THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

Transcription

1 Case No. 36/ /2010-4/2011-9/2011 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA RULING ON THE COMPLIANCE OF ITEM 3 (WORDING OF 12 JUNE 2008) OF PARAGRAPH 2 OF ARTICLE 129 AND ITEM 3 (WORDING OF 12 JUNE 2008) OF PARAGRAPH 2 OF ARTICLE 135 OF THE CRIMINAL CODE OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA 4 June 2012 Vilnius The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas, with the secretary Daiva Pitrėnaitė, 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, on 22 May 2012, in its public hearing heard constitutional justice case No. 36/ /2010-4/2011-9/2011 subsequent to: 1) the petitions of the Vilnius Regional Court, a petitioner, requesting to investigate whether: Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the Criminal Code of the Republic of Lithuania is not in conflict with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-47/2009); Item 3 of Paragraph 2 of Article 135 of the Criminal Code of the Republic of Lithuania is not in conflict with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-8/2011);

2 2 2) the petitions of the Court of Appeal of Lithuania, a petitioner, requesting to investigate whether Item 3 of Paragraph 2 of Article 135 of the Criminal Code of the Republic of Lithuania is not in conflict with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petitions Nos. 1B-24/2010, 1B-3/2011). By the Constitutional Court decision of 30 April 2012 the said petitions of the petitioners were joined into one case and it was given reference No. 36/ /2010-4/2011-9/2011. The Constitutional Court has established: I The petitions of the Vilnius Regional Court and the Court of Appeal of Lithuania, the petitioners, requesting to investigate the compliance of Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the Criminal Code (hereinafter also referred to as the CC) (petition No. 1B-47/2009) and Item 3 of Paragraph 2 of Article 135 thereof (petitions Nos. 1B-24/2010, 1B- 3/2011, 1B-8/2011) with Paragraph 1 of Article 29 of the Constitution and with the constitutional principle of a state under the rule of law are substantiated by the following arguments. 1. A person has certain exceptional duties to members of the family or close relatives, however, the circumstances of life often determine peculiar relations of family members or close relatives which, when a concrete situation appears and while applying criminal liability, are more important than only a formal connection of common life or relation by kin. Thus, the legal regulation established in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the CC and Item 3 of Paragraph 2 of Article 135 thereof may limit the possibilities of a court to properly evaluate the concrete situation and all the circumstances of the commission of a criminal deed and to impose a just punishment. 2. The life and health of a human being must be assessed not according to individual or other features of a person. The Vilnius Regional Court (petition No. 1B-47/2009) notes that in Article 19 of the Constitution one guarantees the right to life of a human being which is protected by law, in this article the life of a human being is differentiated neither according to importance, nor according to any other features. In the opinion of the Court of Appeal of Lithuania (petitions Nos. 1B-24/2010, 1B-3/2011) and the Vilnius Regional Court (petition No. 1B-8/2011), the health of a person is an unquestionable value in itself, therefore, its differentiation according to importance is arguable, moreover, when only the family relation or relation by kin is considered as a priority relation. Thus, the life or health of a close relative or family member may not have any other more significant feature under which his life and health would be distinguished in comparison to people who do not have such a feature.

3 3 3. While a criminal law is applied under which murder and severe health impairment are recognised as qualified because of the family relation or relation by kin, the life and health of the aggrieved person is exceptionally assessed not because of the extent of gravity of the deed committed by the guilty person, i.e. not because of the intention of the subject, but because of the objective relations by kin which do not depend either on the object or on the subject. The legal regulation established in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the CC and Item 3 of Paragraph 2 of Article 135 thereof which are effective now creates a precondition to assess, in a different manner, the same legal facts murder and severe health impairment if no other features qualifying the crime have been established except for the family relation or relation by kin between the culprit and the aggrieved person. 4. The Court of Appeal of Lithuania, a petitioner (petitions Nos. 1B-24/2010, 1B-3/2011), refers also to the official constitutional doctrine set forth in the Constitutional Court ruling of 13 December II In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representatives of the Seimas, the party concerned, who were Vidmantas Žiemelis and Konstantas Ramelis, Members of the Seimas, and Antanas Jatkevičius, Head of the Criminal and Administrative Law Unit of the Legal Department of the Office of the Seimas, wherein it is maintained that the impugned legal regulation was not in conflict with the Constitution. The written explanations of the parties concerned are substantiated by virtually analogous arguments. 1. Item 3 of Paragraph 2 of Article 129 of the CC and Item 3 of Paragraph 2 of Article 135 thereof were amended by Law No. X-1597 which was adopted on 12 June 2008 and in the explanatory note to the draft thereof it is stated: At present, those cases when the culprit commits these deeds with respect to his mother, father or child are considered as the qualifying feature of murder, severe < > health impairment, substantiating it by the fact that by such deeds one violates the laws of nature. Taking account of the fact that criminal laws protects not only the natural values, but also the values that appeared on other grounds, it is to be supposed that also the cases when the culprit commits the criminal deeds against other close relatives < > require an analogous stricter assessment. Moral and customary imperatives which determine the content of the relations with these persons allow stating that a person who paid no heed to such imperatives is to be recognised as having violated the values that require exceptional protection and ground the structure of the society s life.

4 4 2. In the Lithuanian legal system the protection of the family has a priority significance. Paragraph 3 of Article 31 of the Constitution provides: It shall be prohibited to compel one to give evidence against himself, his family members or close relatives. Paragraphs 1 and 2 of Article 38 of the Constitution also prescribe: The family shall be the basis of society and the State. Family, motherhood, fatherhood and childhood shall be under the protection and care of the State. Thus, the State must ensure the protection of the family. The corresponding attention is paid to protection of interests of the family also in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms. 3. The impugned provisions consolidate positive discrimination. Under the Constitution, positive discrimination is possible, as by means of positive discrimination one seeks to protect certain groups of persons or to grant them additional guarantees. The Constitutional Court holds that: I 1. As it has been mentioned, the Vilnius Regional Court and the Court of Appeal of Lithuania, the petitioners, request to investigate whether Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the Criminal Code (petition No. 1B-47/2009) and Item 3 of Paragraph 2 of Article 135 thereof (petitions Nos. 1B-24/2010, 1B-3/2011, 1B-8/2011) are not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law. Even though the petitioners do not specify concrete wording of Item 3 of Paragraph 2 of Article 135 of the CC in their petitions, it is clear from the arguments of the petitions of the petitioners that they doubt whether Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 of the CC is not in conflict with the Constitution. Taking account of the arguments set forth in the petitions of the petitioners, in the constitutional justice case at issue the Constitutional Court will investigate whether Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the CC and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 thereof are not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law. 2. On 26 September 2000, the Seimas adopted the Republic of Lithuania Law on the Approval and Coming into Force of the Criminal Code, whose Article 1 approved the Criminal Code.

5 5 On 29 October 2002, the Seimas adopted the Republic of Lithuania Law on the Procedure of Entry into Effect and Implementation of the Criminal Code as Confirmed by Law No. VIII-1968 of 26 September 2000, the Code of Criminal Procedure, as Confirmed by Law No. IX- 785 of 14 March 2002, and the Code of Execution of Punishments as Confirmed by Law No. IX-994 of 27 June 2002, Article 1 whereof provided that the Criminal Code shall enter into effect on 1 May 2003, whereas Paragraph 1 of Article 47 whereof provided that upon entry into effect of the new Criminal Code, the former Criminal Code will no longer be effective Article 129 Murder of the CC prescribed: 1. A person who murders another person shall be punished by deprivation of freedom from five to twenty years. 2. A person who murders 1) a young child; 2) a person in a helpless state; 3) his mother, father or child; 4) a pregnant woman; 5) two or more persons; 6) by torturing or in another particularly cruel manner; 7) in a manner endangering other persons lives; 8) by reason of disorderly conduct; 9) for mercenary reasons; 10) by reason of performance of official or citizen s duties by the victim; 11) in order to conceal another crime; 12) in order to acquire the victim s organ or tissue for transplantation, shall be punished by deprivation of freedom from five to twenty years, or by life imprisonment. Thus, Article 129 of the CC entrenched a differentiated criminal liability for murder of another person Article 135 Severe health impairment of the CC prescribed: 1. A person who causes bodily harm or an illness to a person resulting in the victim s loss of eyesight, hearing, ability to speak, ability to reproduce, pregnancy or other serious mutilation, contracting of a terminal illness or a long-lasting illness posing a threat to his life or seriously affecting his mental health or in the loss of a considerable part of professional or general capacity for work or in a permanent disfigurement of the victim s body, shall be punished by deprivation of freedom for a term of up to ten years. 2. A person who causes a serious bodily injury or illness:

6 6 1) to a young child; 2) to a person in a helpless state; 3) to his mother, father or child; 4) to a pregnant woman; 5) to two or more persons; 6) by torturing or in another particularly cruel manner; 7) in a manner endangering other persons lives; 8) by reason of disorderly conduct; 9) for mercenary reasons; 10) by reason of performance of official or citizen s duties by the victim; 11) in order to conceal another crime; 12) in order to acquire the victim s organ or tissue for transplantation, shall be punished by deprivation of freedom from two to twelve years. Thus, Article 135 of the CC entrenched a differentiated criminal liability for a severe health impairment of another person Having compared the legal regulation established in Item 3 of Paragraph 2 of Article 129 and Item 3 of Paragraph 2 of Article 135 of the CC with the one established in Paragraph 1 of Article 129 and Paragraph 1 of Article 135 of the CC, it needs to be noted that the criminal liability established in Item 3 of Paragraph 2 of Article 129 (which establishes criminal liability for murder) of the CC and that established in Item 3 (providing the features ( his mother, father or child ), which are called qualifying in criminal law and establishing respectively bigger punishments) of Paragraph 2 of Article 135 (which establishes criminal liability for a severe health impairment) of the CC is stricter than the criminal liability established respectively in Paragraph 1 of Article 129 of the CC and Paragraph 1 of Article 135 thereof. 3. On 28 June 2007, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing Articles 7, 38, 47, 63, 66, 70, 75, 82, 93, 129, 166, 167, 172, 178, 180, 181, 182, 183, 184, 185, 189, 194, 196, 197, 198, 198 1, 198 2, 199, 202, 213, 214, 215, 225, 227, 228, 231, 233, 235, 252, 256, 257, 262, 284, 285, 312 of the Criminal Code and the Annex Thereof, Amending the Titles of Chapters XXVI and XXX and Supplementing the Code with Articles and which came into force on 21 July Article 10 of this Law amended Article 129 of the CC and set it forth anew. The latter article increased the limits of the minimum punishment of deprivation of freedom for murder: in Paragraph 1 of Article 129 (wording of 28 June 2007) the minimum limit of punishment is increased from five to seven years of deprivation of freedom, while in Paragraph 2 from five to eight years of deprivation of freedom. The maximum limits of the punishment of deprivation of freedom have not been amended.

7 7 4. On 12 June 2008, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing Articles 42, 67, 129, 135 and 138 of the Criminal Code and Supplementing the Code with Articles 72 1 and 72 2 which came into force on 27 June Article 5 of this law amended Item 3 of Paragraph 2 of Article 129 (wording of 28 June 2007) of the CC, while Article 6 amended Item 3 of Paragraph 2 of Article 135 thereof Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the CC, which is impugned in the constitutional justice case at issue, prescribes: 2. A person who murders: <...> 3) his close relative or family member; <...> shall be punished by deprivation of freedom from eight to twenty years or by life imprisonment 4.2. Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 of the CC, which is impugned in the constitutional justice case at issue, prescribes: 2. A person who causes a serious bodily injury or illness: <...> 3) his close relative or family member; <...> shall be punished by deprivation of freedom from two to twelve years Thus, in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the CC and in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 thereof, one expanded the qualifying feature of the bodies of murder and severe health impairment it includes not only the mother, the father or the child, but also other close relatives or family members. It needs to be noted that the legal regulation established in Item 3 (wording of 12 June 2008) of Paragraph 3 of Article 129 of the CC and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135, in the aspect impugned in the case, is identical. Having compared the legal regulation established in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 of the CC with one established in Paragraph 1 of Article 129 (wording of 28 June 2007) and Paragraph 1 of Article 135 of the CC, it needs to be noted that the criminal liability established in Item 3 of Paragraph 2 of Article 129 (which establishes criminal liability for murder) of the CC and that established in Item 3 (providing the features ( his mother, father or child ), which are called qualifying in criminal law and establishing respectively bigger punishments) of Paragraph 2 of Article 135 (which establishes criminal liability for a severe health impairment) of the CC is stricter than the criminal liability established respectively in Paragraph 1 of Article 129 (wording of 28 June 2007) of the CC and Paragraph 1 of Article 135 thereof. 5. As mentioned before, in the constitutional justice case at issue one requests to investigate the compliance of Item 3 (wording of 12 June 2008) of Paragraph 3 of Article 129 of the CC and

8 8 Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 thereof, which establish stricter criminal liability respectively for murder of one s close relative or family member or severe health impairment for him, with the Constitution. It needs to be noted that construction of the notions close relative and family member are provided in Article 248 of the CC. Paragraphs 1 and 2 of Article 248 Construction of Notions of the CC prescribe: 1. Close relatives shall be parents (adoptive parents), children (adopted children), brothers, sisters, grandparents and grandchildren. 2. Family members of the culprit shall be the parents (adoptive parents), children (adopted children), brothers, sisters and their spouses living together with him, also the spouse of the culprit or the person living with him in common law (partnership) and parents of the spouse. While construing the legal regulation established in Paragraphs 1 and 2 of Article 248 of the CC together with the legal regulation established in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the CC and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 thereof, it needs to be held that the close relatives of a person, who committed a murder or severe health impairment, are his parents (adoptive parents), children (adopted children), brothers, sisters, grandparents and grandchildren, while the family members of a person, who committed a respective crime, are his parents (adoptive parents), children (adopted children), brothers, sisters and their spouses living together with him, also the spouse of the culprit and the person living with him in common law (partnership) and parents of the spouse. In the context of the constitutional justice case at issue it needs to be noted that in its rulings (inter alia the 8 December 2009 ruling of the College of Judges of the Criminal Cases Division of the Supreme Court of Lithuania in criminal case No. 2K-551/2009, the 26 January 2010 ruling in criminal case No. 2K-49/2010, the 2 November 2010 ruling in criminal case No. 2K-510/2010, the 13 January 2011 ruling in criminal case No. 2K-76/2011, the 12 April 2011 ruling in criminal case No. 2K-101/2011) the Supreme Court of Lithuania, which forms the case-law of courts of general jurisdiction, construes the concepts close relative and family member which are contained in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the CC and in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 thereof and applies them according to the provisions of Paragraphs 1 and 2 of Article 248 of the CC. 6. While investigating the compliance of Item 3 (wording of 12 June 2008) of Paragraph 3 of Article 129 of the CC and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 thereof with the Constitution, it is also significant what punishments are established for murder of a close relative or family member or severe impairment of his health Paragraph 1 of Article 42 Types of punishments (wording of 5 July 2004) of the CC prescribes:

9 9 The following punishments may be imposed on a person who commits a crime: 1) deprivation of public rights; 2) deprivation of the right to be employed in a certain position or to be engaged in a certain type of activity; 3) community service; 4) fine; 5) restriction of freedom; 6) arrest; 7) fixed-term deprivation of freedom; 8) life imprisonment. On 11 June 2011, the Seimas adopted the Law on Amending and Supplementing Articles 7, 42, 67, 68, 74, 123 1, 125, 126, 134, 142, 144, 176, 177, 204, 205, 210, 211, 213, 220, 223, 225, 226, 227, 228, 228 1, 229, 230, 253 1, 255, 257, 263, 268, 278, 281, 297, 308 1, Supplementing the Code with Articles 68 1, 68 2 and Recognising Articles 44 and 45 as no Longer Effective. Article 2 of this law amended Paragraphs 1, 2 and 6 of Article 42 (wording of 5 July 2004) of the CC. Paragraph 1 of Article 42 Types of punishments (wording of 21 June 2011) of the CC prescribes: The following punishments may be imposed on a person who commits a crime: 1) community service; 2) fine; 3) restriction of freedom; 4) arrest; 5) fixed-term deprivation of freedom; 6) life imprisonment. While construing the legal regulation established in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the CC and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 thereof together with the one established in Paragraph 1 (wordings of 5 July 2004 and 21 June 2011) of Article 42 of the CC, it needs to be held that the strictest types of punishments are established for murder of one s close relative or family member or severe impairment of his health: for murder of one s close relative or family member the punishments of fixed-term deprivation of freedom and life imprisonment are established, whereas a punishment of a fixed-term deprivation of freedom for severe health impairment of one s close relative or family member According to the aforementioned legal regulation, a person, who committed a crime which meets the features of the body of the crime established in Paragraph 1 of Article 129 (wording of 28 June 2007) of the CC is punished by a fixed-term deprivation of freedom from

10 10 seven to fifteen years, while a person, who committed a crime which meets the features of the body of a crime established in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the CC by alternative punishments: a fixed-term deprivation of freedom from eight to twenty years or life imprisonment. Thus, it needs to be held that the limits of the fixed-term punishment of deprivation of freedom established in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the CC are broad, and the punishment of life imprisonment is an alternative one It has also been mentioned that, according to the aforementioned legal regulation, a person, who committed a crime which meets the features of the body of the crime established in Paragraph 1 of Article 135 of the CC, is punished by a fixed-term deprivation of freedom for up to ten years, while a person, who committed a crime which meets the features of the body of the crime established in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 of the CC by a fixed-term deprivation of freedom from two to twelve years. Thus, it needs to be held that the limits of the fixed-term punishment of deprivation of freedom established in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 of the CC are broad. 7. In the context of the constitutional justice case at issue, also other provisions of the CC linked to individualisation of the imposed punishment are also significant. Article 54 Basic principles of imposition of a punishment of the CC prescribes: 1. A court shall impose a punishment according to the sanction of an article of the Special Part of this Code providing for liability for a committed criminal deed and in compliance with provisions of the General Part of this Code. 2. When imposing a punishment, a court shall take into consideration: 1) the degree of dangerousness of a committed criminal deed; 2) the form and type of guilt; 3) the motives and objectives of the committed criminal deed; 4) the stage of the criminal deed; 5) the personality of the culprit; 6) the form and type of participation of the person as an accomplice in the commission of the criminal deed; 7) mitigating and aggravating circumstances. 3. Where imposition of the punishment provided for in the sanction of an article is evidently in contravention to the principle of justice, a court may, taking into consideration the purpose of the punishment, impose a commuted punishment subject to a reasoned decision.

11 11 While construing the legal regulation established in Article 54 of the CC together with the one established in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the CC and in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 thereof, it needs to be noted that the grounds of imposition of the criminal liability, inter alia imposition of punishment, are consolidated not only in the special part of the CC which establishes the punishments for murder and severe health impairment, but also in the provisions of the general part of the CC. Under those provisions, the court, while imposing the punishment for a person, who committed murder or caused a severe health impairment, must take account of all the particularities of the criminal deed that are legally significant, inter alia the circumstances of the commission thereof and the personality of the culprit, therefore, a duty is established for the court to individualise, while complying with the requirements of the laws, the punishment imposed upon the person who committed murder or caused a severe health impairment. 8. While summing up the established legal regulation, it needs to be held that: the criminal liability established in Item 3 of Paragraph 2 of Article 129 (which establishes criminal liability for murder) of the CC and that established in Item 3 (providing the features ( his mother, father or child ), which are called qualifying in criminal law and establishing respectively bigger punishments) of Paragraph 2 of Article 135 (which establishes criminal liability for a severe health impairment) of the CC is stricter than the criminal liability established respectively in Paragraph 1 of Article 129 (wording of 28 June 2007) of the CC and Paragraph 1 of Article 135 thereof. the close relatives of a person, who committed a murder or caused a severe health impairment, shall be his parents (adoptive parents), children (adopted children), brothers, sisters, grandparents and grandchildren, while the family members of a person, who committed a respective crime, shall be his the parents (adoptive parents), children (adopted children), brothers, sisters and their spouses living together with him, also the spouse of the culprit and the person living with him in common law (partnership) and parents of the spouse. the limits of the fixed-term punishments of deprivation of freedom established for murder of one s close relative or family member or a severe impairment of his heath are broad, and the punishment of life imprisonment established for murder of one s close relative or family member is an alternative punishment; a duty is established for the court to individualise, while complying with the requirements of the laws, the punishment imposed upon the person who committed murder or caused a severe health impairment.

12 12 II 1. It has been mentioned that in the constitutional justice case at issue the petitioners request to investigate the compliance of Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 of the Criminal Code with Article 29 of the Constitution and the constitutional principle of a state under the rule of law. 2. The striving for an open, just, and harmonious civil society and state under the rule of law, which is established in the Preamble to the Constitution, implies that it is obligatory to try to secure the safety of every individual and the whole society from criminal attempts against them (Constitutional Court rulings of 16 January 2006, 8 June 2009 and 28 May 2010). It is one of the duties of the state and one of its priority tasks to ensure such safety (Constitutional Court rulings of 9 December 1998, 8 May 2000 and 29 December 2004). Thus, in a democratic state under the rule of law the legislator has the right and duty to prohibit by means of laws such deeds that may essentially harm the interests of persons, society or the state or there might be a threat of such harm to appear (Constitutional Court rulings of inter alia 8 June 2009, 28 May 2010 and 21 June 2011). The laws define as to what deeds are considered crimes and establish punishment for their commission (Constitutional Court rulings of 10 June 2003 and 8 June 2009). 3. The legislator may, while taking account of the nature, danger (gravity), scale and other signs of the criminal deeds, other significant circumstances, consolidate differentiated legal regulation and establish different legal liability for corresponding criminal deeds. However, this discretion of the legislator is not absolute: the legislator must pay heed to the norms and principles of the Constitution (Constitutional Court rulings of 16 January 2006 and 8 June 2009), inter alia the principles of natural justice and proportionality, other requirements of the principles of a state under the rule of law and the principle of equal rights which is enshrined in Article 29 of the Constitution The principle of natural justice consolidated in the Constitution presupposes that punishments established by a penal law must be just; punishments and their sizes must be differentiated in a penal law, while taking account of the danger of criminal deeds (Constitutional Court rulings of 10 June 2003 and 8 June 2009). The dangerousness of criminal deeds are determined inter alia by the values which are encroached upon by means of these deeds The constitutional principles of justice and a state under the rule of law imply that the measures established by the state for violations of law must be proportionate (adequate) to the violation of law, they must be in line with the legitimate and generally important objectives sought, they may not restrict the person clearly more than it is necessary in order to reach these objectives (Constitutional Court rulings of inter alia 15 March 2008, 17 September 2008 and 31 January 2011). It is not allowed to establish any such legal regulation (punishments or their sizes) in a penal law on the basis of which the court, while taking account of all circumstances of a case and

13 13 applying the penal law, would not be able to individualise the punishment which is imposed on a concrete person for a concrete criminal deed (Constitutional Court ruling of 10 June 2003) Paragraph 1 of Article 29 of the Constitution provides that all persons shall be equal before the law, the court, and other state institutions and officials. This provision enshrines formal equality of all persons. The constitutional principle of equality of all persons before the law requires that in law the main rights and duties be established equally to all (Constitutional Court rulings of inter alia 24 December 2008, 2 March 2009, 22 December 2011 and 29 March 2012). This principle would be violated if certain persons or groups thereof were treated in a different manner, even though there are not any differences in their character and extent between these groups that such an uneven treatment could be objectively justified (Constitutional Court rulings of inter alia 28 May 2010, 22 December 2011, 6 February 2012 and 27 February 2012). 4. It has been mentioned that in the constitutional justice case at issue one impugns the provisions of the CC which establish criminal liability for murder of one s close relative or family member or severe impairment of his health, thus, it is important to disclose the concept of such values consolidated in the Constitution as the right to life of a human being (Article 19), the inviolability of his person (Article 21), the relationship of close kindred (Article 31), family (Articles 31 and 38), motherhood, fatherhood, childhood (Article 38) Article 19 of the Constitution prescribes: The right to life of a human being shall be protected by law. While construing Article 19 of the Constitution, in its ruling of 9 December 1998 the Constitutional Court held that the right to life is an innate right of every human being; it is indivisible Article 21 of the Constitution inter alia prescribes: The person of the human being shall be inviolable. <...> It shall be prohibited to torture, injure a human being, degrade his dignity, subject him to cruel treatment as well as establish such punishments. No human being may be subjected to scientific or medical experimentation without his knowledge and free consent. Article 21 of the Constitution consolidates inter alia the right of a human being to inviolability of his person. The content of inviolability of person as a value protected by law is composed of physical and psychological inviolability (Constitutional Court ruling of 8 May 2000). In the context of the constitutional justice case at issue, it needs to be noted that from Article 21 of the Constitution, a duty stems for the legislator to establish such a legal regulation whereby one would ensure the right of the human being to inviolability of a person and would take all the necessary measures to protect such a right. The protection of physical and psychological

14 14 inviolability of the human being, inter alia from criminal deeds, is a constitutionally important purpose and a public interest The provision It shall be prohibited to compel one to give evidence against himself, his family members or close relatives of Article 31 of the Constitution expressis verbis enshrine the notions family members, close relatives. Even though the content of these notions is not identical, they may include also the same persons; it needs to be noted that the notion close relatives includes the people who are related with each other by kin of a certain degree, whereas the notion family members may include both the people related with each other by kin of a certain degree, and the people who are not related by any relations (such as spouses). The striving for an open, just, and harmonious civil society and a state under the rule of law which is enshrined in the Preamble to the Constitution, as well as the prohibition to compel one to give evidence against himself, his family members or close relatives which is expressis verbis enshrined in Article 31 thereof shows that close relation by kin is very valuable and protected. It needs to be noted that while establishing criminal liability for criminal deeds, the legislator enjoys the discretion to differentiate such responsibility, while taking into account the relation by kin of the person who committed the criminal deed and the one who suffered from that deed, and the degree thereof Article 38 of the Constitution inter alia prescribes: The family shall be the basis of society and the State. Family, motherhood, fatherhood and childhood shall be under the protection and care of the State. <...> The right and duty of parents is to bring up their children to be honest people and faithful citizens and to support them until they come of age. The duty of children is to respect their parents, to take care of them in their old age, and to preserve their heritage The provisions of Paragraphs 1 and 2 of Article 38 of the Constitution express an obligation of the state to establish, by means of laws and other legal acts, such legal regulation that would ensure that the family, as well as motherhood, fatherhood and childhood, as constitutional values, would be fostered and protected in all ways possible (Constitutional Court rulings of 13 June 2000, 5 March 2004, 28 September 2011 and 27 February 2012). A duty of the state to establish, by laws and other legal acts, such legal regulation, whereby one would inter alia create preconditions for a proper functioning of a family, would strengthen family relations and would defend the rights and legitimate interests of family members stems from Paragraph 1 of Article 38 of the Constitution (Constitutional Court ruling of 28 September 2011).

15 The relations between parents and children, even if they came of age, in most aspects are special, their links are constitutionally valuable. Parents also have moral obligations to their children who have come of age, as well as children have moral obligations to their parents (Constitutional Court ruling of 7 June 2007). The corresponding moral obligations arise also for other family members The life of a human being, inviolability of his person, close relation by kin, family, motherhood, fatherhood and childhood are constitutional values; the constitutional principle of a state under the rule of law implies the discretion of the legislator to establish a strict criminal liability to persons who attempt on the life and health of their close relatives or family members which would be differentiated taking account inter alia of the dangerousness of such an attempt. III On the compliance of Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 of the Criminal Code with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law. 1. It has been mentioned that the Vilnius Regional Court and the Court of Appeal of Lithuania, the petitioners, request to investigate whether Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the CC (petition No. 1B-47/2009) and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 thereof (petitions Nos. 1B-24/2010, 1B-3/2011, 1B-8/2011) are not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law. 2. In the opinion of the petitioners, there arise doubts regarding the compliance of the established legal regulation with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law, because by means of this legal regulation, the possibilities of the court to properly assess the concrete situation and all the circumstances of the commission of the criminal deed and to impose a just punishment may be limited; the life and health of a human being must be assessed not according to individual or other features of the human being, thus, the life or health of a close relative or family member may not have any other more significant feature under which his life and health would be distinguished in comparison to people who do not have such a feature. The impugned legal regulation creates precondition to assess, in a different manner, the same legal facts murder and severe health impairment, if no other qualifying features were established except for the existing family relation or relation by kin. 3. As mentioned before, Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the CC, which is impugned in the constitutional justice case at issue, prescribes: 2. A person who murders: <...>

16 16 3) his close relative or family member; <...> shall be punished by deprivation of freedom from eight to twenty years or by life imprisonment It has also been mentioned that Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 of the CC, which is impugned in the constitutional justice case at issue, prescribes: 2. A person who causes a serious bodily injury or illness: <...> 3) his close relative or family member; <...> shall be punished by deprivation of freedom from two to twelve years. 4. It has been mentioned that the petitioners request to investigate the compliance of Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 of the CC with inter alia the constitutional principle of a state under the rule of law It has been mentioned that the legislator may, while taking account of the nature, danger (gravity), scale and other signs of the criminal deeds, other significant circumstances, consolidate differentiated legal regulation and establish different legal liability for corresponding criminal deeds. It has also been mentioned that it stems from the Preamble to the Constitution, Articles 19, 21, 31 and 38 that the life of a human being, inviolability of his person, close relation by kin, family, motherhood, fatherhood and childhood are constitutional values; the constitutional principle of a state under the rule of law implies the discretion of the legislator to establish a strict criminal liability to persons who attempt on the life and health of their close relatives or family members which would be differentiated taking account of the dangerousness of such an attempt. It has also been mentioned that the principle of natural justice consolidated in the Constitution presupposes that punishments established by a penal law must be just; the measures established by the state for violations of law must be proportionate (adequate) to the violation of law, they must be in line with the legitimate and generally important objectives sought, they may not restrict the person clearly more than it is necessary in order to reach these objectives. It is not allowed to establish any such legal regulation (punishments or their sizes) in a penal law on the basis of which the court, while taking account of all circumstances of a case and applying the penal law, would not be able to individualise the punishment which is imposed on a concrete person for a concrete criminal deed It has also been mentioned that the criminal liability established in Item 3 of Paragraph 2 of Article 129 (which establishes criminal liability for murder) of the CC and that established in Item 3 (providing the features ( his mother, father or child ), which are called qualifying in criminal law and establishing respectively bigger punishments) of Paragraph 2 of Article 135 (which establishes criminal liability for a severe health impairment) of the CC is stricter than the

17 17 criminal liability established respectively in Paragraph 1 of Article 129 (wording of 28 June 2007) of the CC and Paragraph 1 of Article 135 thereof. In the context of the constitutional justice case at issue, it needs to be held that by establishing a stricter criminal liability for murder of one s close relative or family member or severe impairment of his health than the one established in Paragraph 1 of Article 129 (wording of 28 June 2007) and Paragraph 1 of Article 135 of the CC correspondingly, one sought to protect not only such constitutional values as the life of the human being, inviolability of its person, but also such as close relation by kin, family, motherhood, fatherhood, childhood, thus, by the crimes provided in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 of the CC and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 thereof, one attempts not only on the life of the human being, inviolability of a person, but also on other constitutional values Thus, it needs to be held that having provided stricter criminal liability in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 thereof than the one established for murder and severe health impairment respectively in Paragraph 1 of Article 129 (wording of 28 June 2007) and Paragraph 1 of Article 135 of the CC, the legislator differentiated the criminal liability for the crimes of different dangerousness: for the crimes, whereby one attempts not only on the life of the human being, inviolability of a person, but also on other constitutional values, a correspondingly stricter criminal liability is established. Establishment of such stricter criminal liability means a reasonable differentiation thereof, and it allows the court to choose just punishment Taking account of this, it needs to be noted that the legal regulation established in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 of the CC meets the requirements of the constitutional principle of a state under the rule of law. 5. It has been mentioned that the petitioners request to investigate the compliance of Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 of the CC with inter alia Paragraph 1 of Article 29 of the Constitution As mentioned before, Paragraph 1 of Article 29 of the Constitution provides that all persons shall be equal before the law, the court, and other state institutions and officials. This provision enshrines formal equality of all persons. The constitutional principle of equality of all persons before the law requires that in law the main rights and duties be established equally to all; this principle would be violated if certain persons or groups thereof were treated in a different manner, even though there are not any differences in their character and extent between these groups that such an uneven treatment could be objectively justified.

18 It has been mentioned that, having provided stricter criminal liability in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 thereof than the one established for murder and severe health impairment respectively in Paragraph 1 of Article 129 (wording of 28 June 2007) and Paragraph 1 of Article 135 of the CC, the legislator differentiated the criminal liability for the crimes of different dangerousness: for the crimes, whereby one attempts not only on the life of the human being, inviolability of a person, but also on other constitutional values, a correspondingly stricter criminal liability is established Thus, it needs to be held that the situations of the persons who murdered their close relative or family member or severely impaired his health and the persons who have committed the same deeds, however, who are not bound by family relations of close relation by kin with the victim, are not the same, as the persons who are related by the said relations attempted not only on such constitutional values as the life of the human being, inviolability of its person, but also on such constitutional values as close relation by kin, family, motherhood, fatherhood, childhood. The different criminal liability established for the persons who committed the aforementioned crimes against the life and health of the human being of different dangerousness is objectively justified. Thus, there is no ground to state that by the impugned provisions one violates the principle of equality of all persons before the law Taking account of this, it needs to be held that the legal regulation established in Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 of the CC is in line with the principle of equality of all persons before the law which is enshrined in Paragraph 1 of Article 29 of the Constitution. 6. Taking account of the arguments set forth, one needs to draw a conclusion that Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 129 and Item 3 (wording of 12 June 2008) of Paragraph 2 of Article 135 of the CC are not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law. Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 53 1, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following ruling: 1. To recognise that Item 3 of Paragraph 2 of Article 129 of the Criminal Code of the Republic of Lithuania (wording of 12 June 2008, Official Gazette Valstybės žinios, 2008, No ) is not in conflict with the Constitution of the Republic of Lithuania.

19 19 2. To recognise that Item 3 of Paragraph 2 of Article 135 of the Criminal Code of the Republic of Lithuania (wording of 12 June 2008, Official Gazette Valstybės žinios, 2008, No ) is not in conflict with the Constitution of the Republic of Lithuania. This ruling of the Constitutional Court is final and not subject to appeal. The ruling is promulgated in the name of the Republic of Lithuania. Justices of the Constitutional Court: Egidijus Bieliūnas Toma Birmontienė Pranas Kuconis Ramutė Ruškytė Egidijus Šileikis Algirdas Taminskas Romualdas Kęstutis Urbaitis Dainius Žalimas