THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

Transcription

1 Case No. 27/08-29/08-33/08 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA RULING ON THE COMPLIANCE OF PARAGRAPH 7 (WORDINGS OF 13 DECEMBER 2007 AND 3 JULY 2008) OF ARTICLE 269 OF THE CODE OF ADMINISTRATIVE VIOLATIONS OF LAW OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA 10 April 2009 Vilnius The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis The court reporter Daiva Pitrėnaitė Seimas member Vidmantas Žiemelis, and Girius Ivoška, an advisor of the Criminal and Administrative Law Unit of the Legal Department of the Office of the Seimas, acting as the representatives 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 3 April 2009, considered case No. 27/08-29/08-33/08 subsequent to the petitions of the Supreme Administrative Court of Lithuania requesting an investigation into: 1) whether Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the Code of Administrative Violations of Law of the Republic of Lithuania, to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, was/is not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of

2 2 Lithuania and with the constitutional principles of a state under the rule of law and proportionality (petition No. 1B-27/2008); 2) whether Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the Code of Administrative Violations of Law of the Republic of Lithuania, to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, was/is not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and with the constitutional principles of a state under the rule of law and proportionality (petition No. 1B-30/2008); 3) whether Paragraph 7 (wording of 3 July 2008) of Article 269 of the Code of Administrative Violations of Law of the Republic of Lithuania, to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, is not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and with the constitutional principles of a state under the rule of law and proportionality (petition No. 1B- 36/2008). By the Constitutional Court s Decision On Joining Petitions into One Case of 4 March 2009, petitions Nos. 1B-27/2008, 1B-30/2008, and 1B-36/2008 were joined into one case and it was given reference No. 27/08-29/08-33/08. The Constitutional Court has established: I 1. The Supreme Administrative Court of Lithuania, the petitioner, considered a case of an administrative violation of law. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with the petition (No. 1B-27/2008) requesting an investigation into whether Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the Code of Administrative Violations of Law (hereinafter also referred to as the CAVL), to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, was/is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of a state under the rule of law and proportionality. 2. The Supreme Administrative Court of Lithuania, the petitioner, considered a case of an administrative violation of law. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with the petition (No. 1B-30/2008) requesting an investigation

3 3 into whether Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, was/is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of a state under the rule of law and proportionality. 3. The Supreme Administrative Court of Lithuania, the petitioner, considered a case of an administrative violation of law. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with the petition (No. 1B-36/2008) requesting an investigation into whether Paragraph 7 (wording of 3 July 2008) of Article 269 of the CAVL, to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of a state under the rule of law and proportionality. II The petitions (Nos. 1B-27/2008, 1B-30/2008, and 1B-36/2008) of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, was/is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of a state under the rule of law and proportionality, are substantiated by the following arguments. The impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL is formulated in an imperative manner. The court is not granted a right to order, while taking account of the principles of justice, reasonableness, proportionality, and good faith as well as other important circumstances, to return the vehicle prior to the time provided for in the law (i.e. prior to the payment of the imposed fine or serving the time of the administrative arrest). In the opinion of the petitioner, such legal regulation groundlessly restricts court powers, i.e. it limits the exclusive powers of the court to administer justice, which are entrenched in Article 109 of the Constitution, therefore, there are doubts as to the compliance of the impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL with Paragraph 1 of Article 109 of the Constitution. In the opinion of the petitioner, the legal regulation, which is entrenched in the impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, implicitly established and establishes at present that in case a vehicle is lawfully towed

4 4 away, it cannot be returned under any circumstances until the adoption of a ruling in the administrative violation case, since, otherwise, it would be impossible to ensure that it will be permitted to retrieve the vehicle only upon payment of the imposed fine or serving the time of the administrative arrest. The impugned provision may be interpreted as not permitting returning the vehicle lawfully seized and towed away from the person (who is not necessarily the violator of law) prior to the payment of the imposed fine or serving the time of the administrative arrest also in the following situations: when confiscation of the vehicle is not imposed for the committed violation of law; the sanction for the violation of law for the commission of which the vehicle is towed away does not provide for confiscation of this vehicle at all; when the violation of law is committed and a fine or an administrative arrest is imposed not upon the owner and/or rightful possessor of the vehicle, but upon the unlawful possessor thereof (for example, upon a person who unlawfully took possession of the vehicle (stole it)); when upon towing the vehicle away to the place of safekeeping the direct threat to the security to the traffic or to the rights of other persons is removed. The towing away of a vehicle and not returning thereof until the imposed fine is paid or the time of the administrative arrest is served restricts the rights of the owner and/or the rightful possessor of the vehicle. Upon the towing away the vehicle and its not returning, neither the owner, nor the rightful possessor can use and possess it under its purpose, they cannot in fact hand it over to other persons to be used according to its purpose, and the right of the owner of the vehicle to dispose of it is restricted. In the opinion of the petitioner, there is no fair and reasonable balance between the restrictions, the extent (duration) and character thereof, which are applied to persons by the impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, and the objectives sought by these measures. The assumption should be made that in case it is permitted to retrieve the towed-away vehicle only after the imposed fine has been paid or the time of the administrative arrest has been served, the rights of the person are limited more than needed (more than necessary) in order to protect public interests, there is not a reasonable and adequate proportion between this measure and the objectives sought by this measure, this measure is disproportionate, since the state can secure the payment of the imposed fine or serving the time of the administrative arrest also by other means, which would less restrict the rights of the person. The petitioner refers to the provisions of the official constitutional doctrine formulated in the Constitutional Court s ruling of 2 October 2001; it was held in the said ruling of the Constitutional Court that the provision of Paragraph 4 of Article 269 of the CAVL that in cases of decisions to impose a fine the driving licence is not be returned until the payment of the imposed fine was in conflict with the principle of a state under the rule of law entrenched in the Constitution. According

5 5 to the petitioner, the non-returning of the vehicle until the imposed fine is paid or the time of the administrative arrest is served restricts the rights of the interested persons much more than the nonreturning of a driving licence until the payment of the imposed fine. The petitioner doubts as regards the compliance of the impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL with the constitutional principles of a state under the rule of law and proportionality. III In the course of the preparation of the case for the Constitutional Court s hearing written explanations were received from the representatives of the Seimas, the party concerned, who were Seimas member V. Žiemelis, and G. Ivoška, an advisor of the Criminal and Administrative Law Unit of the Legal Department of the Office of the Seimas. It is maintained therein that the provision of Paragraph 7 of Article 269 of the CAVL, which is impugned by the petitioner, was adopted together with the CAVL amendments which made the administrative liability for violations of the Road Traffic Rules stricter in order that the violations of the Road Traffic Rules made by drunk persons, or those who are intoxicated from narcotic or psychotropic substances, or the violations with grave consequences, would decrease, because in 2007 there was an increase in such violations. According to the representatives of the Seimas, the party concerned, by means of the impugned provision of Paragraph 7 of Article 269 of the CAVL one seeks to secure that a person who has committed the violation provided for in Paragraph 7 of Article 269 of the CAVL would not be able to make use of the tool of the commission of the administrative violation of law until the imposed fine is paid or the administrative arrest is served. IV In the course of the preparation of the case for the Constitutional Court s hearing, written explanations were received from T. Vaitkevičius, Vice-minister of Justice of the Republic of Lithuania. V 1. At the Constitutional Court s hearing, Seimas member V. Žiemelis and G. Ivoška, the representatives of the Seimas, the party concerned, took the floor. V. Žiemelis, the representative of the Seimas, the party concerned, noted, inter alia, that the provision It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest of Paragraph 7 of Article 269 of the CAVL was supplemented too hastily. According to him, the impugned provision of Paragraph 7 of Article 269 of the CAVL is formulated in an imperative manner, the court is not granted a right to order, while taking account of the principles of justice,

6 6 reasonableness, and good faith, as well as of other important circumstances, that the towed-away vehicle be returned prior to the payment of the imposed fine or serving the time of the administrative arrest, thus, there is not a fair and reasonable balance between the measures established in the impugned provision of Paragraph 7 of Article 269 of the CAVL and the objectives sought by these measures. V. Žiemelis noted that in legal acts of other states (Estonia, France, Germany, Switzerland) no such provision has been entrenched. 2. At the Constitutional Court s hearing Gintaras Aliksandravičius (Chief of the Traffic Supervision Service of the Police of Lithuania) took the floor and gave answers to questions. G. Aliksandravičius emphasised the preventive objectives of the impugned provision of Paragraph 7 of Article 269 of the CAVL, which should discourage persons from the commission of violations. According to him, in some aspects the impugned provision of Paragraph 7 of Article 269 of the CAVL restricts the discretion of the court; in some cases the towed-away vehicle could perhaps be returned earlier, i.e. before the payment of the imposed fine. G. Aliksandravičius noted that not in all situations when the violations provided for in Paragraph 7 of Article 269 of the CAVL are committed the vehicles are towed away. The Constitutional Court holds that: I 1. It has been mentioned that in its petitions Nos. 1B-27/2008 and 1B-30/2008, the Supreme Administrative Court of Lithuania, the petitioner, requests an investigation into whether the impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, was/is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of a state under the rule of law and proportionality, and in its petition No. 1B-36/2008 the same court requests an investigation into whether the impugned provision of Paragraph 7 (wording of 3 July 2008) of Article 269 of the CAVL, to the extent that it provides that it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of a state under the rule of law and proportionality. These petitions of the petitioner should be treated as a petition requesting an investigation into whether the provision It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the

7 7 administrative arrest of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, was/is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of a state under the rule of law and proportionality. 2. The Constitutional Court has held more than once that the constitutional principle of proportionality is one of the elements of the constitutional principle under the state of law (the Constitutional Court s rulings of 29 December 2004 and 29 September 2005); taking account of this, the petitions of the petitioner requesting an investigation into whether the impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL was/is not in conflict with the constitutional principles of a state under the rule of law and proportionality should be regarded as a petition requesting an investigation into whether this provision was/is not in conflict with the constitutional principle of a state under the rule of law. Thus, in the constitutional justice case at issue the Constitutional Court will investigate whether: the provision It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL was not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principle of a state under the rule of law; the provision It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest of Paragraph 7 (wording of 3 July 2008) of Article 269 of the CAVL is not in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principle of a state under the rule of law. II 1. On 17 February 2000, the Seimas adopted the Republic of Lithuania s Law on Amending and Supplementing the Code of Administrative Violations of Law which came into force on 15 March Paragraph 4 of Article 341 of the said law supplemented Article 269 (wording of 1 July 1997) of the CAVL, inter alia, with Paragraph 7. Paragraph 7 (wording of 17 February 2000) of Article 269 of the CAVL prescribed: If the violations provided for in Article of this Code (stopping (parking) a vehicle on a pavement, unless it is permitted by appropriate road signs, riding up the lawn, pavement, pedestrian (bicycle) path, stopping and parking a vehicle upon level crossings and within a 50-metre strip of road before and beyond them, within tunnels, on and under bridges and viaducts, on and within 5 metres of pedestrian crossings, and in other places where it obstructs the vehicle or pedestrian traffic) have been committed, police officers shall have the right to tow away the vehicle or to block the wheels

8 8 of such a vehicle by means of a special device under procedure established by the Government of the Republic of Lithuania or an institution authorised by it. 2. On 10 May 2001, the Seimas adopted the Republic of Lithuania s Law on Amending and Supplementing Articles 264, 269 and 271 of the Code of Administrative Violations of Law which came into force on 1 July 2001 (Article 5). Paragraph 1 of Article 2 of the said law amended Paragraph 7 (wording of 17 February 2000) of Article 269 of the CAVL and it was set forth as follows: If the violations provided for in Article (stopping (parking) a vehicle on a pavement, unless it is permitted by appropriate road signs, riding up the lawn, pavement, pedestrian (bicycle) path, stopping and parking a vehicle upon level crossings and within a 50-metre strip of road before and beyond them, within tunnels, on and under bridges and viaducts, on and within 5 metres of pedestrian crossings, and in other places where it obstructs the vehicle or pedestrian traffic), and in Article (failing to comply with the procedure for parking vehicles in home zones and yards) of this Code have been committed, police officers shall have the right to tow away the vehicle or to block the wheels of such a vehicle by means of a special device under procedure established by the Government of the Republic of Lithuania or an institution authorised by it. 3. On 29 January 2004, the Seimas adopted the Republic of Lithuania s Law on Amending and Supplementing Articles 30 1, 35, 51, 124 1, 209, , , , , 224, 225 2, 239, 241 3, 242, 254, 259, 259 1, 260, 261, 262, 263, 265, 266, 267, 269, 281, 286, 288, 320, 329, 330 of the Code of Administrative Violations of Law and Supplementing the Code with Articles 51 14, 51 15, 51 16, 51 17, 89 1, and which came into force on 14 February Paragraph 2 of Article 31 of this law amended Paragraph 7 (wording of 10 May 2001) of Article 269 of the CAVL and it was set forth as follows: If the violations provided for in Article (stopping (parking) a vehicle on a pavement, unless it is permitted by appropriate road signs, parking on the lawn, pavement, pedestrian (bicycle) path, stopping and parking a vehicle upon level crossings and within a 50-metre strip of road before and beyond them, within tunnels, on and under bridges and viaducts, on and within 5 metres of pedestrian crossings, and in other places where it obstructs the vehicle or pedestrian traffic), and Article (failing to comply with the procedure for parking vehicles in home zones and yards) of this Code have been committed, if it obstructs the vehicle or pedestrian traffic or otherwise violates the rights of other persons, police officers shall have the right to tow away the vehicle under procedure established by the Government of the Republic of Lithuania or an institution authorised by it. 4. It needs to be noted that the right of police officers to tow away the vehicle under procedure established by the Government of the Republic of Lithuania or an institution authorised by it was consolidated in the CAVL after the Seimas adopted the Law on Amending and Supplementing the Code of Administrative Violations of Law on 17 February 2000 whereby Article

9 9 269 (wording of 1 July 1997) of the CAVL was supplemented, inter alia, with Paragraph 7. The police officers were allowed to implement this right in case the administrative violations of law specified in Paragraph 7 of Article 269 of the CAVL had been committed. After the Seimas adopted the 10 May 2001 Law on Amending and Supplementing Articles 264, 269 and 271 of the Code of Administrative Violations of Law whereby Paragraph 7 (wording of 17 February 2000) of Article 269 of the CAVL was amended, the aforesaid provision remained intact. If one compares the legal regulation entrenched in Paragraph 7 of Article 269 of the CAVL of the wordings of 17 February 2000 and 10 May 2001 with the legal regulation entrenched in Paragraph 7 of Article 269 of the CAVL with its wording of 29 January 2004, it is clear that the right of police officers to tow away the vehicle persisted, however, the implementation of this right was connected with the condition that such a vehicle obstructed the vehicle or pedestrian transport or otherwise violated the rights of other persons. 5. On 13 December 2007, the Seimas adopted the Republic of Lithuania s Law on Amending and Supplementing Articles 21, 26, 27, 30 1, 32, 123, 124, 124 1, 124 2, 125, 126, 127, 128, 129, 130, 130 2, 131, 134, 187, 224, 225, 259 1, 269, 281, 312, 313, 314, 315, 320, 326, 330 of the Code of Administrative Violations of Law and Recognising Article Thereof as No Longer Valid, which (save Article 32 thereof) came into force on 1 January 2008 (Article 33) The explanatory note to the draft of this law specifies that the objective of the prepared draft law is, inter alia, to reduce the number of road accidents during which people are injured or killed ; Item 4 of this explanatory note points out that it is proposed that Article 269 of the CAVL should be amended and that it should stipulate that if the violations specified in Articles 124 1, 126, Paragraphs 2 and 3 of Article 127, Articles 129, or of this code have been committed, police officers shall have the right to tow away the vehicle under procedure established by the Government of the Republic of Lithuania or an institution authorised by it; This provision would prevent or limit possibilities to the drivers to make use of the vehicle after their inebriation (drunkenness) or intoxication from psychotropic substances is established This law amended Article 127 (wording of 17 February 2000) and Article of the CAVL in the aspect that, inter alia, the sanction the confiscation of a vehicle was provided for violation of the administrative violations of law specified in the said articles: Article 127 titled Violation of the Road Traffic Rules Resulting in a Minor Health Disturbance or in Damage to Property (wording of 13 December 2007) provides, inter alia, that a violation of the Road Traffic Rules resulting in a minor health disturbance of other persons, or a violation of the Road Traffic Rules resulting in damage (lesser damage) to vehicles, freight belonging to other persons, also a violation resulting in damage (lesser damage) to roads and other

10 10 road structures or other property, if committed by a person who was inebriate (drunk) or intoxicated from narcotic, psychotropic, or other mind-influencing substances, shall incur, to the persons who do not have the right to drive vehicles, a fine from LTL five thousand to LTL five thousand five hundred with or without confiscation of the vehicle, or an administrative arrest from ten to twenty days with confiscation of the vehicle; Article of the CAVL titled Repeated Driving Vehicles When the Drivers are Inebriate or Intoxicated from Narcotic, Psychotropic, or Other Mind-Influencing Substances (wording of 13 December 2007) provides, inter alia, that driving vehicles when the drivers are inebriate or intoxicated form narcotic, psychotropic, or other mind-influencing substances, after the person was imposed an administrative penalty for violations provided for in Paragraphs 1, 4, and 5 of Article 126, Paragraph 3 of Article 127 and Article 129 of this code, shall incur, to the persons who do not have the right to drive vehicles, an administrative arrest from twenty to thirty days with confiscation of the vehicle. Paragraph 1 (wording of 3 July 2007) of Article 26 of the CAVL titled Confiscation of the Item Which Was the Tool or Direct Object of the Commission of an Administrative Violation of Law and of the Receipts Received by the Commission of the Administrative Violation of Law of Article 26 of the CAVL was correspondingly amended it was provided for therein that the item which was the tool of the commission of the administrative violation of law specified in Paragraph 3 of Article 127 and Article of the CAVL can be confiscated. Article 224 (wording of 3 July 2007) of the CAVL was amended as well it was provided for therein that the district (city) local courts (judges of local courts) shall consider, inter alia, cases of the administrative violations of law provided for in Paragraph 3 of Article 127 and Article of the CAVL Article 24 of the aforesaid law amended Paragraph 7 (wording of 29 January 2004) of Article 269 of the CAVL and set it forth as follows: If the violations provided for in Article (parking a vehicle on a pavement, unless it is permitted by appropriate road signs, parking on the lawn, pavement, pedestrian (bicycle) path, stopping and parking a vehicle upon level crossings and within a 50-metre strip of road before and beyond them, within tunnels, on and under bridges and viaducts, on and within 5 metres of pedestrian crossings, and in other places where it obstructs the vehicle or pedestrian traffic), Article 126 (driving vehicles when the drivers are inebriate or intoxicated form narcotic, psychotropic, or other mind-influencing substances), the Second and Third Paragraphs of Article 127 (violation of the Road Traffic Rules resulting in a minor health disturbance of other persons), Article 128 (driving vehicles without the right to drive them), Article 129 (driving vehicles when the drivers are inebriate or intoxicated form narcotic, psychotropic, or other mind-influencing substances and do not have the right to drive vehicles), Article (repeated driving vehicles when the drivers are

11 11 inebriate or intoxicated form narcotic, psychotropic, or other mind-influencing substances and do not have the right to drive vehicles) and Article (failing to comply with the procedure for parking vehicles in home zones and yards) of this Code have been committed, if it obstructs the vehicle or pedestrian traffic or otherwise violates the rights of other persons, police officers shall have the right to tow away the vehicle under procedure established by the Government of the Republic of Lithuania or an institution authorised by it. It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest If one compares the legal regulation established in Paragraph 7 (wording of 29 January 2004) of Article 269 of the CAVL with that established in Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL, it needs to be noted that Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL was supplemented with new legal regulation whereby it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest, which is impugned by the petitioner at the constitutional justice at issue. Thus, under Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL, the retrieval of the towed-away vehicle is linked (save the cases when it is confiscated) with the payment of the imposed fine or serving the time of the administrative arrest. Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL was also amended in the aspect that also the administrative violations of law, inter alia, were specified therein for the commission of which, as mentioned before, courts had the right to impose the administrative penalty the confiscation of a vehicle upon violators of law (Paragraph 3 of Article 127 (wording of 13 December 2007), Article (wording of 13 December 2007), Paragraph 1 (wording of 13 December 2007) of Article 26). 6. On 3 July 2008, the Seimas adopted the Republic of Lithuania s Law on Amending and Supplementing Articles 21, 26, 27, 29, 41 4, 41 5, 44 2, 46 1, 50, 50 4, 50 7, 51 3, 56 1, 56 2, 64, 91 8, 111, 112, 112 1, 112 2, 119, 119 1, 119 2, 120, 121, 122, 122 1, 130, 136, 138, 138 1, 141, 143, 172 2, , , 207 7, 224, 225, 225 2, 227, 229, 233, 234, 237, 241 1, 242, 244, 259 1, 261, 262, 266, 269, 270, 281, 320 of the Code of Administrative Violations of Law and Supplementing the Code with Articles 41 11, 51 23, 84 2, 84 3, 84 4, 112 3, 112 4, 112 5, 112 6, 112 7, 112 8, 119 3, , which came into force (save Article 9 thereof) on 17 July Item 4 of the explanatory note of this draft law points out that it is proposed that Paragraph 7 of Article 269 of the CAVL should be amended and that it should stipulate that if the violations of Par. 1 of art. 130 of this code are committed, police officers have the right to tow away the vehicle under procedure established by the Government of the Republic of Lithuania or an

12 12 institution authorised by it. If this provision were legislatively established, a condition would be created to more efficiently implement a court ruling whereby confiscation of the vehicle is ruled, while the person would not be able to continue performing unlawful deeds by means of the tool of the violation after the violation has been detected. Also, after a vehicle, which has retired from the accident, is found, and when the driver thereof is absent, it would be possible to efficiently secure safeguard thereof and retain the evidence of the violation. In addition, such persons would experience additional inconveniences and this would induce them to follow the duties established in legal acts The said law amended Paragraph 1 (wording of 13 December 2007) of Article 130 of the CAVL in the aspect that, inter alia, the sanction the confiscation of a vehicle was provided for the commission of the administrative violations specified therein. Paragraph 1 (wording of 3 July 2008) of Article 130 of the CAVL provides, inter alia, that non-compliance with a legitimate demand of a police officer in uniform to stop the vehicle, as well as retirement from the place of a traffic accident with which the driver is related because of violation of the Road Traffic Rules, to persons who do not have the right to drive vehicles, shall incur a fine from LTL four thousand to LTL five thousand with confiscation of the vehicle, or without confiscation thereof, or an administrative arrest from twenty to thirty days together with confiscation of the vehicle or without confiscation thereof. Correspondingly Paragraph 1 (wording of 29 January 2008) of Article 26 of the CAVL was amended it was provided for therein that the item which was the tool of the commission of the administrative violation of law specified in Paragraph 1 of Article 130 of the CAVL can be confiscated. In addition, Article 224 (wording of 18 December 2007) of the CAVL was amended as well it was established therein that the district (city) local courts (judges of local courts) shall consider, inter alia, cases of the administrative violations of law provided for in Paragraph 1 of Article 130 of the CAVL Article 67 of the aforesaid law amended Paragraph 7 (wording 13 December 2007) of Article 269 of the CAVL and set it forth as follows: If the violations provided for in Article (parking a vehicle on a pavement, unless it is permitted by appropriate road signs, parking on the lawn, pavement, pedestrian (bicycle) path, parking on a parking place where parking is permitted only to the vehicles marked with the sign Disabled, parking a vehicle upon level crossings and within a 50-metre strip of road before and beyond them, within tunnels, on and under bridges and viaducts, on and within 5 metres of pedestrian crossings, and in other places where it obstructs the vehicle or pedestrian traffic), Article 126 (driving vehicles when the drivers are inebriate or intoxicated form narcotic, psychotropic, or other mind-influencing substances), the Second and Third Paragraphs of Article 127 (violation of

13 13 the Road Traffic Rules resulting in a minor health disturbance of other persons), Article 128 (driving vehicles without the right to drive them), Article 129 (driving vehicles when the drivers are inebriate or intoxicated form narcotic, psychotropic, or other mind-influencing substances and do not have the right to drive vehicles), Paragraph 1 of Article 130 (non-compliance with a demand to stop the vehicle, or retirement from the place of a traffic accident with which the driver is related), Article (repeated driving vehicles when the drivers are inebriate or intoxicated form narcotic, psychotropic, or other mind-influencing substances and do not have the right to drive vehicles) and Article (failing to comply with the procedure for parking vehicles in home zones and yards) of this Code have been committed, if it obstructs the vehicle or pedestrian traffic or otherwise violates the rights of other persons, police officers shall have the right to tow away the vehicle under procedure established by the Government of the Republic of Lithuania or an institution authorised by it. It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest If one compares the impugned legal regulation established in Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL with the impugned legal regulation established in Paragraph 7 (wording of 3 July 2008) of Article 269 of the CAVL, it needs to be noted that Paragraph 7 (wording of 3 July 2008) of Article 269 of the CAVL was amended in the aspect that it, inter alia, specified the administrative violations of law for the commission of which courts had the right to impose, inter alia, the administrative penalty the confiscation of a vehicle upon violators (Paragraph 1 (wording of 3 July 2008) of Article 130 and Paragraph 1 (wording of 3 July 2008) of Article 26). It needs to be noted that if one compares the provision It is permitted to retrieve the towedaway vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL with the provision It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest of Paragraph 7 (wording of 3 July 2008) of Article 269 of the CAVL, both of which are impugned by the petitioner in the constitutional justice case at issue, the conclusion should be drawn that the legal regulation entrenched in both these provisions is virtually identical. 7. The provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, which is impugned by the petitioner, regulates the relations connected with the non-returning of a towed-away vehicle within a certain time period related with the fulfilment of an imposed administrative penalty (a fine or an administrative arrest), i.e. the towed-away vehicle is returned only after the person who committed the violation of law pays the fine imposed on him or serves the time of the administrative arrest.

14 14 Thus, the non-returning of a towed-away vehicle within a certain time period (i.e. until the imposed fine is paid or the time of the administrative arrest is served) should be regarded as a measure to secure the execution of the said administrative penalties. It needs to be noted that the time period of the non-returning of a towed-away vehicle encompasses, inter alia, the time period within which the case of administrative violation of law must be considered, the administrative penalty must be imposed and executed. The impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL does not provide for a possibility of returning the towed-away vehicle before the payment of the imposed fine or serving the time of the administrative arrest also in cases when the person who committed the violation of law is not the owner (rightful possessor) of the towed-away vehicle. 8. The impugned provision It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest of Paragraph 7 (wording of 13 December 2007) of Article 269 of the CAVL is designed to regulate the relations connected with securing the payment of the imposed fine or the service of the time of the administrative arrest. This provision is not directly designed for regulation of the relations connected with securing the execution of the imposed administrative penalty the confiscation of a vehicle however, in cases when, in addition to the imposed administrative penalty a fine or an administrative arrest also another administrative penalty the confiscation of a vehicle is imposed, and such a vehicle is towed away, the prohibition on returning such a vehicle entrenched in the impugned provision alongside secures the execution of the administrative penalty confiscation of the vehicle. 9. The impugned provision It is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL should be construed in the context of other provisions (which are not impugned by the petitioner) of Paragraph 7 of Article 269 of the CAVL, inter alia, the provision which provides that if the violations specified in this paragraph were committed, < > if it obstructs the vehicle or pedestrian traffic or otherwise violates the rights of other persons, police officers shall have the right to tow away the vehicle under procedure established by the Government of the Republic of Lithuania or an institution authorised by it. By means of such towing away of a vehicle one virtually seeks to avoid the disturbance of the vehicle or pedestrian traffic and to remove the negative consequence caused by the violation of law (inter alia, to avoid damage or loss of property). 10. It needs to be noted that not in all cases when the administrative violations of law

15 15 specified in Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL are committed the vehicle must be towed away and it is permitted to retrieve the towed-away vehicle (save the cases when the vehicle is confiscated) only after paying the imposed fine or serving the time of the administrative arrest When the legal regulation entrenched in Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL is assessed in the aspect impugned by the petitioner, it needs to be noted that different legal consequences occur, due to different legal situations, to the persons who commit the violations of law specified in Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL: the vehicle is not towed away if, due to such administrative violation of law, the vehicle or pedestrian traffic is not obstructed, or the rights of other persons are not otherwise violated; in this case the right of the owner (rightful possessor) of the vehicle to use the vehicle is not connected with the fact whether the imposed fine was paid or the time of the administrative arrest was served; the vehicle is not towed away, even if, due to such administrative violation of law, the vehicle or pedestrian traffic is obstructed, or the rights of other persons are violated otherwise, however, the police officer, while following the provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, which grants him the right to decide as regards the towing away the vehicle, and, while assessing all the circumstances related with the committed administrative violation of law, decides that the vehicle need not be towed away; thus, in this case the right of the owner (rightful possessor) of the vehicle to use the vehicle is not connected with the fact whether the imposed fine was paid or the time of the administrative arrest was served, as well; the vehicle is towed away, if, due to such administrative violation of law, the vehicle or pedestrian traffic is obstructed, or the rights of other persons are violated otherwise, and the police officer, while following the provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, which grants him the right to decide as regards the towing away the vehicle, and, while assessing all the circumstances related with the committed administrative violation of law, decides that the vehicle must be towed away; only in this case it will not be permitted to retrieve the towed-away vehicle until the imposed fine is paid or the time of the administrative arrest is served; thus, in this case the right of the owner (rightful possessor) of the vehicle to use the vehicle is restricted in the aspect that he will be able to use the vehicle only after paying the imposed fine or serving the time of the administrative arrest; it needs to be noted that in cases when in addition to the said administrative penalties (a fine or administrative arrest) also another administrative penalty the confiscation of a vehicle is imposed, such a vehicle will not be returned to the person regardless of whether the imposed fine is paid or the time of the

16 16 administrative arrest is served Thus, under Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL, the vehicle is towed away, if: a corresponding administrative violation of law provided for in Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL has been committed and the vehicle obstruct the vehicle or pedestrian traffic or otherwise violates the rights of other persons, and the police officer, having assessed all circumstances connected with the commission of the administrative violation of law, decides to tow away such a vehicle The conclusion should be drawn that the emergence of different legal consequences (inter alia, the fact whether the owner (rightful possessor) will have the right to use the vehicle) to the persons who committed the administrative violation of law specified in Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL is, first of all, to be connected with the fact whether upon the corresponding administrative violation of law the vehicle obstructs the vehicle and pedestrian traffic or otherwise violates the rights of other persons, and whether the police officers decide to tow away such a vehicle. 11. The impugned provision of Paragraph 7 (wordings of 13 December 2007 and 3 July 2008) of Article 269 of the CAVL should be construed in the context of other articles (parts thereof) of the CAVL and other laws. 12. The towing away of vehicles is provided for in Article 264 (wording of 18 December 2007, which came into force on 1 January 2008) of the CAVL. Article 264 titled Measures for Securing the Legal Proceedings of Cases of Administrative Violations of Law (wording of 18 December 2007) provides: In cases directly established in laws of the Republic of Lithuania, in an attempt to put a stop to administrative violations of law, to draw up protocols, to ensure that cases be considered timely and fairly and decisions be implemented in legal cases of administrative violations of law, an administrative detention, the frisk of a person, an inspection of items, the seizure of items and documents, the towing away of vehicles, blocking the wheels of a vehicle by means of a special device or the removal of the driver from driving the vehicle and testing the driver in order to establish his inebriety (drunkenness) or intoxication from narcotic or psychotropic substances or medicines or from other intoxicating substances, the testing of persons, who are apprehended for the commission of administrative violations of law and are suspected of being inebriate or intoxicated from narcotic or psychotropic substances in order to establish the inebriation or intoxication, stopping a ship, an inspection of a ship, the apprehension of a ship, shall be permissible. For the purposes provided for in this article, the procedure for administrative apprehension,

17 17 the frisk of a person, an inspection of items, the seizure of items and documents, the towing away of vehicles, blocking the wheels of a vehicle by means of a special device or the removal of the driver from driving the vehicle and testing the driver in order to establish his inebriety (drunkenness) or intoxication from narcotic or psychotropic substances or medicines or from other intoxicating substances, the testing of persons, who are apprehended for the commission of administrative violations of law and suspected of being inebriate or intoxicated from narcotic or psychotropic substances in order to establish the inebriation or intoxication, stopping a ship, an inspection of a ship, the apprehension of a ship, shall be established by this Code and other laws of the Republic of Lithuania. Thus, the towing away of a vehicle is one of the measures to secure the legal proceedings in cases of administrative violations of law, the procedure of application of the legal proceedings is established by the CAVL and other laws of the Republic of Lithuania, the objectives of the towing away of vehicles are, inter alia, prevention of administrative violations of law and securing the execution of rulings adopted in cases of administrative violations of law. 13. In this context, one should mention the Republic of Lithuania s Law on Road Traffic Safety (wording of 22 November 2007), Paragraph 1 of Article 1 titled Purpose and Application of the Law of the said law provides that this law shall, inter alia, establish obligations of the state and municipal institutions and establishments in implementing the policy of traffic safety, and the principal rights and obligations of traffic participants, the persons responsible for road supervision, police and customs officers, and other officers performing check-ups Article 33 Towing Away the Vehicle or the Prohibition on Driving of the said law provides: the towed-away vehicle can be moved to a parking lot of vehicles belonging to the economic subject which, under procedure established in legal acts, enjoys the right to engage in such economic-commercial activity, or driving thereof is prohibited if the possessor of the vehicle, while using it, threatens the health or life of other participants of the traffic or of other persons, or obstructs safe vehicle or pedestrian traffic and violates requirements of the Road Traffic Rules approved by the Government or those of other legal acts (Paragraph 1); the decision regarding the towing away of a vehicle or the prohibition on continuing driving, provided there are the grounds established in Paragraph 1 of this article, can be adopted by officials of the police or of the State Road Transport Inspectorate under the Ministry of Transport and Communications (Paragraph 3); the police officers who adopted a decision regarding towing away the vehicle, shall, under procedure established in laws, inform the owner (possessor) of the vehicle of the adopted decision regarding towing away the vehicle (Paragraph 4); the procedure for towing away vehicles or the prohibition on driving shall be established by the Government or an institution authorised by it (Paragraph 5); the expenses connected with the towing away of a vehicle in the cases specified in