inter alia, entrenching the constitutional status of prosecutors. It should also be emphasised that, while establishing such exceptions of the constitutional model of the general criminal procedure, one must pay heed to the consistency of the legal system and of internal harmony imperatives that arise from the Constitution. In the constitutional justice case at issue, it should be noted that the legislature has discretion to stipulate that for certain criminal deeds the person is held liable only in the case when there is an application (request, statement, complaint, etc.) of the victim (or his representative) concerning the corresponding criminal deed, and that in such cases the pre-trial investigation is not carried out and the prosecutor does not uphold charges on behalf of the state in court (the Constitutional Court s ruling of 16 January 2006). However, also in such cases, the prosecutor (who, under the Constitution, must, in cases provided by law, defend the rights and legitimate interests of the person, society and the state) must, if it is provided for by law, institute the criminal proceedings even if there is no application (request, statement, complaint, etc.) of the victim (or his representative) concerning the corresponding criminal deed. The said duty of the prosecutor to institute the criminal proceedings is linked to the public importance of the corresponding deed and/or to the fact that by this deed the rights of the person were violated where the said person, due to important reasons, cannot defend his rights and legitimate interests. The legislature may also establish by law such legal regulation that for certain criminal deeds, a person shall be held liable only in the cases, when there is an application (request, statement, complaint, etc.) of the victim (or his representative) concerning the criminal deed, but the pre-trial investigation is carried out in such case, and the prosecutor upholds charges on behalf of the state in court; also in this case, the legislature may establish the cases where the prosecutor must institute the criminal proceedings, even though there is no application (request, statement, complaint, etc.) of the victim (or his representative); such a duty of the prosecutor should also be linked to the public importance of the corresponding criminal deed and/or to the fact that by this deed the rights and legitimate interests of the person were violated where the said person, due to important reasons, cannot defend his rights and legitimate interests. Summing up, it must be noted that in all cases, when the criminal liability appears on the grounds of an application (request, statement, complaint, etc.) of the victim (or his representative) concerning the criminal deed, the institution of the pre-trial investigation and/or the appearance of the criminal liability are linked to the fact how the corresponding criminal deed or the damage inflicted by it is assessed by the person whose rights and legitimate interests were violated; it is obvious that there exists some subjectivity of such assessment. While the duty of the prosecutor to institute the criminal proceedings concerning the said criminal deeds (i.e. such deeds, for which a

12 12 person is held liable only in the case when there is an application (request, statement, complaint, etc.) of the victim (or his representative)), the institution of the pre-trial investigation and/or the appearance of the criminal liability are related to the fact that the corresponding criminal deed is of public importance or that by this deed the rights and legitimate interests of the person were violated where the said person, due to important reasons, cannot defend his rights and legitimate interests. Even though in some of such cases, the decisions of the prosecutor, grounded on the assessment of all the important circumstances, may depend on various factors, under the Constitution, the prosecutor has no discretion in this field. In this context, it should be emphasised that, as it was held by the Constitutional Court, the powers of prosecutors as state officials may not be defined in legal acts as their subjective right, which they can implement at their own discretion, i.e. such right which they either can use or can decide not to use. Such powers are also the duties which the prosecutors not only can but also must implement if there are corresponding conditions established in laws (the Constitutional Court s ruling of 16 January 2006). 8. The impugned provisions of the CC, as the whole legal regulation entrenched in the specified articles of the CC, should be construed while taking account of: the provisions of Chapter XXX titled Proceedings of Cases of Private Accusation of the CCP (Articles , wording of 14 March 2002 with subsequent amendments and supplements made by the Law on Amending and Supplementing Articles 151, 168, 276, 407 and 409 of the Code of the Criminal Procedure of the Republic of Lithuania, which was adopted by the Seimas on 19 June 2003, and by the Law on Amending and Supplementing Articles 65, 94, 103, 109, 139, 151, 154, 158, 168, 181, 218, 220, 225, 232, 237, 239, 240, 306, 313, 346, 360, 364, 370, 377, 403, 409, 418, 421, 422, 425, 426, 429, 446, 457 and 458 and the Title of Chapter XXXV of the Code of the Criminal Procedure of the Republic of Lithuania, which was adopted by the Seimas on 8 July 2004) concerning the proceedings of cases of private accusation one must take account of these provisions while construing Paragraph 2 of Article 148 (wording of 5 July 2004), Paragraph 3 of Article 168 (wording of 26 September 2000) and Paragraph 4 of Article 187 (wording of 10 April 2003) of the CC, inter alia, the impugned provisions of these paragraphs; the provisions of Paragraph 2 (wording of 14 March 2002) of Article 166 titled Beginning of the Pre-trial Investigation and of Article 167 titled Beginning of the Pre-trial Investigation Only Subsequent to a Complaint of the Victim or an Application of his Legitimate Representative, or a Demand of the Prosecutor (wording of 14 March 2002) of the CCP concerning certain peculiarities of the beginning of the pre-trial investigation one must take account of these provisions while construing Paragraph 4 of Article 182 (wording of 5 July 2004), Paragraph 5 of Article 183 (wording of 26 September 2000) and Paragraph 4 of Article 186

13 13 (wording of 10 April 2003) of the CC, inter alia, the impugned provisions of these paragraphs. 9. The proceedings of cases of private accusation regulated in Chapter XXX titled Proceedings of Cases of Private Accusation (Articles ; wording of 14 March 2002 with subsequent amendments and supplements) of the CCP is one of specific kinds of the criminal procedure, i.e. such legal way of resolving conflicts when the giving juridical basis to (criminalisation of) a certain conflict and a person s prosecution are determined not by the will of state institutions (officials), but by the will of the victim to apply to competent state institutions in order to institute the criminal proceedings so that the criminal proceedings would be instituted when a person, who has committed a criminal deed, is accused not by the prosecutor who upholds the accusation on behalf of the state, but by the victim (his representative) himself, and when the parties of the conflict have a possibility of conciliation and, thus, of establishing the legal pre-conditions for dismissing the instituted criminal proceedings prior to the very moment when the person, who is accused of the commission of the criminal deed, is declared guilty or not guilty. In this context, it should be noted that the proceedings of the criminal cases regarding the criminal deeds provided for in Paragraph 1 of Article 139, Paragraph 1 of Article 140, Articles 148, 152, 154, 155, 165, 168, Paragraphs 1 and 3 of Article 187 and Articles 188 and 313 of the CC are instituted only in the case when there is a complaint of the victim or an application of his legitimate representative; in these cases the pre-trial investigation is not carried out, save the cases provided for in Article 409 of the CCP (Article 407 (wording of 19 June 2003) of the CCP). If the corresponding criminal deeds regarding which the procedure of criminal cases must be carried out under the rules of the proceedings of cases of private accusation are of public importance or if they inflicted damage upon the person, who, due to important reasons, cannot defend his rights and legitimate interests, also the prosecutor shall have the right (powers) to institute the criminal proceedings regarding these deeds (Paragraph 1 (wording of 19 June 2003) of Article 49 of the CCP) The criminal deeds specified in Article 407 (wording of 19 June 2003) of the CCP also include the criminal deeds specified in Articles 148 and 168 and Paragraphs 1 and 3 (there is a reference to them in Paragraph 4 of this article, whose provision is impugned by the petitioner in this constitutional justice case) of Article 187 of the CC, whose provisions are impugned by the petitioner in this constitutional justice case While construing the legal regulation established in Chapter XXX titled Proceedings of Cases of Private Accusation (Articles ; wording of 14 March 2002, with subsequent amendments and supplements) of the CCP, in its ruling of 16 January 2006, the Constitutional Court held, inter alia, that: under Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP, even if there is

14 14 no complaint of the victim or application of his legitimate representative, the prosecutor has the power to institute the criminal proceedings regarding the criminal deeds specified in Article 407 of the CCP (as mentioned before, they also include the criminal deeds specified in Paragraph 2 of Article 148 (wording of 5 July 2004), Paragraph 3 of Article 168 (wording of 26 September 2000) and Paragraph 4 (in which there is a reference to Paragraphs 1 and 3 of this Article) of Article 187 (wording of 10 April 2003 of the CC, whose provision is impugned by the petitioner in this constitutional justice case), which are of public importance, or if they inflicted damage upon the person who, due to important reasons, cannot defend his legitimate interests; the formula due to important reasons, cannot defend his legitimate interests of Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP describes such situations, when the person cannot in general (himself or through his legitimate representative) express his will to defend his legitimate interests and/or cannot (himself or through his legitimate representative) perform certain actions (take other measures), by which he would defend these legitimate interests (for example, due to physical or psychological disability, absence of legal subject, etc.) and such, when even if the person can (himself or through his legitimate representative) express his will to defend his legitimate interests and can (himself or through his legitimate representative) perform certain actions by which he would defend these legitimate interests, though these actions (other measures) may not objectively be enough for these interests to be defended (for example, due to the impossibility of receiving the necessary information, due to the absence of the right to perform certain actions of the proceedings, etc.); the formula criminal deeds are of public importance of Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP is not to be related to one or several signs of a criminal deed (for example, to the position or social status of the victim, to the response of the society regarding the criminal deed, etc.) but with various signs of the criminal deed and circumstances under which it was committed. While deciding, whether the criminal deed is of public importance, in every case it is necessary to assess what consequences for the society, the state and the legal system could appear if the criminal proceedings regarding this deed and other analogous deeds were not instituted; the provision also the prosecutor shall have the right to institute criminal proceedings regarding these deeds of Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP cannot be construed as allowing the prosecutor to decide at his discretion whether or not to institute the criminal proceedings regarding the criminal deed specified in Article 407 (wording of 19 June 2003) of the CCP when there are not any conditions specified in Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP (i.e. when this deed is of public importance or if it inflicted damage upon the person who, due to important reasons, cannot defend his legitimate interests). While

15 15 construing this provision in the context of the overall legal regulation of the proceedings of cases of private accusation in the CCP, the principles and purposes of the criminal procedure as well as the provisions, consolidating the constitutional status of the prosecutor, it should be held that it consolidates the unquestionable duty of the prosecutor, who has the constitutional obligation to defend, inter alia, the rights and legitimate interests of the person (Paragraph 2 of Article 118 of the Constitution), to institute criminal proceedings in all cases when: (1) the criminal deed specified in Article 407 (wording of 19 June 2003) of the CCP is of public importance, regardless of whether or not there is a complaint of the victim or an application of his legitimate representative; (2) by the criminal deed specified in Article 407 (wording of 19 June 2003) of the CCP damage was inflicted upon the person who in general cannot (himself or through his legitimate representative) express his will to defend his legitimate interests and/or cannot (himself or through his legitimate representative) perform certain actions (take other measures), by which he would defend these legitimate interests, regardless of whether or not there is a complaint of the victim or an application of his legitimate representative; (3) by the criminal deed specified in Article 407 (wording of 19 June 2003) of the CCP damage was inflicted upon the person who can (himself or through his legitimate representative) express his will to defend his legitimate interests and has (himself or through his legitimate representative) expressed it (he has himself or through his legal representative applied to the competent institution or official under the procedure established by the laws), though the actions that he (himself or through his legitimate representative) can perform (other measures that he can take) in order to defend his legitimate interests objectively may not be enough for these interests to be defended; under Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP, the prosecutor does not have powers to institute criminal proceedings regarding the criminal deed specified in Article 407 (wording of 19 June 2003) of the CCP when there is not a single condition (this deed is not of public importance and it has not inflicted damage upon the person who, due to important reasons, cannot defend his legitimate interests), specified in Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP. Under Paragraph 1 (wording of 19 June 2003) of Article 409 of the CCP, neither does the prosecutor have the powers to institute criminal proceedings regarding the criminal deed specified in Article 407 (wording of 19 June 2003) of the CCP when by the criminal deed that is not of public importance damage was inflicted upon the person who can (himself or through his legitimate representative) express his will to defend his legitimate interests, but he neither himself nor through his legitimate representative expresses such a will, i.e. there is no complaint of the victim or application of his legitimate representative It has been mentioned that the criminal deeds specified in Article 407 (wording of 19

16 16 June 2003) of the CCP also include the criminal deeds specified in Paragraph 2 of Article 148 (wording of 5 July 2004), Paragraph 3 of Article 168 (wording of 26 September 2000) and Paragraph 4 (in which there is a reference to Paragraphs 1 and 3 of this Article) of Article 187 (wording of 10 April 2003 of the CC), whose provisions are impugned by the petitioner in this constitutional justice case. Thus, the provisions of the listed paragraphs impugned by the petitioner, as regards the aspect specified by the petitioner, should also be construed as consolidating the unquestioned duty of the prosecutor, who has the constitutional obligation to defend, inter alia, the rights and legitimate interests of the person, to institute the criminal proceedings in all cases, when: (1) the corresponding criminal deed is of public importance, regardless of whether or not there is a complaint of the victim or an application of his legitimate representative; (2) by the corresponding criminal deed, damage is inflicted upon the person, who cannot in general (himself or through his legitimate representative) express his will to defend his legitimate interests and/or cannot (himself or through his legitimate representative) perform certain actions (take other measures), by which he would defend these legitimate interests regardless of whether or not there is a complaint of the victim or an application of his legitimate representative; (3) by the corresponding criminal deed, damage is inflicted upon the person who can (himself or through his legitimate representative) express his will to defend his legitimate interests and has (himself or through his legitimate representative) expressed it (he has himself or through his legal representative applied to the competent institution or official under the procedure established by the laws), though the actions that he (himself or through his legitimate representative) can perform (other measures that he can take) in order to defend his legitimate interests objectively may not be enough for these interests to be defended. The impugned provisions may not be construed as consolidating the powers of the prosecutor to institute the criminal proceedings concerning the corresponding criminal deeds when there is not a single one of the specified circumstances constitutionally grounded conditions. While construing the provisions of Paragraph 2 of Article 148 (wording of 5 July 2004), Paragraph 3 of Article 168 (wording of 26 September 2000), and Paragraph 4 of Article 187 (wording of 10 April 2003) of the CC precisely this way, they may not be regarded as being in conflict with the Constitution in the aspect specified by the petitioner, inter alia, with the constitutional principle of a state under the rule of law. 10. Certain peculiarities of the beginning of the pre-trial investigation concerning certain criminal deeds, which should be categorised as belonging to the model of criminal procedure which has the features of both the model of proceedings of cases of private accusation and the constitutional model of general criminal procedure are established in Paragraph 2 (wording of 14

17 17 March 2002) and Article 167 (wording of 14 March 2002) of the CCP: in this model of criminal procedure the giving juridical basis to (criminalisation of) a certain conflict and a person s prosecution are, as a rule, determined by the will of the victim or his representative to apply to competent state institutions in order to institute the criminal proceedings, however, it differs from the model of the proceedings of cases of private accusation, inter alia, by the fact that the pre-trial investigation is always carried out and the criminal proceedings are carried out under the general procedure (the accusation on behalf of the state is upheld in court by the prosecutor). In this context, it needs to be noted that it is entrenched in Paragraph 2 (wording of 14 March 2002) of Article 166 of the CCP that in the cases established in the CCP the pre-trial investigation is begun only in the case when there is a complaint of the victim; it is established in Paragraph 1 (wording of 14 March 2002) of Article 167 of the CCP that the pre-trial investigation concerning the criminal deeds provided for in Article 145, Paragraph 1 of Article 149, Paragraph 1 of Article 150, Paragraph 1 of Article 151, Paragraphs 1 and 4 of Article 178, Paragraphs 1 and 3 of Article 179, Paragraphs 1 and 3 of Article 182, Paragraphs 1 and 3 of Article 183, Paragraphs 1 and 3 of Article 184, Article 186 and Paragraph 1 of Article 294 of the CC is begun only in the case when there is a complaint of the victim or an application of his legitimate representative, and that in these cases the proceedings are carried out under the general procedure; it is established in Paragraph 2 (wording of 14 March 2002) of Article 167 of the CCP that in the cases provided for in Paragraph 1 of this article, the pretrial investigation may be begun upon a demand of the prosecutor The criminal deeds specified in Paragraph 1 (wording of 14 March 2002) of Article 167 of the CCP also include the criminal deeds specified in Paragraphs 1 and 3 (to which there is a reference in Paragraph 4 of this article, whose provision is impugned by the petitioner in this constitutional justice case) of Article 182, Paragraphs 1 and 3 (to which there is a reference in Paragraph 5 of this article, whose provision is impugned by the petitioner in this constitutional justice case) of Article 183 and Article 186 of the CC, whose provisions are impugned by the petitioner in this constitutional justice case The powers of the prosecutor to institute the criminal proceedings entrenched in Paragraph 4 of Article 182 (wording of 5 July 2004), Paragraph 5 of Article 183 (wording of 26 September 2000) and Paragraph 4 of Article 186 (wording of 10 April 2003) of the CC, whose provisions are impugned by the petitioner in this constitutional justice case, and the powers of the prosecutor established in Article 167 (wording of 14 March 2002) of the CCP in themselves may not raise doubts on their compliance with the Constitution, since, as mentioned before, under the Constitution, the prosecutor has the obligation to defend, inter alia, the rights and legitimate interests of the person, and he has the unquestioned duty to institute the criminal proceedings, inter

18 18 alia, in the cases when the corresponding criminal deed is of public importance, when it inflicts damage upon the person who cannot in general (himself or through his legitimate representative) express his will to defend his legitimate interests and/or cannot (himself or through his legitimate representative) perform certain actions (take other measures), by which he would defend these legitimate interests. However, it needs to be emphasised that, under Paragraph 2 of Article 118 of the Constitution, it is in cases established by law when the prosecutor shall defend the rights and legitimate interests of the person, society and the state; it has been mentioned that subsequent to this provision, a duty arises for the legislature to establish such legal regulation that the prosecutor could and would have to defend the rights and legitimate interests of the person, society and the state in reality. It should be noted in the constitutional justice case at issue that the said provision implies the legal regulation where the cases when the prosecutor has the powers to institute the criminal proceedings must be clearly defined in the law Among the provisions of the CCP that regulate the model of criminal procedure which is entrenched in Paragraph 2 (wording of 14 March 2002) and Article 167 (wording of 14 March 2002) of the CCP and which has the features of both the model of proceedings of cases of private accusation and the constitutional model of general criminal procedure, there are no such, which would define the cases, when the prosecutor has the powers to institute the criminal proceedings concerning the corresponding criminal deeds on his own initiative. Due to that, as well as due to the laconism and certain indetermination of Paragraph 4 of Article 182 (wording of 5 July 2004), Paragraph 5 of Article 183 (wording of 26 September 2000) and Paragraph 4 of Article 186 (wording of 10 April 2003) of the CC, whose provisions are impugned by the petitioner in this constitutional justice case, certain legal preconditions occur also for such interpretation of this legal regulation and such application of the corresponding provisions, when the powers of the prosecutor to institute the criminal proceedings or to not institute them on his own initiative are also considered as a subject of his discretion subjective right which may be implemented by the prosecutor at his own discretion. Such practice of application of law would be deficient and constitutionally groundless. Thus, the legal regulation due to which the said preconditions for the deficient practice of the application of law occur should be corrected. However, the fact that also when the discussed model of criminal procedure was chosen, the cases when the prosecutor has the powers to institute the criminal procedure on his own initiative, under the Constitution, must be clearly determined in the law, does not mean that the corresponding legal regulation must be entrenched namely in Paragraph 4 of Article 182 (wording of 5 July 2004), Paragraph 5 of Article 183 (wording of 26 September 2000) and Paragraph 4 of Article 186 (wording of 10 April 2003) of the CC, whose provisions are impugned by the petitioner in this