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

Transcription

1 Case no 3/ / /2015 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA IN THE NAME OF THE REPUBLIC OF LITHUANIA RULING ON THE COMPLIANCE OF THE PROVISION OF PARAGRAPH 1 OF ARTICLE 3, PARAGRAPH 1 OF ARTICLE 235, PARAGRAPH 4 OF ARTICLE 254, AND ITEM 1 OF ARTICLE 327 OF THE CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA 27 June 2016, no KT19-N10/2016 Vilnius The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Vytautas Greičius, Danutė Jočienė, Pranas Kuconis, Gediminas Mesonis, Vytas Milius, Egidijus Šileikis, Algirdas Taminskas, 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 53 1 of the Law on the Constitutional Court of the Republic of Lithuania, at the Court s hearing, on 14 June 2016, considered, under written procedure, constitutional justice case no 3/ / /2015 subsequent to the petition (no 1B-79/2014) of the Supreme Court of Lithuania (Lietuvos Aukščiausiasis Teismas), a petitioner, the petition (no 1B-19/2015) of the Court of Appeal of Lithuania (Lietuvos apeliacinis teismas), a petitioner, and the petition (no 1B-22/2015) of the Kaunas Regional Court (Kauno apygardos teismas), a petitioner, requesting an investigation into whether the provision of Article 3 of the Code of Criminal Procedure of the Republic of Lithuania whereby criminal proceedings must be terminated if the statutory limitation period for criminal liability has expired, insofar as this provision prohibits the continuation of the proceedings before a court where the continuation is requested by the accused, is in conflict with Paragraph 2 of Article 21, Paragraph 4 of Article 22, Paragraph 1 of Article 29, and Paragraph 2 of Article 31 of

2 2 the Constitution of the Republic of Lithuania, as well as with the constitutional principle of a state under the rule of law. By the Constitutional Court s decision of 2 June 2016, the foregoing petitions were joined into one case, and it was given reference no 3/ / /2015. The Constitutional Court has established: I 1. The Supreme Court of Lithuania, a petitioner, was considering a criminal case subsequent to a cassation appeal against an order of the court of appeal instance by which an acquittal judgment delivered by the court of first instance had been overturned and the criminal case had been dismissed upon the expiry of the statutory limitation period for criminal liability. The cassation appeal requested the Supreme Court of Lithuania to overturn the order of the court of appeal instance and to uphold the acquittal judgment of the court of first instance. 2. The Court of Appeal of Lithuania, a petitioner, was considering a criminal case subsequent to an appeal against a judgment of the court of first instance by which a person had been acquitted of a part of filed charges and, as regards one charge, the criminal case had been dismissed upon the expiry of the statutory limitation period for criminal liability. The appeal requested the Court of Appeal of Lithuania to overturn the part of the judgment of the court of first instance by which the criminal case had been dismissed upon the expiry of the statutory limitation period for criminal liability and to pass an acquittal judgment. 3. The Kaunas Regional Court, a petitioner, was considering a criminal case subsequent to an appeal against an order of the court of first instance by which the criminal case had been dismissed upon the expiry of the statutory limitation period for criminal liability. The appeal requested the Kaunas Regional Court, among other things, to consider the criminal case on its merits and to pass an acquittal judgment. 4. By means of the orders issued by them, the petitioners suspended the consideration of the criminal cases and applied to the Constitutional Court. II The petitions of the Supreme Court of Lithuania, the Court of Appeal of Lithuania, and the Kaunas Regional Court, the petitioners, are substantiated by the following arguments. 1. Under the legal regulation laid down in Article 3 of the Code of Criminal Procedure (Baudžiamojo proceso kodeksas (BPK), hereinafter also referred to as BPK), upon the expiry of the statutory limitation period for criminal liability, a court must dismiss the case and may deliver neither a convicting judgment nor an acquittal judgment. This prohibition is applicable regardless of

3 3 the request of an accused person to continue the proceedings and pass an acquittal judgment. 2. Public charges, in the absence of any possibility for their public denial after hearing a case in a court, in principle create the preconditions for giving rise to irreversible damage to the honour and dignity of an accused person. The indictment expresses the view of the state, which acts through an independent prosecutor, that sufficient data have been collected to prove the fault of the accused in committing a criminal act. The public announcement of such a view creates the preconditions for the public to seriously question the good repute of the person against whom the charge has been made. Although, after the dismissal of a case upon the expiry of the statutory limitation period, these charges may not be made again and the presumption of innocence is not denied, the aforementioned doubts in society may persist. In addition, the prohibition on finishing to investigate the charge formulated in a criminal case can preclude the determination of circumstances whose significance go beyond the criminal case and can harm other legitimate interests of a person against whom the case has been dismissed. In support of their position, the petitioners refer, among other things, to the following provisions of the constitutional doctrine that were formulated in the Constitutional Court s ruling of 7 July 2011: a special condition established for persons seeking to hold or holding a position in state service where such a position is connected with the use or protection of classified information is an especial and not in the least questionable reliability of these persons and their loyalty to the State of Lithuania; this condition relates to the trust of the state in such a person; the fact that a person is not held guilty of committing a criminal act until the guilt of the person in committing the said act is proved in accordance with the procedure established by law and recognised by an effective court judgment does not yet mean that a person seeking to hold or holding a position in state service where such a position is connected with the use of classified information and protection thereof necessarily deserves the trust of the state and that a state institution authorised by law may not have certain doubts as to the reliability of that person or his/her loyalty to the State of Lithuania, which would be raised not as a result of the established guilt of the person in committing a criminal act, but by certain significant factual circumstances, the activity of the person, his/her personal characteristics, reputation, ties, or other significant circumstances, including ones relating to a possibly committed criminal act; in assessing the said circumstances, a state institution authorised by law does not administer justice, nor does it judge the person s guilt in committing a criminal act. 3. According to the petitioners, the provision of Paragraph 2 of Article 31 of the Constitution, by which 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, may also be understood as one whereby, after it transpires at the court of first instance that the statutory limitation period for passing a convicting judgement has expired, the case must be considered on its merits at the request

4 4 of the accused. On the other hand, in order to ensure the coherence and clarity of the legal regulation, the BPK should clearly consolidate the opportunity to dismiss a criminal case owing to the expiry of the statutory limitation period when the consideration thereof on its merits has been finished and, by adopting a final act, to hold that the accused has committed the criminal act specified in the charge if no grounds have been found for acquitting the accused. In exercising his/her right to continue the consideration of his/her case, the accused must assume the risk that the charge may be confirmed by the court, but he/she must be protected from criminal sanctions for the criminal act regarding which the case has been dismissed. 4. According to the interpretation, established in case law, of Item 7 of Paragraph 1 of Article 3 of the BPK, if, in the course of criminal proceedings before the court of first instance the accused dies, the proceedings must be continued if the representatives of the said person so request in order to obtain an acquittal. This constitutes grounds for doubting whether the prohibition, provided for in Article 3 of the BPK, on continuing the proceedings where the accused so requests is in conflict with the principle of the equality of persons, which is enshrined in Article 29 of the Constitution. In the opinion of the petitioners, these groups of persons are treated in a different manner, although between the said groups of persons there are no differences of such a character or extent that could objectively justify their uneven treatment. III In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations were received from the representatives of the Seimas of the Republic of Lithuania, the party concerned, who were Seimas member Vitalijus Gailius, Seimas member Stasys Šedbaras, and Rūta Rutkauskaitė, the chief specialist from the Civil Law Unit of the Legal Department of the Office of the Seimas, in which they asserted that the impugned legal regulation was not in conflict with the Constitution. The position of the representatives of the Seimas is substantiated by the following arguments. 1. The initiation of a criminal case, the carrying out of a pretrial investigation, the drawing up of an indictment, and other actions performed in the course of criminal procedure cannot be considered an encroachment on personal dignity, since otherwise officials would not be able to carry out any actions in the course of criminal procedure at all and, due to this, no committed criminal acts would be investigated and no persons accused of committing criminal acts would be convicted. The indictment drawn up by the prosecutor while upholding the charges in criminal cases, if assessed from the point of view of the legal situation of the suspect, a participant in the criminal procedure, cannot be compared with a convicting court judgment: the said acts create different legal consequences: a person against whom an indictment has been drawn up under the procedure established by the BPK becomes an accused person, and a person in whose respect the

5 5 court has passed a convicting judgment becomes a convicted person. Where a case is dismissed upon the expiry of the statutory limitation period, the accused person is not recognised guilty; therefore, the question arises as to the validity of the rehabilitation of such a person. 2. The legislature has the discretion to choose and establish in laws such a legal regulation whereby, upon the expiry of the statutory limitation period for criminal liability, the court, despite the request of the accused to continue the proceedings and pass an acquittal judgment, must dismiss the case and may not pass not only a convicting, but also an acquittal judgment. Any measure applied by state authorities must be adequate to the objective sought by the said measure, but the circle of persons who are interested in continuing the proceedings upon the expiry of the statutory limitation period can be extremely large, thus disproportionately increasing the workload of courts of general jurisdiction, which may be not in line with the principles of procedural economy and proportionality, both of which arise from the constitutional principle of a state under the rule of law. IV In the course of the preparation of the case for the hearing of the Constitutional Court, a written opinion was received from Juozas Bernatonis, Minister of Justice of the Republic of Lithuania. The Constitutional Court holds that: I 1. 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 of the Republic of Lithuania. Under Article 2 of this law, the date of the entry into force of the BPK had to be established by means of a separate law. On 29 October 2002, the Seimas adopted the Republic of Lithuania s Law on the Procedure for the Entry into Force and Implementation of the Criminal Code, as Approved by the Law (No VIII-1968) of 26 September 2000, the Code of Criminal Procedure, as Approved by the Law (No IX-785) of 14 March 2002, and the Code of the Enforcement of Punishments, as Approved by the Law (No IX-994) of 27 June 2002, in which it, inter alia, stipulated that the BPK comes into force as from 1 May 2003 (Article 1) and that, after the entry into force of the new BPK, the old Code of Criminal Procedure becomes no longer valid (Paragraph 2 of Article 47). 2. Article 3 (whose provision is impugned in the constitutional justice case at issue), titled Circumstances in Which Criminal Proceedings Are Not Possible, of Chapter I, titled The Purpose and Basic Rules of Criminal Proceedings of the BPK, prescribed:

6 6 1. Criminal proceedings may not be started, and any commenced proceedings must be dismissed: 1) where no act with the characteristics of a crime or a misdemeanour has been committed; 2) where the statutory limitation periods for criminal liability have expired; 3) where the criminal act has been committed by a person who, in accordance with international law, has immunity from criminal jurisdiction, or where there is no permission from a competent authority to bring a person to criminal responsibility when this permission is required by law; 4) where a person who, at the time of the commission of a criminal act, was not yet of the age from which he/she is liable under criminal law; 5) where a victim has made peace with a person accused of committing the criminal act referred to in Article 407 of this Code; 6) where there is no complaint of a victim or no statement of his/her legal representative, or where there is no prosecutor s request to initiate proceedings in cases where the proceedings can be commenced only subsequent to a complaint of the victim or a statement of his/her legal representative, or subsequent to a prosecutor s request; 7) with respect to a deceased person, except in cases where the proceedings are necessary for the rehabilitation of the deceased person or for the reopening of the case with respect to other persons due to newly discovered circumstances; 8) with respect to a person who is the subject of an effective court judgment on the same charge or who is the subject of an effective court order or an effective prosecutor s ruling to dismiss the proceedings on the same grounds; 9) if there is a circumstance removing the criminal liability, as provided for in Chapter V of the Criminal Code of the Republic of Lithuania. 2. If the circumstance specified in Item 1 of Paragraph 1 of this Article becomes evident in the proceedings before a court, the court shall finish the examination of the case and pass an acquittal judgment. The BPK has been amended and/or supplemented on more than one occasion, inter alia, by the Republic of Lithuania s Law on Amending and Supplementing Articles 3, 9, 40, 63, 64, 145, 147, 152, 154, 158, 160, 161, 162, 163, 170, 172, 178, 179, 181, 183, 212, 214, 217, 218, 220, 237, 254, 276, 372, 373, 374 1, 374 2, 418, 419, 421, 422, 426, 429 of the Code of Criminal Procedure of the Republic of Lithuania and Supplementing the Code with Articles 3 2 and 160 1, which was adopted by the Seimas on 21 June 2011 and came into force (with certain exceptions) on 1 September 2011 (Article 41). This law amended, inter alia, Article 3 of the BPK, which is impugned by the petitioners to the specified extent Item 3 of Paragraph 1 of the same Article 3

7 7 was declared as no longer valid (Article 1). Article 3 of the BPK (wording of 14 March 2002 with the amendment of 21 June 2011) has not been subsequently amended and/or supplemented. Thus, Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2011) of Article 3 of the BPK lists the circumstances in which criminal proceedings are not commenced or, if commenced, are terminated; one of such circumstances is the expiry of a statutory limitation period for criminal liability. Paragraph 2 of Article 3 of the BPK establishes the type of a decision to be taken by a court in cases where it is determined in the proceedings before the court that no act with the characteristics of a crime or a misdemeanour has been committed. It should be noted that Article 3 (wording of 14 March 2002 with the amendment of 21 June 2011) of the BPK does not stipulate that, upon the expiry of the statutory limitation period for criminal liability, the criminal proceedings may be continued if the suspect or accused so requests The provision Criminal proceedings may not be started, and any commenced proceedings must be dismissed of Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2011) of Article 3 of the BPK is implemented in accordance with the procedure established in other articles (paragraphs and items thereof) of the BPK, such as: A prosecutor or a pretrial investigation official, upon the receipt of a complaint, a statement, or a report, and, if necessary, an additional specification thereof, refuses to initiate a pretrial investigation only in cases where the specified data on the criminal act are manifestly incorrect or there is a clear indication of the circumstances referred to in Paragraph 1 of Article 3 of this Code [ ] (Paragraph 1 (wording of 21 June 2012) of Article 168, titled Refusal to Begin a Pretrial Investigation ); When refusing to begin a pretrial investigation, a prosecutor or a pretrial investigation official draws up a reasoned ruling. The pretrial investigation official may refuse to begin a pretrial investigation only with the consent of the head of a pretrial investigation establishment or a person authorised by him/her (Paragraph 2 (wording of 19 June 2003) of Article 168, titled Refusal to Begin a Pretrial Investigation ); A pretrial investigation shall be terminated: 1) when, during the pretrial investigation, it becomes evident that there exist circumstances provided for in Articles 3 or 3 2 of this Code (Item 1 (wording of 21 June 2011) of Article 212, titled Cases When Pretrial Investigations Must Be Terminated ); In the cases provided for in Items 1 and 2 of Article 212 of this Code, a pretrial investigation shall be terminated by ruling of the prosecutor or by order of the investigating judge (Paragraph 1 (wording of 13 November 2012) of Article 214, titled Procedure for Terminating

8 8 Pretrial Investigations ); During the preparation of a case for a court trial, the following orders are made: [ ] 7) to dismiss the case (Item 7 (wording of 8 July 2004) of Article 232, titled Orders Made during the Preparation of a Case for a Court Trial ); The case is dismissed when there are circumstances, provided for in Paragraph 1 of Article 3 of this Code, in which the proceedings are not possible [ ] (Paragraph 1 of Article 235, titled Dismissal of Cases ); In the proceedings before the court, when the circumstances provided for in Items 2 9 of Paragraph 1 of Article 3 of this Code are established, the case is dismissed by court order (Paragraph 4 (wording of 10 April 2003) of Article 254, titled Separation of Cases, Joining or Dismissal of Cases, or Referral of Cases to Prosecutors ); Having considered a case at a court hearing, the court of appeal instance shall make an order regarding the appealed judgment: [ ] 2) to overturn the judgment and dismiss the case on the grounds provided for in Paragraph 1 of Article 327 of this Code (Item 2 (wording of 28 June 2007) of Paragraph 1 (wording of 28 June 2007) of Article 326, titled Types of Decisions Adopted by Courts of Appeal Instance after the Examination of Cases ); The court of appeal instance shall overturn a judgment of the court of first instance and dismiss the case if: 1) there are circumstances, provided for in Items 2 9 of Paragraph 1 of Article 3 of this Code, in which the criminal proceedings are not possible (Item 1 (wording of 28 June 2007) of Article 327, titled Grounds for Overturning Judgments and Dismissing Cases ); Upon hearing a cassation case, the court shall make one of the following orders: [ ] 2) to overturn the judgment and subsequent court orders and to dismiss the case (Item 2 of Article 382, titled Orders Made by the Court That Has Examined a Cassation Case ) Thus, Articles 168, 212, 214, 232, 235, 254, 326, 327, and 382 (paragraphs and items thereof) of the BPK establish, inter alia, the entities that make decisions in criminal proceedings in the event that it is set out that the statutory limitation period for criminal liability has expired and the types of decisions to be taken in such a case: the beginning of a pretrial investigation is refused by a reasoned ruling passed by the prosecutor or the pretrial investigation official; a pretrial investigation is terminated by a ruling passed by the prosecutor or an order made by the investigating judge; a criminal case is dismissed by order of the court examining the case. It should be noted that, in the aforementioned articles (paragraphs and items thereof) of the

9 9 BPK, there are no provisions according to which, when a statutory limitation period for criminal liability has expired, the criminal proceedings could be continued if requested by the suspect or the accused It has been mentioned that, according to Paragraph 1 of Article 235 of the BPK, the case is dismissed when there are circumstances, provided for in Paragraph 1 of Article 3 of the BPK, in which the proceedings are not possible. Article 235 of the BPK is in Chapter XVIII, titled Preparation of a Case for a Court Trial, of the BPK. Under Paragraph 1 of Article 231 of the BPK, the president or the deputy president of a court, or the chairperson of the criminal division of a court shall, within two days from the receipt of the case at the court, appoint a judge who will prepare the case for a court trial and examine it after the case has been referred to the examination at a court trial; the appointed judge, having become acquainted with the case, makes one of the orders provided for in Article 232 of the BPK, except in the case envisaged in Paragraph 2 of Article 235 of the BPK. Under Paragraph 2 of Article 235 of the BPK, the issues of dismissing a case are considered at a court hearing; the prosecutor, the accused, counsel for the defence, the victim and his/her representative participate in this hearing; if the accused has not chosen his/her defence lawyer, he/she is appointed by the judge. According to Paragraph 3 of Article 235 of the BPK, in this court hearing, the judge makes a statement on the issue in question; then the prosecutor and the defence lawyer speak; other persons participating in this hearing also have the right to speak; the judge or the panel of judges make the order to dismiss the case in the deliberation room. Thus, according to the regulation laid down in Paragraph 1 of Article 231 and Article 235 of the BPK, in the case where the judge appointed to consider a case, having become acquainted with the criminal case during its preparation for a court trial, determines that the statutory limitation period for criminal liability has expired (there is a circumstance provided for in Item 2 of Paragraph 1 of Article 3 of the BPK), a court hearing is held in which the issue of dismissing the case is dealt with. It should be noted that, in such a case, according to the regulation laid down in the BPK, the case is not considered on its merits and the court does not decide on whether the accused has been reasonably charged with committing the criminal act Under the legal regulation laid down in Paragraph 4 (wording of 10 April 2003) of Article 254 of the BPK, in the course of the examination of a criminal case before a court this case is dismissed when the court finds that the statutory limitation period for criminal liability has expired. It should be noted that, in such a case, the court is allowed not to decide whether the accused has committed an act punishable by a criminal law According to the legal regulation laid down in Item 1 (wording of 28 June 2007) of Article 327 of the BPK, in the event that it is established that the statutory limitation period for criminal liability had expired before the conviction was passed, the convicting judgment, the

10 10 acquittal judgment, or the judgment to dismiss the criminal case are annulled. It needs to be noted that, according to this legal regulation, the annulment of the acquittal judgment or the dismissal of the criminal case upon the expiry of the statutory limitation period for criminal liability allow the court not to decide whether the acquitted person has been reasonably acquitted of the criminal act with which he/she was charged The Code of Criminal Procedure does not establish statutory limitation periods for criminal liability. Section XII, titled Statutory Limitation for Criminal Liability, of the Criminal Code of the Republic of Lithuania (Baudžiamasis kodeksas (BK), hereinafter referred to as BK) regulates a statutory limitation for passing a convicting judgment (Article 95) and a statutory limitation for the enforcement of a convicting judgment (Article 96). Thus, the statutory limitation periods for criminal liability that are mentioned in Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2002) of Article 3 of the BPK are set out in Article 95 (wording of 15 June 2010 with subsequent amendments), titled Statutory Limitation for Passing a Convicting Judgment, of the BK, which provides: 1. A person who has committed a criminal act may not be subject to a convicting judgment where: 1) the following period has lapsed: a) three years, in the event of the commission of a misdemeanour; b) eight years, in the event of the commission of a negligent or minor premeditated crime; c) twelve years, in the event of the commission of a less serious premeditated crime; d) fifteen years, in the event of the commission of a serious crime; e) twenty-five years, in the event of the commission of a grave crime; f) thirty years, in the event of the commission of a crime relating to a premeditated homicide; 2) within the period laid down in Item 1 of Paragraph 1 of this Article, the person did not hide from a pretrial investigation or a trial and did not commit a new criminal act. 2. The statutory limitation period shall run from the commission of a criminal act until the passing of a judgment. 3. If a minor suffers from the criminal acts provided for in Chapters XVIII, XX, XXI, XXIII, and XLIV of this Code, the statutory limitation period must not expire before the person reaches the age of twenty-five years. 4. Where a person who has committed a criminal act hides from a pretrial investigation or a trial, the statutory limitation shall stop running. The statutory limitation shall resume running from the day when the person is detained or when he/she appears before a pretrial investigation official, a prosecutor, or a court. However, a convicting judgment must not be passed where twenty-five years

11 11 have lapsed since the commission of the criminal act by the person and thirty years have lapsed since the commission of a crime relating to a premeditated homicide, and where the running of the statutory limitation has not been interrupted due to the commission of a new crime. 5. Where a person who has committed a criminal act enjoys, under laws of the Republic of Lithuania or international legal norms, immunity from criminal jurisdiction and where there is no permission from a competent authority to prosecute the person, the statutory limitation shall stop running. The statutory limitation shall resume running from the receipt of the competent authority s permission to prosecute the person who has committed the criminal act or after he/she loses immunity referred to in this paragraph by other means. 6. In the course of hearing a case before a court, the statutory limitation shall stop running for a period for which: 1) the court announces a break in the hearing before the court or postpones the hearing of the case due to the absence of the accused or his/her defence counsel; 2) the court announces a break in the hearing before the court pending an expert examination, or a professional investigation assigned by the court, or satisfaction of a request for legal assistance submitted to a foreign state; 3) the court announces a break in the hearing before the court and charges a prosecutor or an investigating judge with taking the procedural actions provided for in the Code of Criminal Procedure of the Republic of Lithuania; 4) the court announces a break in the hearing before the court for the new defence counsel of the accused to become acquainted with the case file. 7. In the cases provided for in Paragraph 5 of this Article, a convicting judgment cannot be passed where a period exceeding that provided for in Paragraph 1 by five years has lapsed since the commencement of the statutory limitation period. 8. Where a person commits a new premeditated criminal act before the expiry of the terms indicated in this Article, the running of the statutory limitation is interrupted. In such a case, the statutory limitation in respect of the first criminal act shall start to run from the commission of the new crime or misdemeanour. 9. The following crimes provided for in this Code shall have no statutory limitation: 1) genocide (Article 99); 2) the treatment of persons prohibited under international law (Article 100); 3) enforced disappearance (Article ); 4) the killing of the persons protected under international humanitarian law (Article 101); 5) the deportation or transfer of civilians (Article 102); 6) the causing of bodily harm to, torture or other inhuman treatment of, the persons

12 12 protected under international humanitarian law or violation of the protection of their property (Article 103); 7) a forcible use of civilians or prisoners of war in the armed forces of the enemy (Article 105); 8) the destruction of protected objects or the plunder of national valuable properties (Article 106); 9) aggression (Article 110); 10) a prohibited military attack (Article 111); 11) the use of prohibited means of warfare (Article 112); 12) negligent performance of a commander s duties (Article ). Thus, Article 95 of the BK sets the following: the time periods upon the expiry of which a convicting judgment must not be passed against a person who has committed a criminal act; the rules for calculating these time periods (inter alia, the conditions for situations where a statutory limitation stops running or is interrupted); and the crimes that have no statutory limitation. The legal regulation laid down in Article 95 of the BK means that, upon the expiry of the periods specified in this article, a person who has committed a criminal act must not be subject to criminal liability In this context, it should be mentioned that Article 303 (wording of 14 March 2002 with subsequent amendments), titled Types of Judgments, of the BPK prescribes: 1. A court judgment may be a convicting or an acquitting one. In addition, a criminal case may be dismissed by judgment. 2. A convicting judgment declares the accused guilty of a criminal act provided for in the criminal law and imposes punishment on him/her. 3. When an accused person becomes ill with a severe, incurable disease due to which it would be too difficult to serve a sentence, the court may, upon passing a convicting judgment, release the convicted person from serving the sentence. 4. The court dismisses a case by its judgment if there are grounds for releasing the accused from criminal liability, as provided for in Articles 36 40, 93, Paragraph 3 of Article 114, Paragraph 2 of 189 1, Paragraph 4 of Article 227, Paragraph 3 of Article 259, and Paragraphs 2 and 3 of Article 291 of the Criminal Code of the Republic of Lithuania. 5. The court shall pass an acquittal judgment: 1) where no act with the characteristics of a crime or a misdemeanour has been committed; 2) where it has not been proved that the accused participated in committing a criminal act. 6. If an acquittal judgment is passed on the basis of Item 2 of Paragraph 5 of this Article, and the person who committed the criminal act remains unidentified, the court shall, after this judgment becomes effective, refer the case to the prosecutor so that he/she take steps to establish

13 13 the person who committed the criminal act. Thus, according to the legal regulation laid down in Article 303 (wording of 14 March 2002 with subsequent amendments) of the BK, there are three types of judgments: 1) convicting judgments; 2) acquittal judgments; 3) judgments dismissing a criminal case If the legal regulation established in Article 95 (wording of 15 June 2010 with subsequent amendments) of the BK were interpreted separately from the legal regulation laid down in the BPK, it would be possible to state that only a convicting judgment must not be adopted upon the expiry of the statutory limitation period for passing a convicting judgment, however, an acquittal judgment or a judgment to dismiss the criminal case may be passed. Still, under the legal regulation established in Articles 3, 168, 212, 214, 232, 235, 254, 326, 327, and 382 (paragraphs and items thereof) of the BPK, upon the expiry of a statutory limitation period for criminal liability (for passing a convicting judgment), the criminal proceedings cannot be commenced, while the commenced criminal proceedings must be terminated (by means of a ruling of the prosecutor or a court order), where not only a convicting, but also an acquittal judgment or a judgment to dismiss the case must not be passed. 3. In the context of the constitutional justice case at issue, certain aspects of the legal regulation, consolidated in the BPK, that are related to bringing charges on behalf of the state are worth noting. Bringing charges on behalf of the state are the activities of the prosecutor aimed at proving that a person accused of the commission of a criminal act is guilty (Article 42, titled Bringing Charges on Behalf of the State ). An accused person is a participant in a court trial (Paragraph 1 of Article 22, titled The Accused ). An accused person is considered to be: a person who is the subject of an indictment issued in accordance with the procedure established by the BPK or the subject of an application by a prosecutor for punishing this person by court penal order; a person against whom proceedings have been instituted by means of private prosecution and these proceedings are considered before a court; or a person against whom a case is considered before a court under fast track procedure (Paragraph 2 of Article 22). An indictment is a document adopted by a prosecutor. By means of the indictment a pretrial investigation is finished, a criminal act is described, and the data upon which the accusation is based and a criminal law providing for that act are indicated (Article 23, titled The Indictment ). Thus, charges on behalf of the state are brought against a person by means of an indictment drawn up by a prosecutor. After the indictment has been issued, the suspect becomes an accused person. In this context, it needs to be mentioned that, in its ruling, the Supreme Court of Lithuania, which develops the case law of courts of general jurisdiction, explains that bringing a charge against

14 14 a person is not just a formal act of the prosecutor, which establishes the limits of the judicial examination, indicating the data that form the basis for accusing the person of having committed a criminal act; bringing charges against a person expresses the official position of the prosecutors as officials acting on behalf of the state that sufficient evidence has been gathered in a criminal case about the commission of a criminal act; the expression of such a position also implies that there are serious grounds for doubting the good repute of the person against whom the charge has been brought; charges brought against a person give rise to the doubt about his/her honour, taints the good name and reputation of this person and of his/her family members (the Supreme Court of Lithuania, the ruling of 10 November 2011 passed at the plenary session of the Criminal Division in criminal case no 2K-P-444/2011). 4. Summing up the impugned legal regulation, established in Paragraph 1 (wording of 14 March 2002 with the amendment of 21 June 2011) of Article 3 of the BPK, together with the related legal regulation, it should be noted that: under the legal regulation established in the BPK, upon the expiry of the statutory limitation period for criminal liability (for passing a convicting judgment), the criminal proceedings cannot be commenced, while the commenced criminal proceedings must be terminated; in such a situation, not only a convicting, but also an acquittal judgment or a judgment to dismiss the case must not be passed; neither Article 3 of the BPK nor other articles thereof contain provisions according to which, when the statutory limitation period for criminal liability expires, the criminal proceedings could be continued if the suspect or the accused so requests; under the legal regulation laid down in Paragraph 1 of Article 235, Paragraph 4 (wording of 10 April 2003) of Article 254, and Item 1 (wording of 28 June 2007) of Article 327 of the BPK, a criminal case is dismissed when the court finds that the statutory limitation period for criminal liability has expired; in such a case, the court is allowed not to decide whether the accused person has been reasonably charged with committing a criminal act or whether the acquitted person has been reasonably acquitted of the criminal act with which he/she was charged. II 1. In the constitutional justice case at issue, the Constitutional Court investigates the compliance of the norm of the BPK that establishes the circumstance the expiry of the statutory limitation period in which criminal proceedings are not possible with Paragraph 2 of Article 21, Paragraph 4 of Article 22, Paragraph 1 of Article 29, and Paragraph 2 of Article 31 of the Constitution, as well as with the constitutional principle of a state under the rule of law. 2. The Constitutional Court has held that 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

15 15 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 and 4 June 2012). 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 linked with the detection of, and an investigation into, criminal acts and with the consideration of criminal cases, i.e. its right and duty to regulate criminal procedure relations; when regulating criminal procedure relations by law, the legislature has broad discretion; however, when implementing the said discretion, the legislature must pay regard to the norms and principles of the Constitution; 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 (inter alia, the Constitutional Court s rulings of 16 January 2006 and 17 February 2016) When the relations of criminal procedure are regulated, it is also necessary to pay regard to the fact that the Constitution entrenches the institutions of a pretrial investigation, the consideration of criminal cases before a court, and upholding charges on behalf of the state in criminal cases; these constitutional institutions imply the following general constitutional model of criminal proceedings: a pretrial investigation and the consideration of a criminal case before a court are different stages in criminal proceedings; during a pretrial investigation, the necessary information is collected and assessed in order to decide whether the pretrial investigation must be continued and whether, after it has been completed, a relevant criminal case must be referred to a court; in addition, the said information is collected and assessed in order to consider a case referred to a court and to resolve it in a fair manner; charges on behalf of the state are upheld in the course of considering a case before a court (the Constitutional Court s ruling of 16 January 2006) According to Article 118 (wording of 20 March 2003) of the Constitution, a pretrial investigation is organised and directed, and charges on behalf of the state in criminal cases are upheld, by prosecutors. The Constitutional Court has held that, under the Constitution, the prosecutor is a state official enjoying specific authoritative powers and that the functions of the prosecutor are different from the administration of justice (inter alia, the Constitutional Court s ruling of 13 May 2004); under the Constitution, the prosecutor does not administer justice; justice is not administered at the stage of a pretrial investigation, either (the Constitutional Court s rulings of

16 16 16 January 2006 and 7 April 2011). Under the Constitution, no one else but prosecutors may organise and direct a pretrial investigation (inter alia, the Constitutional Court s rulings of 13 May 2004 and 16 January 2006); the provision of Paragraph 1 of Article 118 of the Constitution gives rise to the duty of prosecutors to organise and direct a pretrial investigation in such a manner that objective and comprehensive information would be collected about a criminal act and about a person who is suspected of committing this act, which, inter alia, would create the legal preconditions for a court to establish the truth in the criminal case and adopt a just decision concerning the guilt of the person accused of committing the criminal act (the Constitutional Court s rulings of 16 January 2006 and 7 April 2011) Paragraph 1 of Article 31 of the Constitution prescribes: A person shall be presumed innocent until proved guilty according to the procedure established by law and declared guilty by an effective court judgment. The presumption of innocence, consolidated in Paragraph 1 of Article 31 of the Constitution, is one of the most important guarantees of the administration of justice in a democratic state under the rule of law. This is a fundamental principle of the administration of justice in criminal proceedings, one of the most important guarantees of the administration of justice in a democratic state under the rule of law, and an important guarantee of human rights and freedoms; a person is presumed innocent of the crime until proved guilty according to the procedure established by law and declared guilty by an effective court judgement (inter alia, the Constitutional Court s rulings of 29 December 2004 and 7 July 2011). In its acts, the Constitutional Court has held on more than one occasion that the presumption of innocence may not be interpreted only linguistically, i.e. as one that is linked only with the administration of justice in criminal proceedings; the presumption of innocence, when evaluated in the context of other provisions of the Constitution, has broader content and must not be linked with criminal legal relations only; it is especially important that state institutions and officials respect the presumption of innocence and that, in general, public persons restrain from referring to a person as a criminal until the said person is proved guilty of committing a crime according to the procedure established by law and declared guilty by an effective court judgment (inter alia, the Constitutional Court s rulings of 29 December 2004, 16 January 2007, and 7 July 2011) As it has been held by the Constitutional Court on more than one occasion, the constitutional principle of a state under the rule of law implies the right of a person to due process; due process includes court proceedings; thus, the constitutional principle of a state under the rule of law gives rise to the right of a person to due court process; certain requirements for court proceedings stem from Paragraph 2 of Article 31 of the Constitution, which prescribes that A

17 17 person charged with committing a crime shall have the right to a public and fair hearing of his case by an independent and impartial court. Paragraph 2 of Article 31 of the Constitution and the principle of a state under the rule of law give rise to the right of a person to due court process, which is a necessary condition for resolving a case in a fair manner; 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 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 Constitutional Court s rulings of 16 January 2006, 28 May 2008, and 8 June 2009). The stipulation of the Constitution that cases must be considered in a fair manner 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 and 15 November 2013). While considering a criminal case, a court must act in such a way that the truth is established in the criminal case and the question of the guilt of a person accused of having committed a criminal act is fairly resolved (inter alia, the Constitutional Court s rulings of 16 January 2006 and 7 April 2011). The Constitution obliges the legislature to establish, while regulating the relations of criminal procedure, such a legal regulation that would also ensure the rights of participants in criminal procedure, inter alia, the criminal procedure must ensure that the constitutional rights of a person suspected and accused of the commission of a criminal act would not be violated: his/her rights to defence, to an advocate, etc. must be ensured (inter alia, the Constitutional Court s rulings of 16 January 2006 and 9 July 2015) The Constitutional Court has also held that, when defining by law criminal acts and establishing criminal liability for such acts, the legislature has also the discretion to establish the time limits within which criminal liability may be applied to persons who have committed criminal acts; establishing such time limits, the legislature must take into account, inter alia, the character and dangerousness (gravity) of a criminal act; such criteria may also determine such a legal regulation whereby no time limits are applied as regards criminal liability for the gravest crimes (the Constitutional Court s ruling of 18 March 2014) In the context of the constitutional justice case at issue, it should be noted that, under the Constitution, the legislature has the discretion to establish various models of calculating the time limits during which criminal liability could be applied to persons who have committed criminal acts. For instance, it is allowed to establish absolute time limits or they may be related to certain circumstances, for example, filing a charge. When establishing such time limits, the legislature must pay regard to the requirement, which stems from the Constitution, inter alia, Paragraph 2 of

18 18 Article 31 thereof, that such preconditions must be created for a court considering a criminal case that would enable the said court to establish the truth in the criminal case and to decide in a fair manner the issue of the guilt of a person accused of committing a crime In the context of the constitutional justice case at issue, it should also be noted that the Constitution, inter alia, Paragraphs 1 and 2 of Article 31 thereof, and the constitutional principle of a state under the rule of law imply the duty of the legislature, when regulating criminal procedure relations in cases where the time limits during which criminal liability may be applied to persons who committed criminal acts have expired, to balance the constitutional values the presumption of innocence and the right of a person to due court process. The legislature is under the duty to establish such a legal regulation that would create the preconditions to ensure that a court decision adopted after the time limits during which criminal liability may be applied to persons who committed criminal acts have expired would solve the issue of whether the accused was reasonably charged with committing a criminal act in order to drop the charge in the case where a court decision does not recognise that the person is guilty of committing a criminal act. 3. Paragraph 2 of Article 21 and Paragraph 4 of Article 22 of the Constitution consolidate the provisions related to the protection and defence of human dignity and the honour of persons Paragraph 2 of Article 21 of the Constitution prescribes: Human dignity shall be protected by law. In interpreting the provisions of Article 21 of the Constitution that consolidate the duty of the state to ensure the protection and defence of human dignity, the Constitutional Court has held that dignity is an integral characteristic of an individual as the greatest social value; every member of society has innate dignity; the fact that the legislature, while regulating relations linked with the implementation of human rights and freedoms, must guarantee their proper protection constitutes one of the conditions for ensuring human dignity as a constitutional value (inter alia, the Constitutional Court s rulings of 29 December 2004 and 2 September 2009) Paragraph 4 of Article 22 of the Constitution prescribes: The law and courts shall protect everyone from arbitrary or unlawful interference with his private and family life, as well as from encroachment upon his honour and dignity. This constitutional provision is one of the most important guarantees of the inviolability of the private life of a person: the said provision protects the private life of an individual against unlawful interference by the state, other institutions, their officials, and other persons (the Constitutional Court s rulings of 19 September 2002 and 29 December 2004); if the private life of an individual is interfered with in an arbitrary and unlawful manner, then, at the same time, his/her honour and dignity are encroached upon (inter alia, the Constitutional Court s rulings of 21 October 1999 and 21 December 2006); a person who has committed a criminal act must not and