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