THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
DECISION
On the compliance of the second part of Article 148 of the
Criminal Code of the Republic of Lithuania as well as items
1 and 2, Article 93 of the
Code of Criminal Procedure of the Republic of Lithuania
with the Constitution of the Republic of Lithuania
13 December 1993, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed from the Justices of the Constitutional Court
Algirdas Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis,
Vladas Pavilonis, Pranas Vytautas Rasimavičius, Stasys
Stačiokas, Teodora Staugaitienė, Stasys Šedbaras and Juozas
Žilys,
the secretary of the hearing - Rolanda Stimbirytė,
pursuant to part 1 of Article 102 of the Constitution
of the Republic of Lithuania and part 1 of Article 1 of the
Law on the Constitutional Court, in its public court hearing
conducted the investigation of Case No 7, subsequent to the
petition submitted to the Court by the Criminal College of
the Supreme Court of the Republic of Lithuania to
investigate the conformity of the norms of the Criminal Code
providing for the confiscation of property and items 1 and
2 of Article 93 of the Code of Criminal Procedure, with the
Constitution of the Republic of Lithuania.
The Constitutional Court
established:
On 31 March 1993, Criminal College of the Supreme
Court, conducted the investigation of the criminal case
concerning the writ of appeal, submitted by convict
A.Vorobjovas, against the sentence of Šiauliai District
Court, adopted on 18 January 1993, in compliance with which
he was sentenced according to Part 2, Article 250, Parts 2
and 3, Article 146, Part 2, Article 90, Part 2, Article
148 and Part 1, Article 153 of the Criminal Code. By
summing up the sentences, the final sentence - imprisonment
for the term of six years along with the confiscation of
property - has been ordered. Together with the remaining
unserved prison term upon the earlier sentence, the final
punishment - imprisonment for the term of seven years in the
Strict Regime Correctional Labour Colony, along with the
confiscation of property - has been ordered. By the same
decision other persons were convicted but no complaints or
protests against it with respect to them have been lodged.
The Criminal College of the Supreme Court, upon
investigation of the lawfulness and the validity of said
judgement, by its own decision suspended the investigation
of said criminal case and addressed the Constitutional Court
with the request to investigate the compliance of the norms
of the Criminal Code providing for the confiscation of
property, as well as items 1 and 2, Article 93 of the Code
of Criminal Procedure with Article 23 of the Constitution
of the Republic of Lithuania.
In the decision, the Criminal College of the Supreme
Court grounds their request on the fact that A.Vorobjovas by
the ruling of Šiauliai District Court, in conformity with
the second part of Article 148 of the Criminal Code, besides
the main punishment - imprisonment, has been subjected to a
supplementary penalty - confiscation of property. It is
established in Article 23 of the Constitution of the
Republic of Lithuania that: "Property shall be inviolable",
thus, the Court of Cassation has doubts whether the norms of
Criminal Code providing for the confiscation of property are
in compliance with said Article of the Constitution.
In the opinion of the Criminal College of the Supreme
Court, if the confiscation of property is not in compliance
with the Criminal Code, it should be recognized in that
case, that actions of Courts and other state agencies (e.g.
customs offices) carrying out confiscation of property
conforming to items 1 and 2, Article 93 of the Code of
Criminal Procedure, the Code of Administrative Offences, and
other acts of Administrative Law, are also unlawful.
During the preliminary investigation of the case, the
petitioner's representative explained, that the Criminal
College of the Supreme Court, upon the adoption of the
ruling on this case, has provided such a wording for it that
the Constitutional Court should answer the question whether
confiscation of property is allowed in general and not only
referring to the Articles of the Criminal Code and the Code
of Criminal Procedure, that have been applied in this case.
The representative of the party concerned, in the
preliminary investigation of said case, explained that in
the event of illegal acquisition of property, the rights of
other people are violated. Therefore, in case when illegal
capital is later on invested into legal business, it,
nevertheless can be maintained that the entire capital is
illegal. However, if the property is in no way related to
the committed crime, doubts arise, whether such property may
be confiscated. Thus, confiscation of property set forth in
the Criminal Code, should be carried out only in those cases
when the connection between the property possessed and the
crime committed is possible to establish.
The Constitutional Court
holds that:
The Criminal College of the Supreme Court, in the
process of investigation of said criminal law, had doubts as
to the possibility of inflicting a supplementary penalty -
confiscation of property in conformity with the second part
of Article 148 of Criminal Code, and confiscating
instruments of crime in compliance with items 1 and 2 of
Article 93 of the Code of Criminal Procedure. In the
decision of the Court of Cassation the issue of seizure of
property is raised on a broader scale- whether this sanction
of a criminal law and measures applied with respect to
material evidence according to criminal procedure are on the
whole in compliance with the provision of Article 23 of the
Constitution of the Republic of Lithuania which establishes:
"Property shall be inviolable".
It is established in Article 67 of the Law on the
Constitutional Court that, the Constitutional Court shall
investigate only the compliance of laws and other legal
acts, which shall be applicable in a concrete case, with the
Constitution. Therefore, the Constitutional Court in this
case conducts the investigation only of the conformity of
the second part of Article 148 of Criminal Code as well as
items 1 and 2 of Article 93 of the Code of Criminal
Procedure with the Constitution. On the same grounds, the
Constitutional Court does not investigate the compliance of
the norms established in the Code of Administrative
Offences with the Constitution.
On the compliance of the second part of Article 148 of
the Criminal Code providing for supplementary penalty -
confiscation of property, with the Constitution of the
Republic of Lithuania.
The second part of Article 148 of Criminal Code, along
with the main punishment - imprisonment - provides for a
supplementary penalty - confiscation of property. In
deciding whether the norms of Criminal Code providing for a
supplementary penalty - confiscation of property, are in
compliance with the Constitution, firstly, it should be
clarified whether seizure of property against the owner's
will is possible at all, as in the first part of Article 23
of the Constitution of the Republic of Lithuania it is
established that: "Property shall be inviolable".
Inviolability of property means, on the one hand, the
right of the owner as the possessor of subjective rights to
property, to require from other individuals not to violate
his own rights as well as the duty of the state, on the
other hand, to defend and protect property against illegal
encroaching upon it.
It is set fort in the second part of Article 23 of the
Constitution that the property rights shall be protected by
law. For this purpose, a body of norms of civil and other
laws is established. However, as far as the theory of law is
concerned, the protection of property rights by legal means
presuppose, in turn, appropriate limits to such protection,
as law in all cases of the regulation of public relations is
valid only within certain limits. On the other hand,
subjective rights i.e. the owner's rights to possess, use
and dispose of property can be restricted by laws due to the
nature of property possessed (e.g. weapons, narcotics,
etc.) or due to obligatory public interest (ecological
issues, etc.), or due to the owner's committed acts. It is
prescribed by laws that actions for recovery of damages
under liability arising from treaty, delictual and family
relations, may be brought against property. The fact that
property can be seized is also confirmed in the third part
of Article 23 of the Constitution which establishes:
"Property may only be seized for the needs of society
according to the procedure established by law and must be
adequately compensated for".
Restrictions of property rights may also arise from
international treaties because international agreements
which are ratified in compliance with the third part of
Article 138 of the Constitution shall be the constituent
part of the legal system of the Republic of Lithuania.
The provision specifying that, under certain
conditions, property rights may be restricted, is also
established in item 2 of Article 17 of the Universal
Declaration of Human Rights. It is set forth in this
article: "No one shall be subjected to arbitrary deprivation
of property". This means, that property can be seized but
this must be done only according to the procedure
established by law and by competent state body.
Thus, neither Constitution nor valid system of other
laws, nor universally recognized norms of international law
denies the opportunity under conditions and procedure
prescribed by the law to alienate the property or restrict
its possession, use or disposal.
Insuring inviolability of property, as well as all
other constitutional safeguards, may not be interpreted
without taking the entire text of the Constitution into
consideration, the more so, as it is established in Article
6 of the Constitution that the Constitution shall be an
integral statute.
A universal requirement is set forth in Article 28 of
the Constitution of the Republic of Lithuania: "While
exercising their rights and freedoms, persons must observe
the Constitution and the laws of the Republic of Lithuania
and must not impair the rights and interests of other
people". If a person, while exercising property or other
rights impairs the rights and freedoms of other people, he
may be held liable under law and punished (Articles 30 and
31 of the Constitution). The ways of punishing such a person
and applying restrictions of one or another kind on him or
his property are prescribed by laws of specific branches of
law in compliance with general requirements set forth in the
Constitution, principles of forming sanctions of that branch
of law regarding purposes of punishment.
Rights and freedoms of the people as well as the most
significant goods protected by law are grossly violated by
committed crimes. Therefore, criminal laws while
establishing rigid and differentiated system of punishments,
have the aim not only to make an appropriate influence upon
the convict (by restricting his individual, property or
other rights) but also to ensure the protection of the
interests of victims and society as well as to carry out
prevention of crimes.
In the preamble to the Constitution, striving for an
open, just, and harmonious civil society and law-governed
State is written among other aspirations of Lithuania. From
the point of view of Criminal Law, this means, that it is
aimed at establishing a State which would be free enough and
protected from criminal acts. It cannot be stated, however,
that society is just and human, if criminals may act more
freely than people who abide by laws. Criminality data of
recent years show that threat to society is growing not only
due to the rate of crimes but also due to its structure. The
property of residents is threatened with growing frequency,
more than two-thirds of crimes are of such type. The
structure and dynamics of criminality may not influence
resolving of an issue whether some punishment is in
conformity with the provisions established in the
Constitution, though it is not permissible, however, not to
assess the situation and indirect influence made on this
phenomenon by established punishments.
Many crimes are committed when the culprit makes use of
his property to ensure his criminal actions, for example, to
store his means of crime, to hide the stolen property, to do
it over, to change its appearance, to legalize "dirty"
money, etc. In these cases, a culprit uses his property as a
means for the violation of property and personal rights of
other persons. Therefore, such property may be alienated
according to the procedure and conditions prescribed by law.
In turn, by confiscation of property, as supplementary
criminal penalty, is sought to make influence upon that
motivation of behaviour which conditions the commitment of
selfish crimes. The purpose of supplementary penalty is to
make the punishment more individual taking into
consideration the nature and degree of the committed crime,
the personality of the culprit. Thus, combining criminal
legal measures in such a way, their efficiency can be
increased as well as presumptions for maximum striving
towards the purposes of punishment can be established.
Arguments, by which supplementary penalty -
confiscation of property - is denied, are not grounded
enough. It is maintained that, upon confiscation of
property, a person is left without any property at all. In
compliance with valid laws not all the property is
confiscated. It is established in Article 36 of the Criminal
Code which property may not be confiscated. Furthermore,
the Court individualizing the penalty inflicted on the
convict, in every criminal case takes into consideration the
nature of the crime, the degree of its threat, the
personality of the culprit and other circumstances
pertaining to the case. The Court has also a possibility to
heed the property status of the accused, the sources of the
acquired property, to evaluate whether the convict's
property was connected with the committed crime, etc. On the
basis of the aforesaid, the Court may impose a confiscation
of some part of the property or of separate articles.
In denying confiscation of property, an argument that
the confiscation of the convict's property can have
influence on property interests of his family or other
persons, is used. It must be noted, however, that only the
property belonging to the very convict is confiscated.
Furthermore, in the existing system of punishments, the
majority of punishments consider not only the convict's
interests as, upon imposition of a severe penalty or a long
- term imprisonment on him, his family (relatives) can have
not less difficulties of property nature than upon
confiscation of a part of his property or separate articles.
While evaluating the confiscation of property as a
supplementary penalty it should be noted that UN by its
Resolution have confirmed Standard Minimum Rules for the
Measures Unrelated with Imprisonment (Tokyo Rules
A/RES/45/110), in item 8.2 of which it is recommended,
besides other punishments, to apply confiscation of property
or deprivation of the property rights.
By way of summarizing what has been said above, it can
be stated that confiscation of property is one of legal
means with the help of which attempts are made to put a stop
to selfish crimes that threaten other persons' property
which is protected by the Constitution. A criminal act
provided for by the second part of Article 148 of the
Criminal Code (burglary) is of the aforementioned kind.
On the basis of the above mentioned motives, the
Constitutional Court draws the conclusion that a
supplementary penalty - seizure of property, established in
the second part of Article 148 of the Criminal Code does not
contradict the Constitution of the Republic of Lithuania.
On the compliance of items 1 and 2 of Article 93 of the
Code of Criminal Procedure with the Constitution of the
Republic of Lithuania.
It is set forth in item 1 of Article 93 of the Code of
Criminal Procedure, that instruments of crime must be
confiscated and handed over to appropriate organizations or
destroyed. It is established in item 2 of this Article, that
money and other values obtained or acquired in criminal
way, if their owners are not identified, go over to state
revenue upon the judgement of the Court. Other articles are
returned to their legal owners, and, in case they are not
identified, become state property. A dispute over the
ownership of these articles is resolved according to the
civil procedure of law.
In case when a person uses a property belonging to him
by property right for committing a crime, legal means with
regard to the property he used must be established for him.
In opposite case, the culprit after serving his term of
imprisonment, in some cases can use the property he
possesses (e.g. money forgery equipment, weapons) for
committing new crimes, therefore, the seizure of property of
such a culprit, established in the laws of Criminal
Procedure, is grounded.
The impact upon the interests of people, society or
state is made when the property is used not only as a means
of committing a crime but also as an object of crime in
illegal transportation of materials, items, currency, etc.
across the border). Furthermore, some materials and items
pose a direct threat to people's life, health and security.
Smuggling of property does harm to economic interests of
people and society. Thus, the establishment of confiscation
of said property in laws is grounded.
On the basis of aforesaid motives, the Constitutional
Court draws the conclusion, that items 1 and 2 of Article 93
of the Code of Criminal Procedure do not contradict the
Constitution of the Republic of Lithuania.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania as well as Articles 53, 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 taken the following
decision:
to recognize that the second part of Article 148 of the
Criminal Code of the Republic of Lithuania and items 1 and
2, Article 93 of the Code of Criminal Procedure of Republic
of Lithuania are in compliance with the Constitution of the
Republic of Lithuania.
This Constitutional Court decision is final and not
subject to appeal.
The decision is promulgated on behalf of the Republic
of Lithuania.
Justices of the Constitutional Court:
Algirdas Gailiūnas Kęstutis Lapinskas
Zigmas Levickis Vladas Pavilonis
Pranas Vytautas Rasimavičius Stasys Stačiokas
Teodora Staugaitienė Stasys Šedbaras
Juozas Žilys