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".
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
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.
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.
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
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